Hill v. Berryhill
Filing
33
ORDER granting 25 Motion for Summary Judgment. Signed by Magistrate Judge Shaniek M. Maynard on 11/19/2018. See attached document for full details. (ip00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.
17~14262-CIV-MAYNARD
NORMAN WILLIAM HILL,
FILED by _ _ _ D.C.
Plaintiff,
NOV 1 9 2fll8
v.
NANCY A. BERRYHILL, Acting Commissioner,
Social Security Administration,
STEVEN M. LARIMORE
CLERK U.S. DIST. CT.
S.D. OF FLA. ·FT. PIERCE
Defendant.
______________________________________/
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DE 25)
THIS CAUSE comes before this Court upon the above Motion.
Having reviewed the Motion, Response, Reply, and Administrative
Record (DE 18)
1
,
and having held a hearing thereon on October 30,
2018, this Court finds as follows:
BACKGROUND
1.
The Plaintiff applied for disability insurance
benefits and supplemental security income under Titles II and
XVI of the Social Security Act on November 4, 2013 (with a
protective filing date of October 17, 2013). The application set
was denied initially and after reconsideration. On May 24, 2016
an Administrative Law Judge ("ALJ") rendered a decision finding
the Plaintiff not disabled under the terms of the Act. The
Appeals Council denied his Request for Review on May 16, 2017,
1
This Court uses DE lB's pagination for its citations to the record.
thereby leaving the ALJ's decision final and subject to judicial
review.
2.
The Plaintiff has a high school education. He
completed his primary education (and subsequent vocational
training programs) despite a very difficult childhood and
domestic pressures. He went to work at an early age to support
his mother and his disabled sister. His father had left when he
was very young. At school he was a loner who found socializing
difficult.
3.
The Plaintiff has a consistent earnings history from
1981 to 2007. For the time period 2002 to 2007 he worked as a
temporary construction laborer.
4.
The Plaintiff claims a disability onset date of
September 28, 2007. That also is his date last worked. The
Plaintiff explains that a personal dispute arose between himself
and a co-worker. He complained to his supervisor. The supervisor
responded by asking him to quit, which he did. Then the property
boom ended, and he was unable to find new construction work.
5.
The medical record begins at this time, too. On
September 27, 2007---the day before his date last worked---he
went to the hospital complaining of progressively worsening
chest pain and sore throat. Viral acute
2 of 33
perica~ditis
was
diagnosed. The condition responded to treatment. The Plaintiff
was 43 years old at the time.
6.
By 2010 he was homeless, living in a camp in wooded
lot. There are some health department treatment notes from mid
2011. They show treatment for a skin infection and for eye
problems
(myopia and a cataract). He was unable to make it to an
eye clinic for care. There was no eye clinic locally in town,
and transportation problems limited his ability to travel to the
next nearest one. It appears that the eye conditions remain
untreated to-date.
7.
In 2012 his mental health began to decompensate. He
developed emotional problems and psychotic symptoms which
culminated on April 13, 2012. He became very angry with a new
resident in the homeless camp. He began to have violent and
homicidal thoughts toward that person as well as suicidal
thoughts about himself. He did not act on those thoughts.
Instead he called the police on himself for help, and he agreed
to mental health hospitalization. The police took him to the
hospital's Behavioral Health Clinic where he received inpatient
treatment.
8.
The Plaintiff complained of violent thoughts, anxiety,
and depression. He had poor dentition, poor hygiene, and was
disheveled. He denied any alcohol or drug use.
3 of 33
(The homeless
camp he had joined was strictly dry, he later explained.)
Testing confirmed the absence of any alcohol or drugs in his
system.
9.
By April 19th he had stabilized and was discharged.
His condition responded well to medication (Haldol, Tripleptal,
and Vistaril). His ending GAF score reflects the improvement,
increasing from a low of 15 to a high of 60
(indicative of a
moderate to mild condition). He was interacting normally with
others at the hospital and attending group sessions. Mood
disorder was the concluding diagnosis.
10.
For follow-up care the hospital referred the Plaintiff
to the New Horizons mental health clinic. He went there on April
26th. The New Horizons clinic in turn referred him to the Mental
Health Association ("MHA") which began treating him in May 2012.
11.
At his initial appointment at MHA he complained of
depression, anger, poor sleep, and interpersonal conflict at the
homeless camp. The attendant observed signs and symptoms
consistent with what the Plaintiff was reporting. MHA continued
his medications and instituted frequent counseling and therapy
sessions. The goals of treatment were to decrease his depression
and negative rumination; to improve his self-image; and to learn
I
coping skills by which to handle life stressors.
4 of 33
12.
On May 29, 2012 he returned to the health department
complaining of osteoarthritis in both knees. He likewise
complained of chronic joint pain at a follow-up appointment at
New Horizons on June 1st.
13.
