Gargano v. Commissioner of Social Security
Filing
21
Memorandum Opinion and Order: The Court REVERSES and REMANDS the Commissioner's decision for further proceedings consistent with this opinion. Magistrate Judge Kathleen B. Burke on 3/13/2017. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CARMINE JOSHUWA GARGANO,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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CASE NO. 1:16-cv-00796
MAGISTRATE JUDGE
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff Carmine Joshuwa Gargano (“Plaintiff” or “Gargano”) seeks judicial review of
the final decision of Defendant Commissioner of Social Security (“Defendant” or
“Commissioner”) denying his applications for social security disability benefits. Doc. 1. This
Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned
Magistrate Judge pursuant to the consent of the parties. Doc. 15. As explained more fully
below, the ALJ’s analysis of the medical opinion evidence is insufficient to allow the Court to
assess whether the decision is supported by substantial evidence. Accordingly, the Court
REVERSES and REMANDS the Commissioner’s decision for further proceedings consistent
with this opinion.
I. Procedural History
Gargano protectively filed applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on July 23, 2013. 1 Tr. 22, 85-86, 177-180, 181-186.
Gargano alleged a disability onset date of May 15, 2013. Tr. 22, 177, 181, 202, 226. He alleged
1
The Social Security Administration explains that “protective filing date” is “The date you first contact us about
filing for benefits. It may be used to establish an earlier application date than when we receive your signed
application.” http://www.socialsecurity.gov/agency/glossary/ (last visited 3/13/2017).
1
disability due to memory problems, bipolar disorder, cannabis dependence, schizoaffective
disorder, and back problems. Tr. 64, 87, 117, 133, 202. Gargano’s applications were denied
initially (Tr. 117-130) and upon reconsideration by the state agency (Tr. 133-137). Thereafter,
he requested an administrative hearing. Tr. 143-144. On April 28, 2015, Administrative Law
Judge Eric Westley (“ALJ”) conducted an administrative hearing. Tr. 36-63.
In his May 19, 2015, decision (Tr. 19-35), the ALJ determined that Gargano had not been
under a disability within the meaning of the Social Security Act from May 15, 2013, through the
date of the decision. Tr. 22, 30. Gargano requested review of the ALJ’s decision by the Appeals
Council. Tr. 14-18. On February 11, 2016, the Appeals Council denied Gargano’s request for
review, making the ALJ’s decision the final decision of the Commissioner. Tr. 1-6.
II. Evidence
A.
Personal, vocational and educational evidence
Gargano was born in 1983. Tr. 42, 177. He was 31 years old at the time of the
administrative hearing. Tr. 42. Gargano lives alone in a house that he and his father own. Tr.
41. He is not married and has no children. Tr. 43. He completed school through the 12th grade
and started working right after high school. Tr. 42-43. He worked at a coffee/donut shop owned
by his father. Tr. 45-46. The shop sold other items such as tobacco and lottery. Tr. 45.
Gargano stocked shelves and performed janitorial work. Tr. 45-46. Gargano had some minimal
supervisory responsibilities. Tr. 45-46. For example, if someone did not show up for work, he
would call them or try to find out why they were not at work. Tr. 46. Ultimately, his father fired
him because he had made some female co-workers cry and was showing up late or not showing
up for work. Tr. 46-47. Gargano was not told and he does not know what he did to make his
co-workers cry. Tr. 47. Gargano worked for a painting company doing outdoor painting when
2
he was in high school. Tr. 47-48. Gargano’s most recent work attempt was in the fall of 2014.
Tr. 43. He worked at a zombie paintball attraction at Mapleside, an apple farm. Tr. 43-45. His
friends were responsible for running the paintball attraction so his schedule was pretty much
whatever he wanted it to be. Tr. 44. Gargano was not fired from the job; the job just ended. Tr.
45.
B.
Medical evidence
1.
Treatment history
On May 15, 2013, Gargano presented to the emergency room at Lutheran Hospital with
complaints of hallucinations. Doc. Tr. 268-271. Gargano’s mother was present with him. Tr.
238. Gargano’s mother relayed that, over the prior two weeks, her son had been wandering
around and acting strange. Tr. 268. Gargano considered jumping off a bridge, thinking it was
part of a quarry with water. Tr. 268. Gargano admitted to abusing marijuana and opiates but
denied using for about a week. Tr. 268. However, the lab results on admission were positive
for marijuana. Tr. 249. Gargano had never been diagnosed with a mental health issue. Tr. 268.
He denied any exacerbating or alleviating factors and denied any suicidal or homicidal ideations.
Tr. 268. On physical examination, Gargano was observed to have a normal mood and affect; his
thought content was normal; his speech was rapid and/or pressured and tangential; he was
actively hallucinating; his thought content was not paranoid and not delusional; his cognition and
memory were normal; he expressed impulsivity; and he expressed no homicidal or suicidal plans
or ideation. Tr. 269. Gargano was initially diagnosed with hallucinations and schizophrenia.
Tr. 270. His GAF score on admission was 39. 2 Tr. 252. He was admitted to North Coast
Behavioral Center from May 17, 2013, through May 31, 2013. Tr. 248, 272.
2
As set forth in the DSM-IV, GAF (Global Assessment of Functioning) considers psychological, social and
occupational functioning on a hypothetical continuum of mental health illnesses. See American Psychiatric
3
During his admission at North Coast Behavioral Center, Gargano reported that he did not
trust anyone except his mother; he had neglected his personal hygiene, he had periods of over
activity and periods of sleeping just a few hours; he lost almost 50 pounds over several months;
his spending behavior was reckless; he felt that people were out to get him; and he had very
impulsive behavior. Tr. 248. Gargano had a history of skeletal pain that led to OxyContin abuse
and he almost ended up in trouble for drug trafficking. Tr. 248. Gargano also had a past history
of using steroids for bodybuilding. Tr. 248. When he used steroids, he had racing thoughts. Tr.
248. At discharge, Gargano’s diagnoses were bipolar I, hypomanic with psychotic features and
marijuana dependence. Tr. 248. His GAF score was 56 at discharge. 3 Tr. 252. At discharge,
Gargano was in control; not psychotic; not suicidal; had no auditory or visual hallucinations; his
mood was even; and his judgment and insight had improved. Tr. 251. Dr. Manual Gordillo,
M.D., the discharging physician, recommended that Gargano return home, look for a job, and
proceed with outpatient psychiatric follow up at Center for Families and Children Service. Tr.
252. Gargano’s prognosis was guarded. Tr. 252.
On July 18, 2013, Gargano began receiving outpatient services at Center for Families and
Children Service. Tr. 301-306. Gargano saw Maureen Sweeney, NP, for a Psychiatric
Evaluation. Tr. 301-306. Gargano reported that he was seeking treatment because he was not
feeling mentally stable. Tr. 301. Gargano’s mother was present for the evaluation. Tr. 301.
Association: Diagnostic & Statistical Manual of Mental Health Disorders, Fourth Edition, Text Revision.
Washington, DC, American Psychiatric Association, 2000 (“DSM-IV-TR”), at 34. A GAF score between 31 and 40
indicates “some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or
irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or
mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger
children, is defiant at home, and is failing at school).” Id. With the publication of the DSM-5 in 2013, the GAF was
not included in the DSM-5. See American Psychiatric Association: Diagnostic & Statistical Manual of Mental
Health Disorders, Fifth Edition, Arlington, VA, American Psychiatric Association, 2013 (“DSM-5”), at 16.
