Hill v. Astrue

Filing 19

MEMORANDUM OPINION..the decision of the Commissioner of Social Security isaffirmed. An appropriate Judgement Order is issued herewith. Signed by Magistrate Judge David D. Noce on 8/12/13. (MRS)

Hill v. Astrue

Doc. 19

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JODY D. HILL
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

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No. 1:12 CV 56 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of the defendant
Commissioner of Social Security denying the application of plaintiff Jody D. Hill for disability
insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. § 401, et seq., and
for supplemental security income under Title XVI of that Act, § 1381, et seq. The parties have
consented to the exercise of plenary authority by the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). (Doc. 10.) For the reasons set forth below, the court affirms the
decision of the Administrative Law Judge (ALJ).

I. BACKGROUND
Plaintiff Jody D. Hill, who was born on April 9, 1977, filed applications for Title II and Title
XVI benefits on August 20, 2007. (Tr. 163-70.) He alleged an onset date of disability of February
1, 2006, due to manic depression, homicidal and suicidal tendency. (Tr. 93-96, 209.) Plaintiff’s
applications were denied initially on October 11, 2007, and he requested a hearing before an ALJ.
(Tr. 93-96, 103-04.)
On May 6, 2009, following a hearing, the ALJ found plaintiff was not disabled. (Tr. 75-85.)
The Appeals Council granted plaintiff’s request for review, and a remanded with instructions on
February 26, 2010. (Tr. 86-90.) The alleged onset date was amended to November 24, 2006. (Tr.
30, 203.) The ALJ again denied benefits in a decision dated October 4, 2010. (Tr. 10-19.) The

Dockets.Justia.com

Appeals Council denied review on February 24, 2012. (Tr. 1-3.) Thus, the decision of the ALJ
stands as the final decision of the Commissioner.

II. MEDICAL HISTORY
On March 5, 1999, plaintiff voluntarily admitted himself into Southeast Missouri Mental
Health Center. He was provisionally diagnosed with adjustment disorder. He stated that he was
tired of criticism he received from his family and threatened to hurt either his aunt or himself. He
stated that he had not received adequate love and support from his mother, and was “always put
down by her.” He was stressed by his household situation, where he lived with his mother,
stepfather, stepfather’s children, his aunt, her husband, and their children and stepchildren. He felt
worthless and had passive suicidal thoughts. He denied auditory or visual hallucinations. Upon his
admittance, plaintiff was given a GAF score of 60 by Bonnie Hartrup, CCA, and Tina Lutes, MSW,
SWPI.1 (Tr. 380-89.)
Physically, plaintiff was well-developed and slender, but had poor hygiene. A neurological
examination was “essentially within normal limits.” Plaintiff did well at his stay in the health center;
“[h]e was social and attended groups without difficulty.” Evaluations suggested “chronic personality
difficulties characterized by excessive worry, introspection, and overideational rumination.” On
March 8, 1999, Ms. Hartrup and Ms. Lutes gave plaintiff a GAF score of 65.2 At his discharge on
March 10, plaintiff “was in a good mood and had a bright affect.” No medications were prescribed;

1

A GAF score, short for Global Assessment of Functioning, helps summarize a patient's overall
ability to function. A GAF score has two components. The first component covers symptom severity
and the second component covers functioning. A patient's GAF score represents the worst of the two
components.
On the GAF scale, a score from 51 to 60 represents moderate symptoms (such as flat affect
and circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational,
or school functioning (such as few friends, conflicts with peers or co-workers). American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 32–34 (4th ed.2000).
2

A GAF of 61–70 represents mild symptoms (such as depressed mood and mild insomnia), or some
difficulty in social, occupational, or school functioning (such as occasional truancy, or theft within
the household), but the individual generally functions pretty well and has some meaningful
interpersonal relationships. DSM-IV at 32–34.
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Manisha Lele, M.D., did not feel that medications were indicated. Rather, she instructed plaintiff
to seek counseling for his anger issues. Dr. Lele gave plaintiff a GAF score of 80.3 (Id.)
On July 6, 2006, plaintiff saw Keith Myers, a medical intern, for a psychological
consultation. Mr. Myers wrote that plaintiff does not require a medical evaluation. Plaintiff reported
that he slept between 12 and 16 hour per night, that his mood was depressed and apathetic, and that
he was hospitalized in 1999 for wanting to kill his aunt. He was stressed by his relationships with
his family and girlfriend, and did not have anyone who completely supported him. Mr. Myers
diagnosed plaintiff with moderate recurrent major depressive disorder and gave plaintiff a GAF score
of 51. (Tr. 276-77.)
Mr. Myers conducted a psychological evaluation of plaintiff on July 10, 2006. Plaintiff
complained of frustrations with his job and his girlfriend. Mr. Myers marked that plaintiff had an
appropriate affect, mood, and behavior. His insight and judgment were fair, and eye contact was
poor. His thought process was noted as “loose association.” He was marked as not a danger to
himself or others. (Tr. 275.)
Also on July 10, 2006, plaintiff saw Judith Haggard, MS, APRN, BC for a follow-up
examination regarding his depression, expressing a desire for medication. Ms. Haggard noted that
plaintiff seemed bitter and avoided eye contact. She prescribed Celexa and a follow-up appointment
in two weeks.4 (Tr. 285, 349.)
On July 24, 2006, plaintiff saw Ms. Haggard again. He reported that the Celexa was helping
and that “everybody notices a difference.” He was no longer angry and felt much better. Ms.
Haggard noticed that he seemed more pleasant and was much more willing to make eye contact. She
instructed him to continue on Celexa and to return in three months. (Tr. 284, 347.)
On August 7, 2006, plaintiff saw Muhammad Salmanullah, MD, as a condition for his
employment. Dr. Salmanullah wrote that he does not have suicidal ideations, but that he should
3

