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Ede v. Colvin

United States District Court, N.D. Iowa, Eastern Division

September 8, 2014

JOSEPH THOMAS EDE, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

RULING ON JUDICIAL REVIEW

JON STUART SCOLES, Chief Magistrate Judge.

I. INTRODUCTION

This matter comes before the Court on the Complaint (docket number 3) filed by Plaintiff Joseph Thomas Ede on November 13, 2013, requesting judicial review of the Social Security Commissioner's decision to deny his applications for Title II disability insurance benefits and Title XVI supplemental security income ("SSI") benefits. Ede asks the Court to reverse the decision of the Social Security Commissioner ("Commissioner") and order the Commissioner to provide him disability insurance benefits and SSI benefits. In the alternative, Ede requests the Court to remand this matter for further proceedings.

II. PRINCIPLES OF REVIEW

Title 42, United States Code, Section 405(g) provides that the Commissioner's final determination following an administrative hearing not to award disability insurance benefits is subject to judicial review. 42 U.S.C. § 405(g). Pursuant to 42 U.S.C. § 1383(c)(3), the Commissioner's final determination after an administrative hearing not to award SSI benefits is subject to judicial review to the same extent as provided in 42 U.S.C. § 405(g). 42 U.S.C. § 1383(c)(3). Title 42 U.S.C. § 405(g) provides the Court with the power to: "[E]nter... a judgment affirming, modifying, or reversing the decision of the Commissioner... with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). "The findings of the Commissioner... as to any fact, if supported by substantial evidence, shall be conclusive..." Id.

The Court will "affirm the Commissioner's decision if supported by substantial evidence on the record as a whole." Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012) (citation omitted). Substantial evidence is defined as "less than a preponderance but... enough that a reasonable mind would find it adequate to support the conclusion.'" Id. (quoting Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010)); see also Brock v. Astrue, 674 F.3d 1062, 1063 (8th Cir. 2010) ("Substantial evidence is evidence that a reasonable person might accept as adequate to support a decision but is less than a preponderance.").

In determining whether the decision of the Administrative Law Judge ("ALJ") meets this standard, the Court considers "all of the evidence that was before the ALJ, but it [does] not re-weigh the evidence." Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (citation omitted). The Court not only considers the evidence which supports the ALJ's decision, but also the evidence that detracts from his or her decision. Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012); see also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007) (Review of an ALJ's decision "extends beyond examining the record to find substantial evidence in support of the ALJ's decision; [the court must also] consider evidence in the record that fairly detracts from that decision."). In Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994), the Eighth Circuit Court of Appeals explained this standard as follows:

This standard is something less than the weight of the evidence and it allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal.'

Id. (quoting Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir. 1991), in turn quoting Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988)). In Buckner v. Astrue, 646 F.3d 549 (8th Cir. 2011), the Eighth Circuit further explained that a court "will not disturb the denial of benefits so long as the ALJ's decision falls within the available zone of choice.'" Id. at 556 (quoting Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008)). "An ALJ's decision is not outside that zone of choice simply because [a court] might have reached a different conclusion had [the court] been the initial finder of fact.'" Id. Therefore, "even if inconsistent conclusions may be drawn from the evidence, the agency's decision will be upheld if it is supported by substantial evidence on the record as a whole." Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing Chamberlain v. Shalala, 47 F.3d 1489, 1493 (8th Cir. 1995)); see also Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) ("If substantial evidence supports the ALJ's decision, we will not reverse the decision merely because substantial evidence would have also supported a contrary outcome, or because we would have decided differently."); Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009) ("If there is substantial evidence to support the Commissioner's conclusion, we may not reverse even though there may also be substantial evidence to support the opposite conclusion.' Clay v. Barnhart, 417 F.3d 922, 928 (8th Cir. 2005).").

III. FACTS

A. Ede's Education and Employment Background

Ede was born in 1964. At the administrative hearing, Ede testified that he quit school in the ninth grade to go to work, but later earned his GED. Ede's past relevant work includes jobs as a cleaner, truck driver, and press operator.