3
A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or
school functioning. DSM-IV-TR, at 34.
4
Gargano and his mother indicated that his symptoms started when he was 16 or 17 years old. Tr.
301. Gargano reported psychomotor agitation (shaking legs) and sleep disturbance. Tr. 301.
Gargano was sleeping 2 hours a night. Tr. 301. He reported daily audio hallucinations, visual
hallucinations, manic periods lasting for weeks to months, and depressive periods that last for
days. Tr. 301. Nurse Sweeney observed that Gargano appeared hypomanic during the
evaluation. Tr. 301. Gargano reported using marijuana a couple times per week and drinking
alcohol only occasionally. Tr. 301. Gargano felt that the marijuana helped with the pain in his
body. Tr. 301. Gargano indicated that he had been working with his father but his father did
not want him to work at the donut/coffee shop because of his mental illness. Tr. 302. Gargano
indicated that he had a lot of debt from being in business with his father. Tr. 302. Nurse
Sweeney diagnosed bipolar I disorder, with psychotic features but rule out schizoaffective
disorder, noting that it was unclear whether Gargano’s psychotic features go away when Gargano
is not manic. Tr. 303.
Nurse Sweeney assigned a GAF score of 40. Tr. 304. Gargano was
taking Gedeon and Depakote ER but reported having more days of severe depression. Tr. 303.
Nurse Sweeney modified Gargano’s medications. Tr. 303. She added Seroquel XR, continued
Depakote, and decreased the Gedeon dosage. Tr. 303.
Gargano saw Nurse Sweeney again on August 1, 2013. Tr. 308-309. Gargano indicated
that he was depressed and irritable. Tr. 308. He was feeling isolated because his father and
sister were judgmental about him seeking mental health treatment. Tr. 308. Gargano was
continuing to have audio hallucinations but only at night. Tr. 308. Nurse Sweeney observed that
Gargano appeared euthymic during the appointment and discussed with Gargano that his feelings
of depression could be the effect of returning to euthymia following a period of hypomania. Tr.
308. Gargano reported medication side effects of sedation and muscle tightness. Tr. 309. Nurse
5
Sweeney continued Gargano on Depakote, discontinued Gedeon, increased Seroquel, and added
Cogentin to address Gargano’s muscle tightness. Tr. 309. On August 13, 2013, Gargano saw
Nurse Sweeney and reported “still feeling really depressed.” Tr. 310. Gargano was sleeping
about 10 hours each day and still feeling fatigued during the day. Tr. 310. Gargano was
continuing to have audio hallucinations but only at night. Tr. 310. Nurse Sweeney ordered
Wellbutrin to address Gargano’s depression but advised that there was a risk that the new
medication could cause mania. Tr. 311. Gargano expressed his understanding of the risks and
felt that the possible benefits outweighed the risks. Tr. 311. Nurse Sweeney indicated she
would see Gargano again in 2 weeks to start him on Wellbutrin. Tr. 311. On August 27, 2013,
Gargano saw Nurse Sweeney and reported the he was “still feeling pretty down.” Tr. 312.
Nurse Sweeney started Gargano on Wellbutrin. Tr. 313.
On September 23, 2013, Gargano saw Nurse Sweeney. Tr. 315-316. Gargano indicated
that his mood was “normal.” Tr. 315. During that month, Gargano had a decreased need for
sleep and he was having paranoid delusions. Tr. 315. He felt “like there was a conspiracy to get
[him]” and “thought that the government was watching [him] and that other people’s animals
were watching [him.]” Tr. 315. Since starting on Wellbutrin, Gargano indicated that he felt less
depressed and did not think that the Wellbutrin was causing his manic symptoms. Tr. 315. He
relayed that, prior to having the manic symptoms, he had an increase in stressors – he had
received a number of shut off notices from the city. Tr. 315. Gargano reported that he was
continuing to have audio hallucinations. Tr. 315. He explained that, “[he] zone[s] out and
[doesn’t] hear the t.v. and . . . hear[s] old friend’s that are no longer with [him], in a good way[.]”
Tr. 315. Nurse Sweeney noted that Gargano was not manic or hypomanic. Tr. 315. Also, she
indicated that Gargano’s mood had “gotten better” since starting on Wellbutrin. Tr. 316. Since
6
Gargano was having psychotic symptoms in the absence of mood deregulation, Nurse Sweeney
suspected that a more accurate diagnosis might be schizoaffective disorder. Tr. 315-316. Nurse
Sweeney increased Gargano’s Seroquel to target his psychotic symptoms. Tr. 316.
On October 7, 2013, Gargano saw his primary care physician Dr. Mudita Bhatia, M.D.,
for a physical at which time it was noted that Gargano was receiving outpatient treatment for
bipolar disorder. Tr. 294. Gargano indicated that his hallucinations/delusions had improved
since May 2013 but, at times, his mother observed him talking to himself or unseen people. Tr.
294. Also, it was noted that Gargano had very low attention and concentration and did not do
anything at home except read. Tr. 294.
During an October 21, 2013, appointment with Nurse Sweeney, Gargano indicated that
his mood was “okay.” Tr. 318. He was continuing to have a difficult time processing stressors
but was gaining insight. Tr. 318. He denied psychotic features. Tr. 318. Nurse Sweeney
indicated that Gargano appeared stable on his medications. Tr. 319. On November 18, 2013,
Gargano saw Nurse Sweeney. Tr. 320. He indicated that “things [were] okay, a little out of
sorts[.]” Tr. 320. He indicated that he was “not feeling up or down.” Tr. 320. Gargano had no
major issues to report. Tr. 320. He reported that his sleep was good. Tr. 320. Gargano was
somewhat withdrawn but did not seem uncomfortable with that. Tr. 320. Gargano denied
psychotic symptoms and, when asked if he thought his medication was helpful, he indicated,
“yes . . . I was really out in left field before the meds[.]” Tr. 320. Nurse Sweeney indicated that
Gargano’s mood was stable. Tr. 320-321.
On January 2, 2014, Gargano saw Nurse Sweeney reporting, “I am not feeling too good
today[.]” Tr. 338. Gargano reported anger and irritability. Tr. 338. Nurse Sweeney was not
sure whether Gargano’s irritability was related to his depression or to personality issues. Tr. 339.
7
Since Gargano did not report other symptoms of depression, Nurse Sweeney suspected that
Gargano’s irritability was related to personality issues. Tr. 339. Nurse Sweeney explained that
anger is not something that is medicated and she offered Gargano a referral for counseling but
Gargano declined. Tr. 338, 339. Gargano denied any hypomanic, manic, or psychotic
symptoms. Tr. 338. Nurse Sweeney indicated that Gargano was easily confused. Tr. 338.
During a February 3, 2014, visit with Nurse Sweeney, Gargano relayed that he was
“really hearing a lot of voices all the time[.]” Tr. 340. Gargano’s mood was “down.” Tr. 340.
Gargano was hearing multiple voices and felt like certain television and radio programs were
talking to him. Tr. 340. Gargano had insight into his feelings being abnormal but was
continuing to have them. Tr. 340. Gargano’s sleep was poor and varied. Tr. 340. At times, he
was sleeping 10-12 hours a day and, at other times, he could not sleep. Tr. 340. Gargano
reported no mania/hypomania symptoms. Tr. 340. Nurse Sweeney switched Gargano’s
diagnosis to paranoid schizophrenia due to the presence of psychotic features in the absence of
mood issues. Tr. 341. Nurse Sweeney started Gargano on Latuda in place of Seroquel. Tr. 341.