On the GAF scale, a score from 71–80 indicates that symptoms, if any, are transient and expectable
reactions to psycho-social stressors (such as difficulty concentrating after a family argument) and no
more than a slight impairment in social, occupational, or school functioning. DSM-IV at 32–34.
4

Celexa is an antidepressant medication. WebMD, http://www.webmd.com/drugs (last visited
August 12, 2013).
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continue taking Celexa. (Tr. 283, 345.)
On December 6, 2006, plaintiff saw Dr. Salmanullah again to refill his medication. His
Celexa had run out three weeks prior to the appointment, but due to his occupation as a truck driver,
he could not return for a refill earlier. He did not call to get a refill from his location. He showed
no suicidal or homicidal ideation. Dr. Salmanullah assessed bipolar disorder. He increased
plaintiff’s dosage of Celexa from 30 mg per day to 40 mg per day.5 He also prescribed lithium, 150
mg three times per day for mood stabilization.6 (Tr. 280, 341.)
On December 20, 2006, plaintiff saw Dr. Salmanullah for a follow-up appointment. Dr.
Salmanullah noted “remarkable improvement,” and that plaintiff was smiling in the office without
any symptoms of anxiety. He increased plaintiff’s lithium dose to 300 mg three times per day, and
continued him on 40 mg per day of Celexa. (Tr. 279, 339.)
In January 2007, plaintiff was incarcerated due to failure to appear in court for writing a bad
check. He was scheduled to be released June 7. On January 16, plaintiff underwent a psychological
evaluation because he made threats of homicide and suicide. He stated, “I wouldn’t be suicidal if
I had my meds.” Officials arranged for him to receive his prescribed medication. (Tr. 294, 304, 30812.)
On March 12, 2007, plaintiff underwent a psychological evaluation because he was sent to
jail and fared poorly without his medication. Debra Powell, MS, noted that plaintiff had suicidal
thoughts, angry spells, sleep disturbance, and a depressed mood. She noted that plaintiff had been
in several foster homes as a child and had problems with comprehension and communication. She
marked that plaintiff lacked social judgment, personal judgment, and had assaultive ideas. She
diagnosed manic depression and bipolar disorder, and scheduled him for a medication management
appointment. (Tr. 289-301.)

5

Although the record states that Dr. Salmanullah increased the Celexa dosage to “240 mg,” the
undersigned finds this to be a typographical error. Later in December of 2006, Dr, Salmanullah
planned for plaintiff to “continue his Celexa at 40 mg once a day.” (Tr. 279.) Further, the maximum
dosage for Celexa is 40 mg. WebMD, http://www.webmd.com/drugs (last visited on August 12,
2013).
6

Lithium is used to treat manic-depressive (or bipolar) disorder by stabilizing mood and reducing
extremes in behavior. WebMD, http://www.webmd.com/drugs (last visited August 12, 2013).
-4-

Plaintiff underwent another mental evaluation while incarcerated on March 26, 2007.
Plaintiff showed no progress, but expected therapy to help him control his anger and improve his
personal relationships. Art Guetterman, MA, wrote that plaintiff’s goals, particularly those of
improving his relationship with his mother, may be unrealistic. (Tr. 307.)
Mr. Guetterman saw plaintiff again on April 18, 2007. Plaintiff again showed no progress.
Plaintiff said he does not have angry episodes as long as he takes his medicine, though he also said
he “wants to dig a hole and crawl in it forever.” He felt his parents have forgotten about him. (Tr.
306.)
Mr Guetterman saw plaintiff again on May 2, 2007. Plaintiff again showed no progress. He
discussed his upcoming appearance before a grand jury and the possibility of conviction. He stated
that he was not guilty, but had become resigned to accepting conviction. (Tr. 305.)
On October 11, 2007, plaintiff underwent a psychiatric review technique review by Holly
Weems, Psy.D. Dr. Weems determined that plaintiff had moderate difficulties in social functioning,
and concentration, persistence, or pace. She found plaintiff suffered from major depressive disorder.
Plaintiff had no difficulties with respect to daily living activities and had no repeated episodes of
extended decompensation. Dr. Weems stated that he has not required inpatient treatment for any
mental impairment in the last year, his medication helps him get good sleep and eliminates homicidal
ideation. He needed reminders to take his medication, but he was able to prepare simple meals and
perform light household chores. He did not like to be around people, but he talked to his friends on
the computer and on the phone. Dr. Weems considered plaintiff’s statements partially credible. She
wrote, “He may perform best in an environment away from the general public.” (Tr. 313-26.)
On October 22, 2007, plaintiff saw Jyoti Kulkarni, M.D., for a psychiatric follow-up
examination. Dr. Kilkarni also diagnosed bipolar disorder. Plaintiff stated that Celexa no longer
relieved his depressive symptoms. He denied suicidal or homicidal ideation. Dr. Kulkarni switched
plaintiff’s Celexa prescription to Prozac.7 (Tr. 334.)
On December 6, 2007, plaintiff saw Jason Butler, FNP, for pain in his sides and a follow-up
examination regarding Prozac. He could not tell that Prozac improved his mood. His mother
7

