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Nicholl v. Astrue

February 22, 2010


The opinion of the court was delivered by: Charles H. Evans, U.S. Magistrate Judge


Plaintiff Amber L. Nicholl appeals from a final decision of the Social Security Administration (SSA) denying her application for Supplemental Social Security Income (SSI) under Chapters II and XVI of the Social Security Act, 42 U.S.C. §§ 423, 1381a. Plaintiff brings this appeal pursuant to 42 U.S.C. § 405(g). The parties have consented to a determination of this case by the United States Magistrate Judge, under 28 U.S.C. § 636. Consent to Proceed Before a United States Magistrate (d/e 13). Pursuant to Local Rule 8.1(D), Plaintiff filed her Brief in Support of Complaint (Motion) (d/e 11), which the Court construes as a motion for summary judgment. Defendant has filed Commissioner's Motion for Summary Affirmance (d/e 15) and Commissioner's Memorandum in Support of Motion for Summary Affirmance (d/e 16).

For the reasons set forth below, the Court determines that the SSA's decision is supported by the law and the evidence. The Plaintiff's Motion is denied. The Commissioner's Motion for Summary Affirmance is granted, and the decision of the Commissioner is affirmed.


Plaintiff applied for SSI on October 19, 2005, alleging a disability onset date of May 1, 2005. Answer to Complaint (d/e 9), Ex. 1, Social Security Transcript (Tr.) at 15. At the time of her application, Plaintiff was twenty-one years old.

I. Medical History

Plaintiff has received mental health treatment since at least 1998, when she tried to kill herself by overdosing on aspirin. Tr. at 292. She was prescribed Prozac and diagnosed with depression. In 2000, doctors noted that Plaintiff had difficulty with anxiety attacks, and again prescribed her Prozac. Tr. at 288. They subsequently placed her on Paxil in March 2001. Tr. at 286. In May 2003, Plaintiff was hospitalized for alcoholism and saying that she wanted to kill herself. She again exhibited anxiety and symptoms of depression in spring 2004 and was placed on Zoloft. In April 2004, Plaintiff had a fight with a friend and took 20 Zoloft pills with beer. Tr. at 222.

On November 2, 2005, Plaintiff began treatment at Transitions of Western Illinois to address her anxiety issues, anger management problems, and history of self mutilation. Tr. at 322. A mental heath assessment revealed that plaintiff had a history of depression as a juvenile, disruptive behavior disorder, and borderline personality traits. Tr. at 323. Plaintiff indicated to her therapist, Melissa Penn, that she had trouble handling stress at work and had panic attacks. She was observed to be manipulative and attention seeking, with poor judgment. Tr. at 327. On December 6, 2005, Penn indicated that Plaintiff was beginning to open up and respond to treatment. Tr. at 345.

On December 27, 2005, Dr. Frank Froman of Psychology Associates in Quincy, Illinois, spent forty-five minutes examining Plaintiff. He indicated that Plaintiff was five feet, eight inches tall, weighed two-hundred thirty pounds, and was pregnant. Tr. at 330. Plaintiff lived with her grandmother because she did not get along with her mother, whom Plaintiff described as a "bitch." Tr. at 330. She smoked a pack of cigarettes a day. Dr. Froman diagnosed her with panic disorder encroaching on agoraphobia; mixed substance abuse; borderline personality disorder; and obesity. He assigned her a GAF score of 50.*fn1 He noted that Plaintiff "will tend to take any criticism as devastating." Tr. at 332.

In 2006, Dr. Phyllis Brister performed a mental health residual functional capacity assessment of Plaintiff. Tr. at 72-74. Dr. Brister indicated that Plaintiff was moderately limited in some areas, such as the ability to understand and remember detailed instructions, and the ability to maintain concentration for extended periods. Tr. at 72. Dr. Brister found that Plaintiff was not significantly limited in her ability to interact appropriately with the general public, or maintain socially appropriate behavior. Tr. at 73. Dr. Brister diagnosed Plaintiff with borderline personality disorder, mixed substance abuse, and panic disorder. Tr. at 74.

