Jenkins v. Colvin

          ORDER RE PLAINTIFF’S SOCIAL SECURITY APPEAL

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff, Daniel Floyd Jenkins (“Plaintiff”), seeks judicial review of a final decision of the Commissioner of Social Security (the “Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1381-83. The matter is currently before the Court on the parties’ briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.^[1]

         II. FACTUAL BACKGROUND

         Plaintiff was born on August 13, 1984, and alleges disability beginning on December 17, 2009. (Administrative Record (“AR”) 37; 45; 231-49.) Plaintiff claims he is disabled due to fibromyalgia, depression, anxiety, porphyria, and stress. (See AR 268.) In his application for disability insurance benefits, he alleged a disability onset date of December 17, 2009. (AR 243.) In his application for supplemental security income benefits, he alleged a disability onset date of August 1, 2010. (AR 231.) Plaintiff worked after both these dates. (AR 254, 260, 268, 275, 281, 292, 398.)

         A. Relevant Medical Evidence

         On April 6, 2010, Plaintiff saw his treating rheumatologist Dr. Kyaw Khaing Swe, M.D. (AR 656-70.) Dr. Swe emphasized the “benign nature” of fibromyalgia and the “importance of exercise and physical activities, ” and explained to Plaintiff that “the great majority of patients live normal and active lives.” (AR 659-70.) On July 9, 2010, Dr. Swe saw Plaintiff for follow-up and found his fibromyalgia symptoms “still mild to moderately active” but “not worsened.” (AR 704.) Dr. Swe explained that Plaintiff “need[ed] to stay active for fibromyalgia” and informed him that “[p]lacing him on disability for an extended period w[ould] only worsen the condition” and “[documentation of medical impairment] w[ould] not be extended.” (AR 704.)

         On June 15, 2011, Plaintiff underwent a consultative examination by psychologist Dr. Benjamin Aleshire, Ph.D. (AR 832-37.) Plaintiff was able to ambulate without assistance, was friendly and made good eye contact, and had normal facial expressions throughout the interview. (AR 832-34.) Plaintiff’s gross motor function was normal, his behavior was appropriate, his grooming was good, and he interacted appropriately with Dr. Aleshire and the office staff during the evaluation. (AR 832-35.) Plaintiff reported that he had been depressed since childhood but was not participating in mental health treatment and was not taking psychiatric medications. (AR 832-33.) Plaintiff reported completing normal living activities, including showering, cleaning, washing clothing, and preparing simple meals, though he needed to take several breaks to have enough energy to complete tasks. (AR 834.) Plaintiff also reported attending special education classes for speech problems and concentration difficulties, though he completed the 11th grade and eventually earned his GED. (AR 833.) Mental status examination did not reveal any abnormalities or psychiatric findings. (AR 834-35.) Plaintiff described his current mood as “irritable” and presented as dysthymic with a constricted range of affect. (AR 835.)

         Dr. Aleshire diagnosed Plaintiff with major depressive disorder, recurrent and moderate; rule out mood disorder due to porphyria; and assigned Plaintiff a GAF^[2] score of 55. Dr. Aleshire opined Plaintiff was “able to accurately” perform one- or two-step simple repetitive tasks and accurately perform complex tasks; has a “good ability” to accept instructions from supervisors and interact with coworkers and the public, perform work activities on a consistent basis without special or additional instruction, and maintain regular attendance; and was “moderately impaired” in his ability to complete a normal workday or workweek without interruptions from a psychiatric condition and to deal with the usual stressors encountered in a competitive workplace. (AR 836).

         On June 18, 2011, Plaintiff saw Dr. Ashraf Youssef, M.D., for an internal medicine consultative examination. (AR 838-42.) Dr. Youssef diagnosed Plaintiff with porphyria and fibromyalgia and opined that Plaintiff had no exertional limitations. (AR 841.)

         On July 21, 2011, psychiatric medical consultant Dr. Kwong W. Law, M.D., reviewed the medical records and completed a psychiatric review technique form. (AR 843-57.) Dr. Law opined Plaintiff was moderately limited in his ability to understand and remember detailed instructions, carry out detailed instructions, and interact appropriately with the general public, but was otherwise not significantly limited. (AR 843-44.) Dr. Law further opined Plaintiff was able to understand and remember short and simple instructions; sustain concentration and persistence to carry out short, simple tasks, and maintain regular attendance and perform work activities for a normal work week and/or workday; interact appropriately with supervisors and coworkers but with difficulty with the public; adapt to normal work setting and hazards; and set realistic goals and work independently. (AR 843-44.)

