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Holcomb v. Colvin

United States District Court, D. Oregon, Portland Division

September 22, 2014

MATTHEW D. HOLCOMB, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

FINDINGS AND RECOMMENDATION

JOHN V. ACOSTA, Magistrate Judge.

Plaintiff Matthew D. Holcomb ("Holcomb") filed this action under § 205(g) of the Social Security Act (the "Act") as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of Social Security (the "Commissioner") who denied him social security disability insurance benefits ("DIB") and supplemental security income ("SSI")(collectively "Benefits"). Based on a careful review of the record, the Commissioner's decision should be affirmed and this case dismissed.

Procedural Background

On or about April 13, 2010, Holcomb filed an application for DIB alleging an onset date of May 15, 2009. On or about April 20, 2010, Holcomb applied for SSI alleging the same onset date. The applications were denied initially, on reconsideration, and by Administrative Law Judge James Yellowtail (the "ALJ") after a hearing. The Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner.

Factual Background

Holcomb is thirty-one years old. He graduated from high school. His past work experience includes being a janitor, dishwasher, cook, delivery driver, inventory clerk, and field researcher. Holcomb has not been involved in a successful work attempt since May 15, 2009. Holcomb alleges disability because of migraines, seizures, depression, panic disorder, post-traumatic stress disorder, and pain. Holcomb last met the insured status requirements entitling him to DIB on March 31, 2014.

I. Hearing Testimony.

At the June 11, 2012, hearing (the "Hearing"), a neurologist, James Haynes, M.D., testified about Holcomb's seizures, migraine headaches, Tourette's syndrome, and limitations on Holcomb's activity as a result of those impairments. Dr. Haynes has never treated Holcomb in person and testified after reviewing Holcomb's medical records. (Admin. R. at 35.) Dr. Haynes discussed Holcomb's seizures first, noting that it is "51-49 in favor of a true diagnosis" of a seizure disorder. (Admin. R. at 39.) Further, Dr. Haynes noted that Holcomb is not at the end-of-the-line concerning treatment for a seizure disorder, and that with good treatment it would be highly unusual for a problem similar to Holcomb's to continue unabated. (Admin. R. at 39.)

Dr. Haynes also testified regarding Holcomb's migraine headaches and Tourettes. (Admin. R. at 34-44.) Dr. Haynes stated Holcomb's headache disorder was peculiar and demonstrated a "funny pattern." (Admin. R. at 41.) Again, Dr. Haynes noted that Holcomb had not explored the full range of possible treatments and the migraine headaches responded well to certain medications. (Admin. R. at 41.) In addition, Dr. Haynes indicated a diagnosis of Tourette's syndrome was not supported by Holcomb's medical records. (Admin. R. at 41.) Finally, Dr. Haynes noted that, based on his review of the record, Holcomb did not meet any of the listings promulgated by the Social Security Administration. (Admin. R. at 41-42.) However, Dr. Haynes did provide a caveat: if Holcomb were actually experiencing seizures at the frequency he claimed, "every other day or daily, " Holcomb would meet listing 11.03 for non-convulsive epilepsy. (Admin. R. at 42.) Dr. Haynes identified listing 11.03 as the only potential listing Holcomb could qualify for and did not find Holcomb's symptoms to be medically equivalent to any listing. (Admin. R. at 42.)

Dr. Haynes testified that Holcomb's condition limited the types of activity he could participate in. First, Dr. Haynes noted that Holcomb should not drive either commercially or for personal reasons. (Admin. R. at 43.) Second, Dr. Haynes stated that Holcomb should never work at unprotected heights, with power tools, or near moving machinery. (Admin. R. at 43.) Finally, Dr. Haynes noted the record did not reflect any physical limitations in areas like lifting or bending. (Admin. R. at 43.)

Dr. Haynes responded to a hypothetical posed by Holcomb's attorney. Howard Neibling, P.E., employed Holcomb in the past and wrote a letter describing Holcomb's sudden change in ability to perform his job tasks:

In the spring of 2009, Matt's physical and mental performance deteriorated significantly. He tired easily, was noticeably weaker, was noticeably less sharp mentally, and was unable to work out in the sun because it trigger[s] migraine headaches. He still wanted to do good work but was physically and mentally unable to function at an acceptable level, so he was no longer able to work for me.