The Plaintiff improved significantly with counseling
and therapy. He was fully compliant with treatment, and the
therapist's notes show improvement as early as that July. His
depression eased and he began to feel hopeful. His mood
stabilized. His thought process improved. He was having fewer
auditory hallucinations (hearing voices) ..He was slowly opening
up and talking about difficult past issues.
14.
He also was growing weary of being homeless. Couch
surfing for a few days gave him a welcomed respite. It appears
that a prior disability application was denied as was his
application for Shelter Plus benefits. He felt discouraged by
the feeling of being unable to work and by transportation
problems. He was open to part-time work if it was close by. The
frustration from all of those stressors caused a worsening of
his condition in July 2012. Diagnoses ranged from mood disorder
to major depressive disorder with psychotic features. Still he
persisted with treatment, and he maintained control over his
depression and auditory hallucinations.
5 of 33
15.
That August and September he began to feel motivated
to stop smoking. He began to find support in a friendship. He
was working odd jobs but remained under financial stress. He no
longer was disheveled and his personal hygiene was better. His
medications were adjusted to reduce their sedating effect.
16.
In October 2012 he was granted Shelter Care Plus
benefits and moved into an apartment. He no longer was homeless.
His caregivers at MHA explain that the Shelter Care Plus program
subsidizes the housing of homeless persons with serious mental
disability.
17.
For the rest of the year his overall condition
improved as reflected in his GAF score that had increased to a
66 (indicative of just a mild condition). His overall condition
had improved. Making the housing adjustment was a difficult
process nevertheless. He withdrew socially. Both his personal
insight and personal hygiene worsened. He remained under
financial stress, too, because he had to pay rent
(albeit at a
reduced rate). He had counted on Social Security benefits to
make up the difference, but his then pending application (that
pre-dates the one under review now) had been denied. Moreover
his attorney declined to represent him on appeal.
18.
His date last insured for Title II disability
insurance benefits was December 31, 2012.
6 of 33
In order to collect
that particular benefit, he must establish the onset of
disability on or before that date, gener'ally speaking. The date
(
last insured did not affect the ALJ's analysis, however; the ALJ
considered the full evidentiary record. This Court adds that the
later medical evidence relates back to and is informative of his
mental health condition as it existed before his date last
insured.
19.
The Commissioner sent the Plaintiff to Dr. Ahmed for a
consultative physical examination on January 2, 2013. The
Plaintiff reported a long history of low back pain. He reported
being able to do household chores and some minor outside work.
He also reported depression but said that his psychotropic
medications were helping. The physical examination was overall
normal except for a mildly positive straight leg raise test and
some lumbar spasms. Dr. Ahmed also observed hand tremors which
the doctor attributed to anxiety (although other treatment notes
attributed that symptom to his Haldol medication, this Court
notes). Dr. Ahmed diagnosed lumbago and depression. Dr. Ahmed
opined that the Plaintiff can sit, stand, or walk for six hours
and can lift 25 lbs. frequently and 50 lbs. occasionally.
20.
The Plaintiff continued to attend monthly therapy and
counseling sessions through mid 2013. Those treatment notes show
the Plaintiff to be overall stable with the benefit of mental
7 of 33
health treatment and support. Still there was room for further
improvement. He did not feel as stable as he would like. He
continued to struggle with socialization, remaining resistant to
group sessions. He remained unhygienic. Physical pain and his
age were hindering his ability to find work, he felt.
21.
At some point in mid 2013 he was transitioned out of
MHA's individual therapy program. However he continued to
receive case management and prescription. management services.
The Administrative Record possibly is missing three or four
additional treatment notes from this period of time in mid 2013,
the Plaintiff asserts at footnote 5 of his Motion.
22.
In November 2013 the Plaintiff reported feeling
suicidal, and MHA conducted a crisis assessment. There are no
direct medical records of the
~vent.
Instead a later letter from
the MHA mentions it. In that letter, found at page 414, MHA
reports that in November the Plaintiff "required crisis
assessment and safety planning for the therapy department due to
emerging suicidal ideation." He stabilized after a medication
adjustment. Moreover his case manager, Bonnie Hurd, recalled in
her Medical Summary Report dated December 4, 2015 that the
Plaintiff had been hospitalized at least two times. The November
2013 crisis assessment may be that second hospitalization event
(in addition to the precipitating April 2012 hospitalization).
8 of 33
23.
Around that same time, on November 4, 2013, he
submitted the
di~ability
application under review now. The
Plaintiff claimed disability due to depression and auditory
hallucinations with related violent ideations. Page 234 of the
Administrative Record provides a summary of his mental health
condition. There the mental health impairments of social
avoidance, poor self-esteem, decompensation when stressed, and
need for encouragement are claimed, and the need for mental
health services to keep the Plaintiff stable is stressed. Lastly
the Plaintiff claimed disability due to the physical health
condition of pain in his back, ankles, and knees.
