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Rainwater v. Colvin

United States District Court, W.D. Arkansas, Fort Smith Division

March 31, 2015

JOSEPH RAINWATER, Plaintiff,
v.
CAROLYN W. COLVIN Commissioner of Social Security Administration, Defendant.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

MARK E. FORD, Magistrate Judge.

Plaintiff, Joseph Rainwater, brings this action under 42 U.S.C. §405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act (hereinafter "the Act"), 42 U.S.C. §423(d)(1)(A), 1382c(3)(A). In this judicial review, the court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. §405(g).

I. Procedural Background:

Plaintiff filed his application for DIB and SSI on January 23, 2012[1], alleging an onset date of March 1, 2008, due to hypertension, chronic obstructive pulmonary disease ("COPD"), obesity and depression. (T. 23) Plaintiff's application was denied initially and on reconsideration. (T. 89, 92, 100-101, 102-103). Plaintiff then requested an administration hearing, which was held in front of Administrative Law Judge ("ALJ"), Harold D. Davis on February 12, 2013.

At the time of the hearing, the Plaintiff was 42 years of age and possessed the equivalent of a high school education. (T. 44) During the hearing, Plaintiff's counsel moved to amend the onset date of March 1, 2008 to September 30, 2009, which the ALJ granted. (T. 43) He had past relevant work ("PRW") experience as a draw bench operator helper, shoveling dirt at a sand and gravel company, poultry clean up worker and a chicken hanger. (T. 46-48)

On April 12, 2013, the ALJ concluded that, although severe, the Plaintiff's hypertension, COPD, obesity and depression did not meet or equal any Appendix 1 listing. (T. 22-23) The ALJ determined that Plaintiff maintained the residual functional capacity ("RFC") to perform light work, except he needed to work in a controlled environment, where he would not be exposed to dust, fumes or temperature extremes. (T. 23-30) With the assistance of a vocational expert, the ALJ then found that Plaintiff could perform work as a dishwasher and a fast food worker. (T. 31-32) Plaintiff appealed this decision to the Appeals Council, but said request for review was denied on March 19, 2014. (T. 1-4). Subsequently, Plaintiff filed this action on March 28, 2014. (Doc. 1) This matter is before the undersigned for Report and Recommendation. Both parties have filed appeal briefs, and the case is ready for decision. (Doc. 9 and 10)

II. Applicable Law:

This Court's role is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d. 576, 583 (8th Cir. 2002). "Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner's decision." Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000). "Our review extends beyond examining the record to find substantial evidence in support of the ALJ's decision; we also consider evidence in the record that fairly detracts from that decision." Cox v. Astrue, 495 F.3d 617, 617 (8th Cir. 2007). The AJL's decision must be affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d, 964, 966 (8th Cir. 2003). The Court considers the evidence that "supports as well as detracts from the Commissioner's decision, and we will not reverse simply because some evidence may support the opposite conclusion." Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008). If after reviewing the record it is possible to draw two inconsistent positions from the evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ must be affirmed. Young at 1068.

It is well-established that a claimant for Social Security disability benefits has the burden of proving his disability by establishing a physical or mental disability that has lasted at least one year and that prevents him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §423(d)(1)(A), 1382c(a)(3)(A). The Act defines "physical or mental impairment" as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §423(d)(3), 1382(3)(c). A Plaintiff must show that his or her disability, not simply their impairments, has lasted for at least twelve consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).

If such an impairment exists, the ALJ must determine whether the claimant has demonstrated that he is unable to perform either his past relevant work, or any other work that exists in significant numbers in the national economy. (20 C.F.R. §416.945). The Commissioner's regulations require application of a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity since filing his or her claim; (2) whether the claimant has a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is able to perform other work in the national economy given his or her age, education, and experience. See 20 C.F.R. § § 404.1520(a)-(f)(2003). Only if the final stage is reached does the fact finder consider the plaintiff's age, education, and work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §404.150, 416.920 (2003).

