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Towle v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

December 29, 2016

BRANDY TOWLE, Plaintiff,
CAROLYN W. COLVIN Acting Commissioner of the Social Security Administration, Defendant.



         Plaintiff Brandy Towle (“Towle”) requests judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), denying her applications for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 423(d), and for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1382c(a)(3). For the following reasons, the Court AFFIRMS the decision of the Commissioner.

         I. BACKGROUND

         A. Procedural History

         On March 29, 2013, Towle filed applications for DIB and SSI, alleging a disability onset date of March 1, 2011, due to attention deficit disorder (“ADD”), attention deficit hyperactivity disorder (“ADHD”), anxiety and depression. (Filing No. 13-2 at 2-5.) Her claims were initially denied on June 13, 2013, and again on reconsideration on August 23, 2013. Id. at 16, 26, 34. Towle filed a written request for a hearing on September 4, 2013. (Filing No. 13-3 at 10.) On February 20, 2014, a hearing was held before Administrative Law Judge Angela Miranda (the “ALJ”), who appeared by video. (Filing No. 14-2 at 20.) Towle was present and represented by counsel. Id. A vocational expert, Abbe May (the “VE”), appeared by telephone and testified at the hearing. Id. On September 23, 2014, the ALJ denied Towle's applications for DIB and SSI. Id. at 17-19. Following this decision, Towle requested review by the Appeals Council on November 22, 2014. Id. at 15. On January 21, 2016, the Appeals Council denied Towle's request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Id. at 2-4. On July 20, 2016, Towle filed this action for judicial review of the ALJ's decision pursuant to 42 U.S.C. §§ 405(g).

         B. Factual Background

         Towle was born on May 28, 1985. (Filing No. 13-2 at 2.) At the time of her alleged disability onset date, Towle was twenty-five years old. Id. at 4. Towle filed her DIB and SSI applications at twenty-seven years old and she was twenty-nine years old at the time of the ALJ's decision. Id. at 47; (Filing No. 16 at 3.) Towle has a high school education from an alternative school program. See id; (Filing No. 13-2 at 48.) Prior to her alleged onset date, she had several short-term jobs. (Filing No. 14-2 at 43-47.) The specific start and end dates of her employment are unclear from the record. Towle worked at Big Dog's Kitchen for two and one half months. Id. at 44. She stopped working at Big Dog's Kitchen because the owner no longer owned the business. Id. In 2008 through 2009, Towle worked at Wendy's for four and one half months as a cashier and food prepper. Id. at 45. Wendy's terminated Towle after she consistently missed days of work. Id. Towle also worked part-time at Crystal Catering for six months, Dollar General for five months, and Clancy's Restaurant for two years. Id. 45-46. Both Crystal Catering and Dollar General terminated Towle for missing days of work. Id. at 61. Towle stopped working at Clancy's after moving to a different city and having her son. Id. at. 46. In 2010, Towle was a self-employed babysitter and hair stylist. Id. at 43. She worked daily for an entire year. Id. at 44. After the onset date, in 2012, Towle worked at a warehouse through Belcan Services for 210 hours, about twenty-six work days. Id. at 43. The warehouse terminated Towle because she was in a lot of pain and refused to work late. Id. She most recently worked at MSIS Staffing in late 2013, for less than a month. Id. Since that time, Towle has not been employed. Id. at 47.

         Towle is an avid tobacco smoker who has a long history of ADHD. (Filing No. 13-6 at 37.) She was diagnosed with inattention and hyperactivity symptoms at age five and seven, respectively, because she often forgot daily activities, was easily distracted, lost things, was disorganized, failed to sustain attention, and she fidgeted and squirmed. Id. Towle's ADHD remained “well-controlled” because she took Adderall. Id. On August 10, 2012, Towle visited her primary care doctor, Matthew Overley, M.D., who determined that he was uncomfortable prescribing Adderall to Towle because of its addictiveness, among other reasons. Id. at 38. Dr. Overley noted that he would continue to prescribe Adderall if Towle signed a controlled substance contract, her drug screen remained negative, and she visited a psychiatrist. Id. Dr. Overley then referred Towle to Gina Laite, M.D., but stated that he would prescribe Adderall until Towle could schedule a visit with Dr. Laite. Id.

         Towle visited Dr. Overley the following month, on September 4, 2012, and complained that Adderall worked well in the mornings but wore off by the afternoon. Id. at 35. Dr. Overley noted that Towle's hyperactive and inattentiveness improved, she was well groomed with age appropriate insight and judgement, and Towle maintained an estimated average range of intelligence. Id. Dr. Overley then adjusted Towle's Adderall, from once a day to twice daily. Id. at 36. On October 4, 2012 and October 31, 2012, Towle visited Dr. Overley for ADHD treatment, and upon examination, Dr. Overley determined that Towle maintained a negative drug screen and a normal mental status. Id. at 27-22, 32-33. During the October 4 visit, Towle complained about having to visit monthly as well as having to speak with a therapist in order to receive Adderall. Id. at 32. Dr. Overley noted that Towle failed to show up for her initial visit with Dr. Laite, but she prescribed Towle Adderall regardless, because the Adderall helped Towle properly care for her children and helped Towle keep jobs. Id. at 32-33. Dr. Overley informed Towle that he could not continue to prescribe a controlled substance if she did not show up for her appointments with specialists as instructed. Id. at 33.