24.
The case worker who took his application described the
Plaintiff as "paranoid during the interview". The Plaintiff
"kept looking over his shoulder and his hands were shaking
during the interview. He fidgeted with·the paperwork in his
hands various times during the interview but was very
cooperative through the whole process." (The case worker's note
is found at page 219.)
25.
Page 414 of the Administrative Record is a letter from
MHA to the Commissioner. The Plaintiff's case manager, Bonnie
Hurd, and the program's clinical director, LMHC Jeanne Shepherd,
wrote the letter. The letter summarizes the treatment services
provided to-date: 29 individual
coun~eling
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sessions, 31 case
management meetings, and six psychiatrist appointments after the
initial evaluation on April 14, 2012.- The Plaintiff's diagnoses
as of October 31, 2013 were mood disorder, history of psychosis,
and anxiety disorder. "Through treatment," they explained, the
Plaintiff "has been able to identify stressors and seek
therapeutic support when needed" thereby avoiding need for
repeat inpatient hospitalization.
26.
Two psychologists rated the Plaintiff's mental
residual functional capacity ("RFC"). Neither examined the
Plaintiff but rather opined on the basis of the record then
available to them. Dr. Green rendered her advisory RFC rating in
January 2014
(contemporaneous with the initial denial of the
Plaintiff's application). Dr. Green opined that the Plaintiff
remains capable of performing simple routine tasks,
instructions, and decision-making on a sustained basis "as
motivated". She furthered that the Plaintiff can "cooperate and
behave in a socially appropriate manner"
(albeit with possible
"difficulty accepting criticism from supervisors and peers") and
can "react and adapt appropriately to the work environment." Dr.
Reback rendered his RFC rating in April 2014
(contemporaneous
with the second, reconsideration-stage denial). Dr. Reback rated
the Plaintiff as similarly able to perform simple routine work.
10 of 33
He added that the Plaintiff is moderately limited "in the
ability to interact with the general public."
27.
The ALJ gave both RFC ratings great weight. He found
them to be "based on a thorough review of the available record",
to be "suppoited by the overall record," and to "provide a
holistic assessment of the claimant's mental limitations."
28.
For 2014 the Administrative Record contains treatment
notes from the Plaintiff's treating psychiatrists at MHA who
managed his prescriptions. The Plaintiff saw Dr. Moss three
times
(in March, May, and June) and Dr. Yergen four times
(in
July, September, October, and December). These treatment notes
show that the Plaintiff was doing overall well on his
medications
(Vistaril, Trileptal, benztropine, Prozac, Cbgentin,
and Haldol) and supportive therapy with no more violent
ideations. His mood was stable and he was sleeping better. His
hygiene improved. His primary diagnosis now was of major
depressive disorder with psychosis in partial remission.
Nevertheless his GAF score remained low at 50 (indicative of a
serious condition).
29.
On March 26, 2014 Ms. Hurd wrote the Commissioner with
an update on the Plaintiff's status. That letter is found at
page 416. There Ms. Hurd reported that to-date the Plaintiff has
attended eight individual counseling sessions (which had stopped
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in June 2013), 19 case manager sessions, and seven psychiatric
appointments. Ms. Hurd reported the ongoing diagnoses of mood
disorder, psychosis history, and anxiety disorder. She reported
the additional stressors of economic problems, healthcare access
problems, and lack of primary support. The Plaintiff takes the
medications of Haldol, Trileptal, benztropine, hydroxyzine, and
Prozac. Treatment has consisted of medication management,
stressor identification, therapeutic support, suicidal ideation
therapy, and housing support. As a result of treatment he has
stabilized, and he has avoided inpatient hospitalization.
30.
In March 2014 the Plaintiff began working at Goodwill
as a donations attendant on a part-time basis. He initially
reported doing well at his job. That October he anticipated the
job becoming busier. At the December appointment with Dr.
Yergen, the Plaintiff said he still was doing well generally and
at work. However he was getting flustered at work. He managed it
by walking away and putting the frustration out of his mind.
31.
Although the Plaintiff reported doing well overall,
Dr. Yergen's treatment note from December 16, 2014
(which begins
at page 434 of the Administrative Record) suggests problem
areas. The Plaintiff was disheveled and his hygiene poor. He had
an abscessed tooth. Eye contact was poor and he was noncommunicative. His affect was restricted. Dr. Yergen continued
12 of 33
by noting that despite the improvements to-date with treatment
and despite his denial of such feelih~s, "he continues to appear
guarded and paranoid". "[H]e is quite restricted and blunted on
exam"~
Dr. Yergen regarded that to be the Plaintiff's
"baseline". Dr. Yergen listed out areas of impairment: the
Plaintiff is not sociable, has social functioning problems, is
having problems with his ADL's, has very limited intellectual
capabilities, and has a quite concrete thought process. Dr.