         Dr. Law opined Plaintiff was moderately restricted in his activities of daily living and had moderate difficulties in maintaining social functioning and concentration, persistence, and pace, but noted no repeated episodes of decompensation. (AR 854.) Dr. Law only partially credited Plaintiff’s subjective testimony, concluding Plaintiff was able to perform simple repetitive tasks but would have difficulty performing complex tasks; was able to sustain adequate concentration, persistence, and pace and complete a normal workday and workweek; would have difficulty interacting with the public; was able to interact appropriately with coworkers and supervisors; and was able to respond appropriately to changes in the work setting. (AR 856-57.)

         On August 8, 2011, State agency physician Dr. James J. Green, M.D., reviewed the medical records and assessed Plaintiff’s physical functionality. (AR 864-71.) Dr. Green diagnosed Plaintiff with history of borderline porphyria, with a secondary diagnosis of history of fibromyalgia, and opined that Plaintiff had no exertional limitations. (AR 864-65.) Dr. Green only partially credited Plaintiff’s subjective testimony, noting, “[m]any of his statements seem out of proportion to the objective medical evidence.” (AR 869.)

         On January 15, 2013, treating physician Dr. Jan Mensink, M.D., saw Plaintiff for upper respiratory tract infection symptoms. (AR 892.) Dr. Mensink noted that Plaintiff did not smoke cigarettes but smoked marijuana, and was currently using only marijuana and no other active medications. (AR 892.) On February 15, 2013, Dr. Mensink noted Plaintiff’s long-term history of fibromyalgia, porphyria, and marijuana use and observed that Plaintiff had not taken any medication for years and that he smoked marijuana daily. (AR 891.)

         B. Testimony

         1. Plaintiff’s Testimony at Hearing

         Plaintiff testified that he felt as though someone was taking a knife and twisting it into his stomach, and that the muscles in his arms, legs, and chest were contracting and moving by themselves like spasms, which “hurt very bad.” (AR 82.) He “get[s] out of breath really easily” and the skin on his arms and legs are “very sore.” (AR 82.) He has “a hard time doing things, just household chores. It might take three to four hours to do -- to clean the kitchen, which is you know, unload the dishwasher and load it.” (AR 82.) It is hard for him to do repetitive tasks, he must lie down and take naps daily, and sometimes he will sleep for 18 hours, “nonstop.” (AR 82.) His “skin is crawling 24/7” and he is unable to sleep soundly because of his pain. (AR 92.)

         Plaintiff testified that he can lift up to twenty pounds at a time, though “[i]t depends on a day-to-day basis.” (AR 83.) He can stand for five or ten minutes before needing to sit, walk for five to ten minutes at a time, and sit for 30 minutes before needing to stretch and walk around. (AR83.) He tries to read, but “can’t concentrate on things for a long period of time.” (AR 84.) He spends an hour or two on a computer each day and plays a video game, World of Warcraft, for two to three hours each day. (AR 84-92.) He described his daily activities as including stretching, sweeping and vacuuming, doing laundry, preparing simple meals, using a computer, and playing video games. (AR 83-85, 90.) He spends four to five hours laying down each day. (AR 104.) He hasn’t played World of Warcraft for “a couple years now” because he cannot afford the subscription and is unable to sit still long enough to enjoy it. (AR 106.)

         2. Plaintiff’s Wife’s Testimony at Hearing

         Michelle Jenkins, Plaintiff’s wife, testified that Plaintiff “gets very ill and experiences vomiting on almost a daily basis, ” “sleeps excessively because he doesn’t get restful sleep, ” and “gets very sore muscles and sore skin.” (AR 93.) Plaintiff is unable to help with household chores because “he’s just too tired and too sore.” (AR 93.) Mrs. Jenkins is “responsible for 95 to 99 percent of all of the housework, all of the chores, all of the errands, working, earning money to support the family” and expressed frustration with “just seeing him deteriorate continuously over time, it just keeps getting worse.” (AR 95.) She testified she had seen Plaintiff go from being a welder and heavy duty mechanic and working 16-hour days to losing his job because he would get overheated and would get sick and would have to come inside the office to recuperate, to work in an office, to “not being able to work in an office.” (AR 96.) The constant vomiting is a symptom of Plaintiff’s porphyria. (AR 100.)

         Though Plaintiff takes Prozac to help with his symptoms, Mrs. Jenkins testified she hadn’t noticed any difference in his attitude and ability “to do anything.’ (AR 94.) She testified she was frustrated that Plaintiff spends about three hours a day playing video games, so that he “was sleeping excessively and [ ] when he was awake, this was what he was doing.” (AR 94.) On his best days, Plaintiff “could sit for maybe an hour and a half at a time” before needing a break, but on his bad days he would not be able to spend more than an hour sitting and concentrating on the game before needing to nap or lay down for an hour. (AR 97.) Even at his best, “[i]t’s not like he could take a 15-minute break to get up and stretch and sit back down.” (AR 97.) She also testified that she felt like World of Warcraft was Plaintiff’s “only social outlet” and that because he can’t leave the house, “talking over the Internet was his social interaction.” (AR 99.)

         3.Vocational Expert ...