Prozac is an antidepressant. WebMD, http://www.webmd.com/drugs (last visited August 12,
2013).
-5-

attended the interview and said he still had mood swings and negative thoughts about himself.
Plaintiff expressed interest in seeing a psychiatrist. Mr. Butler referred plaintiff to a psychiatrist and
scheduled plaintiff for a CAT scan for his abdominal pain. (Tr. 331-32.)
On December 10, 2007, plaintiff underwent a CAT scan of the abdomen. The examination
was normal except for minimal thickening of the gallbladder wall. A sonogram was recommended.
(Tr. 360.)
On January 17, 2008, plaintiff saw Karen Tracy, FNP-C, regarding pain in his left rib.
Neither a CAT scan nor an ultrasound had revealed any abnormalities. He received a refill
prescription for Trazodone.8 (Tr. 328.)
On January 21, 2008, plaintiff underwent X-rays of his left ribs. The examination showed
no radiographic evidence of fracture or bone destruction, but revealed minimal scoliosis. A bone
scan revealed minimal osteoarthritis of the lower lumbar spine, and pyelocaliectasis of the left
kidney.9 (Tr. 358-59.)
On February 4, 2008, plaintiff saw Karen Tracy, FNP-C, to discuss X-ray results. Aside from
the “possibility of a kidney stone”, the X-rays were normal. A bone scan was negative for pathology.
An ultrasound was scheduled, but Ms. Tracy explained the possibility that it would not reveal
anything, and that he may simply have torn some cartilage, which would take some time to heal. (Tr.
433.)
On February 8, 2008, plaintiff underwent a sonogram and tomogram of the abdomen and
Mahmoud Ziaee, M.D., interpreted them. The sonogram revealed no abnormalities. The tomogram
revealed a “minimal spasm of the left ureter with increased trabeculation of the bladder. This could
be [an] inflammatory process.”10 Everything else was normal. (Tr. 431-2.)
On March 7, 2008, plaintiff saw Ali Abdul Wahid, M.D., for pain in the upper left quadrant
8

Trazodone is used to treat depression. WebMD, http://www.webmd.com/drugs (last visited on
August 12, 2013).
9

Pyelocaliectasis, or caliectasis, is dilation of the calices (part of the kidney), usually due to
obstruction or infection. Stedman’s Medical Dictionary 60520 (27th Ed. 2000).
10

Trabeculation is the occurrence of trabeculae, or a meshwork of spongy bone, in the walls of an
organ or part. Stedman’s at 413660.
-6-

of his abdomen. Dr. Wahid opined that the pain may be due to stomach wall tenderness. He
recommended a CT scan. (Tr. 427.)
On July 18, 2008, plaintiff saw Naveed Mirza, M.D., for a psychiatric evaluation. Plaintiff
complained of anger problems, physical aggression, and mood swings. He also stated that he heard
voices and generally felt suspicious. He grew upset in large crowds. He denied thoughts of hurting
himself or others but stated that his anger had become unmanageable. Dr. Mirza gave plaintiff a
GAF score of 45. He increased plaintiff’s dose of Invega and started him on Depakote. 11 (Tr. 374379.)
Plaintiff saw Dr. Mirza again on September 3, 2008 for a medication management session.
Plaintiff stated that he had been doing better since his lithium levels were lowered, but that he had
an “episode” that morning. He stated that he “went stupid” and snapped on someone. Dr. Mirza’s
assessment included mild symptoms of depression, moderate symptoms of auditory hallucinations,
paranoia, and panic attacks.

Plaintiff’s eye contact was rated “fair.” Dr. Mirza assessed

schizoaffective disorder, intermittent explosive disorder, insomnia, and panic disorder. He increased
plaintiff’s dose of Depakote, and advised plaintiff to continue with his other medications. (Tr. 36365.)
Plaintiff saw Dr. Mirza again on October 1, 2008. Plaintiff stated that he had improved since
his last visit. He continued to be moody and upset, but he recovered quickly. He felt his mind racing
at times, but felt that “the voices are better than before” and presented with no new psychiatric
symptoms. Dr. Mirza lowered plaintiff’s lithium dose and advised plaintiff to return in one month.
(Tr. 371-73.)
On October 4, 2008, plaintiff saw Peter Somers, M.D., for respiratory issues. He was
diagnosed with asthma, and given Neti Pot and a nasal steroid.12 (Tr. 425-26, 457-58.)
Plaintiff saw Dr. Mirza again on November 03, 2008. He had improved since his last visit,
11

