The plaintiff, Robert Dawdy, Jr., seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). Dawdy contends that the administrative record ("AR") does not contain substantial evidence to support the Commissioner's decision that he is not disabled. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and this case remanded for further proceedings.
Dawdy was born in 1963, has a GED, and previously worked as a restaurant cook and telephone solicitor. AR 116, 332, 593, 609. On March 9 and August 16, 2005, Dawdy applied for DIB and SSI, alleging disability beginning on December 15, 2002 (later amended to March 1, 2005), due to seizures. AR 14, 86-90, 219, 223, 586-91, 603. The Commissioner denied Dawdy's applications initially and again on reconsideration; consequently, Dawdy requested a hearing before an Administrative Law Judge ("ALJ").AR 50-61. On March 17, 2008, ALJ Jan Dutton held a hearing in which Dawdy and a vocational expert ("VE") testified. AR 599-634. On June 4, 2008, the ALJ issued a decision finding Dawdy not disabled since the alleged onset date of disability of March 1, 2005. AR 11-23. Dawdy sought review of this decision by the Appeals Council, which denied review on May 14, 2010. AR 7-10. The ALJ's decision thus became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481.
On July 13, 2010, Dawdy filed a complaint in this court seeking review of the ALJ's decision. This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition of the case. The parties have briefed the issues, and the matter is now fully submitted.
Unless otherwise noted below, the court will review the record from Dawdy's alleged onset date of disability of March 1, 2005. See Dipple v. Astrue, 601 F.3d 833, 834 (8th Cir. 2010) (relevant period is from claimant's alleged disability onset date).
A. St. Luke's Regional Medical Center On November 23, 2004, Dawdy was admitted to St. Luke's Regional Medical Center after attempting to commit suicide by overdosing on phenobarbital. AR 457-78. Dawdy reported to Blanca Marky, M.D., that "he has been having complex partial seizures since he was 18 years old. He does not know why they started, and nothing has ever been found." AR 462. Dr. Marky noted that Dawdy "has a very important history of drug abuse with acid, marijuana and cocaine. Apparently, at the time the seizures started, he was doing a lot of acid." AR 462.
Dawdy's medications at the time included Levoxyl for hypothyroidism and Tegretol (carbamazepine) and phenobarbital for his seizures. AR 466. Dr. Marky changed hismedications, discontinuing his phenobarbital and resuming his Tegretol medication. AR 457, 464. Dawdy reported to Rodney Dean, M.D., a psychiatrist, that, although he had used "all sorts of drugs," including amphetamines and cocaine, marijuana was "the primary drug that he uses currently." AR 466. His drug screen was positive for carbamazepine, phenobarbital, cannabinoids, and amphetamines. AR 459, 463.
In response to the Iowa Disability Determination Services Bureau's request for information about Dawdy's medical condition since 2003, on April 29, 2005, Dr. Dean stated as follows:
I must state at the onset that I only met Mr. Dawdy on one occasion. He was hospitalized at St. Luke's Regional Medical Center in Sioux City on the night of the 23rd of November 2004. I was asked to see him as an on-call psychiatrist for an emergency consultation on the 24th of November 2004 and this is the only interaction that I've had with the patient. . . .
As you can see from my consult, the patient was mainly there because of an overdose of medications. He was given a diagnosis of Major Depressive Disorder, Cannabis Dependence and Polysubstance Dependence. He does have a chronic history of seizure disorder and other medical problems such as Hypothyroidism and a chronically dislocating left shoulder. I placed the patient on Zoloft 50 mg in the morning. He was to see one of the local neurologists in regard to his seizure disorder. You've mentioned in your paperwork a diagnosis of Tourette's Disorder and I'm certainly not aware of that condition. The prognosis for this gentleman was really poor mainly because he has been in correctional facilities most of his life so his ability to function in the local community has really been limited. Since I've only seen him the one occasion it's impossible for me to determine his response to treatment just to state that when he was in the hospital things got bettter in terms of him not being acutely suicidal when he left in a couple of days or so.
In terms of his physical limitations I can tell you that his chronically dislocating shoulder was a problem[] for several reasons. His seizures have never been under control and this is why he's going to see the local neurologist. He has no funds to purchase his medication so he wouldfrequently have seizures, fall, redislocate his shoulder to the point where it would just fall out of the socket without him even doing anything. It was I that actually contacted the University of Iowa to try to get him through the indigent program to see one of the orthopedic shoulder specialists and I don't know where that process is at this point in time because the patient never followed back up with me. So from a physical standpoint he currently has treatment resistant seizures where he's having seizures at least on a weekly basis and they are unable to be controlled with medications plus even the medicines he's used he doesn't have the money to purchase them and this dislocated shoulder is also a problem.
He has limited ability to understand instructions, procedures, and locations and this is partly because of his eighth grade education, the fact that he's been incarcerated most of his adult life and he just has limited occupational/vocational skills. There is no problem with his memory. However, his ability to maintain attention span and concentration is reduced for two reasons. First of all, his seizure medicines really make him tired and sleepy and this is one of the frustrations that drove him to the overdose. Secondly, when he left the hospital he was still depressed although not needing acute in-patient psychiatric care. He has had no positive history of interacting with supervisors, co-workers or the public as again he has spent most of his time incarcerated and certainly does not use good judgment nor has he responded to changes in his work place and because of his past substance abuse history I certainly would not see him as somebody who would effectively handle his own cash benefits.
AR 479-80.
C. Work Performance Assessment of Plaintiff's Previous Employer On May 7, 2005, Dawdy's previous employer completed an assessment of his work performance, noting that he had worked as a cook from August 2003 to February 2005. AR 246-47. Dawdy's employer noted that (1) his ability to understand and carry out simple and complex or detailed instructions and procedures was "poor"; (2) his ability to concentrate and remain on task, to adapt to changes in the workplace, and to manage workplace and personal stress while working was "adequate"; (3) his ability to follow rules, to use good judgment, and to relate to supervisors, coworkers, and the public was"good"; and (4) his ability to adhere to schedules (including attendance) and to maintain his general appearance was "excellent." AR 246. The employer indicated that Dawdy was no longer employed because of "job performance," but indicated that it would rehire Dawdy. AR 247.
On September 15, 2005, Michael Baker, Ph.D., a licensed psychologist, performed a consultative examination of Dawdy at the request of Disability Determination Services. AR 518-21. Dr. Baker noted as follows:
Mr. Dawdy stated he is applying for disability due to having "uncontrolled seizures." He stated he has experienced these for 21 years and he also has "mental health issues - like last November, a suicide attempt." He reported having overdosed on Phenobarbital and was found by his sister, who is his physician's nurse and lived with him. He was taken to a hospital where he remained for a couple [of] days. He stated he was discharged from the hospital early because it was Thanksgiving and he requested that he be allowed to go home to cook dinner for his extended family. He has been employed as a cook, though "doctors now don't want me to cook until I've been seizure free for six months because I might fall into the grease." He reported having petit mal seizures where he will "jump and splash the grease, and I've got burns all over my arms." He has been told by physicians that he may have Tourette's. This leads to the onset of seizures. He may experience episodes as much as "40 times a day." He reported around the time of his suicide attempt that "I got tired of living like that. Sometimes waking up and not knowing where I'm at." . . .
. . . .
Mr. Dawdy stated psychiatric involvement other than last November was through Oakdale for an evaluation. He has been in [chemical dependency] treatment "four or five times." This included Synergy in 1995 or 1996 and previously through CMHI in the '80s. He reported not having used his main drug of choice, marijuana, for over a year. He continued drinking minimally until prescribed Depakote recently. He sta
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