Yergen noted the discrepancy between how the Plaintiff presents
himself as stable and functioning well but in reality is
struggling. Dr. Yergen noted the Plaintiff's "struggles with
everyday situations and with his finances as he doesn't have the
capability to have more meaningful productive work." Lastly Dr.
Yergen noted the Plaintiff's report of back pain, which "has
been an ongoing problem for him and limiting factor" but for
.which he cannot afford medical care. Dr. Yergen diagnosed major
depression recurrent with psychotic features and gave a GAF
score of 50 indicative of a serious condition.
32.
On December 30, 2014 LMHC Jeanne Shepherd wrote a
letter to the Commissioner with a status update. She reported
that while the medication is managing the Plaintiff's psychosis,
he· still is having "difficulty cultivating and maintaining
supportive relationships and has no family support. He also has
13 of 33
difficulty interacting with others, handling work stressors and
engaging in leisure activities."
33.
The Plaintiff's job at Goodwill lasted about a year,
ending in April 2015. Ms. Hurd reports that the Plaintiff was
fired without re-hire eligibility. Ms. Hurd reports that he was
fired for absenteeism without doctor excuse notes. Ms. Hurd says
that the Plaintiff was hearing command voices and was nauseous
with an upset stomach. He would not go see a doctor for an
excuse note because he does not trust doctors. At the
administrative hearing the Plaintiff explained that he was
having difficulty dealing with the public and with co-workers.
He felt judged and was prone to argue. He was feeling anxious
and depressed, and he missed too many days of work. Ms. Hurd'
reports that the Plaintiff's symptoms eased after he stopped
working. The Plaintiff's earnings from that job---$7,304 in 2014
and $2,774 in 2015---are too low to count as Substantial Gainful
Employment, the ALJ later found.
34.
In February 2015, according to his case manager,
Bonnie Hurd, the Plaintiff's long term mental health care was
transferred from MHA back to New Horizons. That transfer meant
further delay in the resumption of therapy and counseling. The
Plaintiff went on New Horizons' waiting list for that service.
14 of 33
35.
Treatment notes resume June 2015 at New Horizons. His
treating psychiatrist there, Dr. Jean, continued his mental
health care and noted the Plaintiff's need for increased social
interaction and increased social support. Dr. Jean gave a GAF
score of 52, similar to the concluding GAF score from MHA. The
Plaintiff saw Dr. Jean again in August 2015. The Plaintiff had
no complaints other than anxiety. The goal of treatment, Dr.
Jean noted, was to maintain stability. The Plaintiff's GAF score
increased to a 55.
36.
The Plaintiff's case manager, Ms. Hurd, wrote a
Medical Summary Report for the Commissioner, and it is dated
December 4, 2015. That report begins at page 439 of the
Administrative Record, and it recounts the Plaintiff's mental
health-related history. Ms. Hurd reports the Plaintiff's lack of
family to rely on. He worked in construction but struggled to
keep jobs. Voices would tell him to quit, that he is no good,
and that he should kill himself. He could not keep up
w~th
his
jobs and would be fired. Employment overwhelms him, and he
starts to hear voices. The auditory hallucinations in turn
lowers his self-esteem and confidence, and he then responds by
isolating himself. He also struggled to maintain housing, even
before he lost his construction job in 2007. He had lived in the
15 of 33
woods for four years before he obtained a HUD rent subsidy for
chronically homeless and mentally disabled adults.
37.
Ms. Hurd described the Plaintiff's various mental
health impairments. He has poor hygiene and does not keep up
with laundry or house cleaning (and he does not see it or
recognize the extent of that problem for himself) . He has
pronounced social impairments. He depends on mental health care
and other charity care services without which his psychosis and
suicidal ideation would take over. He struggles to be employable
despite extensive vocational rehabilitation services.
38.
"Due to serious mental illness and unpredictable
emergence of hallucinations and command voices," Ms. Hurd
concluded her report, the Plaintiff "is incapable from engaging
in any type of gainful employment even with support systems in
place". She pointed to the Plaintiff's unsuccessful "short term
placement by Vocational Rehabilitation with Gulfstream Goodwill"
as evidence. "Norman meets the requirements for disability under
the Social Security Guidelines for persons with depressive
disorders with severe impairments in functioning and should be
awarded disability."
39.
The Plaintiff saw Dr. Jean twice in 2016 before the
administrative hearing. Those treatment notes suggest overall
stability and tolerable mood changes but also increased
16 of 33
irritability, poor sleep, and a constricted affect. His GAF
score ranged from a 50 to a 55. At the most recent appointment
trazodone was added to his medications.
40.
In February 2016 the Division of Vocational
Rehabilitation closed the Plaintiff's case and transferred it to
New Horizons. Its letter, found in the record at page 279,
explained to the Plaintiff that "New Horizons can better meet
your rehabilitation needs."
