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Pierson v. Colvin

United States District Court, S.D. Iowa

April 26, 2013

CAROLYN W. COLVIN [1], Acting Commissioner of Social Security, Defendant

For Patrick Brian Pierson, Plaintiff: Thomas A Krause, LEAD ATTORNEY, ATTORNEY AT LAW, DES MOINES, IA; John W Kocourek, JOHN W. KOCOUREK PC, COUNCIL BLUFFS, IA.

For Commissioner of Social Security, agent of Michael J Astrue, Defendant: Gary L Hayward, UNITED STATES ATTORNEY, DES MOINES, IA.


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Plaintiff, Patrick Brian Pierson, filed a Complaint in this Court on July 11, 2012, seeking review of the Commissioner's decision to deny his claim for Social Security benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. § § 401 et seq. and 1381 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).

Plaintiff filed applications for benefits October 29, 2008. Tr. at 151-57. Plaintiff, whose date of birth is July 18, 1962, (Tr. at 151) was 48 years old at the time of the hearing on January 13, 2011, before Administrative Law Judge Ronald D. Lahners (ALJ). Tr. at 28-61. The ALJ issued a Notice Of Decision -- Unfavorable on January 27, 2011. Tr. at 6-20. The Appeals Council declined to review the ALJ's decision on May 8, 2012. Tr. at 1-3. Thereafter, Plaintiff commenced this action.

After reading the briefs submitted by each of the parties, the Court believed a hearing was necessary prior to the record being completed. On April 18, 2013, the Court heard argument from counsel for Plaintiff and counsel for the Commissioner.

The ALJ noted that Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2008. At the first step of the sequential evaluation, the ALJ found that Plaintiff has not engaged in substantial gainful activity after November 1, 2008, the amended alleged disability onset date. At the second step, the ALJ found Plaintiff has the following severe impairments: borderline intellectual functioning, hepatitis C, hemochromatosis, cirrhosis of the liver, low back pain, depression, antisocial personality disorder, anxiety, and polysubstance dependence in remission. Tr. at 11. The ALJ found that Plaintiff's impairments were not severe enough to qualify for benefits at the third step of the sequential evaluation. Tr. at 12. At the fourth step, the ALJ found

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except as follows:
The claimant can lift up to 20 pounds occasionally and 10 pounds frequently. In an 8-hour day he can stand for 6 hours and sit for 6 hours. He has unlimited use of his upper extremities. The claimant is limited to unskilled work as he cannot understand, remember or carry out detailed instructions. He has moderate limitations in his ability to do the following: maintain attention and concentration for extended periods; work in coordination with or proximity to others without being distracted by them; interact appropriately with the general public; and to get along with co-workers and supervisors because he would not take criticism well. The claimant needs a position where he does not have much if any work with the general public, and he either works by himself in an area where he has minimal contact with other co-workers and limited-type interaction with supervisors.

Tr. at 14. The ALJ found that Plaintiff is unable to perform his past relevant work. Tr. at 18. At the fifth step, the ALJ found that Plaintiff is able to do a significant

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number of jobs, examples of which include house cleaner, photocopy machine operator, and inserting machine operator. Tr. at 18-19. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which he applied. Tr. at 19.

At argument before the Court, counsel were asked why the sequential evaluation should not have been stopped at step three because a medical equivalence to listing 12.05(C) had been established. Counsel agreed with each other that deficits in adaptive functioning before age 22 had not been established. Counsel for Plaintiff pointed to a disability report on which Plaintiff indicated that he had not attended " special education" while in school. See, Tr. at 190. Also, counsel were troubled that Plaintiff's work history indicated that his impairments were not of listing level severity. These arguments will be considered below.


The Court has read each and every page of this voluminous record. The record shows that Plaintiff was an inmate of an Iowa State Correctional facility from September 13, 2006 until October or November 2008. Both before, during and after incarceration Plaintiff was treated for chronic liver diseases including chronic hepatitis C, hereditary hemochromatosis [2] , C282Y homozygous [3] with iron overload. In order to control the iron overload, weekly therapeutic phlebotomies were necessary. Before he went to prison, as well as after he was released, the phlebotomies took place at Jennie Edmundson Hospital in Council Bluffs, Iowa. During incarceration, Plaintiff received his medical care at the University of Iowa Hospitals and Clinics. After discharge from prison, the doctors at the University of Iowa continued to see Plaintiff and to monitor his conditions, but they worked in conjunction with doctors closer to Plaintiff's home.

