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Moyers v. Colvin

United States District Court, M.D. Tennessee, Nashville Division

March 9, 2015

TERRY LYNN MOYERS,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security.

REPORT AND RECOMMENDATION

JULIET GRIFFIN, Magistrate Judge.

The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's claim for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"), as provided by the Social Security Act.

Upon review of the Administrative Record as a whole, the Court finds that the Commissioner's determination that the plaintiff is not disabled under the Act is not supported by substantial evidence in the record as required by 42 U.S.C. § 405(g), and that the plaintiff's motion for judgment on the administrative record (Docket Entry No. 28) should be GRANTED to the extent that the case should be REMANDED to the ALJ for further consideration.

I. INTRODUCTION

On August 6, 2009, the plaintiff filed for SSI and DIB, alleging a disability onset date of November 1, 2006, due to bipolar disorder, antisocial personality disorder, and "back problems." (Tr. 12, 242-54, 329, 334.)[1] His applications were denied initially and upon reconsideration. (Tr. 12, 131-36, 144-50.) On March 20, 2012, the plaintiff appeared via video teleconference and testified at a hearing before Administrative Law Judge Mary Montanus ("ALJ") (tr. 80-120), and amended his alleged disability onset date to December 31, 2010. (Tr. 84.) A subsequent hearing was held before the ALJ on May 11, 2012, at which the plaintiff also appeared and testified via video teleconference. (Tr. 39-79.) The ALJ entered an unfavorable decision on May 18, 2012. (Tr. 12-24.) On July 18, 2013, the Appeals Council denied the plaintiff's request for review, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3.)

II. BACKGROUND

The plaintiff was born on August 4, 1976, and he was 34 years old as of his amended alleged disability onset date. (Tr. 89.) He attended school through the seventh grade, obtained a GED, and has worked primarily as an auto mechanic. (Tr. 89-92, 283.)

A. Chronological Background: Procedural Developments and Medical Records

1. Mental Impairments

The plaintiff has a history of mental health treatment for substance abuse, depression, bipolar disorder, and antisocial personality disorder. (Tr. 580-82, 586-621, 648-81, 803-91, 1012-81, 1094-1102, 1185-88, 1654-1715.) In September 1997, he was seen at the Mental Health Cooperative ("MHC")[2] after he stabbed himself in the chest with a pocket knife during an argument with his wife. (Tr. 1656.) The plaintiff denied that he was trying to hurt himself, but his wife reported that he had attempted suicide four times in the previous two years. (Tr. 1656-57.) He was hospitalized in a psychiatric unit. (Tr. 1656-58.) His next contact with MHC was in March 2000 when he requested treatment for depression and substance abuse. (Tr. 1658-59.) He did not return to MHC until September 2000 (tr. 1660-63) when he was "referred by Family and Children's Services for a recent domestic abuse charge." (Tr. 1664.) In October 2000, he was diagnosed with bipolar affective disorder, mixed without psychosis; polysubstance abuse (cannabis and benzodiazepines); and given a "rule out" diagnosis of antisocial personality disorder. (Tr. 1667.) He was assigned a Global Assessment of Functioning ("GAF") score of 50.[3] Id.

During his treatment at MHC, he was variously prescribed Zyprexa, Neurontin, Paxil, BuSpar, Risperdal, and Klonopin. (Tr. 1667, 1669, 1685, 1697, 1708.) Treatment notes indicate that he often reported that he was not taking his medications as prescribed and not attending clinic appointments because he did not want to wait at the clinic or had to work. (Tr. 1673-83, 1687-92, 1699, 1701, 1703-04, 1706.) On October 22, 2002, the plaintiff was referred for crisis intake, reporting that he was depressed, having trouble controlling his temper, having trouble sleeping, and having recurrent crying spells. (Tr. 1708-10.) He reported that he had lost custody of his children and was taking Valium without a prescription. (Tr. 1708.) The plaintiff's last contact with MHC was the following day, and he was discharged in December 2002 after MHC was unable to contact him. (Tr. 1711-14.)