Gargano did not think that the Seroquel helped and it made him groggy. Tr. 340.
On March 3, 2014, Gargano saw Nurse Sweeney and reported that “the [L]atuda works
much better than the [S]eroquel[.]” Tr. 342. Gargano was no longer having audio hallucinations
but he was having paranoid delusions. Tr. 342. He felt that the government was watching him
through his electronic devices. Tr. 342. Nurse Sweeney observed that Gargano appeared less
blunted and was pleasant. Tr. 343. Nurse Sweeney noted the possibility of sleep apnea. 4 Tr.
342
4
On March 14, 2014, a sleep study was performed. Tr. 347-356. The results of the sleep study showed mild
obstructive sleep apnea that was controlled on CPAP therapy. Tr. 349.
8
On April 1, 2014, Gargano saw Nurse Sweeney and reported that his mood had been “up
and down” that month but better on Latuda. Tr. 357. Gargano’s audio hallucinations and
paranoid symptoms were reduced but he continued to believe he was being monitored through
his television and computer but recognized that those thoughts were “not normal.” Tr. 357.
Gargano was continuing to have difficulty processing information, especially when complicated
situations were involved. Tr. 357. Nurse Sweeney observed a change in Gargano’s physical
appearance over the preceding year, noting that Gargano was dressing very casual and his hair
was disheveled and no longer styled. Tr. 357. Nurse Sweeney continued to diagnose paranoid
schizophrenia, noting that Gargano’s psychotic symptoms had improved on Latuda but he was
continuing to suffer negative symptoms of schizophrenia, including cognitive impairments
evidenced by difficulty processing information. Tr. 358.
On May 1, 2014, Gargano saw Nurse Sweeney reporting that he was “still having up and
down days[.]” Tr. 359. Gargano felt that the Latuda was helping with his paranoid thoughts but
he was continuing to have delusions about people monitoring him at his home. Tr. 359.
Gargano continued to understand that these were abnormal thoughts but they felt very real to
him. Tr. 359. Gargano decreased his Depakote on his own because he was sleeping too much.
Tr. 359. There was no mania/hypomania present and Gargano’s speech was normal. Tr. 359.
Gargano’s sleep had improved on the CPAP. Tr. 359. Gargano was continuing to isolate
himself, which he indicated was due to his mood. Tr. 359. Because Gargano was continuing to
have psychotic features, Nurse Sweeney increased Gargano’s Latuda. Tr. 360. Also, Nurse
Sweeney increased Gargano’s Wellbutrin for his mood. Tr. 360.
During a May 31, 2014, visit
with Nurse Sweeney, Gargano reported that “things are getting better[.]” Tr. 361. Gargano
denied audio hallucinations or delusional thinking – he no longer felt that the television was
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sending him messages. Tr. 361. Gargano was continuing to exhibit a flat affect, which his
family was having a difficult time with. Tr. 361. Gargano’s sleep was better; he was averaging
about 8 hours. Tr. 361. Nurse Sweeney’s assessment was that Gargano appeared more stable.
Tr. 362. Nurse Sweeney informed Gargano that he would be seeing Kelley Kauffman because
Nurse Sweeney was going to be out on leave. Tr. 362.
On June 30, 2014, Gargano saw Kelley Kauffman, RN, NP. Tr. 363-364. Gargano
reported that he had been taking it easy and was compliant with his medication. Tr. 363. He
indicated that his audio hallucinations had decreased but he was having visual hallucinations. Tr.
363. He was having “feelings that animals and bugs [were] tracking him and reporting back to
someone unknown.” Tr. 363. He said he ignores cameras and reported some paranoia of an
unknown threat that he had been trying to discover for over a year. Tr. 363. Gargano stated that
when he takes his Latuda he feels he needs to pace. Tr. 363. The Cogentin was not helping
with Gargano’s restlessness so Gargano requested an increase. Tr. 364. Nurse Kauffman
increased Gargano’s Cogentin dose and continued his other medication. Tr. 364.
On July 30, 2014, Gargano saw Nurse Sweeney. Tr. 365. Gargano reported that his
mood was “good for the most part[.]” Tr. 365. He was continuing to experience akathisia 5
“mostly at night” due to the Latuda but he was not taking his Cogentin regularly. Tr. 365, 366.
Nurse Sweeney discussed this with Gargano and he agreed to increase his medication
compliance. Tr. 366. Gargano denied psychotic features. Tr. 365. He was continuing to have
some tax issues related to his father’s business. Tr. 365. Gargano was no longer taking
Depakote but continued with Cogentin, Latuda and Wellbutrin. Tr. 366.
5
Akathisia, spelled akesthesia in the treatment records, is “a condition of motor restlessness in which there is a
feeling of muscular quivering, an urge to move about constantly, and an inability to sit still[.]” See Dorland’s
Illustrated Medical Dictionary, 32nd Edition, 2012, at 42.
10
During an August 27, 2014, visit with Nurse Sweeney, Gargano indicated that his mood
was “okay.” Tr. 367. He denied audio hallucinations but continued to have delusional thinking.
Tr. 367. He relayed, “I feel like when I see white cars then they are all on the same team or
something.” Tr. 367. His sleep was okay except when his akathisia was bad. Tr. 367. His
Cogentin was not working. Tr. 367. Nurse Sweeney recommended discontinuing Cogentin
because it was not effective and starting Benadryl. Tr. 368.
On September 25, 2014, Gargano saw Nurse Sweeney reporting that his mood was “okay
but stressed[.]” Tr. 369. Gargano relayed that he was working at Mapleside Farm for the
season. Tr. 369. He was enjoying the work but was feeling stressed because he was working
Monday through Friday 8:30-6 and unable to find time to meet with his case manager to discuss
getting assistance with his medical bills. Tr. 369. However, Gargano did indicate that his mom
could drop off paperwork with his case manager and Nurse Sweeney encouraged Gargano to set
up a phone appointment with his case manager. Tr. 369.
Sweeney indicated that his work was
seasonal so he would stop working in November. Tr. 369. Gargano indicated that the audio
hallucinations were “less on meds” and he was using music as a distraction from baseline
symptoms. Tr. 369. Gargano’s sleep was “good” – he was averaging 8 hours. Tr. 369. He
denied suicidal and homicidal ideation. Tr. 369. Nurse Sweeney assessed Gargano as stable,
noting he was able to work part time at a seasonal job and was compliant on medication. Tr.
370. She noted he needed assistance with social stressors and would forward a note to his case
manager regarding that need. Tr. 370.
On November 10, 2014, Gargano saw Nurse Sweeney and reported that his mood was
“not great.” Tr. 371. Gargano indicated that performing seasonal work had affected his ability
to take his medication so he was having more symptoms. Tr. 371. He was taking Latuda
11
intermittently because of his work schedule. Tr. 371. He reported an increase in audio
hallucinations and paranoia. Tr. 371. Gargano was interested in an injectable form of
medication. Tr. 371-372. Nurse Sweeney discontinued Latuda and started Gargano on Invega
with a plan to work towards Sustenna. Tr. 372.
On December 1, 2014, Gargano saw Nurse Sweeney and reported that his mood was
“okay” since starting on Invega but noted increased sedation and some mild toe cramping. Tr.