Invega is used to treat certain mental or mood disorders, including schizophrenia and
schizoaffective disorder. WebMD, http://www.webmd.com/drugs (last visited on August 12, 2013).
Depakote is used to treat seizure disorders, certain psychiatric conditions, including the manic phase
of bipolar disorder, and to prevent migraine headaches. Id.
12

Neti Pot is a ceramic pot used for nasal saline irrigation.
WebMD,
http://www.webmd.com/allergies/sinus-pain-pressure-11/neti-pots (last visited August 12, 2013).
-7-

and had not been getting upset. He stated that his mind still raced and he still heard voices. His eye
contact was good. (Tr. 397, 406.)
On November 5, 2008, plaintiff saw Dr. Somers again for a follow-up examination regarding
his asthma. Dr. Somers noted that plaintiff had not quit smoking. He prescribed a steroid inhaler
to plaintiff. (Tr. 420-21, 452-53.)
On December 4, 2008, plaintiff saw Dr. Somers again. He had complied with his inhaler
instructions and was much improved. Plaintiff continued to smoke but explained that he was trying
to quit. Dr. Somers advised plaintiff to follow-up in three months. (Tr. 418-19, 450-51.)
Plaintiff saw Dr. Mirza again on December 08, 2008. Plaintiff still had his rage attacks. He
stated that his sleep had been interrupted at times, but that he was fine with his meds “where they
are right now.” Dr. Mirza noted that plaintiff’s depressed mood, decreased energy, and sense of
hopelessness were “mild.” He noted that plaintiff’s hallucinations, paranoia, panic attacks, anxiety,
and irritability were “moderate.” (Tr. 400-01, 409-11.)
On December 19, 2008, plaintiff saw Karen Tracy, FCP-C, to discuss X-ray and ultrasound
results. A bone scan showed some osteoporosis, but of an indeterminable degree. Plaintiff also
sought a refill of Boniva,13 but Ms. Tracy advised that plaintiff should wait until further results to
determine more precisely the cause of plaintiff’s pain. (Tr. 429.)
On January 7, 2009, Dr. Mirza noted that plaintiff had not changed, but that he does poorly
around his family. Plaintiff stated that his father had been trying to upset him. Plaintiff remained
suspicious of people, but denied any thoughts of hurting himself or others. His assessment was the
same. Dr. Mirza increased his dose of Trazodone. (Tr. 403-05, 412-14.)
On March 4, 2009, plaintiff saw Dr. Mirza again for medication management. He denied
new psychiatric symptoms. He stated that his mood swings come and go, and that he still had
hallucinations. Dr. Mirza started plaintiff on Pristiq, and continued his other medications.14 (Tr.
439-42.)

13

Boniva is used to treat osteoporosis. WebMD, http://www.webmd.com/drugs (last visited August
12, 2013).
14

Pristiq is used to treat depression. WebMD, http://www.webmd.com/drugs (last visited on August
12, 2013).
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Plaintiff saw Dr. Mirza again on May 5, 2009. His condition had not changed. He
sometimes neglected to take his medications. He reported that he had been living alone lately. He
stated that he felt calmer, but still heard voices. (Tr. 468-70.)
On June 30, 2009, plaintiff saw Dr. Mirza for medical management. He stated that he still
got angry and easily frustrated. He remained suspicious and stated that he “takes his medications
when he remembers them.” Dr. Mirza kept plaintiff on his current medications, but stressed the need
for compliance. (Tr. 465-67.)
On August 24, 2009, plaintiff saw Dr. Mirza again. Plaintiff had been stable since his last
visit, and feels better. He had moved to Fredericktown with his sister, and found that he was less
angry when he stayed busy. He continued to have anger issues, but denied any thought of hurting
himself or others. Dr. Mirza kept plaintiff on his current medications. (Tr. 462-64.)
On October 26, 2009, plaintiff saw Dr. Mirza again.

Plaintiff stated that he feels

overwhelmed in social situations, and that he still gets easily frustrated. In Dr. Mirza’s assessment,
he reduced plaintiff’s symptoms of hallucinations, panic attacks, and irritability from “moderate” to
“mild.” (Tr. 459-61.)
On March 29, 2010, plaintiff saw Dr. Mirza again. Plaintiff had tried unsuccessfully to find
a psychiatrist. He stated that he lived in the streets for some time following an argument with his
sister. He had moved to Branson with his mother, which caused him stress. He mentioned that he
was denied disability and that he would try again. Dr. Mirza increased plaintiff’s dose of Trazodone
to help him sleep, but otherwise kept him on the same medications. (Tr. 477-79.)
On April 26, 2010, plaintiff saw Dr. Mirza again. Plaintiff still had aggressive episodes,
mostly toward his mother, and stated that his mother “still acts like she is 12 years old.” He had been
sleeping better. Dr. Mirza continued plaintiff on his present medications. (Tr. 474-76.)
On May 19, 2010, plaintiff saw Dr. Mirza again. Plaintiff stated that his anger issues and
attitude problems had been worsening, that he had trouble forgiving people, and that he remained
paranoid most of the time. Dr. Mirza continued plaintiff on his present medications. (471-73.)