B. Administrative Hearing Testimony

1. Ede's Testimony

At the administrative hearing, Ede testified that he suffers from two types of seizures, grand mal and petit mal. Ede described losing consciousness with grand mal seizures, and then needing a week to recover from such seizures. During the recovery period, Ede explained that "I'm very fatigued. I have to go to sleep for a while.... I'm not real sharp. I'm not too sharp to begin with, but after a seizure I'm just kind of - I don't know if my brain is with me. My memory is worse than ever. I can't concentrate, and it takes me a week or something for me to begin focusing again, the way I did before the seizure."[1] Ede's attorney inquired about the frequency of the seizures:

Q: And so those - you had the seizures six days ago - one you went to Findley for six weeks ago. Prior to that when was the last time you had a grand mal?
A: I'm not sure. Probably a week before that. I have a few a month.
Q: How often do you go to the hospital?
A: Probably every two months. Every three months.
Q: Why don't you go to the hospital more for seizures?
A: Probably one thing - I just try to work it out myself. I know that eventually I'll come through.

(Administrative Record at 45.) Ede also described his petit mal seizures. Ede explained that he does not lose consciousness with a petit mal seizure, but gets hot, sweaty, and needs to lie down. After a couple hours of rest, he is okay. Ede estimated that he has four or five petit mal seizures each month.

Next, Ede discussed his difficulties with memory. He testified that he "can't remember much." Specifically, he stated that "I can't remember - I don't know my birthday. What year is it? It takes me a minute to remember if it's 2011 or 2012, and I'll write 2011 and stuff."[2] Ede also stated that he has difficulty remembering to take his medications and remembering to go to his doctor's appointments.

Ede also discussed his difficulties with depression. Ede testified that "I would like to put a bullet through my head about four or five days a month. I want to die a lot. That's how it affects me."[3] Ede also stated that sometimes he has difficulty getting along with other people.

2. Vocational Expert's Testimony

At the hearing, the ALJ provided vocational expert Melinda Stahr with a hypothetical for an individual who is:

limited to tasks that could be learned in 30 days or less involving no more than simple work related decisions with only occasional workplace changes. This hypothetical individual should have no more than occasional interaction with the public, coworkers, or supervisors. This hypothetical individual can only occasionally climb, balance, stoop, kneel, crouch, crawl. This individual can have no more than occasional exposure to vibrations, occasional exposure to noise, should have no more than occasional exposure to pulmonary irritants such as fumes, odors, dust, and gases. This individual can never climb ropes, ladders, or scaffolds, and this individual is precluded from working around heights or fast, dangerous machines.

(Administrative Record at 55.) The vocational expert testified that under such limitations, Ede could perform his past work as a cleaner. The ALJ added two additional limitations to the initial hypothetical question for the vocational expert: (1) in addition to regularly scheduled work breaks during a typical 40-hour workweek, the individual would need to take three additional unscheduled breaks of 15 minutes length each week; and (2) the individual would have to leave work at some point during a workday once each month due to his or her impairments. The vocational expert testified that under such limitations, Ede could still perform his past work as a cleaner. Finally, the ALJ inquired whether an individual who needed 3 unscheduled work breaks per day and/or would work at a slow pace for one-third of the day could perform Ede's past work. The vocational expert responded that under such circumstances, Ede would be precluded from his past relevant work and any other competitive employment.

C. Ede's Medical History

On September 23, 2010, Ede met with his treating psychiatrist, Dr. Thomas Piekenbrock, M.D., for a scheduled four-month psychiatric medication review. Dr. Piekenbrock noted that Ede was "remarkably stable and admits that the Lexapro has cleared up a lot of his thoughts of depression."[4] Dr. Piekenbrock also noted that Ede was working part-time in a housing development doing maintenance, and seemed to be enjoying the work. Dr. Piekenbrock diagnosed Ede with major depressive disorder and grand mal seizure disorder. Dr. Piekenbrock recommended that Ede continue his medication as treatment.

Ede returned to Dr. Piekenbrock on October 28, 2010. Ede informed Dr. Piekenbrock that he was "doing well up until about two weeks ago, when he lost his job and is unemployed, [and is] still waiting to hear from social security."[5] Dr. Piekenbrock indicated that Ede had been compliant with his medication. Dr. Piekenbrock diagnosed Ede with major depressive disorder, organic brain syndrome, and grand mal seizure disorder. Dr. Piekenbrock increased Ede's medication as treatment.