(Admin. R. at 44.) Holcomb's attorney asked Dr. Haynes if that description was consistent with his testimony at the hearing. (Admin. R. at 44-46.) Dr. Haynes replied that the description was consistent with his testimony. (Admin. R. at 46.)

Holcomb testified to his education and work experience, mental and physical condition, and treatment of his condition at the Hearing. Holcomb completed high school and two years of college. (Admin. R. at 48.) In addition, Holcomb testified that his most recent relevant work experience was as an inventory clerk at Wal-Mart and a field researcher for a state university. (Admin. R. at 49.) Holcomb testified extensively to his physical and mental condition. Holcomb claims he has had a severe migraine headache for the last three years, after feeling a pop in his head while stocking shelves at a Wal-Mart. (Admin. R. at 50.) He also claims to have "panic attacks, sensitivity to light and sound, sleep disorders, and some level of agoraphobia, " all conditions that keep him from working. (Admin. R. at 51.) Holcomb did not list his seizure disorder when the ALJ asked the reasons for his inability to work. (Admin. R. at 51.) Instead, Holcomb described the seizures as "more socially awkward." (Admin. R. at 52.) Further, Holcomb described his seizures as occurring daily or every other day, with roughly one each month cause a loss of consciousness. (Admin. R. at 52.) However, after he loses consciousness, Holcomb is able to function and communicate, and his memory loss is limited to the event itself. (Admin. R. at 52-53.) Holcomb also told the ALJ that he had not reported the daily convulsions to his doctors because he can deal with that condition more easily than his other impairments. (Admin. R. at 53.) When asked why it would be hard to hold down a job, Holcomb answered, "[b]ecause of my sleep schedule, because of depression, the panic attacks, [and] the social anxiety." (Admin. R. at 60-61.)

Holcomb also testified to the effectiveness of the treatment he receives. Initially Holcomb took medication for his headaches but ceased because the medication left him with a rash. (Admin. R. at 53-54.) Holcomb also testified that he stopped using Percocet for his headaches after eight to ten months and moved to Oregon in part to get medical marijuana as an alternative. (Admin. R. at 57.) Holcomb stated that marijuana has helped him with both the migraines and some of his anxiety issues. (Admin. R. at 57.) Also, Holcomb takes Zoloft and it effectively helps his depression. (Admin. R. at 54.) Further, Holcomb now uses a CPAP machine for his sleep disorder and noticed positive results. (Admin. R. at 55 and 57.) Finally, the counseling Holcomb receives to treat his agoraphobia has helped with that condition. (Admin. R. at 55.)

Holcomb's mother, Fonda Kay Holcomb, also testified to Holcomb's condition and day-to-day activities based on her observations. Ms. Holcomb currently resides with Holcomb and has for the past nine years. (Admin. R. at 63.) She stated that except for doctor appointments, Holcomb is housebound if the sun is out. (Admin. R. at 64.) Further, Holcomb always has headaches and those headaches subside only when Holcomb sleeps. (Admin. R. at 65.) He also has petite mat seizures "where he'll just be talking and then stop for a few seconds and then pick right back up...." (Admin. R. at 66.) Ms. Holcomb observed daily episodes of facial tics and barking which she associates with Tourette's syndrome. (Admin. R. at 66.) She also said that Holcomb can concentrate for approximately fifteen minutes before his migraines increase in intensity. (Admin. R. at 67.) Finally, Ms. Holcomb testified that Holcomb has an irregular sleep schedule and only sleeps for three to four hours at a time. (Admin. R. at 67.)

Jay Stutz, a vocational expert, testified to Holcomb's work history and suitable jobs for Holcomb with his limitations. (Admin. R. at 69.) Mr. Stutz identified three jobs in the national and regional economy that Holcomb could perform with his limitations: cleaner 2, janitor, and budder. (Admin. R. at 73.) Mr. Stutz further testified that an employee with those jobs would be expected to be at work consistently without a high frequency of missed work days. (Admin. R. at 74.) Finally, Mr. Stutz indicated that an individual who experiences a headache so severe that the individual cannot function two to three times a week with a duration of up to three hours, could not sustain employment. (Admin. R. at 75.)