373. Gargano no longer believed that he had “vague ‘special powers’” but he was having some
paranoia. Tr. 373. He explained “he stares out his window and ‘feels like there is something bad
going to happen to him.’” Tr. 373. Gargano remained somewhat social with friends and he had
recently had Thanksgiving dinner with his family. Tr. 373. Because of the sedation caused by
the Invega, Gargano was interested in switching to a new medication. Tr. 373. Nurse Sweeney
changed Gargano’s medication from Invega to Abilify. Tr. 374.
On February 2, 2015, Gargano saw Nurse Kauffman. Tr. 376-377. Gargano was
euthymic with a congruent affect. Tr. 376. Gargano reported decreased paranoia and believed
that his symptoms were well controlled on his current medication but he was still having
instances of increased paranoia when under stress. Tr. 376. Gargano reported drinking to the
point of “blacking out” when stressed. Tr. 376. Nurse Kauffman encouraged abstinence and
discussed the effects of combining alcohol with medication. Tr. 376. Gargano saw Nurse
Kauffman again on February 27, 2015. Tr. 378-379. Gargano reported that the Abilify was
causing anxious feelings but did feel that the Abilify was helping manage his psychotic
symptoms. Tr. 378. He denied internal restlessness but endorsed feeling that he needed to walk
around. Tr. 378. He indicated that his mood was stable with intermittent paranoia that was
manageable. Tr. 378. Gargano reported side effects of anxiety and heart burn. Tr. 379.
12
Because side effects made taking his medication “regularly intolerable,” Gargano requested a
decrease in his medication rather than changing medications. Tr. 378. Gargano felt that the
benefits of staying on Abilify at a reduced dose outweighed risks at the time. Tr. 379. Per
Gargano’s request, Nurse Kauffman decreased the Abilify dose to decrease the risk of side
effects and continued the treatment of his symptoms of psychosis. Tr. 379.
2.
Opinion evidence
a. Treating sources
Nurse Sweeney – January 2, 2014
On January 2, 2014, Nurse Sweeney completed a “Mental Impairment Questionnaire
(RFC & Listings).” Tr. 324-327. Nurse Sweeney indicated in the Questionnaire that she had
seen Gargano since July 2013 and that Gargano had a diagnosis of bipolar I disorder and a GAF
score of 40. Tr. 324. She offered the following information regarding his “treatment and
response:”
On Seroquel & Depakote for mood stabilization & Wellbutrin XL for depression.
[N]o recent hypomanic/manic episodes but recent episodes of severe depression
marked by anger/irritability.
Tr. 324. Nurse Sweeney indicated that Gargano’s medication caused drowsiness, fatigue, and
lethargy. Tr. 324. Nurse Sweeney indicated that the following clinical findings demonstrated
the severity of Gargano’s impairment and symptoms – irritable during appointments; difficult
time concentrating; often confused; needs repeated education on medication and mental health;
very concrete in his thinking; and unable to cope with stressors. Tr. 324. Nurse Sweeney opined
that Gargano was unable to function at a level needed to maintain employment because of his
diagnosis of bipolar disorder that was expected to last for more than 12 months. Tr. 324.
13
As part of the Questionnaire, Nurse Sweeney opined that Gargano had marked
restrictions in activities of daily living; marked difficulties in maintaining social functioning;
marked difficulties in maintaining concentration, persistence or pace; and three episodes of
decompensation within a 12 month period, each of at least two weeks duration. Tr. 327.
Nurse Sweeney also rated Gargano’s functional abilities in specific categories within the
areas of “understanding and memory limitations;” “sustained concentration and persistence
limitations;” “social interaction limitations;” and “adaptation limitations.” Tr. 325-326. The
rating choices were “unlimited or very good,” “limited but satisfactory,” “seriously limited, but
not precluded,” “unable to meet competitive standards,” and “no useful ability to function.” Tr.
325.
In the area of “understanding and memory,” Nurse Sweeney rated Gargano’s ability to
understand and remember very short and simple instructions as “unlimited or very good” and his
ability to remember locations and work-like procedures and understand and remember detailed
instructions as “seriously limited, but not precluded.” Tr. 325. She explained her ratings, noting
that Gargano “has difficulty [with] concentration [and] memory when mood [at] extremes.” Tr.
325.
In the area of “sustained concentration and persistence,” Nurse Sweeney rated Gargano’s
ability to carry out very short and simple instructions as “limited but satisfactory.” Tr. 325.
Nurse Sweeney rated Gargano’s ability in the following seven categories as “seriously limited,
but not precluded” – carry out detailed instructions; maintain attention and concentration for
extended periods; perform activities within a schedule; sustain an ordinary routine without
special supervision; work in coordination with or in proximity to others without being distracted
by them; make simple work-related decision; and perform at a consistent pace without an
14
unreasonable number and length of rest periods. Tr. 325. She rated Gargano as “unable to meet
competitive standards” in the following two categories – manage regular attendance and be
punctual within customary tolerances and complete a normal workday and workweek without
interruptions from psychologically based symptoms. Tr. 325. She explained her ratings by
noting that, “due to extreme moods related to bipolar [disorder,] [Gargano] is extremely limited
in ability to handle normal work activities (i.e. concentration, persistence, attention, schedule)[.]”
Tr. 325.
In the area of “social interaction,” Nurse Sweeney rated Gargano as “seriously limited,
but not precluded” in his ability to ask simple questions or request assistance and “unable to meet
competitive standards” in the following four categories - interact appropriately with the general
public; accept instructions and respond appropriately to criticism from supervisors; get along
with coworkers or peers without distracting them or exhibiting behavioral extremes; and
maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness.
Tr. 326. Nurse Sweeney explained her ratings, noting “[due to] bipolar [disorder] [Gargano] is
extremely limited in ability to behave appropriately [with] co-workers or general public.” Tr.
326.
In the area of “adaptation,” Nurse Sweeney rated Gargano as having “limited but
satisfactory” ability to travel in unfamiliar places or use public transportation and she rated
Gargano as “seriously limited, but not precluded” in his ability to respond appropriately to
changes in the work setting; be aware of normal hazards and take appropriate precautions; and
set realistic goals or make plans independently of others. Tr. 326. She explained her ratings,
noting “[Gargano] has difficulty processing information [due to] bipolar [disorder.]” Tr. 326.
15
Nurse Sweeney indicated that Gargano did not have a low IQ or reduced intellectual
functioning. Tr. 326. She opined that Gargano’s impairments or treatment would cause him to
be absent form work more than four days per month and his symptoms would cause him to be
off-task 25% of an 8-hour workday. Tr. 327. Also, she opined that Gargano’s symptoms would
cause him to be tardy to work more than four times per month. Tr. 327.
Nurse Sweeney, co-signed by M.D. – March 3, 2014
On March 3, 2014, Nurse Sweeney completed a Mental Status Questionnaire. Tr. 334336. The March 3, 2014, Questionnaire was co-signed by an M.D. Tr. 336. However, the name
of the M.D. is not identifiable from the signature. Tr. 336. Gargano’s mental status was
described as follows: his appearance was pale and somewhat disheveled; his flow of
conversation and speech were normal rate, rhythm and volume; his mood was “good” and his
affect was congruent on that date but in the past his affect was appropriate; he had anxiety about
his normal life stressors; he had paranoid delusions that the government was watching him
through technology, he felt like he was thought projecting and at times felt like the television and
radio were talking to him and sending him messages so he was having delusions of reference; he
was alert and oriented; he had difficulty with concentration and short term memory because at
times he had difficulty telling reality from psychosis; he had impairment with abstract reasoning;
he had good insight into psychotic features but only when symptoms are well controlled; his
judgment was dependent on the level of psychosis; and there were no substance abuse issues. Tr.