41.
The administrative hearing was held on April 26, 2016.
He recalled that it was after becoming homeless when he
developed paranoia and violent ideation symptoms. He heard
voices that instructed him to harm others and himself. He has
had that auditory hallucination symptom ever since. However his
medications help to control it
(but he has been without those
medications since October because of their cost). He also
manages the voices by listening to music and by avoiding people.
His primary difficulty is with social interaction. He becomes
angry around others. He becomes panicky in public spaces. He
claimed impaired short-term memory, decision-making, and
attention span, as well as a racing mind. In addition to those
mental impairments, the Plaintiff claimed the physical
impairment of a long history of back pain.
17 of 33
42.
As for his daily life activities, he stated that he
does light cooking (with a microwave). He has difficulty keeping
up with laundry and cleaning house. He can go weeks before
bathing. He walks to the grocery store to buy groceries.
Otherwise he rides public transportation to get around. He wears
headphones when he goes out in public. For recreation he uses
the internet and watches TV. He has four long-term friends whom
he visits and helps out. The Plaintiff was 51 years old at the
time of the administrative hearing.
43.
At Step Two of the disability analysis the ALJ found
just two conditions that qualifies as a "severe impairment": the
mental health conditions of an affective disorder and anxiety
disorder. The ALJ found no other mental health condition, such
as depression or psychosis, to rise to that level. The only
physical impairment that the ALJ considered was low back pain,
and the ALJ did not find it to rise to the level of a severe
impairment either.
44.
The ALJ did not find the Plaintiff's mental health
condition to be of disabling severity. First the ALJ did not
find it to be of Listing-level severity for purposes of Step
Three of the disability analysis. At that step of the analysis
the ALJ considered the three broad domains of mental health
functioning. He found only a mild impairment of daily life
18 of 33
activities; moderate impairment of ,s9cial functioning; and
moderate impairment of concentration, persistence, and pace.
Fourthly the ALJ counted no episodes of decompensation of
extended duration. The ALJ found no evidence of a decompensation
risk from placement in the workplace setting, and the ALJ saw no
evidence of dependence on structure and support to maintain
functional ability. Instead the ALJ found the Plaintiff's daily
life activities and social functioning to be evidence of a
significant ability to respond to mental demands and
environmental changes. The ALJ described the Plaintiff's daily
life and social interactions as "somewhat normal".
45.
The ALJ emphasized certain aspects of the record that
he felt contradicted the Plaintiff's disability claim. The ALJ
noted the four year gap between the Plaintiff's date last worked
and his inpatient hospitalization. It was not until that April
2012 when the Plaintiff began receiving mental health care. The
ALJ noted the Plaintiff's quick stabilization with inpatient
treatment and the overall success of medication at managing the
Plaintiff's psychosis. The ALJ regarded the Plaintiff's mental
health treatment since the hospitalization as generally
conservative in nature. Many treatment notes describe the
Plaintiff's condition as mild (although at other times as
moderate, the ALJ added). Just mood disorder was diagnosed
19 of 33
(although severe major depressive disorder with psychotic
features also was an ongoing diagnosis, the ALJ added). The
mental status examinations were relatively benign. The ALJ also
placed emphasis on the Plaintiff's own reports. In the
disability application paperwork the Plaintiff described a broad
range of daily life and social activities and he did so again
(to an extent) at the hearing. At many of his treatment
appointments the Plaintiff reported no or insignificant
complaints.
46.
The ALJ regarded the treatment notes from 2014 and
2015 to show no dramatic changes in the Plaintiff's condition.
The ALJ saw no evidence of overt psychosis. As for the
Plaintiff's condition·in 2016, the ALJ noted that his
hallucinations were tolerable and manageable. The ALJ found Dr.
Rashid's January 2016 notation of medication treatment
compliance to contradict the Plaintiff's assertion that he had
not taken medication since October 2015.
47.
As for opinion evidence, the ALJ gave great weight to
the RFC advisory opinions by Dr. Green and Dr. Reback. The ALJ
gave little weight to the Medical Summary Report from Ms. Hurd
dated December 2015 in which she opined that the Plaintiff is
unable to work. The ALJ found that opinion inconsistent with
what the treatment notes show. The ALJ also saw nothing in the
20 of 33
record that supported Ms. Hurd's report of two hospitalizations
and drug trials. The ALJ found the fact that medications
successfully managed the Plaintiff's condition to contradict Ms.
Hurd's assertion. The ALJ noted the GAF scores of record with an
overall range of 15 to 70 and which were in the 50's (indicative
of moderate severity) in 2015 and 2016. The ALJ gave the GAF
scores little weight based on the general rule that GAF scores
do not necessarily convey information helpful to a disability
analysis. The ALJ did not address the other opinion statements
and status reports of record.
