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Roberts v. Colvin

United States District Court, D. Nebraska

March 5, 2014

RETA L. ROBERTS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration; Defendant.

MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY

WARREN K. URBOM, Senior District Judge.

Reta L. Roberts filed a complaint on August 27, 2012, against Michael J. Astrue, Commissioner of the Social Security Administration.[1] (ECF No. 1.) Roberts seeks a review of the Commissioner's decision to deny her application for (1) disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq., and (2) Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C §§ 1381 et seq. The defendant has responded to the plaintiff's complaint by filing an answer (ECF No. 9) and a transcript of the administrative record. (ECF Nos. 10-12.) In addition, pursuant to the order of Magistrate Judge Thomas D. Thalken on December 10, 2012, (ECF No. 15), each of the parties has submitted a brief in support of his or her position. (See Pl.'s Br., ECF No. 22; Def.'s Br., ECF No. 27.) After carefully reviewing these materials, I find that the Commissioner's decision must be affirmed.

I. BACKGROUND

On May 2, 2008, Roberts protectively filed applications for disability insurance benefits under Title II and SSI benefits under Title XVI of the Act. (See ECF No. 10, Transcript of Social Security Proceedings (hereinafter "Tr.") at 8.) After her applications were denied initially and on reconsideration, (id. at 132, 136) the plaintiff requested a hearing before an administrative law judge (hereinafter "ALJ"). (Id. at 139). This hearing was conducted on April 14, 2010. (Id. at 39-125). In a decision dated December 8, 2010, the ALJ concluded that Roberts was not entitled to disability insurance benefits or SSI benefits. (Id. at 8-26). The Appeals Council of the Social Security Administration denied Roberts' request for review. (Id. at 1-5). Thus, the ALJ's decision stands as the final decision of the Commissioner, and it is from this decision that Roberts seeks judicial review.

II. SUMMARY OF THE RECORD

A. Medical Evidence

In August 2002, Roberts had a work-related injury to her right upper extremity. (Id. at 289). For workers' compensation purposes, she claimed temporary total disability for four weeks. Rajesh Kumar, M.D., determined that she had a five percent impairment to the right upper extremity. Kumar stated that Roberts would not require future treatment or surgery and would be able to do light-duty work, such as a cashier. She had restrictions of lifting, pulling, or pushing no more than 15 pounds. (Id. at 295). A second physician found no impairment and no disability. (Id. at 289-90, 296).

Roberts returned to Kumar on January 7, 2004, for shoulder pain. (Id. at 1053). Kumar stated that Roberts had developed chronic pain syndrome and had moderate pain most of the time which restricted her day-to-day activities. She had reached maximum medical improvement. Kumar reaffirmed that she had a five percent permanent partial disability of the right arm which was directly related to her work-related accident of 2002 and that she could do light-duty work, like a cashier, with a 15-pound restriction of lifting, pulling, or pushing. (Id. at 1054).

Roberts alleged that the onset date of her disability was September 10, 2004. (Id. at 224). She claimed she stopped working on May 31, 2007, due to her medical condition. In a disability report, Roberts said she has arthritis that causes pain in her back, hip, and hands, she cannot grasp objects, and she can barely hold a pen. Roberts made no mention of any mental impairments. (Id.)

Roberts was in an auto accident in October 2004. She went to the emergency room complaining of headache, left side neck pain, and left chest wall pain. (Id. at 668-69), but X-rays and a CT scan were negative. She was diagnosed with a concussion and was prescribed Motrin as needed for pain. (Id. at 676). One week later, she returned complaining that she was dizzy and losing her memory. (Id. at 663). She was diagnosed as having a scalp contusion and post-concussion syndrome. (Id. at 666). She was in another automobile accident in February 2006. (Id. at 573, 575). She complained of rib pain, but no fracture was found. (Id. at 577). She was discharged with hydrocodone. (Id. at 587).

In September 2006, a screen door fell on Roberts' foot, but X-rays showed no fracture, malalignment, or other abnormality. (Id. at 709, 711, 723). She was diagnosed with a left foot ulceration with cellulitis, chronic left arm numbness, altered mental status with drowsiness related to methamphetamine withdrawal, asthma, anxiety, and oral ulcers. (Id. at 713). She was treated with antibiotics and pain medication and discharged after one night in the hospital. (Id.).