334.
Nurse Sweeney indicated that Gargano’s diagnosis was paranoid schizophrenia. Tr. 335.
Gargano’s treatment included Latuda to decrease his psychosis but he was still having some
16
delusions of reference and paranoia. Tr. 335. Gargano was also taking Wellbutrin to stabilize
his mood. Tr. 335.
Nurse Sweeney offered her opinion regarding Gargano’s functional abilities. Tr. 335.
She opined that Gargano had difficulty with memory and comprehension due to psychosis. Tr.
335. He had severe difficulty in maintaining attention due to psychosis. Tr. 335. He had
difficulty sustaining concentration or persisting at tasks due to psychosis. Tr. 335. He had
difficulty interacting socially due to paranoia and psychosis and difficulty adapting due to
psychosis. Tr. 335. In response to an inquiry regarding how Gargano would “react to the
pressures, in work settings or elsewhere, involved in simple and routine, or repetitive, tasks,”
Nurse Sweeney stated that Gargano “would react very poorly to any work or life stressors as they
would likely [increase] paranoia [and] psychosis.” Tr. 335.
Nurse Kauffman and Dr. Hunt – April 2015
In April 2015, Nurse Kauffman and Dr. Andrew Hunt, M.D., completed a “Mental
Impairment Questionnaire.” Tr. 384-385. Nurse Kauffman signed the Questionnaire on April 2,
2015, and Dr. Hunt signed the Questionnaire April 9, 2015. Tr. 385. They indicated that
Gargano had been with the agency since July 2013 and with Nurse Kauffman in 2015. Tr. 384.
Gargano’s diagnosis was listed as schizophrenia. Tr. 384. They indicated that Gargano was
prescribed Abilify, Wellbutrin XL, and Cogentin, with restlessness listed as a side effect. Tr.
384. The following clinical findings were listed as demonstrating the severity of Gargano’s
impairment and symptoms – paranoia, disorganization, delusions of “special powers.” Tr. 384.
Nurse Kauffman and Dr. Hunt indicated that Gargano’s prognosis was “unclear, may be good
with continued adherence to medication.” Tr. 384. They opined that Gargano’s impairment
lasted or was expected to last at least 12 months. Tr. 384.
17
Nurse Kauffman and Dr. Hunt also rated Gargano’s functional abilities in specific
categories within the areas of “sustained concentration and persistence limitations;”
“understanding and memory limitations;” “social interaction limitations;” and “adaptation
limitations.” Tr. 384-385. The rating choices were “unlimited or very good,” “limited but
satisfactory,” “seriously limited, but not precluded,” “unable to meet competitive standards,” and
“no useful ability to function.” Tr. 384.
In the area of “sustained concentration and persistence,” Nurse Kauffman and Dr. Hunt
rated Gargano’s ability to carry out very short and simple instructions; to manage regular
attendance and be punctual within customary tolerances; and perform at a consistent pace
without an unreasonable number and length of rest periods as “seriously limited, but not
precluded.” Tr. 384. They rated Gargano as “unable to meet competitive standards” in the
following categories – carry out detailed instructions; maintain attention and concentration for
extended periods; perform activities within a schedule; sustain an ordinary routine without
special supervision; work in coordination with or in proximity to others without being distracted
by them; and complete a normal workday and workweek without interruptions from
psychologically based symptoms. Tr. 384.
In the area of “understanding and memory,” Nurse Kauffman and Dr. Hunt rated
Gargano’s ability to understand and remember very short and simple instructions as “seriously
limited, but not precluded” and “unable to meet competitive standards” in the following
categories – remember locations and work-like procedures and understand and remember
detailed instructions. Tr. 385.
In the area of “social interaction,” Nurse Kauffman and Dr. Hunt rated Gargano’s ability
to maintain socially appropriate behavior and adhere to basic standards of neatness and
18
cleanliness as “limited but satisfactory.” Tr. 385. They rated Gargano as “seriously limited, but
not precluded” in his ability to interact appropriately with the general public; ask simple
questions or request assistance; and accept instructions and respond appropriately to criticism
from supervisors. Tr. 385. They indicated that Gargano was “unable to meet competitive
standards” in the following category – get along with coworkers or peers without distracting
them or exhibiting behavioral extremes. Tr. 385.
In the area of “adaptation,” Nurse Kauffman and Dr. Hunt rated Gargano as “seriously
limited, but not precluded” in his ability to be aware of normal hazards and take appropriate
precautions. Tr. 385. They rated Gargano as “unable to meet competitive standards” in the
following categories – respond appropriately to changes in the work setting and set realistic goals
or make plans independently of others. Tr. 385.
Nurse Kauffman and Dr. Hunt opined that, on average, Gargano’s impairments or
treatment would cause him to be absent from work more than four days per month. Tr. 385.
Also, they opined that, on average, Gargano’s symptoms would cause him to be off-task more
than 25% of an 8-hour workday. Tr. 385.
b. Consultative examiner
On October 8, 2013, Amber L. Hill, Ph.D., met with Gargano for the purpose of
conducting a psychological evaluation. 6 Tr. 275-286. When asked why he applied for social
security disability benefits, Gargano responded, “Because of the mental state that I’m in. I can’t
keep my train of thought.” Tr. 275. Dr. Hill’s diagnoses included bipolar disorder, most recent
episode depressed, severe with psychotic features; opioid dependence with physiological
dependence, in reported full sustained remission; alcohol dependence with physiological
dependence; and cannabis dependence with physiological dependence. Tr. 282-283. Dr. Hill
6
Per Gargano’s request, Gargano’s mother was present during the evaluation. Tr. 275.
19
assigned a GAF score of 50. Tr. 283. Dr. Hill felt that Gargano’s prognosis was guarded at the
time because he was “engaged in pharmacological management related to his reported mental
health concerns.” Tr. 283. She indicated that “he could benefit from additional services such as
counseling and therapy services” and noted that he was not participating in any type of drug or
alcohol treatment pertaining to his reported remission from opioid dependence and abuse of
alcohol and marijuana. Tr. 283.
Dr. Hill opined that Gargano’s reported symptoms of a current major depressive episode
and at least one previous manic episode satisfied criteria for bipolar I disorder, most recent
episode depressed, severe with psychotic features, including reports of auditory and visual
hallucinations and paranoid ideation. Tr. 283. With respect to Gargano’s work-related mental
abilities, Dr. Hill opined:
1. Describe the claimant’s abilities and limitations in understanding,
remembering, and carrying out instructions.
The claimant appears able to understand, remember, and carry out instructions
as evidenced by his presentation during the clinical interview, his performance
on the mental status exam tasks, and his report of daily functioning. However,
if the claimant is not taking his medication as prescribed or is experiencing a
manic episode the claimant would likely be extremely limited in his ability to
understand, remember, and carry out instructions related to his psychotic
features.
2. Describe the claimant’s abilities and limitations in maintaining attention and
concentration, and in maintaining persistence and pace, to perform simple
tasks and to perform multi-step tasks.