From December 2001 until February 2002, the plaintiff attended a court-ordered outpatient substance abuse rehabilitation program. (Tr. 580-82, 586-621, 648-81.) Following a psychiatric evaluation, he was assigned a GAF score of 50 and diagnosed with marijuana dependence, polysubstance abuse, dysthymia, major depressive disorder, intermittent explosive disorder, and antisocial personality disorder. (Tr. 664.) He was discharged on February 11, 2002, having "met and exceeded his treatment goals." (Tr. 619.)

After discontinuing contact with MHC, the plaintiff received mental health treatment (along with primary care treatment for his physical problems) at Vanderbilt University Medical Center's Vine Hill Community Clinic ("Vine Hill"). (Tr. 803-91, 1012-81, 1185-88.) Between October 2002 and November 2006, the plaintiff was treated at Vine Hill for depression/anxiety, bipolar disorder, and antisocial personality disorder primarily under the care Alison Cohen, a family nurse practitioner ("FNP"). (Tr. 805-22, 1025-27, 1032-49, 1051-56, 1058-59, 1068-70, 1073-74, 1077-79.) Ms. Cohen prescribed Zyprexa (tr. 1070), which the plaintiff stopped taking after one week because it was not helpful (tr. 1053, 1055, 1068-69), and later, Seroquel. (Tr. 1052.) The plaintiff continued to take Seroquel, and Ms. Cohen adjusted his prescribed dosage and frequently advised him to seek a mental health provider. (Tr. 805-22, 1025-27, 1032-43.) However, although the plaintiff scheduled appointments with a psychiatrist and another mental health care provider, he did not receive mental health treatment outside of the treatment provided at Vine Hill. (Tr. 805-22, 1026-27, 1032-33.) In April 2006, the plaintiff reported that he "hate[d] doctors" and "[did not] want to discuss [his] mental problems and repeat the same stuff over and over again." (Tr. 809.) At that visit, he also reported that he was "feeling better on... Seroquel." Id. In November 2006, Ms. Cohen noted that, although the plaintiff was "not under care of mental health, " Seroquel was "effective" and "controll[ed] his mood swings and flashbacks." (Tr. 805.)

In January 2007, Anne Williford, FNP, replaced Ms. Cohen as the plaintiff's primary care provider at Vine Hill. (Tr. 803-04.) Ms. Williford's treatment notes focus primarily on the plaintiff's physical impairments, and while it appears that the plaintiff continued taking Seroquel for some period of time, Ms. Williford apparently stopped prescribing it to him. (Tr. 803-04, 825-26, 1185-88, 1222-33.) In December 2007, Ms. Williford noted that the plaintiff "ha[d] not been under the care of mental health in over a year, " was "managing very well, " and "ha[d] not had violent outbursts latelly [ sic ]." (Tr. 1186.)

In September and October 2010, the plaintiff underwent a consultative psychological assessment with David Terrell, Ph.D., and James Michael Scott, a Senior Licensed Psychological Examiner ("SLPE"). (Tr. 1485-99.) The examiners described the plaintiff as "extremely tense, alienated, and obsessed with physical complaints" and noted that he had "considerable and long-term difficulties with anger and anxiety." (Tr. 1485.) The plaintiff recounted a childhood filled with emotional and physical abuse and trauma, and he reported that he withdrew from school in the seventh grade at the age of 13 or 14. (Tr. 1486-87.) He reported having suicidal thoughts when he was 5 to 6 years olds and indicated that he had attempted suicide in the past and had current suicidal ideation. (Tr. 1489.) The plaintiff related that he started working as a roofing assistant at the age of 13 or 14 and learned the trade of a mechanic at age fourteen. (Tr. 1487.) He indicated that "[a]ll of his jobs ended after he experienced recurring physical fights with male coworkers and male employers." Id. He also reported having "ongoing rage episodes in which he destroy[ed] objects or... thrust[] his fists into walls and doors in anger" resulting in "a high number of repetitive injuries and strains to his hands, fingers, shoulders, upper and lower back, and recurring high blood pressure and stomach distress." Id. He reported that he had five children from a prior marriage but that his parental rights to visit and communicate with the children had been taken away due to "episodes of uncontrolled rage... and reported domestic abuse incidents." (Tr. 1488.) He said that he had a past history of drug use including marijuana, alcohol, cocaine, morphine, Lortab, Methadone, Percocet, Soma, Klonopin, Valium, and Xanax. (Tr. 1489.) He said that he currently used marijuana 1-2 times a week but denied other drug use. Id.

