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Jones v. Colvin

United States District Court, D. Nebraska

February 15, 2017

ANGEL S. JONES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the denial, initially and upon reconsideration, of plaintiff Angel S. Jones' disability insurance benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. and § 1381 et seq. The Court has considered the parties' filings and the administrative record and affirms the Commissioner's decision to deny benefits.

         I. PROCEDURAL HISTORY

         Jones filed applications for disability insurance benefits and supplemental security income in December 2011. T373-402. Jones' claims were denied initially (T166-69; T170-173; T174-78) and on reconsideration (T182-90; T191-199; T200-09). Following two hearings-the first on November 19, 2013, and the second on April 29, 2014-the administrative law judge (ALJ) found, in a decision dated May 19, 2014, that Jones was not disabled as defined under 42 U.S.C. §§ 416(i), 423(d), or 1382(a)(3)(A), and therefore not entitled to disability benefits. T24. The ALJ determined that, although Jones suffered from severe impairments, she had the residual functional capacity to perform other jobs that exist in significant numbers in the national economy. T13-24; T36-47; T59-70. The Appeals Council of the Social Security Administration denied Jones' request for review of the ALJ's decision. T1-4. Jones' complaint seeks review of the ALJ's decisions as the final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g). Filing 1.

         II. FACTUAL BACKGROUND

         1. Medical History

         Jones' medical records generally reflect a history of bipolar disorder and depression dating back to at least 2006. At that time, Jones visited Joe Travis, M.D., in connection with a state-funded program in which Jones was to provide daycare services. See T115-119. Specifically, Jones asked Travis to submit a letter on her behalf to a state social service agency regarding her ability to provide childcare with an underlying diagnosis of bipolar disorder. Travis endorsed this idea, and his notes reflect that Jones' bipolar disorder was under control, and her affect, generally speaking, was "very bright." T573. Thus, given the positive nature of the visit, Travis wrote to the state on Jones' behalf indicating that, in his opinion, Jones was capable of working with children.

         Jones' medical records then jump to 2009, when Jones visited Anne Hoeman, certified physician assistant, regarding self-inflicted cuts on her arms and legs. T610. Jones reported that she would unconsciously cut herself in the night, causing her to wake up with bloody sheets. Jones remarked that she had been cutting herself for about 9 years, but that she had no intent of hurting herself. T610. Impressions from the visit, as reflected in Hoeman's notes, were (1) unconscious self-inflicted injury, and (2) history of disassociation disorder and depression. T577. Hoeman prescribed Paxil and Ambien, and encouraged Jones to begin counseling. Jones visited Hoeman's office on at least two subsequent occasions-once in October 2009, and again in October 2010-for general symptoms related to fatigue and depression. See, T607; T606. Hoeman refilled or increased Jones' prescription for Paxil each time, and again encouraged her to seek counseling.

         In connection with Jones' prior application for disability benefits, a psychological interview was performed in July 2009 by Twila Preston, Ph.D. T580. Jones told Preston that she had manic depressive disorder and bipolar disorder, and that she had "massive" mood swings. She further reported that when she became angry, she would lose "chunks of time, " and that she occasionally woke up with cuts on her arms and legs. T582. The cutting, she reported, corresponded with increased stress, and tended to occur when she slept at night, as opposed to during the day. T582. Jones also described a fear of being around other people, and relatedly, a reluctance to leave her home. T582. "She avoids people, " Preston wrote, "because she is afraid 'they are all like my brother, threatening and potentially hurtful.'" T582. Preston's diagnoses included posttraumatic stress disorder, mood disorder not otherwise specified, borderline personality features, and attention deficit hyperactivity disorder inattentive type by history only. T583.

         Overall, Preston described Jones as open, cooperative, and alert. T582. She wrote that Jones' speech was "logical, coherent, and goal-directed, " and noted her appearance as "neat and clean." T582. But she also remarked that Jones had poor judgment, was anxious, and demonstrated poor frustration tolerance. T582. Accordingly, Preston opined that Jones could sustain concentration and attention for simple tasks, but would likely have more trouble with complicated tasks. Relatedly, while she could understand and remember short and simple instructions, "[s]he would have a difficult time carrying these out under ordinary supervision due to her avoidance of others." T583. Preston assigned Jones a global assessment of functioning (GAF) score of 40. T583.[1]

         Jones, in connection with the present claim, was evaluated again in March 2012-this time by Michael Baker, Ph.D. T614. At that interview, Jones reported a history of bipolar disorder and attention deficit disorder, and stated that she last used Paxil in May 2011. With respect to her mental health status, Baker remarked that Jones was "alert and well oriented, " and that she had "no difficulty following the train of conversation." T616. But, consistent with the prior evaluation, he also wrote that Jones' judgment and insight are "low, " and that the cuts on her arm, while not deep enough to necessitate stiches, were nonetheless "obvious." T615. Baker's diagnoses included bipolar disorder, not otherwise specified, reported by history, and rule out borderline personality disorder. T616. He concluded:

In regards to mental limitations related to work activities, [Jones] seems able to remember and understand instructions, procedures, and locations. Her maintenance of attention, concentration, and pace seems adequate for routine, noncomplex, tasks. She reports some social anxiety, but she interacted adequately during the session. If social or interpersonal demands were too stressful then that would be problematic. Her use of good judgment and responding appropriately to changes in the workplace would also be based on not overly stressful or complex work.