The claimant appears able to maintain attention and concentration, maintain
persistence and pace, and perform simple and multi-step tasks as evidenced by
his presentation during the clinical interview, his reported work and academic
history, and his reported daily functioning. However, the claimant is likely
limited in his ability in all of these areas as he is not taking his medication as
prescribed or is experiencing psychotic features with a manic episode.
3. Describe the claimant’s abilities and limitations in responding appropriately to
supervision and to coworkers in a work setting.
20
The claimant is likely able to respond appropriately to supervisors and to
coworkers within a work setting based on his socially appropriate manner of
interacting within the clinical interview setting. However, it is important to
note that if the claimant is actively experiencing a manic episode, including
psychotic features, the claimant is likely not able to respond appropriately to
supervisors and to coworkers within a work setting related to his auditory and
visual hallucinations and other psychotic features. He would further be
limited within a manic episode and is likely unable to respond appropriately if
ever returning to his work setting that he has worked within for the past 12
years with his father related to his unresolved conflict and anger with his
father. The claimant could possibly benefit from counseling and therapy in
this area to assist with improving limitations. The claimant also reports an
extensive history related to legal involvement.
4. Describe the claimant’s abilities and limitations in responding appropriately to
work pressures in a work setting.
The claimant is likely limited in his ability to respond appropriately to work
pressures within a work setting based on his report of paranoid ideation and
other psychotic features that appear to be currently medication controlled.
The claimant could possibly benefit from additional metal health services such
as counseling and therapy to increase coping skills and address limitations in
this area. Further, the claimant has an extensive alcohol and drug history of
which he is only reporting remission from his opioids and continues to use
alcohol and marijuana, which could further exacerbate limitations in this area.
Tr. 285-286.
c. State agency reviewers
Mel Zwissler, Ph.D.
On October 10, 2013, state agency reviewing psychologist Mel Zwissler, Ph.D.,
completed a Psychiatric Review Technique and Mental RFC Assessment. Tr. 68-71. 7 As part of
the Psychiatric Review Technique, Dr. Zwissler opined that Gargano had moderate restrictions in
activities of daily living, moderate difficulties in maintaining social functioning, moderate
difficulties in maintaining concentration, persistence or pace, and one or two episodes of
decompensation, each of extended duration. Tr. 69.
7
Dr. Zwissler’s opinions are also found at Tr. 78-81.
21
In assessing Gargano’s Mental RFC, Dr. Zwissler found that Gargano had no
understanding and memory limitations and no social interaction limitations. Tr. 70-71. Dr.
Zwissler concluded that Gargano had limitations in sustained concentration and persistence and
adaptation. Tr. 70-71.
With respect to limitations in the area of sustained concentration and persistence, Dr.
Zwissler opined that Gargano was moderately limited in his ability to carry out detailed
instructions; maintain attention and concentration for extended periods; work in coordination or
in proximity to others without being distracted by them; and complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. Tr. 70-71. Dr.
Zwissler found that Gargano was not significantly limited in his ability to carry out very short
and simple instructions; perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances; sustain an ordinary routine without special supervision;
and make simple work-related decisions. Tr. 70-71. Dr. Zwissler further explained in narrative
form that Gargano could “carry out simple routine tasks without strict time demands.” Tr. 71.
With respect to adaptation limitations, Dr. Zwissler opined that Gargano was moderately
limited in his ability to respond appropriately to changes in the work setting and set realistic
goals or make plans independently of others and not significantly limited in his ability to be
aware of normal hazards and take appropriate precautions and travel in unfamiliar places or use
public transportation. Tr. 71. Dr. Zwissler further explained in narrative form that Gargano
could “adapt to minor expected and infrequent changes. He could use help setting more realistic
goals to be more independent and less reliant on [his] [m]other and girlfriend.” Tr. 71.
22
Leslie Rudy Ph.D.
Upon reconsideration, on December 13, 2013, state agency reviewing psychologist Leslie
Rudy, Ph.D., completed a Psychiatric Review Technique and Mental RFC Assessment. Tr. 9293, 94-97. 8 As part of the Psychiatric Review Technique, like Dr. Zwissler, Dr. Rudy opined
that Gargano had moderate restrictions in activities of daily living, moderate difficulties in
maintaining social functioning, moderate difficulties in maintaining concentration, persistence or
pace, and one or two episodes of decompensation, each of extended duration. Tr. 93.
In assessing Gargano’s Mental RFC, Dr. Rudy found that Gargano had understanding and
memory limitations, sustained concentration and persistence limitations, social interaction
limitations, and adaptation limitations. Tr. 95-96.
With respect to limitations in the area of understanding and memory, Dr. Rudy opined
that Gargano was moderately limited in his ability to understand and remember detailed
instructions and not significantly limited in his ability to understand and remember very short
and simple instructions. Tr. 95. Dr. Rudy found no evidence of limitation in ability to remember
locations and work-like procedures. Tr. 95. Dr. Rudy further explained in narrative form that
Gargano “reports being able to follow short/simple instructions, must be reminded to care for
pet. He does live alone. Can do one and two step tasks.” Tr. 95.
With respect to limitations in the area of sustained concentration and persistence, Dr.
Rudy opined that Gargano was moderately limited in his ability to carry out detailed instructions;
maintain attention and concentration for extended periods; work in coordination with or in
proximity to others without being distracted by them; and complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
8
Dr. Rudy’s opinions are also located at Tr. 105-110.
23
consistent pace without an unreasonable number and length of rest periods. Tr. 95-96. Dr. Rudy
found that Gargano was not significantly limited in his ability to carry out very short and simple
instructions; perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; sustain an ordinary routine without special supervision; and make
simple work-related decisions. Tr. 95-96. Dr. Rudy further explained in narrative form that
Gargano could “carry out simple routine tasks without strict time demands. He reports that he
can watch [television] but doesn’t pay attention. He has [a history of] mood swings and
excessive sleep.” Tr. 96.
With respect to social interaction limitations, Dr. Rudy opined that Gargano was
markedly limited in his ability to interact appropriately with the general public; moderately
limited in his ability to accept instructions and respond appropriately to criticism from
supervisors, get along with coworkers or peers without distracting them or exhibiting behavioral
extremes, and maintain socially appropriate behavior and adhere to basic standards of neatness
and cleanliness; and not significantly limited in his ability to ask simple questions or request
assistance. Tr. 96. Dr. Rudy further explained in narrative form Gargano “neglects ADLs and
has mood swings to mania. He has also reported some paranoid delusions. He can do work that
doesn’t involve contact with the general public and only superficial contact with coworkers and
supervisors.” Tr. 96.
With respect to adaptation limitations, Dr. Rudy opined that Gargano was moderately
limited in his ability to respond appropriately to changes in the work setting and set realistic
goals or make plans independently of others. Tr. 96. Dr. Rudy also opined that Gargano was not
significantly limited in his ability to be aware of normal hazards and take appropriate precautions
and travel in unfamiliar places or use public transportation. Tr. 96. Dr. Rudy further explained
24
in narrative form that Gargano “can adapt to minor expected and infrequent changes. He could
use help setting more realistic goals to be more independent and less reliant on [his] [m]other and
girlfriend. [Gargano] has been [diagnosed] with DAA but cut down per report.” Tr. 96.
C.
Testimonial evidence
1.