48.
Rather than disabled, the ALJ found the Plaintiff able
to perform a reduced range of medium exertion work. As for
physical
exer~ion
the ALJ limited the Plaintiff to occasional
climbing of ladders, ropes, and scaffolds, and to occasional
postural movements. As for the mental demands of work, the ALJ
found the Plaintiff capable of performing simple routine tasks
on a sustained basis (with breaks every two hours). The ALJ
limited interaction with co-workers and supervisors to an
occasional basis and limited interaction with the public to a
less than occasional basis. However the ALJ found the Plaintiff
still able to adapt to routine workplace changes with normal
supervision.
(The ALJ did not address whether the limitation to
occasion interaction with supervisors is compatible with the
21 of 33
"normal supervision" that the Plaintiff needs to manage
workplace changes.)
49.
The ALJ found the RFC to preclude the Plaintiff's
return to his past work. Citing the Medical-Vocational
Guidelines ("Grids") and the testimony of the Vocational Expert
who also testified at the administrative hearing, the ALJ found
that the Plaintiff could perform the other jobs of linen-room
attendant, laundry laborer, and warehouse worker.
DISCUSSION
50.
Judicial review of the Commissioner's decision is
limited to a determination of whether it is supported by
substantial evidence and whether the proper legal standards were
applied. See Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997).
Supporting evidence need not be preponderant to be substantial
so long as it amounts to more,than a scintilla; in other words,
it is such relevant evidence that a reasonable person might
accept as sufficient and adequate to support the conclusion
reached. See id. at 1440. If the decision is supported by
substantial competent evidence from the record as a whole, a
court will not disturb that decision. Neither may a court reweigh the evidence nor substitute its judgment for that of the
ALJ. See Wolfe v. Chater, 86 F.3d 1072 (11th Cir. 1996). See
also, Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002)
22 of 33
While the Commissioner's factual findings enjoy such deference, a
court is free to review the Commissioner's legal analysis and
conclusions de novo. See Ingram v. Comm'r, 496 F.3d 1253, 1260
(11th Cir. 2007). See generally, Washington v. Comm'r, 2018 WL
5318147, *3 (11th Cir. 2018)
(stating the general rule that the
court will affirm the Commissioner's decision if substantial
evidence supports it and if the Commissioner applied the correct
legal standards).
51.
This Court considers first whether the Commissioner
correctly evaluated the intensity and persistence of the
Plaintiff's claimed medical condition and its limiting effects.
The standard that governs that evaluation is SSR 16-3p. SSR 163p governs the evaluation of the Plaintiff's claim because it
became effective on March 28, 2016 2 , before the ALJ rendered his
Decision two months later on May 24, 2016. It therefore appears
that the ALJ erred by applying the previous standard of 20
C.F.R. § 1529 and SSR 96-4p. In any event, under either
standard, this Court sees insufficient basis by which to affirm
the ALJ's finding that the Plaintiff's impairments are less
severe than alleged. Stated differently this Court sees no
competent substantial evidence to support the ALJ's decision to
2
Footnote 27 to SSR 16-3p says that an ALJ shall apply it when making a
determination and decision on or after March 28, 2016.
23 of 33
discount the credibility of the Plaintiff's disability
allegation.
52.
The ALJ's denial relies on the late start of mental
health treatment, the overall conservative nature of that
treatment, and its success at managing the Plaintiff's
psychosis.
~This
Court sees in the record evidence a more
complicated history. There is evidence that the Plaintiff may
have had a long history of difficulty maintaining employment and
housing and how that difficulty may stem from mental health
problems. It is true that the mental health treatment record
does not begin until April 2012, many years after his date last
worked, but there is no evidence that the Plaintiff ever had
health insurance or other financial means to seek treatment. The
Plaintiff then eventually decompensated to the point where there
was an unavoidable need to seek help.
53.
The Plaintiff entered treatment from a very low point
of functionality and mental health. It is true that he improved
quickly, from that low start point. Since the start of treatment
he has been fully compliant, and he has avoided complicating
factors such as substance abuse. However this Court would not
characterize the course of treatment as "conservative".
Treatment has consisted of regular individual therapy sessions
and a variety of different psychotropic medications (anti24 of 33
psychotics, mood stabilizers, anti-depressants, and a sleep
sedative). The Plaintiff also has benefitted from a range of
ancillary supportive services such as housing, food stamps, and
vocational training. This combination of treatment and support
services stabilized the Plaintiff and improved his mental health
(most notably by easing his psychosis).
54.
The ALJ focuses on that success at easing the
Plaintiff's psychosis. However the ALJ did not consider those
work-related impairments that exist at the Plaintiff's
"baseline". Nor did the ALJ consider the risk of decompensation.
A mental health patient who is stable with therapy and support
may decompensate in a more demanding setting such as in the
workplace. See Mace v. Comm'r, 605 Fed.Appx. 837, 843 (11th Cir.