On April 1, 2011, Dr. Russell Lark, Ph.D., reviewed Ede's medical records and provided Disability Determination Services ("DDS") with a Psychiatric Review Technique and mental residual functional capacity ("RFC") assessment for Ede. On the Psychiatric Review Technique assessment, Dr. Lark diagnosed Ede with organic brain syndrome and major depressive disorder. Dr. Lark determined that Ede had the following limitations: mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. On the mental RFC assessment, Dr. Lark determined that Ede was moderately limited in his ability to: understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods of time, complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, accept instructions and respond appropriately to criticism from supervisors, and respond appropriately to changes in the work setting. Dr. Lark concluded that:

[The medical evidence of record] and [activities of daily living] indicate that [Ede] can handle daily responsibilities. His memory, attention, concentration, and pace may vary with his mood but are adequate for tasks not requiring sustained attention. The preponderance of evidence in file indicates that [Ede] is able to complete at least simple, repetitive tasks on a sustained basis.

(Administrative Record at 342.)

On April 5, 2011, Dr. John May, M.D., reviewed Ede's medical records and provided DDS with a physical RFC assessment for Ede. Dr. May determined that Ede had no exertional, manipulative, visual, or communicative limitations. Dr. May further determined that Ede could only occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. Dr. May also found that Ede should avoid concentrated exposure to noise, vibration, fumes, odors, dusts, gases, and poor ventilation. Dr. May opined that Ede should avoid even moderate exposure to hazards, such as machinery and heights. Dr. May concluded that:

[Ede] has a history of a seizure d/o [("disorder").]... He was seen 1/17/09 and noted he had not had a seizure in 3 months. His Lamictal level at that time was 1 suggesting non compliance but could have been low due to his combination of medications. He was to monitor his seizures and return for further evaluation. He did not return until 4/29/10 at which time he was noted not to have had any further episodes of seizures. His seizure d/o does not meet or equal a listing and does not occur with frequency enough to warrant being unable to work. However, due to his history of abnormal EEGs and the actual documentation of a [history] of seizure d/o, he has been given a non exertional RFC.

(Administrative Record at 364.)

On June 9, 2011, Ede met with Dr. Piekenbrock for follow-up on his medication and condition. Dr. Piekenbrock opined that:

[Ede] is a patient that has significant impairment and is diagnosed with Major Depressive Disorder, Organic Brain Syndrome, Grand Mal Seizure Disorder, and with all of the above there is an explosiveness that is typically the Organic Brain Syndrome type of all or none response. I sincerely believe he is disabled. I do not believe he is employable in any situation, not only because of his mood disability, which is very unstable, but also his mental functioning in an organic way.

(Administrative Record at 401.) Dr. Piekenbrock recommended that Ede continue his medication as treatment because "the Lexapro... seems to hold the mood into some kind of abeyance."[6]

Ede returned to Dr. Piekenbrock on October 10, 2011, for a medication check. Dr. Piekenbrock noted that "[Ede] states that if he takes Lexapro he feels a little better and in control. Without it, he is fearful he will hurt himself or others or become, in any event, violent."[7] Dr. Piekenbrock, again, opined that "I believe this man is totally unemployable and disabled."[8] Dr. Piekenbrock recommended that Ede continue his medication as treatment.

On February 9, 2012, Ede met with Dr. Piekenbrock for a scheduled review of psychotropic medication. Dr. Piekenbrock noted that Ede had a recurrence of his seizures, including a grand mal seizure the week before his appointment. Dr. Piekenbrock further noted that Ede "has been having them about every three months."[9] Dr. Piekenbrock opined that "[i]t certainly contributes to his inability to be gainfully employed."[10] Again, Dr. Piekenbrock recommended that Ede continue his medication as treatment.

On May 15, 2012, Ede returned to Dr. Piekenbrock for review of his medications. Dr. Piekenbrock found that Ede was "stable on medication taking it as prescribed."[11]

IV. CONCLUSIONS OF LAW

A. ALJ's Disability Determination


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