The plaintiff was given the Wechsler Adult Intelligence Scale, Fourth Revision ("WAIS-IV"), and his results "produced clear evidence of basic Low Average intellectual functioning, corresponding to the IQ range 80-89." (Tr. 1490.) He was also given the Wide Range Achievement Test, Fourth Edition ("WRAT-IV"), and obtained grade equivalent scores of 5.4 for word reading, 8.1 for sentence comprehension, 3.1 for spelling, and 8.7 for math computation. (Tr. 1490-91.)

Dr. Terrell and Mr. Scott assigned the plaintiff a GAF score of 48 and diagnosed him with depressive disorder, not otherwise specified ("NOS"); general anxiety disorder; cannabis dependence; impulse control disorder, NOS, with recurring transient episodes of intermittent explosive disorder; eating disorder, NOS; antisocial personality disorder with borderline personality traits; and disorder of written expression. (Tr. 1496-97.) They opined that he had moderate limitations maintaining attention for extended periods of two hour segments and working in coordination with or proximity to others without being unduly distracted by them. (Tr. 1498.) They also opined that he had marked limitations in his abilities to: (1) accept instructions and respond appropriately to criticism from supervisors; (2) get along with coworkers and peers without unduly distracting them or exhibiting behavioral extremes; and (3) complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 1498-99.)

2. Physical Impairments

The plaintiff frequently presented to emergency rooms and other health care providers with complaints of pain in his neck, shoulders, back, hands, wrists, legs, knees, ankles, and feet, often as the result of accidental or otherwise traumatic injuries. (Tr. 577-78, 583-85, 622-40, 642-43, 682-705, 737-891, 918-77, 1012-93, 1103-34, 1183-1274, 1339-51, 1359-67, 1416-25, 1435-74, 1524-1653.) He received treatment since at least 2002 at Vine Hill for a number of physical impairments including chronic neck, back, and knee pain. (Tr. 803-91, 918-41, 1012-81, 1183-1209, 1222-36.) X-rays of his pelvis and cervical, thoracic, and lumbar spines taken after a car accident in May 2003 were negative. (Tr. 638-40.) In August 2004, he suffered a hand crush injury in which he fractured the fourth and fifth fingers on his right hand. (Tr. 684-99, 850-52.) Subsequent x-rays of his right hand and wrist in 2006 and 2010 were normal. (Tr. 774-75, 1418.)

Following an MRI in April 2005, he was diagnosed with degenerative disc disease of the lumbar spine. (Tr. 1023-24, 1033-34.) He was treated at Vine Hill for chronic pain management, primarily with Lortab and Methadone, and was described in July 2007 as "functional" and able to "perform his job as a mechanic" when taking these medications. (Tr. 919-20, 935.) He had arthroscopic right knee surgery in February 2007 to repair a torn meniscus. (Tr. 918-19, 936-37.) He has had a total of four knee surgeries, two on each knee. (Tr. 625, 853, 1563.)

In February 2008, the plaintiff suffered a lower leg injury, which caused a spiral fracture of the right fibula and a coronal fracture of the tibia as well as a mildly displaced fracture of the posterior malleolus in his ankle. (Tr. 1110-11.) An MRI of his lumbar spine in November 2008 showed degenerative changes "without evidence of canal or neural foraminal stenosis." (Tr. 1221.) MRIs in March 2009 showed small disk protrusions of the lower thoracic spine and small disk herniations of the lumbar spine but otherwise showed no acute abnormality. (Tr. 1244, 1252-54.)

In April 2009, the plaintiff presented to Dr. James Ladson for pain management. (Tr. 1275-1300, 1426-34, 1524-49.) The plaintiff reported that his chronic pain started when he was 19 years old and that a combination of Lortab, Methadone, and Soma had helped. (Tr. 1426.) He explained that his back pain started when he "twisted his low back while lifting, " his leg pain had persisted after he broke his leg, and his shoulder pain was not traumatic in origin but had started a month earlier. Id. In May and June 2009, Dr. Ladson administered a series of lumbar epidural steroid injections. (Tr. 1287-89.)