A Psychiatric Review Technique from January 6, 2006, by Dr. Brister evaluated Plaintiff under Listings 12.06 (Anxiety-Related Disorders), 12.08 (Personality Disorders), and 12.09 (Substance Addiction Disorders). Tr. at 76. Dr. Brister found that Plaintiff did not meet the Paragraph B criteria or the Paragraph C criteria. Tr. at 86-87.

Plaintiff continued seeing Penn throughout 2006. Plaintiff indicated that she was still having trouble managing her anger toward other people, but that she had stopped taking her antidepressant medication. Tr. at 358. By January 17, though, Plaintiff was back on her medication, and subsequent visits revealed that her depression was lessening and that she was feeling less irritable. Tr. at 363, 368. In April, Plaintiff noted that the Lexapro was helping with her anger outbursts, but that she was having difficulty sleeping at night. Tr. at 372. Later that month, though, Penn observed that Plaintiff was irritable, had poor insight, and was not open to Penn's advice. Id. at 373. In May 2006, Plaintiff revealed that she was still finding it difficult to be in public and get along with others, mostly because of her low self-esteem. Tr. at 382. She was staying sober, and preparing for the birth of her child in August. By the end of June, Plaintiff was feeling more depressed and fearful about the impending birth of her child and lack of support from her boyfriend, the baby's father. Tr. at 383.

On July 11, 2006, Penn noted that Plaintiff had experienced outbursts of anger directed at her mother and friend, but that Plaintiff blamed these outbursts on others and had trouble accepting responsibility for her actions. Tr. at 384. Plaintiff reported crying spells on July 25, 2006, and Penn wrote that Plaintiff felt lonely and isolated, since most of her friends were drinking and doing drugs, and Plaintiff no longer cared to participate in that behavior. Tr. at 387. Penn observed that Plaintiff was cooperative, but seemed unmotivated to make changes. Tr. at 387. By August 8, 2006, Plaintiff appeared positive and focused on the future; she discussed with Penn the possibility of returning to college, getting a job, and being a good mother. Tr. at 388. However, on August 23, 2006, Plaintiff reported feeling irritable and having anger outbursts in response to the behaviors of other people. Tr. at 389. She brought her son to the appointment with her and indicated that, although she got frustrated when the baby cried, she felt that she was handling motherhood well. Tr. at 390.

By fall 2006, Plaintiff's depression had returned. A progress note from October 17, 2006, indicated that Plaintiff was having suicidal thoughts. Tr. at 398. On November 14, 2006, Penn recorded that Plaintiff was having anger outbursts and obsessive thoughts. Plaintiff had recently been placed on Luvox. Tr. at 403. Plaintiff returned to see Penn on December 11, 2006, and said that she had stopped taking her medications because they prevented her from sleeping. Tr. at 406. Going off of her medication caused Plaintiff to be depressed and angry and disinterested in parenting her son. Tr. at 406. Plaintiff continued to struggle with her mental health issues throughout December, and eventually checked herself into the hospital on December 15 because she had thoughts of hurting herself and others. Tr. at 419.

Plaintiff continued therapy with Penn into 2007. On January 16, 2007, Penn wrote that Plaintiff was depressed, tearful, and had anger outbursts frequently. Tr. at 427. Plaintiff's mood had improved by February 6, in part because she had implemented some of the strategies Penn discussed with her. She stated that her Lexapro and Seroquel medications were working well, and that she wanted to enroll in a community college. Tr. at 432. On February 20, Plaintiff indicated that her boyfriend had broken up with her and left, but that she was handling things well and using the breakup as an opportunity to focus on her future. Tr. at 433.

On April 16, 2007, Plaintiff noted that she had not drank or smoked marijuana for three weeks, and that she was frustrated by her ex-boyfriend's lack of involvement in their son's life. Tr. at 440. Penn noted that Plaintiff's mood was good and that she was pleasant. Plaintiff indicated that she was looking for a job and was going to start college again. Tr. at 480. However, on May 14, 2007, Plaintiff reported an instance of self-mutilation to Penn, after Plaintiff's ex-boyfriend demanded visitation and custody rights of their son. Tr. at 481.