On May 30, 2008, Roberts went to the emergency room, complaining of back and right hip pain. (Id. at 777-78). X-rays showed mild degenerative change, but no lesions or fractures. (Id. at 781). She was diagnosed with mild scoliosis. (Id. at 782). Roberts saw a physician on June 2, 2008, for chronic back pain. (Id. at 836). X-rays of her spine and hip were normal except for scoliosis. (Id.).

Roberts underwent physical therapy beginning on July 29, 2008. (Id. at 821). She had pain that limited her range of motion in her lumbar spine and decreased lumbar stability that limited her ability to perform activities of daily living. (Id.). She missed several appointments because she said she was busy. (Id. at 881). On October 15, 2008, she was to have two more visits and be reassessed for discharge at that time. (Id. at 882).

On June 21, 2009, an MRI showed moderate compression deformity of the T11 vertebral body level, which was unchanged from the February 2009 MRI examination. (Id. at 1085). In October 2010, Roberts had a microdiscectomy for a large, extruded, herniated disc, left L4-L5. (Id. at 1186).

After the hearing, Roberts' counsel wrote to the ALJ on October 12, 2010, to report that Roberts had recently had another back surgery. She had complained of leg pain to a provider who accused her of drug-seeking and sent her home. She went to the emergency room and was given medication and discharged. She returned to the emergency room because of continuing pain and was found to be in need of surgery because she could no longer feel her left leg. Post-surgery she was using a walker and a cane. She had fallen once since the surgery because she could not feel her left foot and she has foot-drop with that foot. (Id. at 325).

On January 25, 2011, Roberts visited Nebraska Pain Consultants for her lower back pain. (Id. at 1280). It was recommended she take part in water therapy and use non-opioid medications. (Id. at 1285). On April 11, 2011, she returned and declined an epidural steroid injection in her back. (Id. at 1288). The records indicate that her pain was consistent with post-laminectomy syndrome. (Id.).

From May 12, 2011, through June 28, 2011, Roberts underwent 12 physical therapy treatment sessions. (Id. at 1273). She was discontinued after she failed to call to reschedule any further appointments. (Id.).

B. Mental Health Evidence

Although Roberts did not mention mental health issues as causing her disability (Id. at 224), she offered evidence of her treatment for mental health issues and methamphetamine abuse. The record shows that she was taken to the emergency room by police on January 5, 2004, for a mental health evaluation. (Id. at 644, 648). Her boyfriend apparently reported that Roberts had made a suicide pact with her sister, but Roberts denied any suicidal or homicidal ideation. (Id. at 649-650). She told the nurse that her boyfriend had been abusive to her and that he is addicted to OxyContin. (Id. at 649).

Roberts went to Lutheran Family Services for a comprehensive psychosocial assessment on July 10, 2007. (Id. at 949). The record does not reflect whether she began any treatment program at that time, but she had a second intake appointment on May 29, 2008, and began treatment on June 3, 2008. (Id.). When she graduated on May 6, 2009, she was at minimal to no risk for self harm or harm to others. (Id. at 966). On admission her GAF was 42, and on discharge it was 53.[2] (Id. at 967). It was recommended that Roberts continue to actively engage in AA meetings, make daily contact with her sponsor, use her support system, find and maintain employment, meet probation requirements, and take part in 12 to 16 weeks of aftercare. (Id. at 968, 970).

On July 18, 2007, Roberts went to the emergency room complaining of dizziness. (Id. at 511-12). She reported that she had been either smoking or snorting methamphetamine almost daily for the last year. (Id. at 518). After using methamphetamine the previous day, she had been vomiting for 24 hours and said she was dizzy and unable to stand. However, the emergency room report showed that she was able to ambulate to the phone and stand for 10 minutes without any obvious difficulties. (Id. at 515). The physician stated that the dizziness was probably a result of drug abuse, but Roberts was given medication. (Id. at 519). The physician stated that Roberts needed inpatient treatment, but she was not receptive to that process. Roberts asked to go to the Independence Center, but there is no formal detoxification program for methamphetamine. She refused to go to Cornhusker Detox for initial evaluation and treatment. (Id. at 519-20). She was discharged in stable condition with clinical resources to help establish a treatment program. (Id. at 520). Roberts was placed on the waiting list for Touchstone, a short-term residential substance abuse treatment program. (Id. at 520, 698).