In September 2009, Dr. Ladson diagnosed the plaintiff with carpal tunnel syndrome in his right hand after observing abnormalities in an electromyogram and nerve conduction study. (Tr. 1433.) In November 2009, the plaintiff was evaluated by Dr. Michael Schlosser, a neurologist, and reported having neck, back, and right arm pain radiating into his hand and fingers. (Tr. 1352.) Upon examination he had full strength in his upper extremities except that his right hand grip was 4 with decreased sensation in his right arm. Id.

A December 2009 cervical spine MRI showed a disc osteophyte complex at C3-C4 causing "mild to moderate left neuroforaminal narrowing" with no central canal stenosis. (Tr. 1353-54, 1361, 1367.) An x-ray of his left shoulder at that time was normal (tr. 1351); however, the plaintiff soon injured his left shoulder while pushing a truck, resulting in a non-displaced fracture of the greater tuberosity and a torn rotator cuff. (Tr. 1353, 1359-60, 1365-66.)

On February 24, 2010, Dr. Marc Watson performed a consultative examination and completed a medical assessment of the plaintiff's physical ability to do work-related activities. (Tr. 1386-91.) Upon physical examination, the plaintiff had a positive straight-leg raise test and decreased sensation to light touch and pinprick in the right leg, and he had decreased back and left shoulder range of motion. (Tr. 1391.) Otherwise, he had full range of motion in his cervical spine, right shoulder, elbows, wrists, hands, hips, knees, and ankles, and he had normal gait, normal deep tendon reflexes, and normal muscle strength. Id. Dr. Watson opined that the plaintiff could lift and/or carry ten pounds occasionally and that, in an eight-hour workday, he could stand and/or walk at least two hours and sit about six hours. (Tr. 1386-87, 1391.)

On March 23, 2010, Dr. Nathaniel Robinson, a nonexamining DDS medical consultant, completed a physical Residual Functional Capacity ("RFC") assessment. (Tr. 1407-15.) Dr. Robinson opined that the plaintiff could lift and/or carry fifty pounds occasionally and twenty-five pounds frequently; stand and/or walk about six hours in an eight-hour workday; and sit about six hours in an eight-hour workday. (Tr. 1408.) Dr. Robinson opined that the plaintiff was limited in his left upper extremity to frequent pushing and/or pulling and reaching in all directions and was limited to frequent postural activities such as climbing, balancing, stooping, kneeling, crouching, and crawling. (Tr. 1408-10.) Dr. Robinson opined that the limitations identified by Dr. Watson were "clearly too strict and... not consistent with the [medical evidence of record] in file or [Dr. Watson's] own exam." (Tr. 1413.)

In April and May 2010, the plaintiff returned to Dr. Ladson with complaints of pain in his neck, back, and left arm and was prescribed Lortab and Soma. (Tr. 1525-32.) In June 2010, he presented to Dr. Larry Mitchell at Mount Juliet Spine and Pain Management and was diagnosed with, inter alia, degenerative disc disease of the cervical, lumbar, and thoracic spine; cervical radiculopathy; cervicalgia; brachial neuritis; lumbago; lumbar facet syndrome; and thoracalgia. (Tr. 1446-74, 1550-56.) He was treated with a series of medial branch nerve blocks and facet injections in his spine as well as trigger point injections in his right shoulder. (Tr. 1449-60, 1553.) He was discharged from treatment in August 2010 after being "verbally disruptive." (Tr. 1554.)

On November 6, 2010, Dr. Michael Ryan, a nonexamining DDS medical consultant, completed a physical RFC assessment. (Tr. 1515-23.) Dr. Ryan's RFC assessment matched Dr. Robinson's except that he further found the plaintiff capable of only occasional climbing of ladders, ropes, or scaffolds and only frequent fingering and handling with his right hand due to carpal tunnel syndrome. (Tr. 1517-18.)

