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Gregory E. Allen, Sr v. Michael J. Astrue

June 22, 2012


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


Claimant Gregory E. Allen, Sr. ("Plaintiff" or "Claimant") brings this action under 42 U.S.C. 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB") and finding Claimant not disabled through December 31, 2001, the date last insured. Claimant raises the following issues: (1) whether the ALJ erred in finding that Claimant does not meet or equal Listing 12.06; (2) whether the ALJ's determination that Claimant can perform full-time work was supported by substantial evidence; and (3) whether the ALJ properly evaluated Claimant's credibility under SSR 96-7p. For the following reasons, the Court grants Claimant's motion to reverse or remand the decision of the Commissioner, denies the Commissioner's motion to affirm the Commissioner's decision, and remands the case to the Commissioner for further proceedings consistent with this opinion.


A. Procedural History

Claimant first filed an application for DIB on October 4, 2001. R. 114-16. The Social Security Administrator ("SSA") denied his application on November 27, 2001 and no appeal is documented. R. 96.

Claimant filed a second application on November 4, 2004, claiming a disability onset date of June 20, 1996. R. 132-34. The SSA denied Claimant's second application and denied his request for reconsideration on June 29, 2005. R. 101-04. Shortly thereafter, Claimant filed a timely request for a hearing before an ALJ. R. 105. On September 14, 2006, Administrative Law Judge ("ALJ") Paul R. Armstrong presided over a hearing at which Claimant appeared with his attorney. R. 1723. On January 4, 2007, ALJ Armstrong rendered a decision unfavorable to Claimant, finding that through December 31, 2001, Claimant had the severe impairment of post-traumatic stress disorder ("PTSD") and the residual functional capacity ("RFC") for light work. R. 70-71. The ALJ concluded that Claimant was unable to perform any of his past relevant work, but was not disabled because there were other jobs existing in significant number in the national economy that he could perform. R. 70, 75-76.

On May 22, 2008, following Claimant's timely request for review, the Appeals Council vacated the hearing decision and remanded Claimant's case for further consideration of Claimant's ability to work a full-time job. R. 55, 63-64. Specifically, the Appeals Council noted that while the ALJ accorded significant weight to statements by Claimant's treating physician, Dr. Thomopoulos, indicating that Claimant was only able to work "part-time within a 30-minute driving radius," such statements were not reflected in the ALJ's RFC finding. R. 55.

Upon remand, ALJ Armstrong presided over another hearing on June 8, 2009 during which Claimant was represented by an attorney. R. 1620. Claimant and Thomas Grzesik, a vocational expert, testified in person; Dr. Robert Coyle, a medical expert, testified by telephone. R. 1620-1720. On August 10, 2009, ALJ Armstrong rendered a decision finding Claimant not disabled because he could perform a significant number of jobs in the national economy through his date last insured. R. 24-43. The Appeals Council denied Claimant's timely request for review and the ALJ's August 2009 decision became the final order of the Commissioner. R. 7-10, 22-23. Claimant subsequently filed this action for review pursuant to 42 U.S.C § 405(g). The parties have consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c). Dkt. 9. The Court held an oral argument on June 13, 2012.

B. Hearing Testimony

The record contains transcripts of two administrative hearings, both of which were presided over by ALJ Armstrong. The September 14, 2006 hearing was the basis for the initial denial; the June 8, 2009 hearing was held after the Appeals Council vacated the first decision by the ALJ.

1. Gregory Allen, Sr. - Claimant - September 14, 2006 and June 8, 2009

Claimant testified at both hearings. At the time of the second hearing, Claimant was forty-four years old and divorced with three children. R. 114, 1630. Claimant attended college for two years. R. 145. Claimant served in the U.S. Navy from April 1984 through April 1988 as a ship's serviceman. R. 140. Beginning in January 1989, Claimant worked as a clerk supervisor for the U.S. Postal Service. Id. While working at the Postal Service in August 1995, Claimant witnessed a workplace shooting by a postal employee. Claimant testified that the gunman aimed the gun at him and pulled the trigger, but the gun failed to go off. R. 1672.

Shortly after the shooting incident, Claimant received counseling at the Postal Service.