Roberts was evaluated at Touchstone on July 26, 2007. (Id. at 698). She reported that she voluntarily sought treatment after she relapsed on methamphetamine. (Id.). She reported that she had been hospitalized for four days about two weeks earlier and was then diagnosed with bipolar disorder. (Id.). She had been homeless for about two months after she lost her apartment when she went to jail for attempted distribution of methamphetamine, paraphernalia, and possession. (Id. at 699). About one month earlier, Roberts had gone to St. Monica's for treatment, but she tested positive for methamphetamine upon admission and was sent to a detoxification center. She left the detoxification center after four days. (Id.).

Roberts reported that she had worked as a certified nursing assistant, in a factory, in fast food, and at a convenience store, where she would often use methamphetamine before and after work. (Id. at 700). Roberts said she was first charged in 1997 with conspiracy to distribute methamphetamine for which she was given five years' probation and 200 hours of community service. (Id.). In 2006, she was charged with attempt to distribute methamphetamine and possession of 11 grams of methamphetamine and paraphernalia. That charge was pending at the time of the Touchstone evaluation. (Id.).

Roberts reported that she tried methamphetamine when she was 13 and used it until she was 19. She quit for two years while she was pregnant, and then used for approximately six months. She went to treatment at the Independence Center and then did not use any alcohol or drugs between the ages of 21 and 33. She relapsed at age 33 and began using five to six grams a day intravenously for nine months. She had last used methamphetamine the day before she entered Touchstone. (Id. at 701). The evaluation showed Roberts' GAF was 32. (Id. at 702). She had difficulty remembering events in her life, including her use of drugs and alcohol, and it was not clear if she had cognitive issues or if she was being dishonest. (Id.).

The psychiatric assessment at Touchstone resulted in a diagnostic impression of depression, NOS, methamphetamine, alcohol, and cannabis dependence. (Id. at 705). Kelli Bremer, M.D., stated that she could not conclude that Roberts had bipolar affective disorder type II because the history given by Roberts was poor. (Id.). Her GAF was 40. Bremer said Roberts was in a "rather odd state" and it was planned to have her undergo a drug screen to determine whether she was under the influence of some other drugs because her demeanor suggested that possibility. (Id. at 706).

Roberts entered treatment at Touchstone and was discharged on August 7, 2007, for repeated rule violations. (Id. at 707). The discharge summary stated that, during Roberts' first week, she violated facility rules, was aggressive, and appeared to be under the influence. She had slurred speech, incoherent thoughts, was irritable, and nodded off in groups. Roberts denied violating facility rules and failing to complete assigned chores when she was confronted in group therapy. She attempted to blame the group, saying that they did not understand her. Because her treatment was focused on rule violations, she did not address her addiction prior to discharge. Her prognosis was poor and it was recommended that she continue to seek treatment. (Id.). She was diagnosed with methamphetamine dependence and cocaine abuse, and personality disorder traits. Her GAF at the time of discharge was 32. (Id. at 708).

On March 31, 2008, Roberts was again assessed at Touchstone. (Id. at 920). Roberts was referred by her probation officer, but she said she did not know the reason she was there. (Id.). She reported that she had been charged with two counts of attempted distribution of methamphetamine and one count of possession and paraphernalia. (Id.). She was sentenced to 180 days on each charge and had been released from jail and placed on probation for 18 months. (Id. at 922). She said she had not used drugs since she had been incarcerated, but she said she was craving drugs. She wanted treatment to be successful, but it needed to be on her own terms. (Id.). Her GAF at the time was 35. (Id. at 923). Roberts appeared to be more motivated for the program and more able to focus. (Id. at 923-24). On June 2, 2008, Roberts was discharged from Touchstone after meeting the program's requirements. She was able to identify the severity of her addiction and was compliant with rules. (Id. at 928). Roberts' prognosis was fair, and it was recommended that she attend an intensive outpatient program with Lutheran Family Services and a minimum of four 12-step meetings each week. If she chose not to find employment, it was recommended that she volunteer 20 hours per week. (Id.).