In June 2007, Plaintiff participated in a program of vocational training through Transitions. Tr. at 482. Plaintiff identified janitorial work as a potential job, but stated that she wanted to avoid sales positions. On June 20, 2007, Penn wrote that Plaintiff was doing well in school, and was coping well with the fact that her ex-boyfriend had recently married. Tr. at 485.

In July 2007, Plaintiff was admitted to Blessing Hospital in Quincy, Illinois, with abdominal pain. Doctors recommended that Plaintiff have her gallbladder removed to prevent future episodes. Tr. at 469. Plaintiff had to go off of her medications for this procedure, and appeared irritable and depressed when she met with Penn on July 24, 2007. Tr. at 486. Plaintiff reported falling behind in her college courses. Penn performed an assessment of Plaintiff and found that, although she had mood and borderline personality diagnoses, Plaintiff did not have any serious mental-health impairments. Penn assigned her a GAF score of 68. Tr. at 498-99. A progress note from August 14, 2007, indicated that Plaintiff was pleasant and cooperative, and that she agreed with Penn to reduce her therapy sessions to once per month. Tr. at 507.

A September 20, 2007, progress note indicated maladaptive behavior, fear of abandonment, and anger issues. Plaintiff was also having trouble sleeping, and was concerned that her medications were not working. Tr. at 509. In November 2007, Penn observed that Plaintiff had been making excuses for missing therapy appointments, and that she was depressed and irritable. Penn suggested that Plaintiff consult Dr. Sanchez about adjusting her medications. Tr. at 515.

On December 5, 2007, Dr. Jerry Aamoth, a clinical psychologist, conducted an examination of Plaintiff to determine her ability to do work-related activities on a sustained basis. Tr. at 517. Dr. Aamoth determined that Plaintiff's impairments did not affect her ability to understand, remember, and carry out instructions. However, he found that she had marked difficulty in interacting appropriately with the public and with co-workers, and moderate difficulty interacting with supervisors and responding appropriately to situations in the workplace. Tr. at 518. Dr. Aamoth observed that Plaintiff was confrontational, cynical, argumentative, and took pride in pushing people away. Tr. at 518. He also noted Plaintiff's history of alcohol and marijuana abuse.

I. Administrative History

Plaintiff applied for SSI on October 19, 2005, alleging a disability onset date of May 1, 2005. Tr. at 15. The SSA denied her application initially and upon reconsideration. Tr. at 15. Plaintiff untimely requested a hearing before an administrative law judge (ALJ), but her tardiness was excused for good cause shown. Tr. at 15. On January 14, 2008, Plaintiff and her attorney, D. Terrell Dempsey, appeared before ALJ Robert G. O'Blennis in Hannibal, Missouri, for a hearing. Vocational expert Darrell W. Taylor (Taylor) was present via telephone. Tr. at 15. Plaintiff's grandmother and uncle submitted written statements for the ALJ's review. See Tr. at 25.

Plaintiff testified at the hearing. She stated that she lived with her grandmother, uncle, and toddler in a house approximately forty-five minutes from Hannibal, and that she had driven to the hearing herself. Tr. at 31. She completed high school, and was majoring in psychology at John Wood Community College before she dropped out due to the fact that she had to take a math class and did not believe she would do well in it. Tr. at 32. Plaintiff also had a hard time managing her course load and missed several classes due to illness. Tr. at 43.

Her last job was at Little Caesar's Pizza in 2002 or 2004, but she only worked there for a few months because she was too nervous to speak on the loudspeaker. Tr. at 33-34. She left at the end of her shift and never returned. Tr. at 44. She had previously worked at Dollar Tree, but quit because having to climb ladders was stressful. Tr. at 47. Plaintiff also worked at K-Mart in the fashion department as a sales associate, but was too afraid to interact with customers and "strange people," and quit shortly after training. Tr. at 47-48. Her ...

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