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Fetterolf v. Colvin

United States District Court, D. Kansas

July 14, 2015

RICHARD FETTEROLF, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief District Judge.

Plaintiff Richard Fetterolf seeks review of a final decision by defendant, the Commissioner of Social Security, denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, respectively. Upon review, the court finds that the Commissioner's decision was supported by substantial evidence contained in the record. As such, the decision of the Commissioner is affirmed.

I. Factual and Procedural Background

Plaintiff suffers from both physical and mental health issues. Medical records relating to his physical issues date back to April 2006 when plaintiff presented to the First Care Clinic with complaints of constant lower back pain. An MRI of his lumbar spine showed diffuse and extensive disc herniation at the L4-L5 vertebrae causing mass effect on the dural sac and the exiting L4 nerve roots. Plaintiff underwent several rounds of epidural injections, which he admitted relieved his pain, at least temporarily.

Plaintiff's medical records then jump to early 2008 when he presented with ongoing lower back pain to Dr. Frederick R. Smith. During an evaluation, Dr. Smith observed that plaintiff could move normally and could also perform forward, backward, and side bending without discomfort. Although plaintiff had some tenderness over his mid upper lumbar spine upon palpation, his reflexes, straight leg raise, and strength were good. Dr. Smith diagnosed plaintiff with mechanical back pain with known degenerative disc and facet disease. Plaintiff was ordered to physical therapy.

Because conservative treatment proved only moderately helpful, plaintiff ultimately underwent a microdiskectomy at the L4-L5 vertebrae on February 16, 2010. Prior to surgery, plaintiff was informed that the procedure would not correct his back pain, but would rather be helpful for the radiating pain he experienced in his lower extremities. A June 2010 MRI of plaintiff's lumbar spine showed postoperative changes on the right side associated with epidural fibrosis, mild involvement of the origin of the right L4 nerve root, mild spinal stenosis at the L3-L4 vertebrae, tiny focal central disc protrusion at the L4-L5 vertebrae, and some foraminal narrowing bilaterally. Plaintiff underwent a second surgical procedure on July 29, 2010.

Plaintiff was still complaining of pain in September 2010, but was told that there was no reason for additional surgery. Plaintiff again underwent epidural injections at the L4-L5 nerve root. During a December 2010 visit with Dr. Smith, plaintiff reported that he could sit for thirty minutes, stand for twenty to thirty minutes, and walk eight to ten blocks. His gait was normal as were his strength and reflex evaluations. A Physical Residual Functional Capacity Assessment performed on January 19, 2011, determined that plaintiff could: (1) occasionally lift and/or carry twenty pounds, (2) frequently lift and/or carry ten pounds, (3) stand and/or walk for a total of six hours in an eight-hour day, (4) sit for a total of six hours during an eight-hour day, and (5) engage in unlimited pushing and pulling. Plaintiff was restricted to only occasional climbing, balancing, stooping, kneeling, crouching, and crawling. After this assessment, plaintiff continued to complain of lower back pain and underwent several more epidural injections.

Plaintiff's mental health history dates back to January 14, 2010, when he saw nurse practitioner Joseph Mindrup at High Plains Mental Health Center. Mr. Mindrup noted that plaintiff had previously been prescribed medications, which he was not currently taking. On March 3, 2010, plaintiff underwent an evaluation with Sidney Vetter, MS, LCPC, and was diagnosed with major depressive disorder (recurrent, moderate), personality disorder, and attention deficit hyperactivity disorder (ADHD) not otherwise specified. Plaintiff was also diagnosed with alcohol and cannabis abuse.

Plaintiff returned to Mr. Mindrup on April 1, 2010. He reported that he had been off his medications since at least the beginning of March, if not late February. Plaintiff was alert and cooperative and his memory, attention, and concentration were intact. He denied any suicidal and/or homicidal ideation; however, Mr. Mindrup noted that plaintiff engaged in cutting (i.e. self-mutilation) approximately two weeks before the appointment. Plaintiff displayed fair insight but poor judgment. In an appointment with Mr. Mindrup on August 10, 2010, plaintiff again reported that he had been off of his medication for a couple of months. He also admitted that he had thoughts of cutting, but did not. Mr. Mindrup noted that plaintiff was alert and cooperative (although he was in obvious back pain) and his memory, attention, and concentration were intact. Plaintiff denied suicidal and/or homicidal ideation.

In March 2011, plaintiff underwent an evaluation with Michael H. Schwartz, Ph.D. Plaintiff reported that his chief complaint was back pain, but stated that he also suffered from depression. Although he mostly isolated himself at home, plaintiff admitted that he could take care of all of his normal activities of daily living, would read, and take care of his pets. Plaintiff stated that he had previous issues with marijuana, but had been clean for two years. He also reported having three inpatient psychiatric stays at Larned State Hospital for depression and suicidal ideation.