On June 12, 2008, Roberts was evaluated at Centerpointe. (Id. at 785). She reported that she was in after care with Lutheran Family Services, but the evaluator noted that Roberts' memory was poor and she was a poor historian. Roberts reported that she had been diagnosed with depressive and bipolar disorders, but it was not confirmed by the interviewer. Roberts reported manic behavior which lasts for two to three days and her depressive feelings can sometimes last up to a couple of weeks. The interviewer noted that because Roberts was not a good historian, it was difficult to ascertain her symptoms or their duration. (Id. at 787).

Roberts reported that she last used methamphetamine in October 2006, and for about six months, she used an eight ball or more a day. (Id.). She reported that she was at St. Monica's on two separate occasions in 2006 and did not complete the programs. She went to Campus of Hope in 2007 and again failed to complete the program. She went to Touchstone in 2007 and did not finish, but she went back in 2008 and completed the program. (Id. at 788). Based on the history provided by Roberts, she was diagnosed with amphetamine dependence with physiological dependence, sustained full remission; post traumatic stress disorder; alcohol dependence with physiological dependence, sustained full remission, depressive disorder NOS, and rule out bipolar II disorder. (Id.). Her GAF was 40. (Id. at 789). It was recommended that Roberts obtain employment or retraining and continuing case management and medication management services. (Id.).

On July 15, 2008, a psychiatric assessment at CenterPointe stated that Roberts had been discharged from the intensive outpatient program at Lutheran Family Services and that she wanted to attend classes at CenterPointe. (Id. at 790). She claimed she had been drug-free for 500 days and attended AA meetings two to three times each week. The diagnostic impression was "Methamphetamine Dependence in Remission, History of Polysubstance Abuse, Bipolar Disorder with Psychotic Features, Alcohol Dependence in Remote Remission, and Victim of Rape twice." Her current GAF was 35-40. (Id. at 794).

Psychiatric progress notes from the outpatient treatment program at CenterPointe on September 26, 2008, showed that Roberts reported increased difficulty initiating sleep, and racing and disorganized thoughts. (Id. at 886). Roberts also reported that she had relapsed twice on methamphetamine in the previous week. (Id.).

On October 7, 2008, Roberts went to the emergency room complaining of an increase in depression, poor sleep, and suicidal thoughts. (Id. at 863). She was seen by the Independence Center and by the time she was discharged from the hospital on October 10, 2008, she was more coherent and denied suicidal thoughts. She was scheduled to go to St. Monica's on October 21, 2008, for short-term residential treatment. Upon discharge, her GAF was 45. (Id.). She reported that she was denied disability for the first time two weeks earlier and because of her disappointment and financial strain, she relapsed with methamphetamine use. (Id. at 864).

Roberts was seen for follow-up at CenterPointe on November 12, 2008. (Id. at 893). She reported that her medications were not working and she was experiencing hallucination, paranoia, mood swings, and insomnia. (Id.). Her medications were adjusted and it was noted that her mood was cycling and should be monitored more closely. (Id. at 895).

In a six-month review at CenterPointe, dated November 28, 2008, it was noted that Roberts had experienced a fairly significant period of success following treatment at Touchstone, but she was unable to identify specifics of the start of her relapse cycle. (Id. at 896). Her relapses began around the same time her intensive outpatient program at Lutheran Family Services ended. It was recommended that Roberts complete treatment at St. Monica's and follow the aftercare plan, access ongoing individual outpatient counseling, and remain in community support. She was on the waiting list for counseling at CenterPointe. (Id.).

Roberts was in the short-term residential program at St. Monica's between October 22, 2008, and December 10, 2008. (Id. at 900). Her GAF was 60. (Id.). She remained clean and sober throughout treatment and was at moderate risk for relapse. Her prognosis was guarded. It was recommended that she complete outpatient treatment and follow their recommendations for aftercare, continue to work with vocational rehabilitation to get a job, continue to see a psychiatrist for psychotropic medications, continue to work ...


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