Plaintiff’s testimony
Gargano was represented and testified at the hearing. Tr. 41-57, 59. Gargano resides in
his own home but he has his mail sent to his mother’s house to make sure he does not lose
anything important. Tr. 41-42.
Gargano explained that he would be unable to work a regular 40 hour per week job
because he cannot keep a set schedule due to his irregular sleep patterns. Tr. 48. Gargano
indicated that his medication affects his sleep. Tr. 49, 52-53. At times, Gargano is unable to
sleep at all due to his schizophrenia causing him to be manic for days. Tr. 53. At other times,
Gargano sleeps all the time and cannot get out of bed. Tr. 53. Gargano also indicated that he
would have issues getting along with people at a job because he does not have the ability to
always listen and isolates himself at times. Tr. 49-50. Gargano has paranoia about people
watching or listening to him and/or thinks that people know what he is thinking. Tr. 49-50, 5354.
When Gargano is depressed he estimated being in bed about 12 hours a day, on the couch
about 6 hours a day and in a chair about 2 hours a day. Tr. 54-55. He does not use the phone or
television and does not have people over. Tr. 54. Sometimes he can read a book or comics or
play an instrument but sometimes he cannot do those things. Tr. 54-55. He tries to keep himself
occupied because he feels crazy – like pulling all his hair out or jumping off bridges or jumping
into rivers. Tr. 55. When Gargano is in a manic state, he feels unstoppable. Tr. 55-56. Gargano
25
does not know what triggers a manic state. Tr. 56. Gargano could not say whether his manic
behavior was tied to a medication change. Tr. 56. He stated that he follows his doctors’ orders
regarding treatment and has always been honest with the effects and side effects of medication.
Tr. 57.
Gargano had past problems with abusing pain pills but he went to rehab, NA and AA. Tr.
50-51. He still uses marijuana every so often. Tr. 51. Gargano uses marijuana to help him sleep
and to help increase his appetite. Tr. 51-52. He does not have an appetite and does not prepare
meals for himself. Tr. 52. At the hearing he was at a good weight of 200 pounds but in the past
he has been down to 140 pounds. Tr. 52.
2.
Vocational Expert
Vocational Expert (“VE”) Deborah Lee testified at the hearing. Tr. 57-61. The VE
described Gargano’s past work at the coffee shop as stock clerk, a heavy, SVP 4 job, and cashier
II, a light, unskilled, SVP 2 job. 9 Tr. 58-59. The ALJ asked the VE to assume a hypothetical
individual who can work at all exertional levels; perform simple tasks in a setting with no more
than infrequent changes; perform goal oriented work but cannot work at a production rate pace;
and interact with supervisors and co-workers if that interaction is limited to speaking and
signaling but cannot interact with the public. Tr. 59-60. The VE indicated that the described
individual would be unable to perform Gargano’s past work but there were other jobs that could
be performed, including (1) kitchen helper, a medium, unskilled position; (2) hand packager, a
medium, unskilled position; and (3) laundry worker II, a medium, unskilled position. 10 Tr. 60.
9
SVP refers to the DOT’s listing of a specific vocational preparation (SVP) time for each described occupation.
Social Security Ruling No. 00-4p, 2000 SSR LEXIS 8, *7-8 (Social Sec. Admin. December 4, 2000). Using the
skill level definitions in 20 CFR §§ 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semiskilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT. Id.
10
The VE provided regional, state and national job incidence data for the jobs identified. Tr. 60.
26
Next, the ALJ asked the VE to consider a hypothetical individual who would be off task
20% of the time. Tr. 60. The VE indicated that 20% would be excessive and could lead to an
inability to maintain employment. Tr. 60-61. In response to additional questioning from the
ALJ, the VE indicated that being absent from work two days per month on an ongoing basis
would also be considered excessive. Tr. 61.
III. Standard for Disability
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy11 . . . .
42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.
If claimant is doing substantial gainful activity, he is not disabled.
2.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
3.
If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
11
“’[W]ork which exists in the national economy’ means work which exists in significant numbers either in the
region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).
27
period of at least twelve months, and his impairment meets or equals a
listed impairment, 12 claimant is presumed disabled without further inquiry.
4.
If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.
5.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.
20 C.F.R. §§ 404.1520, 416.920; 13 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the RFC and vocational factors
to perform work available in the national economy. Id.
IV. The ALJ’s Decision
In his May 19, 2015, decision, the ALJ made the following findings: 14
1.
Gargano meets the insured status requirements through December 31,
2015. Tr. 24.
2.
Gargano has engaged in substantial gainful activity since May 15, 2013,
the alleged onset date. Tr. 24. In particular, Gargano engaged in
substantial gainful activity from September 1, 2014, through November
2014. Tr. 24.
12
The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525.
13
The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
14
The ALJ’s findings are summarized.
28
3.
Gargano has the following severe impairment: schizoaffective disorder.
Tr. 24-25.
4.
Gargano does not have an impairment or combination of impairments
that meets or medically equals the severity of on the Listings. Tr. 25-26.
5.
Gargano has the RFC to perform a full range of work at all exertional
levels but with the following nonexertional limitations: Can perform
simple tasks in a setting with no more than infrequent changes; can
perform goal-oriented work but cannot work at a production rate pace;
can interact with supervisors or coworkers if that interaction is limited to
speaking and signaling; cannot interact with the public. Tr. 26-29.
6.
Gargano is unable to perform any past relevant work. Tr. 29.
7.
Gargano was born in 1983 and was 30 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date. Tr. 29.
8.
Gargano has at least a high school education and is able to communicate
in English. Tr. 29.
9.
Transferability of job skills is not material to the determination of
disability. Tr. 29.
10.
Considering Gargano’s age, education, work experience and RFC, there
are jobs that exist in significant numbers in the national economy that
Gargano can perform, including kitchen helper, hand packager, and
laundry worker II. Tr. 29-30.
Based on the foregoing, the ALJ determined that Gargano had not been under a disability,
as defined in the Social Security Act, from May 15, 2013, through the date of the decision. Tr.
30.
V. Parties’ Arguments
Gargano contends that reversal and remand is warranted because the ALJ did not comply
with the regulations when weighing the medical opinion evidence offered by his treating nurses
and psychiatrist, and the consultative examining psychologist. Doc. 16, pp. 11-19, Doc. 20.
The Commissioner argues that the ALJ explained why controlling weight was not
assigned to the treating source opinions and those reasons are sufficient to comply with the
29
regulations and satisfy the treating physician rule. Doc. 19, pp. 10-13. Also, the Commissioner
argues that the consultative examining psychologist’s opinion supports the ALJ’s RFC and,
therefore, the failure to assign weight to the opinion is not a basis for reversal. Doc. 19, pp. 1319.
VI. Law & Analysis
A.
Standard of review
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989).
The Commissioner’s findings “as to any fact if supported by substantial evidence shall be
conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42
U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the evidence
supports a claimant’s position, a reviewing court cannot overturn the Commissioner’s decision
“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Accordingly, a court “may not try the
case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
30
As discussed more fully below, the ALJ assigned no weight to the medical opinion
evidence of record resulting in the inability of this Court to conduct a meaningful review of the
decision to assess whether it is supported by substantial evidence.
B.
