Driggs v. Comm'r of Soc. Sec.
| Decision Date | 29 November 2011 |
| Docket Number | Case No. 2:11-cv-0229 |
| Parties | Marsha L. Driggs, Plaintiff, v. Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Plaintiff, Marsha L. Driggs, filed this action seeking review of a decision of the Commissioner of Social Security denying her applications for disability benefits and supplemental security income. Those applications were filed on January 18, 2007, and alleged that plaintiff became disabled on March 19, 2002, but that date was later amended to October 11, 2007.
After initial administrative denials of her claim, plaintiff was given a hearing before an Administrative Law Judge on November 25, 2009. In a decision dated January 28, 2010, the ALJ denied benefits. That became the Commissioner's final decision on January 14, 2011, when the Appeals Council denied review.
After plaintiff filed this case, the Commissioner filed the administrative record on May 26, 2011. Plaintiff filed her statement of specific errors on July 29, 2011. The Commissioner filed a response on September 1, 2011. Plaintiff filed a reply brief on September 19, 2011, and the case is now ready to decide.
Plaintiff's testimony at the administrative hearing is found at pages 32 through 47 of the record. Plaintiff, who was 50 years old at the time of the hearing and attended school only through the eighth grade, testified as follows.
Plaintiff's employment history consisted of only two jobs,both of which involved cleaning hotel rooms. She testified that she stopped working due to hip problems, and then developed some mental health issues.
At the hearing, she stated that she was having pain in the L4-L5 area which was a steady, stabbing pain which averaged nine on a scale of one to ten. It is helped by medication. She saw her back doctor on a monthly basis but received no other treatment for that condition.
She also was seeing Dr. Hamill for her psychological condition. She met with him once every two or three months, and with a counselor more often. Being around people would make her nervous.
On a typical day, she got up, made coffee, sat until her back began to hurt, and then went back to lie down. On a good day she could sit in a recliner and watch television. She did little in the way of household chores other than washing some dishes. Her back condition prevented her from driving. She could sit about twenty minutes and stand about five minutes. She could not walk more than twenty feet nor lift more than five pounds. She also could not add or subtract well without a calculator. She told the Administrative Law Judge that she was essentially bed-ridden and had been for a year.
After plaintiff testified in response to questions from her attorney and from the ALJ, the medical expert asked her some questions about alcohol use. She generally denied any use except for a single incident in 2008, even though the medical records appeared to say otherwise. (Tr. 47-50).
The medical records in this case are found beginning on page 216 of the administrative record. They can be summarized as follows.
Well prior to her alleged onset date, plaintiff receivedmental health treatment from Dr. Shy. In 2003, Dr. Shy completed a form stating that plaintiff had fifteen marked impairments in her ability to do work-related functions, and one extreme limitation, that being in the area of completing a normal workday and work week without interference from psychologically-based symptoms. No treatment notes accompanied that assessment. Treatment notes from the Scioto Paint Valley Mental Health Center for later years showed that plaintiff was being seen for anxiety and depression but had trouble articulating what she meant by being anxious, including being unable to identify when her symptoms began or even what they were. She did describe feeling depressed every day and getting little sleep. In 2006, she denied any auditory hallucinations but did ask to change doctors to get a more favorable evaluation for disability purposes. The doctor who saw her at that time, Dr. Yezuita, thought her report of daily depression was "more facetious than real" and he rated her GAF at 55-60.
Plaintiff saw Dr. Schneider for back and hip pain in early 2007. She had some diffuse tenderness over the lumbosacral area and some decreased range of motion secondary to pain. She was given a prescription for Vicodin. A prior emergency room note described her as "clearly opiate seeking" and the ER doctor refused to write a prescription for such medication.
Dr. Demuth, a state agency reviewer, completed a mental residual functional capacity assessment form in March, 2007. At that time, he thought plaintiff's mental condition had not changed from the date that a prior ALJ had considered this issue, and he adopted that evaluation, which indicated plaintiff suffered from either depression or a bipolar disorder, borderline intellectual functioning, and generalized anxiety, and that her impairments resulted in only mild restrictions of her activities of daily living or social functioning, in moderate difficultymaintaining concentration, persistence and pace, and in no episodes of decompensation.