Dr. Schwartz noted that plaintiff's thought processes and content seemed to reflect those of a low functioning individual, as somewhat evidenced by plaintiff's IQ testing. Administration of the Wechsler Adult Intelligence Scale-IV resulted in a full scale IQ score of 72, determined by the following individual scores: (1) verbal comprehension, 81; (2) perceptual reasoning, 69; (3) working memory, 86; and (4) processing speed, 71. Dr. Schwartz diagnosed plaintiff with post-traumatic stress disorder ("PTSD") (chronic, moderate), major depression (recurrent, severe), borderline intellectual functioning, and alcohol and cannabis use (in remission). Plaintiff was also assigned a Global Assessment of Functioning ("GAF") score of fifty, indicating serious symptoms.[1]

On March 20, 2011, plaintiff was evaluated by state agency examiner Dr. Aroon Suansillppongse. Dr. Suansillppongse found that plaintiff was able to understand, remember, and carry out simple instructions. However, plaintiff's ability for sustained concentration, persistence, and task concentration was minimally limited due to: (1) limited intellectual functioning, (2) anxiety, (3) depressive reaction, and (4) alleged pain and hallucinatory experiences. Likewise, plaintiff's ability for appropriate interaction with supervisors/coworkers/general public and his ability to adapt to a routine work setting were also minimally limited. Dr. Suansillppongse concluded that plaintiff had the capacity for simple work-related activity with infrequent contact with the public and diagnosed plaintiff with mood disorder NOS/major depression, borderline intellectual functioning, and poly-substance abuse.

Dr. Suansillppongse also administered a Psychiatric Review Technique and a Mental Residual Functional Capacity Assessment. He again diagnosed plaintiff with mood disorder NOS/major depression, borderline intellectual functioning, and poly-substance abuse. Dr. Suansillppongse concluded that plaintiff had mild restriction with regard to activities of daily living and moderate difficulties in maintaining social functioning, concentration, persistence, and pace. Dr. Suansillppongse also reported that plaintiff had one or two episodes of decompensation. With regard to the Mental Residual Functional Capacity Assessment, Dr. Suansillppongse found that plaintiff was moderately limited in his ability to: (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; (4) work in coordination with or proximity to others without being distracted by them; (5) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (6) interact appropriately with the general public; (7) accept instructions and respond appropriately to criticism from supervisors; and (8) set realistic goals or make plans independently of others.

Plaintiff returned to Mr. Mindrup twice in 2012. In May, plaintiff reported having cut himself for pain release approximately a month and a half prior to the appointment. Mr. Mindrup found that plaintiff was alert and cooperative, his mood and affect were good, and his memory, attention, and concentration were intact. Plaintiff denied any suicidal and/or homicidal ideation and was assigned a GAF score of 54, indicating moderate symptoms. Plaintiff's evaluation in June remained largely unchanged.

In September 2012, Mr. Mindrup completed a Mental Residual Functional Capacity questionnaire. He noted that plaintiff's prognosis was poor, as he struggled with a lack of consistent good mood control. Mr. Mindrup reported that plaintiff had marked restriction of activities of daily living; extreme difficulties in maintaining social functioning; frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner; and continual episodes of decompensation. Plaintiff's symptoms were expected to cause him to be absent from work for more than four days per month.

Plaintiff filed for DIB and SSI on September 28, 2010, alleging disability beginning November 30, 2007.[2] His claims were denied initially on March 31, 2011, and upon reconsideration on August 9, 2011. Plaintiff timely filed a request for an administrative hearing, which took place on September 12, 2012, before Administrative Law Judge James Harty. Plaintiff, represented by counsel, appeared and testified. Also testifying was Vocational Expert Cynthia A. Younger.

At the time of the hearing, plaintiff was forty-eight years old and resided with his twelve-year-old son, over whom he had full residential custody. Plaintiff testified that he could drive but did not have a valid driver's license due to a failure to pay parking tickets. He indicated that he received food stamps, a medical card for health insurance purposes, and additional government benefits, including subsidized housing. Plaintiff stated that he had previously suffered from a marijuana addiction, but had allegedly been clean since 2008. He also testified that he had made previous suicide attempts.

Plaintiff last worked as a trash collector for approximately seven months. He stated that he left the position because he "couldn't take the back pain anymore and... started missing a lot of work." Dkt. 11-1, at 63. Plaintiff testified that his longest job was with La Crosse Furniture, where he worked for approximately twelve years. When asked what prevented him from returning to work, plaintiff indicated that he could not stand for very long or bend over and had difficulty remembering things.

With regard to his mental health issues, plaintiff stated that he saw staff at High Plains every couple of months. He indicated that he had a history of self-mutilation, was easily angered, and had frequent crying spells. Plaintiff also testified that he had difficulty with concentration and finishing tasks.

Plaintiff also testified about his physical issues, namely his lower back pain, which he indicated had not really changed despite having two surgeries. He stated that he could likely lift twenty pounds, stand for forty-five minutes at a time, sit for an hour, and walk one mile. Plaintiff reported only moderate difficulty with crouching, crawling, stooping, squatting, bending, kneeling, and getting down on the floor, but did state that he would have a difficult time standing back up. Plaintiff indicated that he could take care of his personal needs and could generally go shopping, clean, and cook, but stated that his son's mother also helped with some of these tasks.

Based upon plaintiff's testimony, as well as the administrative record as a whole, the ALJ asked the Vocational Expert a hypothetical question that included varying degrees of limitation on actions such as balancing, standing, kneeling, crouching, and crawling, as well as limitations on the individual's ability to perform repetitive tasks, work as a team, and interact with coworkers and the general public. Based on the limitations given, the VE indicated that the hypothetical individual could not perform plaintiff's past relevant work but could perform other work available in the national economy. Specifically, the VE identified inserting machine operator, impression mold machine tender, and collator operator as jobs that such an individual could perform.

On cross examination, plaintiff's attorney questioned the VE as to what would happen if the hypothetical individual, assuming all of the limitations as given by the ALJ, was also unable to maintain attention and concentration for long periods of time, was off task ten to fifteen percent of the time, and was absent from work one to two days per month. The VE indicated that there ...


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