III. Evidence Presented:

On March 21, 2007, Plaintiff's went to Good Samaritan Clinic ("GSC") as his cough continued, and he was convinced he had cancer. (T. 370) Dr. Stephanie Russell noted he was a smoker and had been treated for bronchitis in January 2007. Plaintiff stated he had cut back to half of a package of cigarettes per day. Dr. Russell noted paranoid thoughts and diagnosed him with abnormal thinking. She recommended a psychological evaluation, but noted "Plaintiff doesn't want to hear that." (T. 370)

On May 22, 2007, Plaintiff was treated at GSC for recurrent bronchitis. (T. 369) He was out of Albuterol. Over the previous two weeks, his cough had become productive. Plaintiff also complained of shortness of breath. It was noted that he had problems with anxiety and depression, was seeing a psychiatrist, and had applied for disability. Plaintiff was diagnosed with acute bronchitis and asthma and prescribed Doxycycline. (T. 369)

On May 31, 2007, a CT scan of his head was negative, showing only mild atrophy. (T. 339) A chest x-ray was also within normal limits, evidencing no active infiltrates, a normal heart size, and well expanded lungs. (T. 340)

On June 6, 2007, records indicated Plaintiff had become hypertensive at Western Arkansas Counseling and Guidance Center ("WACGC") and was sent to the emergency room. (T. 368) He had been admitted to the hospital for cardiac monitoring and testing. Plaintiff indicated that the Norvasc they prescribed was too expensive for him to fill. A review of his treatment records indicated that Plaintiff had primarily been normotensive when evaluated by his primary care physicians at GSC. Plaintiff was smoking eighteen cigarettes per day, drinking six to eight Cokes daily, and reported swelling in his feet. An examination revealed a heavy habitus, poor dental hygiene, poor overall hygiene, an occasional irregular heartbeat, fair femoral pulses, weak pedal pulses, and some edema of the feet. It appeared there was some question regarding his most recent blood work. The doctor indicated that the blood sample was diluted, and noted the possibility of water intoxication. He prescribed Atenolol and advised Plaintiff to decrease his intake of Coke and water. (T. 386)

On June 7, 2007, Plaintiff presented for a psychiatric evaluation with Dr. Pearl Beguesse, a staff psychiatrist at WACGC. (T. 378-380) He continued to report symptoms of depression, sadness, crying spells, poor sleep, decreased appetite, lack of interest in doing things, hopelessness, helplessness, worthlessness, and suicidal thoughts. Plaintiff reported a childhood history of court-ordered treatment for behavioral problems, after attacking a principal. However, he denied psychotic or manic symptoms, as well as prior hospitalization for psychiatric issues. Plaintiff reported numerous suicide attempts by overdose on drugs. His history included tobacco abuse, alcohol abuse, cannabis use, cocaine use, methamphetamine use, and prescription drug abuse. Plaintiff stated he had not used any alcohol or drugs in over three months. Dr. Beguesse noted good grooming and hygiene. Plaintiff was cooperative, pleasant, maintained good eye contact, had normal speech, a "pretty good" mood, a broad and non-congruent affect, logical and goal-directed thoughts, full orientation, and good judgment and insight. Hallucinations and delusions were denied. Dr. Beguesse diagnosed Plaintiff with depressive disorder not otherwise specified, nicotine dependence, cannabis dependence in early full remission, methamphetamine dependence in sustained full remission, cocaine dependence in sustained full remission, and personality disorder not otherwise specified. She assessed Plaintiff with a Global Assessment of Functioning ("GAF") of 50 and prescribed Fluoxetine to help his symptoms. (T. 378-380)

On June 18, 2007, Plaintiff underwent a mental diagnostic evaluation with Dr. Kathleen Kralik. (T. 303-311) Plaintiff alleged problems associated with antisocial personality disorder, paranoid schizophrenia, depression, fatigue, and chronic pain. Dr. Kralik noted that he seemed very invested in diagnostic labels. Plaintiff admitted researching psychiatric conditions, and indicated that his reference to paranoid schizophrenia was the result of an online questionnaire for schizophrenia. However, throughout the exam, Plaintiff brought up no symptoms suggestive of psychosis or schizophrenia. In fact, he reported no psychotic-like symptoms until the very end of the exam. Records reveal no medications prescribed to treat psychotic-like symptoms and Dr. Kralik noted no apparent distress or behavior suggestive of chronic mental illness of psychotic proportions. Plaintiff frequently reported various physical symptoms when advised that the examination's focus was on mental issues. And, when asked if there were any mental reasons he could not work, he stated that he believed he had mental defects. Upon further probing, Plaintiff stated that he felt he was bipolar and "definitely schizophrenic." Plaintiff stated that he did not like people, felt scared all of the time, was nervous a lot, was scared all of the time, slept odd hours, and was consistently tired. (T. 303-311)

Plaintiff denied any current use of drugs or involvement in illegal activity with a "subtle smirk, " leading Dr. Kralik to believe there might be some reality base to his fears regarding his safety. However, she noted that his alleged symptoms seemed consistent with alcohol and methamphetamine-induced psychotic-like symptoms. He seemed genuine in his report of depression, though his report of this and fears of passing out seemed more along the lines of an adjustment disorder, more so than a full blow mood disorder. Most of his other allegations seemed either associated with medical issues, not credible, and/or not described in any manner suggesting they prohibit employment. Dr. Kralik opined that the timing of his application for benefits also seemed suspect. She stated that had his drug activities been continuing, this might explain his part-time work schedule (i.e., to provide access to his customers) and his concerns over lost income if he was being more carefully monitored now by law enforcement. It was, however, her opinion that he did qualify for a diagnosis of antisocial personality disorder.