R. 1729. Claimant attempted to return to work at the post office, but he quickly began experiencing nightmares, a loss of appetite, and trouble interacting with his then-wife and children. Id. Between late 1996 and 2003, Claimant attempted to return to school part-time and for a few months he worked part-time as a sales associate at Marshall Fields. R. 1645-46; 1730-31. Claimant quit both of those endeavors because he reportedly struggled to sleep at night and had concentration difficulties. R. 1645. Claimant has not worked part or full-time since late 1996. R. 1633.

Currently, Claimant supports himself with disability benefits from the military and the postal service. R. 1652, 1688. Claimant continues to experience PTSD symptoms such as insomnia, headaches, flashbacks, and difficulties concentrating. R. 1626. In particular, Claimant testified that he rarely sleeps through the night and very often experiences nightmares and flashbacks of the shooting. R. 1636. Claimant complains of sporadic daytime flashbacks, intense headaches, and falling asleep during the day. R. 1636-38. Claimant believes many of his daytime symptoms are the result of, or exacerbated by, his lack of sleep. R. 1635-36. He also testified that he struggles to focus on routine tasks and is forgetful. R. 1647. Fear is his biggest impediment to performing work on a full-time basis. R. 1648. He has severe headaches that sometimes keep him in bed for three to four days. R. 1649.

Claimant exercises somewhat regularly. R. 1631-32. He has partial custody of his younger son and daughter and has assisted with coaching their baseball and softball teams.

R. 1632, 1651. Comparing coaching and work, Claimant testified that he is not scared of coaching the way he is of work; it is "safer" and "more pleasant," and he doesn't "have to worry about [someone] shooting at [him]." R. 1651. Claimant testified that while he can recognize that his flashbacks are not real, when flashbacks do occur he still has to sit down and take a break from his current activity; those breaks often lasts several hours. R. 1639-40. Claimant testified he does not feel he is able to work full-time due to lack of focus, flashbacks and difficulty sleeping. R. 1633.

2. Dr. Robert Coyle -- Medical Expert ("ME") - June 8, 2009

Dr. Robert Coyle, a clinical psychologist, testified as a medical expert. R. 1653-1708. The ME testified that Claimant demonstrated mild limitations regarding daily activities and social functioning, and "at least a moderate difficulty" with keeping pace and a need for unreasonable rest. R. 1659-60. The ME eventually determined that Claimant has marked limitations in concentration, persistence, and pace. R. 1676.

The ME also testified that Claimant has experienced "repeated episodes of decompensation, each of extended duration," and engaged in a lengthy debate with the ALJ regarding the definition of decompensation. R. 1664-82. The ME identified the period immediately after the shooting incident and Claimant's failed attempts to return to work as specific incidents of decompensation. R. 1682-83. The ME testified that even if Claimant did not meet Listing 12.06, he would certainly equal it. R. 1707.

The ALJ then asked the ME to assume Claimant did not meet a listing and asked what RFC the ME would assign. R. 1683-90. The ME declined to even discuss an appropriate RFC because he does not believe that Claimant can work full-time at all. R. 1686, 1690. The ME testified that there is "no question" that Dr. Thomopoulos's care was in line with medical standards, and her opinions would be "well-grounded and would have support from her records." R. 1694.

3. Mr. Thomas Grzesik -- Vocational Expert ("VE") - June 8, 2009

Dr. Thomas Grzesik testified as a vocational expert. The VE classified Claimant's past work at the post office as "[l]ight per DOT, heavy per claimant, SVP 6, semi-skilled."

R. 1709. The VE agreed that "a hypothetical individual with no exertional limitations, limits at the simple, unskilled work and no more than superficial contact with supervisors, co-employees . . . and no general public work" would not be able to return to any of Claimant's past relevant work. Id. However, the VE testified there is other work in the regional or national economy the hypothetical person could perform. R. 1709-10. Examples include "hand-packager," of which there are approximately 7000 jobs, "feeder/off-bearer," of which there are approximately 6000 jobs, and "industrial cleaner," of which there are 14,000 jobs. R. 1710.