An MRI of the plaintiff's right knee in January 2011 showed a meniscal tear, and a left shoulder MRI showed a healing fracture, improved edema, and tendinopathy with partial tears of the supraspinatus and infraspinatus muscles. (Tr. 1573-75.)

From October 2011 to February 2012, the plaintiff received treatment at Madison Family Clinic for hypertension, back pain, knee pain, and headaches and was prescribed Lortab, Soma, Remeron, propranolol, and diclofenac sodium. (Tr. 1557-71.) Physical exams in January 2012 showed that the plaintiff had thoracic and lumbar spine tenderness with mildly reduced range of motion, right and left knee tenderness with full range of motion, and full range of motion in his shoulders, elbows, hips, and ankles. (Tr. 1564, 1567.) In February 2012, the plaintiff presented with back pain, which he reported was a 7/10, and upon physical examination, it was noted that he had "[n]ormal range of motion, muscle strength, and stability in all extremities with no pain on inspection." (Tr. 1570.)

B. Hearing Testimony

The plaintiff's initial hearing was held on March 20, 2012, with a subsequent hearing on May 11, 2012. (Tr. 39-120.) At both hearings, the plaintiff was represented by counsel and testified via video teleconference, and Walter Todorowski, a vocational expert ("VE"), also testified.[4] Id. At the first hearing, the plaintiff testified that he attended school through the seventh grade and obtained a GED. (Tr. 89.) He testified that he has worked in construction and at fast food restaurants and factories but that he has primarily worked as an auto mechanic. (Tr. 89-92.)

The plaintiff testified that he is unable to work due to knee problems, back problems, bipolar disorder, and antisocial personality disorder. (Tr. 96.) He said that he also has carpal tunnel syndrome in his hands, which causes his hands to go numb and makes it difficult to grip certain items. (Tr. 105.) Additionally, he related that he has tendonitis and bone spurs in both shoulders and that he broke his left shoulder a year earlier and cannot lift his arms over his head. (Tr. 98-99.) He testified that, after he works a few days in a week, his legs, neck, and back become stiff and painful. (Tr. 105.) He testified that he takes pain medication but is sometimes unable to afford his medication and goes without it. (Tr. 102-03.)

The plaintiff testified that he last received mental health treatment in 2006-2007 but that the medication he was taking "made [him] a lot worse." (Tr. 97.) He said that he "wasn't going to be a guinea pig to their experimental drugs" and explained that, "I found if I isolate myself from others, I don't have quite as many problems." Id. He testified that he sleeps on a friend's couch but that he tries to come and go when no one is around so that he does not "have [a] confrontation with anybody." (Tr. 96-97.) He explained that when he is not working he reads the Bible in his truck, sits in parking lots, and does "anything just to isolate [himself] from others." (Tr. 97.) He testified that he has been "discharged" from "[j]ust about every job" he has had due to verbal or physical altercations, and he estimated that he has been in "[w]ell over 100" physical altercations in his life, adding that "[t]here's too many to count." (Tr. 100, 103.)

The plaintiff testified that he has worked as a self-employed auto mechanic for the past 3-4 years but that he has been doing "small jobs" such as "brake jobs, alternator jobs, [and] oil changes" because he cannot "do the jobs [he] used to be able to do because [he] can't do all the heavy lifting." (Tr. 92-94.) He said that he works "at the very most 20 hours a week" if he is "trying to really push [himself]" and that he works with an assistant who helps him with heavier jobs that he is unable to do. (Tr. 95, 99, 105-06.) He said that he keeps an invoice book and gets business through "word of mouth." (Tr. 95.) He testified that "sometimes" he is able to get along with his customers and "sometimes not so much." (Tr. 96.) He said that whether he gets along with his customers "depends on their mentality with [him] and... their attitude." Id. He said that he does not negotiate his prices with customers but that he states his price and the customer can either take it or leave it. Id. He estimated that he gets hired for a job approximately 30% of the time that he interacts with potential customers. (Tr. 100-01.) He explained that, once hired, his interaction with the customer is limited to "telling them what parts they need" and receiving payment. (Tr. 101.)