Dr. Kralik diagnosed Plaintiff with polysubstance dependence, allegedly in full remission; adjustment disorder not otherwise specified with mild to moderate impact on occupational functioning with the institution of Prozac; and, antisocial personality disorder. She also assessed him with a GAF score of 51-60. Dr. Kralik concluded that Plaintiff's adaptive functioning/activities of daily living were somewhat impaired secondary to his antisocial tendencies, his social functioning was somewhat impaired for occupational purposes (manipulative and oftentimes not credible), his communication skills adequate, his capacity to cope with the typical mental/cognitive demands was adequate, his ability to attend and sustain concentration on basic tasks was adequate, his capacity to sustain persistence in completing tasks was somewhat impaired due to motivational issues, and his capacity to complete work-like tasks within an acceptable timeframe was somewhat impaired due to volitional motivation issues. As for the validity of the exam, Dr. Kralik noted that Plaintiff's vestiges of intelligence with associated manipulative cognitive adeptness seemed much more prominent and credible than most of his complaints regarding mental symptoms. It was unclear to what extent exaggeration and/or malingering were reflected in his reports, however, even if his symptoms were taken at face value, she noted that Plaintiff acknowledged that his mental symptoms did not preclude occupational functioning. She also found him unable to manage funds without assistance, due to his strong antisocial tendencies, implied interest in building bombs from what he had learned on the internet, and extensive history of methamphetamine manufacture and polysubstance trafficking and abuse. (T. 303-311)

On June 27, 2007, a physician's progress note indicated that Plaintiff was doing better with fewer headaches and improved sleep. (T. 367) Records indicate he sold his plasma weekly. The doctor did note some trace edema in his limbs. Plaintiff was diagnosed with mild hypertension and given refills of Atenolol and Proventil. (T. 367)

On August 17, 2007, Plaintiff returned to Dr. Beguesse for medication management. (T. 385-386) Plaintiff had been busy doing yard work, watching television, playing with his cats, and seeing his girlfriend and children. He felt "kind of" depressed; had a broad, sad, and congruent mood; normal speech; good eye contact; fair concentration; and, good judgment and insight. His medication was noted to be effective for his targeted symptoms, and he was taking his medications as prescribed. Dr. Beguesse added Trazadone to help him sleep and increased his Prozac to help alleviate his depressive symptoms. (T. 385-386)

A chest X-ray performed on October 23, 2007, showed no evidence of acute infiltrates or interstitial edema. (T. 332) There was no roentgenographic evidence of acute cardiopulmonary disease. (T. 332)

On November, 7, 2007, while Plaintiff was treated at WACGC, he indicated he had been kind of depressed due to stressors of his pending disability and father's illness. He also reported hearing voices. His sleep and appetite were ok and he passed the time by playing chess on-line, putting plastic on windows, repairing cars, seeing his girlfriend, and taking care of the new kittens. He had no new complaints and he felt like his medication was helping. (T. 389-390)

The doctor at GSC diagnosed him with bronchitis on December 28, 2007, and prescribed Albuterol via nebulizer treatments and Doxycycline. (T. 362) On February 13, 2008, Plaintiff was diagnosed with chronic bronchitis, prescribed Atenolol, and ordered lab tests and a tuberculosis test. At this time, Plaintiff was smoking one half of a package of cigarettes each day. (T. 361)

Plaintiff's tuberculosis test was negative and his lungs were clear, on February 15, 2008. (T. 360) The doctor diagnosed him with chronic bronchitis and advised him to stop smoking. Notes indicated that the doctor was awaiting some lab results, which ultimately revealed low levels of protein, calcium, cholesterol, and LDL. The doctor noted this to be consistent with selling plasma twice per week. (Tr. 360, 678)

On March 12, 2008, Plaintiff reported he no longer heard the voices that said mean things and told him to hurt himself. He only heard pleasant voices at the time of the appointment. He had no ...


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