Dr. Perencevich, also a state agency reviewer, evaluated plaintiff's physical capacity on July 9, 2007, and found that she had the residual functional capacity to perform light work but could only occasionally climb ladders, ropes or scaffolds. He thought that plaintiff was credible as to the impairments she reported, i.e. back pain due to degenerative arthritis, but not as to their severity.
Next, the record contains 41 pages of treatment notes from the Scioto Paint Valley Mental Health Center, dated from 2003 to 2007. Generally, they show that initially plaintiff's GAF was rated at 55-60 notwithstanding a diagnosis of generalized anxiety disorder, which had been exacerbated by psychosocial stress. In 2004, the notes show that she was insistent on being prescribed Xanax and was taking that medication from a neighbor, that she was resistant to suggestions that she see a counselor, that she showed some improvement after medication adjustments, that she was not always feeling depressed, that she refused to quit smoking, that she discontinued anti-anxiety medication at one point for fear of gaining weight, that she reported being chronically anxious and fearful, that she occasionally took more medication than prescribed, that she had a lot of social stressors in her life, that she tended to give up on tasks like psychological testing, and that her condition was generally unchanged from one visit to the next. A longer progress note was made on March 19, 2007, which was the first time she was seen by Dr. Hamill. At that time, she denied any depressive episodes or any history of panic attacks as well as any history of psychotic symptoms. She was visibly anxious but also irritable and demanding. Dr. Hamill refused to prescribe Xanax despite plaintiff's request for that medication, but did prescribe Valiumand Seroquel. A note from June, 2007 indicated that her condition had improved somewhat, and she reported to Dr. Hamill that she was "doing fine with the Valium," although she asked for a higher dose. He saw her again three months later and she described her racing thoughts and mood swings as "not too bad."
There are additional treatment notes concerning her back pain as well. At one time, she was diagnosed with spinal stenosis of the lumbar region as well as degenerative disc disease at L4-L5. Straight leg raising was positive on the right side. Tests showed some disc space narrowing.
Dr. Hamill completed a residual functional capacity form on October 11, 2007, which is one of the treating source opinions that plaintiff believes was not given appropriate weight. He generally described plaintiff as having shown some improvement on medications, but as suffering from "racing thoughts, poor concentration, and borderline intellectual functioning." Her prognosis was poor, and she was unable to meet competitive standards in the areas of maintaining regular attendance or being punctual, completing a workday or workweek without interruptions from psychologically-based symptoms, and dealing with work stress. He also thought she would have a marked impairment in the areas of concentration, persistence and pace, and that she had suffered four or more episodes of decompensation, each of at least two weeks' duration. In addition, she would miss more than four days of work each month due to her impairments. Approximately a year later, he completed a similar form but imposed even more restrictions.
Plaintiff's treating doctor for her hip and back pain, Dr. North, apparently requested a physical therapist to evaluate plaintiff's physical capabilities. That report showed that she could lift only five pounds, could stand, sit and walk for less than a full workday, had to lie down four or five times in aworkday, and had a large number of both postural and environmental limitations. Dr. North later signed off on this evaluation.
Finally, there are some additional mental health treatment notes. They show that by 2008, plaintiff was being prescribed Xanax, and that in 2009 she was doing well with her medication and did not want to make any changes. That note described her as "pleasant and cooperative and looks like she is doing well." (Tr. 493).
A medical expert, Dr. Madden, testified at the administrative hearing. See Tr. 47-51. Dr. Madden identified plaintiff's mental impairments as borderline intellectual functioning, alcohol abuse, depressive disorder not otherwise specified, and anxiety disorder not otherwise specified. None of the mental impairments met the criteria of the Listing of Impairments. Due to her borderline intellectual functioning, plaintiff...
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