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Testimony at the First Hearing
A hearing was conducted before an ALJ on March 25, 2009. (Tr. 56-70.) Plaintiff was
thirty-one years old, single, and living with his uncle. (Tr. 59-60.)
Plaintiff attended Dexter High School, but did not make it past the ninth grade. He received
Ds and Fs in school. Plaintiff never earned a GED. He received a truck driving certificate in Saxton,
and worked as a truck driver driving long hauls from 2000 to 2006. (Tr. 60-61.)
Plaintiff quit truck driving in 2006 because he “couldn’t handle the stress.” Plaintiff stated
that he became indifferent to his own life and wanted to run other drivers off of the road or run off
the road himself. (Tr. 61.)
Plaintiff sought treatment at Southeast Missouri Health Network.

He began taking

medication for depression and bipolar disorder. When he started seeing Dr. Mirza in 2008, he began
taking medication for schizophrenia as well. He sees Dr. Mirza about once per month. Plaintiff’s
mental issues have neither improved nor worsened since 2006. Lithium produces no side effects.
Although he does not notice that lithium improves his condition, it caused him to be more mellow,
less irritable, an nonthreatening. Depakote, Invega, and Trazodone produce no side effects either.
Plaintiff also takes Darvocet for his osteoarthritis, which affects his entire body. (Tr. 62-64.)
When plaintiff is seized with rage, he blacks out and starts “throwing stuff around.” He
makes threats, and has tried to physically harm someone without realizing it until afterwards. He
still has homicidal and suicidal ideation. Plaintiff is not currently hallucinating; the Invega
“somewhat” controls that. (Tr. 64-65.)
Plaintiff has also worked building grain bins, at a mill, and in restaurants. He cannot
currently build grain bins due to the effect of grain dust on his asthma, but he could handle the
exertional aspect of the job. He could not work at a restaurant because he is too slow; he “couldn’t
keep up” when he worked there before, and he lacks the requisite social skills. He fears he would
hurt a customer. (Tr. 65-66.)
Plaintiff’s depression keeps him from hunting, fishing, and spending time with people. He
does not enjoy doing anything, and prefers to stay by himself. On a typical day, plaintiff wakes up
at 10:00 or 11:00 a.m., and stays at home not doing anything. He does not require assistance bathing,
clothing, or feeding himself. He buys his own groceries with food stamps, but avoids people in the
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grocery store. He can cook for himself. Plaintiff does not visit friends or family aside from his
father, whom plaintiff sees every day to every other day. (Tr. 66-67.)
Plaintiff has difficulty sitting for extended periods of time; he gets edgy and must move
around constantly. He has no difficulty walking for long distances, standing for long periods of time,
or lifting and carrying items. The worst condition he is currently coping with is his depression,
bipolar disorder and schizophrenia. (Tr. 67-68.)
He checked himself into a health clinic in 1999 because he “had an episode.” Plaintiff
recalls, “I went and got the 12-gauge, put a shell in it, and was–stuck it to my aunt’s head and was
going to basically blow her brains out.” (Tr. 68.)
Plaintiff has never used any street drugs. He was last gainfully employed in 2006. (Tr. 6869.)

Appeals Council Order
The ALJ determined that plaintiff was not disabled on May 6, 2009. (Tr. 75-85.) Plaintiff
requested an Appeals Council to review the hearing decision. (Tr. 125-26.) The Appeals Council
reviewed the decision, and remanded back to the ALJ with instructions for a second hearing. (Tr.
86-90.)
The Appeals Council took issue with the ALJ’s determination that plaintiff’s residual
functional capacity (RFC) was not limited by his osteoarthritis of the spine and recent onset asthma.
It also found that the ALJ’s determination that plaintiff could return to his past relevant work was
contrary to his determination that plaintiff could not do “more than simple, repetitive unskilled or
low level semi-skilled tasks, or having close or frequent contact with co-workers, supervisors or the
general public.” (Tr. 88.) It also found that the ALJ’s conclusion that plaintiff “could perform work
as a dipper, gluer, and house appliance patcher” was not supported in the record, and that the
testimony of a vocational expert, subject to cross-examination, was necessary for such a conclusion.
(Tr. 89.)
The Appeals Council remanded, stating that upon remand “the Administrative Law Judge
will:” 1) give further consideration to plaintiff’s RFC and provide a rationale with references in the
record to support the conclusion; 2) “further evaluate plaintiff’s mental impairments in accordance
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with the special technique described in 20 C.F.R. 404.1520(a) and 416.920(a)”, providing specific
findings and rationales; 3) further evaluate plaintiff’s past relevant work; and 4) “obtain evidence
from a vocational expert to clarify the affect of the assessed limitations” on plaintiff’s occupational
opportunities. (Tr. 89.)

