Kovach v. Apfel, 2:99CV0052 (MLM).

Decision Date28 September 2000
Docket NumberNo. 2:99CV0052 (MLM).,2:99CV0052 (MLM).
Citation119 F.Supp.2d 943
PartiesMaureen KOVACH, Plaintiff, v. Kenneth APFEL, Commissioner of Social Security, Defendant.
CourtU.S. District Court — Eastern District of Missouri

Karen Kraus Bill, Law Office of Karen Kraus Bill, Columbia, MO, for Maureen M. Kovach, plaintiff.

Edward L. Dowd, Jr., Nicholas P. Llewellyn, Office of U.S. Attorney, St. Louis, MO, for Kenneth Apfel, Social Sec. Admin., defendant.

MEMORANDUM AND ORDER

MEDLER, United States Magistrate Judge.

This is an action under Title 42 U.S.C. § 405(g) for judicial review of defendant Kenneth Apfel's ("Defendant") final decision denying plaintiff Maureen Kovach's ("Plaintiff") application for Social Security benefits under Title II of the Social Security Act. Plaintiff has filed a brief in support of her Complaint. [26] Defendant has filed a brief in support of his Answer. [31] The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).[13]

I. PROCEDURAL HISTORY

On October 24, 1995, Plaintiff filed an application for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 401, et seq. (Tr. 110-112), alleging a disability beginning September 30, 1993, by reason of multiple back injuries, chronic headaches, sciatic nerve pain and pain in her left abdominal quadrant. (Tr. 140). The application was denied initially (Tr. 105-109) and upon reconsideration. (Tr. 98-102).

Plaintiff requested a hearing (Tr. 97) which was held on July 11, 1996, before Administrative Law Judge ("ALJ") James Seiler. (Tr. 44-65). Judge Seiler determined that Plaintiff was not under a disability at any time through the date of his decision. (Tr. 321-325). Plaintiff then appealed the decision to the Appeals Council. (Tr. 331). The Council remanded for further consideration. (Tr. 335-338). The Appeals Council remanded the case for the following reasons:

# Records not before the Administrative Law Judge were submitted in connection with the request for review which show that claimant was admitted to the Audrain Medical Center in Mexico, Missouri, in February 1997 after a possible suicide attempt. She was initially on precautions for her own safety and discharged with a diagnoses including bipolar, somatization and personality disorders and a Global Assessment of Functioning (GAF) of 45 (current) and 55 (past year). The record also shows that the [claimant] has had psychiatric treatment or been referred to psychiatric treatment by medical professionals since 1992 ....

# The new evidence shows that the claimant denied alcohol and tobacco abuse to Daniel Scodary, M.D. in October 1996, but reported a history of drug and alcohol abuse to the Audrain Medical Center. The record shows a history of reference to drug and alcohol abuse ....

# The residual functional capacity found for the claimant by the Administrative Law Judge was found not to preclude her past relevant work as a receptionist in 1987 and 1988. However, it was also found that the claimant's non-exertional limitations would result in "moderate" difficulties in maintaining social functioning on the "Psychiatric Review Technique Form" attached to the decision. The claimant described some of her duties as a receptionist as answering phones, setting appointments and greeting patients .... The Appeals Council concludes that further evaluation of the claimant's mental impairment is necessary to determine whether the claimant can return to her past relevant work.

(Tr. 336-337). On remand, the ALJ was instructed: (1) to evaluate Plaintiff's mental impairments and complete a Psychiatric Review Technique Form; (2) to give further consideration to Plaintiff's maximum residual functional capacity; (3) if necessary, to obtain evidence from a medical expert to clarify the nature and severity of Plaintiff's impairments; (4) if warranted, to obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the Plaintiff's occupational base; and (5) to conduct further proceedings to determine whether drug addiction and alcoholism are contributing factors material to the finding of disability. (Tr. 337).

On remand, the case was assigned to ALJ Craig Ellis. On September 18, 1997, Judge Ellis held a supplemental hearing. (Tr. 67-96). The ALJ determined that Plaintiff was not under a disability at any time through the date of the decision. (Tr. 13-17).

The Appeals Council denied review of Judge Ellis' determination. (Tr. 4-5). Thus, the decision of ALJ Ellis stands as the final determination of the Commissioner.