II. Medical Evidence.

Holcomb visited tile emergency room in Twin Falls, Idaho, on June I, 2009, complaining of a headache. (Admin. R. at 242.) Holcomb reported that he had a throbbing, right-sided headache for the previous fourteen days with bouts of photophobia and phonophobia. (Admin. R. at 242.) The treating physician noted Holcomb's CT scan results indicated no abnormality. (Admin. R. at 243.) On November 28, 2009, Holcomb returned to the emergency room in Twin Falls again complaining of a headache, rating the pain as ten-out-of-ten. (Admin. R. at 246.) Records from that visit indicate Holcomb visited Kenneth Brait, M.D., in-between emergency room visits, and Dr. Brait thought Holcomb had sleep apnea from which the headaches resulted. (Admin. R. at 246.).

Holcomb first visited Dr. Emit on November 3, 2009. (Admin. R. at 257.) Dr. Brait noted Holcomb needed an EEG to better diagnose his seizure condition. (Admin. R. at 258.) Dr. Brait also determined Holcomb needed a polysomnagram to test for sleep apnea and additionally thought Holcomb could be experiencing headaches as a side effect of that condition. (Admin. R. at 258.) On December 30, 2009, Holcomb visited Dr. Brait again. (Admin. R. at 248.) Holcomb had been using a CPAP machine at this point, yet his headaches persisted. (Admin. R. at 248.) Dr. Brait was concerned with Holcomb's weight, headaches, and seizures and prescribed Topamax in hopes of dealing with all three. (Admin. R. at 248.) Holcomb's EEG showed a "left temple seizure focus." (Admin. R. at 248.)

On February 10, 2010, Holcomb visited Paul Harman, LCSW, for counseling. (Admin. R. at 272.) Dr. Harman noted Holcomb's history of seizures and struggles to function in everyday life. (Admin. R. at 272-74.) Holcomb reported having seizures until he was eight and those seizures returned when he was fifteen or sixteen but were of reduced severity. (Admin. R. at 272.) Holcomb also reported that he had headaches everyday that were "about an [eight] or [nine] on a scale of [one] to [ten], and every once in a while, he [would] have a good day that is a [four] or [five] on the scale." (Admin. R. at 272.) Further, Holcomb stated he stopped using Topamax because it caused him to become "very violent, very volatile, and explosive." (Admin. R. at 272.) Dr. Harman planned on continuing to counsel Holcomb and gave him a Global Assessment Functioning score of 54.[1] (Admin. R. at 273-74.)

On February 17, 2010, Dr. Brait reassessed Holcomb's medication. (Admin. R. at 276.) Dr. Brait stopped Holcomb's Topamax use and prescribed generic Depakote in hopes that it would reduce Holcomb's headaches and calm his personality without fluctuation. (Admin. R. at 276.) Dr. Brait also characterized Holcomb's seizures: "He has shaking spells daily which probably are not seizures." (Admin. R. at 276.)

Holcomb visited Marcus Farley, QMHP, for counseling about panic attacks on May 20, 2011. (Admin. R. at 341) Dr. Farley diagnosed Holcomb with "Panic Disorder with Agoraphobia" and "Anxiety Disorder due to a General Medical condition" on May 31, 2011. (Admin. R. at 375.) During the initial visit, Dr. Farley set a goal of reducing the frequency of Holcomb's panic attacks from four-to-five a day to no more than one a day. (Admin. R. at 375.) Holcomb met that goal using the techniques Dr. Farley taught him. (Admin. R. at 345.) Dr. Farley reset the goal to be a decrease in panic attacks from five weekly to no more than two a week during Holcomb's next evaluative visit on August 29, 2011. (Admin. R. at 345.) Dr. Farley and Holcomb also established three other goals for Holcomb's treatment. First, Dr. Farley wanted to "reduce the number of days each week in which client feels overwhelmed by anxiety and/or stress from [three] clays/week to no more than [one] day/week." (Admin. R. at 346.) Second, Holcomb would "increase the frequency of talking out' frustrations or strong emotion ...


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