The ALJ then posed a hypothetical further limiting the above individual to light exertional work, not able to lift more than ten pounds, and who cannot have exposure to noxious fumes, odors, respiratory irritants, or extreme temperature or humidity. R. 1711. Again, significant jobs existed in the economy that the hypothetical person could perform. Id.

The VE testified that the hypothetical individuals above would not be able to perform available jobs if any of the additional limitations were added: intermittent flashbacks that made the person unable to work for an hour twice each week; missing two days of work each month; or intermittent difficulties with concentration that would prevent him from staying on task in a simple job for an average of fifteen minutes each hour. R. 1714-15. Regular problems with attendance or an inability to meet competitive standards would also eliminate available jobs. R. 1715-17. To be able to perform available jobs, the acceptable absentee rate would be from one half day to one full day per month. R. 1718.

B. Medical Evidence

1. Dr. Elaine Thomopoulos, Ph.D. -- Treating Clinical Psychologist

The record contains over 1200 pages of treatment records and medical opinions from Claimant's treating psychologist, Dr. Elaine Thomopoulos, including hand-written treatment notes, medical reports, and letters which span a ten year period. Dr. Thomopoulous saw Claimant on a weekly basis from October 1995 through February 2005. R. 1398, 1444-45.

a. Treatment Notes -- October 1995 to February 2005

Claimant began seeing Dr. Thomopoulos in October 1995, approximately two months after the shooting incident. R. 289. In general, the treatment notes include significant detail concerning Claimant's PTSD symptoms, issues with his personal and work life, and Dr. Thomopoulos's mental impressions of Claimant's condition.

Notes from Claimant's initial visits in 1995 detail that he was the supervisor of the shooter and was friends with the two men who were shot. R. 289. In his initial visit, he complained of nightmares (being chased by sharks, for example), trouble sleeping and falling asleep, and difficulty returning to work. R. 289-95. Dr. Thomopoulos indicated that Claimant was suffering from PTSD*fn1 and had headaches in the past but the intensity was worse following the shooting. R. 291.

Throughout 1996 and 1997 Claimant continued to experience PTSD symptoms and difficulties with his personal and work life. R. 318-460. Claimant noted he was getting only a few hours of sleep each night and continued to experience vivid nightmares and painful headaches. R. 323-54. Claimant was on medication to assist with his sleeping difficulties. See R. 328, 335. Claimant expressed his interest in returning to school. R. 374-84. Claimant also expressed his belief that the Post Office discriminated against him and he appeared to be pursuing legal recourse. R. 389-403. Claimant reported that he was being followed by postal service employees. R 404-16. Further, Claimant noted continued difficulties with his wife and frustration with school. R. 404-45.

Claimant continued to struggle with school and his personal life in 1998. R. 461--583. Claimant had bizarre and vivid dreams, and continued to report that he was being followed.

R. 480-92. However, in October 1998, Dr. Thomopoulos discussed Claimant's possible return to part-time work with some restrictions and Claimant indicated a willingness to try though it is unclear whether he ever returned to work. R. 554-59.

Notes from 1999 through 2001 reveal that Claimant filed for divorce from his wife and continued to struggle with PTSD symptoms. R. 583--684. Claimant reported difficulty concentrating at school and would often have nightmares and headaches after working on school assignments. R. 678. Claimant contemplated opening up a small business, such as setting up a laundromat and real estate business, but did not report taking any affirmative steps toward these goals. R. 668.

The treatment notes between 2001 and 2005 discuss Claimant's continued struggles with PTSD symptoms and problems with his family. R. 723--1358. Claimant reported that his flashbacks became more frequent than his nightmares, R. 1261, and he became upset after witnessing a physical altercation at his son's little league baseball game. R. 1263-72. Finally, in February 2005, Claimant stopped receiving worker's compensation benefits and indicated he would no longer receive weekly treatment from Dr. Thomopoulos. R. 1398.

b. Letters Regarding Claimant's Condition -- September 1996 to July 29, 2002

Dr. Thomopoulos wrote a series of letters concerning Claimant's condition between September 1996 and July 2002, some of which were addressed to Health Alliance, a health insurance company, and some to the Office of Workers' Compensation Programs. R. 1432-43. In both September and October 1996, Dr. Thomopoulos expressed that Claimant should not drive more than 30 ...

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