2015)
(noting the importance of considering a claimant's
functional level outside of the structured setting) . That may
have happened here. The Plaintiff tried to return to work, but
he was fired from that job, even despite its low work hours and
presumed accommodative atmosphere.
55.
The record evidence shows that functional problems
remain even after his psychosis was brought under control. For
the most part the Plaintiff has struggled with self-care tasks
(keeping a clean home, laundry, hygiene, and oral health) and
with social interactions. The Plaintiff has experienced bouts of
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increased symptoms even as treatment improved his condition
overall. One such bout of increased symptoms incurred in the
several months preceding the hearing date.
56.
The ALJ placed emphasis on the Plaintiff's own reports
of normal functioning. However the medical evidence brings their
reliability into doubt. The medical evidence suggests that the
Plaintiff may not necessarily see for himself the problem areas.
The medical evidence likewise indicates at least some degree of
limited insight. The evidence suggests that he also may not
comprehend questions as well as it seems. See Mace,
Fed.Appx. at 842
605
(noting that a claimant's mental functional
ability may be less than what the claimant asserts or wishes).
57.
Ultimately that is for the fact-finder to weigh out.
This Court offers the above characterization only to show that
the Plaintiff's history is more complicated than what the ALJ
suggests. The ALJ seems to have placed great emphasis on those
particular factors that suggest normal functional ability but
without taking into account the full context and without taking
into account those factors that suggest impairment. It is for
that reason that this Court does not find the ALJ's credibility
finding to enjoy sufficient evidentiary support.
58.
This Court considers next the medical opinion
evidence. The standard that governs the evaluation of medical
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opinion evidence in this case is 20 C.F.R. § 404.1527. Generally
speaking, the Commissioner gives the medical opinion of a
treating source controlling weight. Such evidence is not
automatically determinative, however. An ALJ may decide to give
treating source medical opinion evidence less than controlling
weight (or give it no weight at all). To do that 20 C.F.R.
§
404.1527 requires the ALJ to say how much weight (if any) he
does give it and to explain why. See also, Winschel v. Comm'r,
631 F.3d 1176, 1179 (11th Cir. 2011)
(stating the general rule
that "[w]ith good cause, an ALJ may disregard a
~reating
physician's opinion, but he must clearly articulate the reasons
for doing so")
59.
(internal citations omitted).
The Plaintiff points to the treatment note by Dr.
Yergen from December 16, 2014
(and found in the record at page
434). The ALJ did mention it and did cite a few parts of it.
However the ALJ did not consider it as an item of medical
opinion evidence. Consequently the ALJ did not say how much
weight he accords it and if he was discounting it---which the
Defendant argues the ALJ implicitly did---the ALJ did not
articulate the reasons for doing so. The Plaintiff argues that
the ALJ thereby erred.
60.
This Court begins by finding that the subject
treatment note does count as "medical opinion" evidence. Title
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20 C.F.R.
§
404.1527(a) (1) defines "medical opinions" as
statements:
that reflect judgments about the nature and severity
of [the claimant's] impairment(s), including [the]
symptoms, diagnosis and prognosis, what [the claimant]
can still do despite impairment(s), and [the
claimant's] physical or mental restrictions.
The subject treatment provides that same kind of information and
insight. Dr. Yergen goes beyond merely taking notes for that
day's appointment, and the treatment note contains more than
just background medical evidence. Dr. Yergen added to that
treatment note an explanation of the Plaintiff's condition and
functional ability. Second this Court finds that Dr. Yergen
counts as an acceptable treating source. She is a psychiatrist
who has treated the Plaintiff both personally on several
occasions beforehand and as part of MHA which has treated the
Plaintiff regularly for an extended period of time. Taken
together, the above shows why the ALJ should have evaluated Dr.
Yergen's December 16, 2014 treatment note as a medical opinion
statement under 20 C.F.R.
61.
§
404.1527.
The Defendant concedes that the ALJ did not consider
the subject treatment note expressly as such. However she argues
against remand on the basis that the ALJ implicitly rejected it.
It is true that the ALJ did mention it. In citing it the ALJ
conceded that it showed "a number of abnormalities, including
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poor hygiene, withdrawn attitude, minimal responsiveness, and
restricted affect." "On the other hand," the ALJ continued, it
showed normal functioning, too. It showed his "thought content
and processes to be appropriate. The claimant denied any
hallucinations or suicidal or homicidal ideation. Indeed he
reported that he had not experienced psychosis since beginning
to take medications." From there the ALJ proceeded in his record
review to observe how subsequent treatment notes likewise show
the Plaintiff's condition to be responsive to medication.
62.
This Court does not discern from the ALJ's limited
discussion of the subject treatment note an implied analysis
that complies with 20 C.F.R. § 404.1527 in substance. For one
the ALJ's recitation of its contents is too limited in scope.