Testimony at the Second Hearing
A second hearing was conducted before an ALJ on July 15, 2010. (Tr. 28-55.) Plaintiff was
thirty-three years old and single, and living with his mother in a house.
Plaintiff testified that when he sat for long periods or lifted anything heavy, he would pull
a muscle in his back, and causes numbness in his left leg. His back pain was slowly worsening. He
had been seeing Dr. Paul Geiger for his asthma and back pain. Dr. Geiger had taken X-rays and
diagnosed plaintiff with degenerative disc disease. He also prescribed pain medication and muscle
relaxers. He was referred to a surgeon for a surgical consultation in 2007, but could not make it to
the appointment for financial reasons. Plaintiff takes several medications, including Balclofen for
pain relief, which makes him drowsy and groggy, and Naproxen, a muscle relaxer, which has no side
effects. (Tr. 31-33, 36-37, 54.)
The numbness in his left leg is moderate when he sits. When he stands, he feels a burning
sensation in the leg. At its worst, the pain is a 5 or 6 out of 10. He has fallen twice because his legs
have given out on him. His back pain has cyclically improved and worsened since November 2006,
but has recently been worsening. (Tr. 34-35, 37.)
Plaintiff wakes up every day, eats, and showers. His physical pain does not affect these
activities. Then he tries to do “something around the house to keep [his] mind occupied,” like raking
or other yard work. He does this for approximately 45 minutes. Then his back starts hurting and his
leg starts burning, and he goes inside and lies down to try to ease the pain. He rests for about two
hours. An outdoor activity such as raking causes back pain that rates an 8 out of 10. After resting
for two hours, the pain is a 4 or 5. Because of pain, plaintiff cannot wash dishes. He can stand for
30 minutes comfortably, and can carry his three-year old niece across a room. After 30 minutes, his
ankles and feet begin to burn. (Tr. 37-40.)
Plaintiff’s asthma had neither improved nor worsened since the first hearing. (Tr. 41.)
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Mentally, plaintiff testified that he had improved somewhat. He sees Dr. Mirza for his
mental health issues, and Dr. Mirza has plaintiff taking Pristiq, Lithium, Depakote, and Invega. His
schizoaffective disorder makes him uncomfortable in crowded places like Wal-Mart or Bass Pro
Shop. He has panic attacks when he feels too crowded. His heart rate jumps, he has difficulty
breathing, and he feels pressure on his chest. He goes to Wal Mart almost every day at his mother’s
insistence, because she believes that he requires constant supervision. He has a panic attack every
time. He sits on the bench outside when he can and does not talk to anyone. (Tr. 42-45.)
He has also had several panic attacks while driving a truck. This is why he feels unsafe
driving a truck. The Invega does not help plaintiff with his disorder. (Tr. 43.)
Plaintiff has also worked on a golf course, but he could not return to that type of work
because it requires too much physical activity. (Tr. 43-44.)
Plaintiff had relocated recently because he got into an “altercation” with his sister, who told
him to leave or she was going to have him put in jail. The quarrel was over transportation to his
medical appointments, which he expected her to provide, and she did not. He now lives in a small
bunk house behind his mother’s house. His mother cooks and cleans for him. He sometimes makes
himself soup or a sandwich. He spends approximately 90 percent of his day alone. (Tr. 46-48.)
He tries to avoid his mother, and his rage episodes are more frequent with his mother. He
is also extremely concerned that people he doesn’t know are making fun of him, that he is “their
personal joke.” He gets this feeling nearly every day, and it makes him want to slap the person, but
he has never acted on the urge. (Tr. 49-50.)
Plaintiff explained that he cannot hunt anymore because no one trusts him with a gun. He
had not been hunting in four to five years. He also likes fishing. He had gone a month earlier, but
grew frustrated when he did not catch any fish and was “ready to throw [his] fishing poles off in the
water and everything else with it.” (Tr. 51-52.)
When inside his bunk house, plaintiff usually watches television and plays video games. He
is alone most of his day and happiest when alone. He also cries about once a day for an hour or two
and has done so since 2007. (Tr. 52.)
Plaintiff does not believe his medication controls his depression, rage, or paranoia, but he

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takes his medication as prescribed. He uses his inhaler about once per hour in the summer due
humidity. (Tr. 53.)

III. DECISION OF THE ALJ
On October 4, 2010, the ALJ issued a second decision that plaintiff was not disabled. (Tr.
7-24.) At Step One of the prescribed regulatory decision-making scheme,15 the ALJ determined that
the plaintiff had not engaged in substantial gainful activity since November 24, 2006. At Step Two,
the ALJ determined that the plaintiff had “impairments of psychiatric conditions variably diagnosed
as different disorders” rising to the statutory requirements of severe impairments. (Tr. 14-15.)
At Step Three, the ALJ determined that the plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of any listed impairment in
20 C.F.R. Part 404, Subpar P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526). The
ALJ noted while plaintiff did exhibit signs and symptoms of various disorders, they were often
inconsistent. Plaintiff had no limitations in activities of daily living, moderate limitations in social
functioning, and slight limitations in concentration, persistence, or pace. He had no episodes of
decompensation within a year, each lasting for at least two weeks. The ALJ determined that plaintiff
retained the maximum residual functional capacity to perform work at all exertional levels, though
he can “no more than occasionally interact with the public, co-workers, and supervisors.” The ALJ
noted that examiners observed plaintiff to be pleasant and cooperative. (Tr. 15-16.)
At Step Four, the ALJ determined that plaintiff has residual functional capacity to perform
his past relevant work as an over-the-road truck driver, as such an occupation did not require more
than occasional interaction with the public, co-workers, or supervisors. Because the ALJ determined
that plaintiff can perform past relevant work, plaintiff was determined not disabled, and the analysis
did not proceed to Step Five. (Tr. 17.)

IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine whether
the Commissioner’s findings comply with the relevant legal requirements and are supported by
15

See below for a description of the required five-step regulatory decisionmaking framework.
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substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.
2009). “Substantial evidence is less than a preponderance, but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion.” Id. In determining whether the
evidence is substantial, the court considers evidence that both supports and detracts from the
Commissioner’s decision. Id. As long as substantial evidence supports the decision, the court may
not reverse it merely because substantial evidence exists in the record that would support a contrary
outcome or because the court would have decided the case differently. See Krogmeier v. Barnhart,
294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove he is unable to perform any
substantial gainful activity due to a medically determinable physical or mental impairment that
would either result in death or which has lasted or could be expected to last for at least twelve
continuous months. 42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A), 1382c(a)(3)(A); Pate-Fires, 564 F.3d at
942. A five-step regulatory framework is used to determine whether an individual is disabled. 20
C.F.R. §§ 404.1520(a)(4); see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the
five-step process); Pate-Fires, 564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) he is not currently engaged in
substantial gainful activity, (2) he suffers from a severe impairment, and (3) his disability meets or
equals a listed impairment. 20 C.F.R. §§ 404.1520(a)(4)(i)-(iii). If the claimant does not suffer
from a listed impairment or its equivalent, the Commissioner’s analysis proceeds to Steps Four and
Five. Step Four requires the Commissioner to consider whether the claimant retains the RFC to
perform her past relevant work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of
demonstrating he is no longer able to return to her PRW. Pate-Fires, 564 F.3d at 942. If the
Commissioner determines the claimant cannot return to PRW, the burden shifts to the Commissioner
at Step Five to show the claimant retains the RFC to perform other work that exists in significant
numbers in the national economy. Id.; 20 C.F.R. § 404.1520(a)(4)(v).

V. DISCUSSION
Plaintiff argues the ALJ erred in 1) not calling a vocational expert to testify at the second
hearing, 2) finding that plaintiff could perform past relevant work, and 3) assuming in Step Four
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determination of past relevant work that truck driving requires only occasional contact with the
public.

A. Necessity of Vocational Expert
Plaintiff argues that the ALJ’s failure to call a vocational expert to testify at the second
hearing is reversible error because 1) the Appeals Council specifically directed the ALJ to have a
vocational expert testify, and 2) the ALJ’s determination that plaintiff could return to truck driving
could only be supported by a vocational expert’s testimony.
Defendant argues that the remand order makes clear that its direction to call a vocational
expert “applies only if the ALJ proceeded to step five of the sequential evaluation process.” (Doc.
18 at 5.) This is not the case. The remand order states that the ALJ will obtain evidence from a
vocational expert, and will ask the expert specific examples of jobs appropriate for plaintiff that exist
in the national economy. (Tr. 89.) None of its directives are conditional.
Plaintiff argues that the ALJ is obligated to follow an Appeals Council’s direction. 20 C.F.R.
§ 404.977(b) states that the ALJ “shall take any action that is ordered by the Appeals Council and
may take any additional action that is not inconsistent with the Appeals Council’s remand order.”
Further, “Social Security Rulings are binding on all components of the Administration.” Carter v.
Sullivan, 909 F.2d 1201, 1202 (8th Cir. 1990) (citing 20 C.F.R. § 422.408). Failure to adhere to the
court or agency’s remand order in the subsequent administrative proceedings is itself legal error.
Thompson v. Barnhart, 2006 WL 709795 at *11 (E.D. Pa. 2006) (citing Hooper v. Heckler, 752 F.2d
83, 88 (4th Cir. 1985)).
Defendant argues that the ALJ is not obligated to call a vocational expert if he does not
proceed to step five of the regulatory framework, citing 20 C.F.R. §§ 404.1520 and 416.920. 20
C.F.R. § 404.1520(a)(4)(v) states, “At the fourth step, we consider our assessment of your residual
functional capacity and your past relevant work. If you can still do your past relevant work, we will
find that you are not disabled.” Defendant reaches the conclusion that a vocational expert was
unnecessary with a logical argument: the ALJ was instructed to further evaluate past relevant work;
if the ALJ determines properly that plaintiff can perform past relevant work, plaintiff, is not disabled,
and the analysis is complete. There is some merit to defendant’s position.
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Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1375-76 (N.D. Ga. 2006), suggests that
defendant’s mootness argument should fail. In Tauber, the Appeals Council remanded with
instructions to further develop the record to determine if plaintiff could perform past relevant work
because the ALJ did not discuss how plaintiff’s limitations would affect her past relevant work.
Specifically, plaintiff required a sit/stand option, but no evidence indicated whether her past relevant
work as a store clerk, office clerk, and apartment lease manager would allow her such an option. In
the post-remand decision, the ALJ did not even address the sit/stand option. The court found this to
be legal error: “This Court construes the Appeals Council’s remand order as requiring the
consideration of the “sit/stand option,” even if that consideration entailed the debunking thereof. As
such . . . error has been committed.” Id. at 1375-76.
In this case, the ALJ again did not call upon a vocational expert, but he did explain his
reasons for not doing so. He found it unnecessary as plaintiff “provided sufficient information about
his past relevant work that the undersigned could make a decision without vocational expert
testimony.” (Tr. 18.) By failing to follow the Appeals Council’s instructions, the ALJ may have
committed legal error. But that is not the focus of the present inquiry. Again, the court’s role is to
determine whether the Commissioner’s findings comply with the relevant legal requirements and
are supported by substantial evidence in the record as a whole. In this case, the ALJ sidestepped the
relevant legal requirements, but because the undersigned finds the ALJ’s determination based upon
the record as a whole, the error is not reversible error. Thus, the discussion turns to plaintiff’s
second argument for the necessity of a vocational expert–that the ALJ could not have found plaintiff
able to return to his past relevant work without one.
Plaintiff explains that a vocational expert’s testimony is not generally required at Step Four,
but is “proper when substantial non-exertional impairments exist.” (Doc. 13 at 5, citing Miles v.
Barnhart, 374 F.3d 694, 700 (8th Cir. 2004.)) Plaintiff supports the propriety of expert testimony
in this case by stating that a vocational expert may find that someone limited to only occasional
contact with others could be a truck driver, “but that seems doubtful given that an over the road
trucker has to deal with hundreds of other drivers every day.” (Id.)
In his second decision which stands as the final decision of the Commissioner, the ALJ
determined that plaintiff retained the ability to perform work at all exertional levels but could only
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have occasional contact with the public, co-workers, or supervisors. (Tr. 11-17.) The Eighth Circuit
has repeatedly held that vocational expert testimony is not required at Step Four. See, e.g., Lewis
v. Barnhart, 353 F.3d 642, 648 (8th Cir. 2003); Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996);
Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994). This is so because at Step Four, the claimant
still bears the burden of establishing that he cannot perform his prior work. Because the burden of
persuasion shifts to the Commissioner only at Step Five, an ALJ is not required to produce evidence,
including vocational expert testimony, that a claimant is not disabled unless the ALJ reaches Step
Five. Therefore, plaintiff’s argument that a vocational expert was necessary at Step Four is without
merit.