The VE testified that his testimony was consistent with the Dictionary of Occupational Titles ("DOT") and classified the plaintiff's past job as an auto mechanic as medium, skilled work. (Tr. 111, 113.) The ALJ asked the VE whether a hypothetical person with the plaintiff's age, education, and work experience would be able to obtain work if he could perform a limited range of light work; could lift up to twenty pounds occasionally and ten pounds frequently; could stand and walk for four hours in an eight-hour workday and for one hour at a time before needing to alternate to a sitting position while on task for approximately ten minutes; could sit for six hours in an eight-hour workday; could not perform overhead work with the left upper extremity but could perform occasional overhead work with the right upper extremity; could frequently handle or finger with the right upper extremity; could occasionally stoop, crouch, kneel, climb stairs, and balance; could not climb ladders, ropes, or scaffolds; could not work at heights or with dangerous moving machinery; needed to avoid excessive vibration; was limited to tasks that were routine and included one to three steps; was limited to two hour periods of concentration at a time; and could have only occasional and superficial interaction with the general public, coworkers, and supervisors. (Tr. 111-12.)

The VE replied that such a person could not perform the plaintiff's past relevant work but could perform sedentary, unskilled jobs including: (1) final assembler of optical goods, DOT code 713.687-018, with 30, 580 jobs available in the national economy; (2) film hand mounter, DOT code 976.684-018, with 20, 180 jobs available in the national economy; and (3) eye-dropper assembler, DOT code 739.687-086, with 23, 955 jobs available in the national economy.[5] (Tr. 112-13.) The VE characterized these jobs as "bench assembly type jobs" that did not require interaction with the general public. (Tr. 113.)

Next, the ALJ asked whether a person with these limitations, who was further reduced to a range of sedentary work rather than light work, would be able to perform these jobs. Id. The VE replied that such a person could perform these jobs and explained that his answers were based on his "observation of these jobs in various work settings." Id. In response to questioning by the plaintiff's attorney, the VE testified that these jobs would not be available to a person who had marked limitations in his abilities to: (1) accept instructions and respond appropriately to criticism from supervisors; (2) get along with coworkers and peers without unduly distracting them or exhibiting behavioral extremes; and (3) complete a normal work day and work week without interruptions from psychologically based symptoms. (Tr. 114.)

A supplemental hearing was held on May 11, 2012, principally for the purpose of obtaining additional VE testimony. (Tr. 39-79.) Upon cross-examination by the plaintiff's attorney, the VE testified that, in order to determine the number of jobs in the economy for a specific occupation, he uses a program called Oasis, which bases its numbers on the Occupational Employment Survey ("OES"). (Tr. 63, 66-68.) The OES is a survey sent to employers in which they report how many employees they have performing specific jobs.[6] (Tr. 444-47.) The VE agreed that the OES is the primary basis for the numbers that are collected about jobs. (Tr. 60, 66.) However, the VE testified that he did not look at the OES statistics themselves but instead he looked up a job in the DOT and then used Oasis to supply him with the number of jobs available in the economy for that job. (Tr. 63, 65.) He testified that vocational experts rely upon Oasis and it is considered "authoritative." (Tr. 73.) However, he acknowledged that he did not know the methodology used by Oasis, that the information he relied upon was from May 2009, and that the number of available jobs "could have" decreased since then. (Tr. 72-73.)

The VE testified that the OES classifies jobs according to the Standard Occupational Classification System ("SOC") and that SOC classifications differ from those used in the DOT. (Tr. 60-62.) The VE acknowledged that one cannot look up a DOT code in the SOC but that a program called ONET is used to "cross log" jobs between the DOT and SOC. (Tr. 62.) By way of example, the VE agreed that if one entered the DOT code for film hand mounter into ONET, "the only match that comes up is hand cutters and trimmers." (Tr. 62.) The SOC description for hand cutters and trimmers, SOC code 51-9031, is that they "use hand tools or handheld power tools to cut and trim a variety of manufactured items such as carpet, fabric, stone, glass, or rubber." (Tr. 64, 447.) The plaintiff's attorney submitted that, per the Bureau of Labor Statistics website and as of May 2011, there were 14, 670 hand cutters and trimmers jobs in the national economy. (Tr. 66-67.) The VE did not dispute nor ...


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