II. TESTIMONY BEFORE THE ALJ AT THE INITIAL HEARING

Plaintiff testified before the ALJ on July 11, 1996. Plaintiff testified that she was thirty-nine years of age. She dropped out of school in the tenth grade but then obtained her GED and also received an Associates Degree in Applied Science. (Tr. 47). Plaintiff is married and has two children. However, neither of her children live at home with her. (Tr. 58). Plaintiff reported that she has been unable to work since September 30, 1993. She did work four or five days as a substitute teacher at Warrenton School District in the Spring of 1994. However, she said when she taught those four or five days, she got headaches and developed flu-like symptoms at the end of each day. (Tr. 48).

Plaintiff testified that she was unable to work because she has headaches so often and such bad problems with her sciatic nerve that she often cannot get out of bed. She is in so much pain that it makes it hard for her to do anything. (Tr. 48).

Plaintiff stated that her back bothers her every day. (Tr. 48). The pain is in her lower spine and goes through her hips. It varies from just an ache to where she feels like she is "going to break in half." (Tr. 49). She suffers from back spasms which require her to lay down. Sometimes her back pain is so severe that she gets nauseous. (Tr. 49). She testified that she cannot do any activity for any period of time without ending up with a back ache. When she has episodes with her back, she lays down and elevates her feet. She also takes pain pills, like Tylenol with Codeine. She has tried strengthening programs to strengthen the muscles in her back. (Tr. 49). She occasionally uses a heat pad and sits in the hot tub. However, the pain returns as soon as she removes the heat source. (Tr. 50).

As for Plaintiff's headaches, she testified that she has a headache every day; usually she wakes up with one. Sometimes the headaches last for a couple of hours and sometimes they will last all day. She reported suffering from migraine headaches. When she has a migraine, she must use a rectal suppository because she is vomiting and cannot keep any other medication down. She cannot tolerate any light or noise. She must go straight to bed. She used to have migraines six times a year. Recently, however, she has them only once in a while. (Tr. 50). As for the more moderate headaches, Plaintiff said she can use ice to help relieve the symptoms. She described the headaches as vascular. (Tr. 50).

Plaintiff testified that she has difficulty using her hands. She cannot work with small things. (Tr. 55). She cannot drive long distances without hurting her hands and arms. She was told by one doctor that she had fibromyalgia. (Tr. 55).

Plaintiff reported that she had pain in her pelvic area. (Tr. 55). She described it as a heaviness. "It kind of feels like there's something heavy, like an egg or something." (TR. 56). Sometimes the pain is like a stabbing hurt and other times it is a dull ache. The pain goes from her pelvic area into her groin and down her upper thigh. (Tr. 56).

Plaintiff stated that, in the past, she has had trouble with irritable bowel syndrome. This requires her to be around a bathroom and she must be careful about her diet. (Tr. 56).

Plaintiff suffers from bipolar disorder and depression. When she is depressed she cries a lot, some days for several hours. She has suicidal thoughts. She gets sick occasionally. She feels like she is "in a pit that [she] can't get out of." (Tr. 52-53). She has trouble sticking with a task. She forgets what she is doing. Stress is very difficult for her to handle. She cannot stand to be around people who are arguing or around loud noise. (Tr. 53). Plaintiff also reported that she has trouble sleeping. She wakes up in the night and she has nightmares almost every night. (Tr. 55).

Plaintiff said she takes several types of medicine. As for side effects to the medication, she testified that she is thirsty all the time. In addition, she sometimes gets drowsy. She has also become forgetful. (Tr. 51).

Plaintiff reported that she was currently being treated by Jill McNaul, M.D., at the Arthur Center in Columbia, Missouri. She sees this doctor once a month. Dr. McNaul treats Plaintiff for bipolar disorder and depression. (Tr. 51). Dr. McNaul has Plaintiff taking a number of medications and is attempting to find a medication level that keeps Plaintiff out of the depressive state without going into the manic state. (Tr. 52-53). In addition, she receives treatment by Dr. Buckles who is her primary physician. She also sees her OB/GYN, Dr. Katus. Plaintiff stated that she was seeing a massage therapist. (Tr. 63).

Plaintiff can be on her feet for about ten or fifteen minutes without difficulty. (Tr. 56). She can lift about ten pounds without hurting herself. If she tries to lift more, her back and groin hurt. She usually can sit for about an hour before she needs to get up. (Tr. 57).

Plaintiff described her typical day as follows. She stated that when she wakes up, she makes coffee and feeds the animals. She waters the plants on the deck. She talks on the phone, meets friends, and attends Bible studies. She returns home and watches the news and sometimes makes dinner. She will break up the housework...

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