In addition to being treated for liver disease, he was also diagnosed with depression, anxiety, social anxiety and antisocial personality disorder. Before he was incarcerated for growing marijuana, Plaintiff had a long history of heavy drinking and drug usage. Plaintiff's medical care at the University of Iowa included evaluation of low back pain which was attributed to multilevel small herniations superimposed on what appears to be a congenitally mildly narrowed spinal canal. The record of this case also shows that Plaintiff underwent testing for pain caused by a testicle retracting into his body; rectal bleeding; and, evaluation for gall bladder disease.

After Plaintiff was released from prison, Plaintiff asked Lloyd A. Pierre, Jr., M.D. to be his primary care giver. Dr. Pierre monitored Plaintiff's laboratory reports, and reported that Plaintiff was receiving phlebotomies at Jennie Edmundson Hospital in Council Bluffs.

On January 13, 2009, Plaintiff was seen by Rosanna M. Jones-Thurman, Ph.D., for

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a psychological evaluation at the request of Disability Determination Services. Tr. at 420-25. Plaintiff was driven to the appointment by his mother because he did not have a valid driver's license. Tr. at 420. Plaintiff reported a history of being sexually abused by three different babysitters. Plaintiff reported dropping out of school in the 11th grade, and stated he had been in special education. It was noted that his mother fills out all his paper work, including the forms in the psychologist's office. Plaintiff reported no current legal problems and said that he was not on probation, having been released from prison in October 2008. Plaintiff reported being sober since September 13, 2006. Before that, he drank alcohol every day. Plaintiff reported that he was not working and was applying for disability benefits. Tr. at 421. His work history consisted of basic labor and production jobs and he said he had been fired from most jobs. His longest employment was for 10 years at Airlite Plastics where he drove a forklift. Plaintiff said that while he was in prison, he was diagnosed with depression, anxiety, social anxiety and antisocial personality disorder. Plaintiff said that before he went to prison, his mental illnesses were hidden beneath his alcohol and drug problems. The doctor wrote:

He does report anxiety, his heart beats fast, he sweats and he gets nervous about talking. He also reports he is a loner, stays in his basement, does not really socialize and has had an increase in anxiety since being sober. He feels depressed, having mood swings and mood changes. He gets angry easily, but also feels down, depressed and sorry for himself. He does report past physical aggression but states he learned some coping skills in prison. He often raises his voice but is not verbally aggressive like he was before. He reports being irritable, stating small things bother him. He is afraid of what people think about him and does not like being out in public where people look at him. He eats about one meal a day and states he really just does not have much appetite. His sleep is variable. Yesterday and the day before, he slept all day but some nights he cannot go to sleep at all. He has no suicidal ideation now, but previously had thoughts and has had two past suicide attempts. In one attempt, he shot himself in the stomach and lived through it. In the other attempt, he overdosed on pills with a combination of sleeping pills and vodka.

Plaintiff said that he lives with his grandmother, and helps her with household chores and yard work. Tr. at 422. In her conclusions, Dr. Jones-Thurman observed that Plaintiff's " overall sensorium and cognition were below average." She recommended that Plaintiff undergo IQ testing to rule out borderline intellectual functioning. Tr. at 424. On Axis I, the diagnoses were: mood disorder NOS; social anxiety disorder; alcohol dependence, cannabis dependence and amphetamine dependence -- all in remission. On Axis II, the diagnoses were antisocial personality disorder, and rule out borderline intellectual functioning. Tr. at 424.

Plaintiff returned to Dr. Jones-Thurman on February 10, 2009 for further testing. Tr. at 428-31. The psychologist wrote:

Mr. Pierson completed the Wechsler Adult Intelligence Scale -- Fourth Edition (WAIS-IV) [4] and obtained a Verbal Comprehension IQ score of 80 (Low Average), a Perceptual Reasoning IQ score

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of 79 (Borderline), a Working Memory IQ score of 74 (Borderline), a Processing Speed IQ score of 86 (Low Average), and a Full-Scale IQ score of 75 (Borderline) [5] . This did appear to be a current and valid estimate of intellectual functioning. There is ...

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