B. Residual Functional Capacity
Plaintiff claims that the ALJ found plaintiff could do past relevant work despite the Appeals
Council having “ruled in its remand order that he could do no such work.” (Doc. 13 at 5.) However,
the Appeals Council did not issue a “decision.” Rather, it instructed the ALJ to further consider
plaintiff’s residual functional capacity and whether he could return to any past relevant work. (Tr.
89.)
The Appeals Council stated that the ALJ’s findings regarding plaintiff’s residual functional
capacity–that plaintiff could only perform simple, repetitive unskilled or low level semi-skilled
tasks–were incompatible with a finding that plaintiff could return to his work as a truck driver, which
requires greater skill. (Tr. 88-89.) The Appeals Council instructed the ALJ to further evaluate
plaintiff’s residual functional capacity and whether he could return to past relevant work, which he
did.
The ALJ considered examiners’ observations that plaintiff was pleasant and cooperative, and
interacted well enough with others to shop. (Tr. 228, 237, 306, 377, 383, 386, 397, 403.) He found
plaintiff’s statements about his symptoms credible and considered their impact on his residual
functional capacity. (Tr. 16.) Treatment had stabilized his symptoms (Tr. 400-14), and he could
perform work at all exertional levels. Thus, the ALJ’s decision was based on substantial evidence.

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C. Past Relevant Work
Finally, plaintiff argues that the ALJ erred in his assumption that driving a truck requires only
occasional interaction with the public, co-workers, and supervisors. (Doc. 13 at 6.) Plaintiff
contends that no evidence supported the ALJ’s assumption; the only question in the hearing that
related to interaction with others was whether plaintiff supervised anyone as a truck driver. (He
answered that he did not.)
The ALJ did, however, rely on substantial evidence to make a finding that plaintiff’s position
as a truck driver required only occasional interaction with others. In the “work history” segment of
the disability report, plaintiff answered the question “What did you do all day?” for each of his truck
driving positions. (Tr. 242-48.) He answered that he filled out log books and delivery papers on
loads for five truck driving positions, and “drove dump truck to rock quarry and back to work site
. . . mostly sit all day” on another. (Id.) Never did plaintiff mention working with or having contact
with another person.
The ALJ may properly rely on plaintiff’s own description of past work in determining the
nature of that work. See Zeiler v. Barnhart, 384 F.3d 932, 936 (8th Cir. 2004). The ALJ’s reliance
on plaintiff’s statements is reasonable, consistent with the record, and based upon substantial
evidence.
VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social Security is
affirmed. An appropriate Judgement Order is issued herewith.

/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE

Signed on August 12, 2013.

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