The ALJ omits much of what Dr. Yerger says. This Court cannot
find that the ALJ rejected medical opinion evidence when it is
unclear what the ALJ considered that opinion to be. Indeed the
ALJ seems to construe the subject treatment note as evidence
that weighs against the Plaintiff's disability claim (rather
than as evidence that supports it but which the ALJ discounts)
Secondly this Court discerns from the overall analysis no reason
express or implied for giving the subject treatment note little
evidentiary weight. The ALJ does not indicate "with at least
some measure of clarity" "some rationale [that] might have
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supported" doing so. See Winschel, 631 F.3d at 1179. This Court
therefore finds Winschel to support remanding this case back to
the Commissioner for consideration of the medical opinions that
Dr. Yerger expressed in his treatment note of December 16, 2018.
See also, Baez v. Comm'r, 657 Fed.Appx. 864
(11th Cir. 2016)
(remanding the case where the ALJ's reason for rejecting
material medical opinion evidence was unknown) .
63.
Even if this Court were to construe the above finding
as an implicit rejection of the treatment note, it would lack
the support of competent, substantial evidence. The ALJ seems to
cite the treatment note as further evidence of improvement with
medication. However, as this Court discusses above in regard to
the ALJ's credibility finding, the evidence shows the
Plaintiff's condition to be more complicated than that. Indeed
it is that very same treatment note that provides important
insight into the nature of the Plaintiff's condition and how to
construe the other medical evidence of record. Moreover the
letters from the Plaintiff's case manager and program director
(only some of which the ALJ accounted for) buttress Dr. Yergen's
explanation that the Plaintiff's condition is severe and causes
substantial impairment even with the benefits of treatment and
stabilization.
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64.
This Court does not find the ALJ's reliance on the two
advisory RFC ratings to overcome the above shortcomings. The two
advisors are neither examining nor treating sources. Their RFC
ratings therefore do not bring the insight that the treating
sources and others knowledgeable about the Plaintiff's situation
do. Secondly the two medical advisors did not have the benefit
of the full record when they rendered their RFC ratings. They
did not have, for example, the explanations and reports from
treating sources and others familiar with the Plaintiff's
situation that shows his mental health condition to be more
complicated and his functional impairments to be broader than
previously understood. While an ALJ may give an advisory RFC
great weight, the record must provide evidentiary support to do
so, see SSR 96-6p, which is lacking here.
65.
For the foregoing reasons this Court agrees with the
Plaintiff that this case should be remanded for reconsideration. The ALJ shall re-consider all medical opinion
evidence and non-medical opinion evidence and give them their
appropriate weight in compliance with the governing standard.
The ALJ also shall re-evaluate the intensity and persistence of
the Plaintiff's symptoms under the SSR 16-3p standard.
66.
The Plaintiff does not object to the ALJ's Step Two
and Step Three mental health findings. Although not raised as an
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objection, this Court's above record review and discussion
causes doubt of whether those findings enjoy competent,
substantial evidentiary support, too. Therefore the Commissioner
shall include the Step Two and Step Three mental health
impairment findings in the reconsideration. Lastly this Court
reminds the Commissioner of the need to explain how the RFC
accounts for the Step Three findings. See Winschel, 631 F.3d at
1180-81.
67.
This Court will leave it to the Commissioner's
discretion whether to open the reconsideration to the
Plaintiff's pain-based impairment allegations. The record before
this Court shows pain complaints over the course of the
treatment history, but this Court sees insufficient evidence
therein (and the Plaintiff raises no relevant arguments or
objections here) to compel this Court to remand the physical
impairment part of the ALJ's analysis back for reconsideration,
too.
CONCLUSION
68.
Competent, substantial evidence does not support the
ALJ's mental RFC assessment, and in turn it does not support the
ALJ's conclusion that the Plaintiff is not disabled. The ALJ
relied on certain aspects of the record evidence that weigh
against the Plaintiff's disability claim (although the
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Plaintiff's full treatment compliance and attempt to return to
work are factors that might also support his credibility, this
Court adds). However the ALJ seems to have omitted other
material parts of the record, evidence that suggests his
condition is impairing in ways other than his psychosis and
which place the Plaintiff's own reports of adequate daily life
and social functioning into fuller context. This Court therefore
finds remand warranted in this case for reconsideration as
instructed above.
It is therefore,
ORDERED AND ADJUDGED that the Plaintiff's Motion for
Summary Judgment (DE 25) is GRANTED. The ALJ's Decision is
REMANDED back to the Commissioner for reconsideration pursuant
to Sentence Four of 42 U.S.C. § 405(g).
DONE AND ORDERED in Chambers at Fort Pierce, Florida, this
\0\~day of November, 2018.
UNITED STATES MAGISTRATE JUDGE
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