         T616. Baker assigned Jones a GAF score of 50. T616.[2]

         At the November 19, 2013 hearing on this claim, the ALJ ordered an additional psychological examination, which occurred in January 2014 with Margaret Donovan, Ph.D. T675. Donovan, too, noted Jones' remarks regarding social anxiety and frequent blackouts. As reflected in the report, the blackouts occurred during times of stress, and would often cause Jones to lose "two or three hours at a time." T677. Further, Jones told Donovan that the blackouts were the only time in which she engaged in cutting/self-mutilation, and that the blackouts occurred anywhere from once or twice a month, to once or twice a week, depending on whether she was taking medication. T677. Donovan's diagnoses included depressive disorder, not otherwise specified, reading disability (dyslexia), and borderline personality disorder with dissociation. T680. Donovan concluded:

Because of her personality disorder [Jones] will have difficulty getting along with coworkers and bosses. She would definitely do better in a job where she had little contact with coworkers. She also would do better in a job where she is not around a lot of people as she has anxiety that strangers will harm her.
The prognosis for the personality disorder is poor, especially since she is not in therapy and does not see that she can change anything. . . . Her prognosis for mood disorder is good if she takes the medication.

T680-81. Donavan assigned Jones a GAF score of 65. T680.[3]

         The record also contains reviews from state agency psychological consultants Rebecca Braymen, Ph.D., and Linda Schmechel, Ph.D. Braymen, who conducted a review of Jones' records in connection with a separate application for benefits, indicated that Jones had moderate limitations in the ability to understand, remember, and carry out detailed instructions; to perform activities within a schedule; to work in proximity to others; to interact with the general public; and to respond appropriately in the work setting, to name a few. T586-87. Schmechel, who reviewed Jones' records in connection with the underlying claim, reached similar conclusions. In her March 2012 assessment, she observed that Jones had "marked limitations" in the ability to understand and remember detailed instructions, and to interact appropriately with the general public. T619-20. She further concluded that Jones was moderately limited in her ability to, among other things, maintain attention and concentrate for extended periods, to set goals, and to carry out detailed instructions. T619-20. Despite these limitations, however, both consultants concluded that Jones could maintain some form of unskilled employment. See, T603; T637.

         2. Hearing Testimony - November 19, 2013

         Jones testified at the administrative hearing that she was unable to work because of "[i]ndiscretion, " noting that she felt "[n]ervous" and "[i]tchy" in public, and that she would start "scratching" and "panicking" around others. T123. She also discussed her diagnosis for bipolar disorder, which contributes to her desire to be alone, "away from everything and everyone." T128. Jones said that she gets distracted easily, and that she has an attention span of 5 to 20 minutes, depending on whether she is on her medication. T129-30.

         Jones also testified to other factors that, she contends, contribute to her inability to work. For example, she discussed her dyslexia, which prevents her from filling out job applications. T123-24. She also described herself as forgetful, noting that, in a previous job, she would sometimes forget to show up for work. T132. And she testified more generally to her medical history, stating that she was on Paxil and Meclozine at the time of the hearing, and that she had not seen a therapist for 13 years. T126-27.

         Jones also described frequent blackouts, which, she says, cause her to lose chunks of time. She elaborated,

A: I've always described them as white-outs. I'll be arguing with my mom one minute about taking the garbage out. And the next thing I know I'm sitting in my bedroom and I feel the overpowering need to apologize because I feel like I've done something.
Q: Don't know what's happened in the interim period?
A: No.
. . .
Q: How frequently does that occur?
A: Honestly, it happens quite often. And sometimes it doesn't happen until I go to sleep It's one of these-I'll remember laying down to go to sleep and the next thing I know I'm coming to and there are problems. My arms and legs will be covered in blood. Physical harm. Myself. I'm assuming that I wound up cutting myself. I've woke up from something like this fighting myself and hitting myself. But I don't remember ever doing anything.

T135-36.

         The ALJ presented the vocational expert (VE) with a hypothetical based on a person who could lift 20 pounds on occasion and 10 pounds on a frequent basis; could sit or stand for 6 hours; has limited use of the extremities; has difficultly reading and writing; could write and change things on a computer; has the ability to "pace adequate [sic] for routine, non-complex tasks"; must work in an area with no interaction with the general public; must conduct routine, repetitive tasks; whom has a problem with change, and who must have minimal interactions with coworkers. T143-44. Such a person, the VE opined, could perform light, unskilled work, such as a production assembler, laundry worker, or hand packer. T144-145.

         The ALJ, following cross-examination of the VE, ordered a follow-up consultative examination.

         3. Hearing Testimony - April 29, 2014

         Jones, at the second hearing, listed blackouts and physical pain as the most severe conditions that interfere with her ability to work. T85. With respect to physical pain, she cited problems with her hips, ankle, and spinal cord. When questioned about this condition, Jones said that she had been to a doctor the previous July, but that she had not been back-and was not currently on medication-due to financial constraints. T85-86.

         The ALJ presented the vocational expert (VE) with a hypothetical similar to the one presented at the prior hearing. Specifically, the ALJ asked the VE to consider an individual: with no past relevant work; who could lift up to 20 pounds on occasion, 10 pounds on a frequent basis; who could stand for 6 hours or sit for 6 hours in an 8-hour day; who has unlimited use of the extremities; who could have no contact with the general public, and minimal contact with peers and supervisors, and coworkers; and who could perform simple, yet repetitious work. T101. Based on that hypothetical, the VE opined that such a person could perform light, unskilled work, such as housekeeping or production-type work. T101-102. Responding to the VE's assessment, the ALJ then added a condition to the hypothetical, asking the VE to assume, in addition to the conditions described above, that the individual was unable to carry out short and simple instructions under ordinary supervision. T102. With that addition, ...


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