         On December 19, 2012, Towle visited Dr. Laite for an initial assessment regarding her ADHD. Id. at 18. Dr. Laite noted that Towle was irate because she was referred to a psychiatrist in order to obtain ADHD medications. Id. Dr. Laite also opined that Towle's December drug screen was positive and contained amphetamine. Id. Nonetheless, Dr. Laite refilled Towle's Adderall, but noted a concern with possible drug-seeking behaviors and Towle's hostility. Id. at 19. Dr. Laite recommended Towle follow up in three months. Id.

         On February 14, 2013, Towle visited Yvonne Min, a licensed mental health counselor, and was diagnosed with mild Posttraumatic Stress Disorder (“PTSD”). Id. at 12-14. On March 27, 2013, Dr. Laite conducted a follow-up assessment with Towle and Towle reported that she was unable to keep a job. Id. at 4. Dr. Laite noted that Towle's concentration and energy decreased, but her anxiety and sleep disturbance had improved, and she was not as irritable. Id. Upon examination, Dr. Laite observed that Towle had a dysphoric mood, poor judgment, and minimal insight with an otherwise normal mental status exam. Id. at 5. Dr. Laite diagnosed Towle with ADHD, mood disorder, and PTSD. Id. She then refilled Towle's prescription for Adderall, as well as her prescriptions for Citalopram, Hydroxyzine and started Towle on Risperidone. Id.

         On June 3, 2013, clinical neuropsychologist, Kenneth D. McCoy, Ph.D., H.S.P.P., examined Towle and determined that “[b]ased on mental status examination, [Towle's] reported attention problems, anxiety, and depression may interfere with” Towle's ability to perform a simple, repetitive task continuously for a two-hour period. Id. at 48. Dr. McCoy noted that Towle's verbal abilities, including knowledge base, judgment, and abstract thinking were average to below-average. Id. He also determined that Towle's memory was intact and she did not need any supervision. Id. Dr. McCoy diagnosed Towle with depressive disorder NOS, anxiety disorder NOS, as well as ADHD and PTSD by history. Id. at 48-49.

         On June 13, 2013, Kenneth Neville, Ph.D. (“Dr. Neville”), reviewed Towle's file and opined that Towle's mental impairments were not severe and did not significantly limit her physical or mental ability to do basic work activities. (Filing No. 13-2 at 8.) Thereafter, on August 20, 2013, Joseph Pressner, Ph.D., reviewed Towle's file and affirmed Dr. Neville's opinion. Id. at 25.

         On September 3, 2013, Towle presented to Dr. Overley in distress, reporting that her cell phone was stolen and “naked” pictures of her were posted on the internet. (Filing No. 13-10 at 32). Towle reported stress over her finances and that she had been looking out for jobs. Id. Dr. Overley opined that the internet incident triggered past incidents of trauma and assessed Towle with PTSD. He encouraged adherence to psychiatry and therapy appointments. Id.

         On November 12, 2013, Towle visited Dr. Overley and requested an Adderall refill. (Filing No. 13-10 at 21.) Dr. Overley reminded Towle of the numerous psychiatric appointments she missed with Dr. Laite and refused to refill her Adderall prescription. Id. Dr. Overley noted that Towle became “really grouchy and sullen” when he would not refill her Adderall. Id. The following day, on November 13, 2013, Towle showed up an hour and a half late for her scheduled appointment with Dr. Laite. Id. at 19. Despite being ninety minutes late, Towle demanded to be seen or to receive her medication. Id. Dr. Laite informed Towle that she missed multiple appointments and indicated that she would not continue prescribing a controlled substance if Towle failed to keep her appointments. Id. Dr. Laite examined Towle and noted that Towle was irritable and fidgety with poor judgment and minimal insight, but otherwise oriented with a coherent thought process. Id. at 19-20. Dr. Laite stated that Towle's primary source of dysfunction was her mood disorder, and opined that Towle would benefit from being approved for disability benefits. Id. at 20.

         On February 12, 2014, Dr. Laite reported that Towle's Adderall refill was declined the prior month because Towle maintained multiple Hydrocodone prescriptions from different doctors, including one in Muncie, Indiana. Id. at 10. Towle stated that the month without Adderall was hard and Dr. Laite agreed to restart the Adderall prescription if Towle complied with the recommendations and filled her prescriptions at the same pharmacy. Id. Towle reported that her combination of citalopram, buspirone, and hydroxyzine helped her depression, and indicated that she did not want the medications changed. Id. Upon examination, Dr. Laite observed that Towle's memory was intact and her mood improved. Id.

         On March 4, 2014, Dr. Overley noted that he referred Towle to a neurologist and to physical therapy, however, Towle failed to follow through with the referrals. Id. at 5. Dr. Overley opined that Towle could physically work eight-hour shifts after she completed his recommended medical treatments. Id. Dr. Overley also noted that Towle had no-showed sixteen times since June 2012, for scheduled appointments with physicians, counselors and for pulmonary function testing. Id. Dr. Overley further opined that he could not estimate how far Towle could walk or how long she could sit or stand in an eight-hour workday because Towle did not complete the physical therapy evaluation and treatment that he recommended. I ...

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