Reversal and remand is warranted for further articulation regarding the weight
assigned to the treating source medical opinion evidence
Gargano challenges the ALJ’s weighing of the opinions of his treating psychiatrist and
treating nurses. In challenging the ALJ’s decision in this regard, Gargano acknowledges that the
nurses are not “acceptable medical sources” under the regulations and that the ALJ explained
that he was not providing controlling weight to the treating source opinions. However, Gargano
argues that reversal and remand is warranted because the ALJ failed to explain what, if any,
weight was assigned to any of the treating source opinions and, therefore, the ALJ did not
comply with the regulations regarding weighing of medical opinion evidence, including SSR 0603p and the “good reasons” rule.
The Commissioner contends that the ALJ properly weighed the treating source opinion
evidence, arguing that, although the ALJ did not specify the weight assigned, the ALJ provided
reasons for not giving controlling weight to the treating source opinions and those reasons were
also “good reasons” for providing little or no weight to the treating source opinions. Doc. 19, pp.
10-13.
Under the treating physician rule, “[t]reating source opinions must be given ‘controlling
weight’ if two conditions are met: (1) the opinion ‘is well-supported by medically acceptable
clinical and laboratory diagnostic techniques’; and (2) the opinion ‘is not inconsistent with the
other substantial evidence in [the] case record.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)); see also Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004).
31
If an ALJ decides to give a treating source’s opinion less than controlling weight, she
must give “good reasons” for the weight given to the opinion. Gayheart, 710 F.3d at 376;
Wilson, 378 F.3d at 544; Cole v. Comm’r of Soc. Sec., 661 F.3d 931, 937 (6th Cir. 2011). In
deciding the weight to be given, the ALJ must consider factors such as (1) the length of the
treatment relationship and the frequency of the examination, (2) the nature and extent of the
treatment relationship, (3) the supportability of the opinion, (4) the consistency of the opinion
with the record as a whole, (5) the specialization of the source, and (6) any other factors that tend
to support or contradict the opinion. Bowen v. Comm’r of Soc Sec., 478 F.3d 742, 747 (6th Cir.
2007); 20 C.F.R. § 404.1527(c).
An ALJ is not obliged to provide “an exhaustive factor-by-factor analysis” of the factors
considered when weighing medical opinions. See Francis v. Comm’r of Soc. Sec., 414 Fed.
Appx. 802, 804 (6th Cir. 2011).
However, the “good reasons must be supported by the
evidence in the case record, and must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.” Cole, 661 F.3d at 937 (quoting Soc. Sec. Rul. No. 96-2p, 1996 SSR
LEXIS 9, at *12 (Soc. Sec. Admin. July 2, 1996)) (internal quotations omitted). “This
requirement is not simply a formality; it is to safeguard the claimant’s procedural rights [and] [i]t
is intended ‘to let claimants understand the disposition of their cases, particularly in situations
where a claimant knows that his physician has deemed him disabled and therefore might be
especially bewildered when told by an administrative bureaucracy that he is not.’” Id. at 937938 (citing Wilson, 378 F.3d at 544). Moreover, “the requirement safeguards a reviewing court’s
time, as it ‘permits meaningful’ and efficient ‘review of the ALJ’s application of the treating
physician rule.’” Id. at 938 (citing Wilson, 378 F.3d at 544-545).
32
Not all medical sources are “acceptable medical sources.” See 20 C.F.R. § 404.1513.
For example, nurse practitioners are medical sources but they are not considered “acceptable
medical sources.” Id. However, the opinion of a medical source who is not an “acceptable
medical source” who has seen a claimant in her professional capacity is relevant evidence. SSR
06-03p, 2006 WL 2329939, * 6 (August 9, 2006). SSR 06-03p provides guidance as to how
opinions of medical sources who are not “acceptable medical sources” are to be considered,
stating,
Since there is a requirement to consider all relevant evidence in an individual’s
case record, the case record should reflect the consideration of opinions from
medical sources who are not ‘acceptable medical sources’ [and] [a]lthough there
is a distinction between what an adjudicator must consider and what the
adjudicator must explain in the disability determination or decision, the
adjudicator generally should explain the weight given to opinions from these
‘other sources,’ or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or a subsequent reviewer to follow
the adjudicator’s reasoning, when such opinions may have an effect on the
outcome of the case.
SSR 06-03p, 2006 WL 2329939, * 6.
The ALJ discussed the opinions rendered by Nurse Sweeney, Nurse Kauffman, and Dr.
Hunt, stating:
The record contains treating source statements from Ms. Sweeney (Exs. 6F and
8F). She reports that the claimant has marked and extreme limitations in the “B”
criteria discussed above. However, she is not an acceptable medical source (SSR
06-03p).
At Exhibit 12F, dated, April 9, 2015, Andrew Hunt, MD, an acceptable medical
source, and Kelly Kauffmann, a non-acceptable medical source, report that the
claimant is unable to meet the competitive requirements of routine work in several
domains.
However, the undersigned finds that these opinions are inconsistent with the other
substantial evidence of record and are, therefore, not entitled to controlling weight
(SSR 96-2p).
33
For example, as indicated, his treatment notes indicate his Abilify medication is
managing any psychotic symptoms “well”, that the claimant’s mood is stable, and
that he has intermittent paranoia, but this is manageable, per the claimant (Ex. 11F
page 6).
He is able to live alone and perform his activities of daily living. He was able to
get hired for seasonal work in September 2014.
Tr. 27.
Gargano acknowledges that Nurse Sweeney and Nurse Kauffman are not “acceptable
medical sources” and that the ALJ stated reasons why controlling weight was not provided to the
treating source opinions but contends that the ALJ’s consideration and analysis of treating source
opinions falls short of satisfying the requirements of the treating physician rule and regulations
regarding weighing of medical opinion evidence from treating sources. The Court agrees.
Here, the ALJ’s analysis is not sufficiently specific to allow this Court the ability to
determine whether the decision is supported by substantial evidence.
The ALJ did not indicate what amount of weight, if any, was assigned to the treating
source opinions. Thus, the Court is left to speculate. If the ALJ assigned no weight to all the
treating source opinions, including that of the treating psychiatrist, who is an “acceptable
medical source,” the ALJ should have provided reasons for assigning no weight so that the Court
could assess whether those reasons were “good reasons” and supported by substantial evidence.
Also, even though Nurse Sweeney is not an “acceptable medical source,” she was
Gargano’s primary psychiatric treatment provider who provided treatment on a regular basis yet
the ALJ provided no real analysis of her detailed opinions or treatment notes.
To the extent that the Commissioner points to the ALJ’s reference to Gargano’s seasonal
employment as a “good reason” to provide no weight to the treating source opinions, as reflected
in the hearing testimony, Gargano’s friends hired him and he had flexibility over his own
34
schedule. Tr. 43-45. Also, during a November 10, 2014, appointment with Nurse Sweeney,
Gargano reported that his mood was “not great,” indicating that he had been performing seasonal
work and it was affecting his ability to take his medication so he was having more symptoms,
e.g., increased audio hallucinations and paranoia. Tr. 371.
In light of the foregoing, without a more thorough discussion by the ALJ regarding the
weight actually assigned to the treating source opinions and/or the reasons for providing no
weight to the opinions, the Court is unable to assess whether the ALJ’s decision is supported by
substantial evidence. Accordingly, reversal and remand is warranted for further articulation
regarding the ALJ’s consideration of and the weight assigned to the treating source opinions.
C.
Reversal and remand is warranted for further articulation regarding the weight
assigned to non-treating source medical opinions
Gargano also challenges the ALJ’s decision because the ALJ did not assign weight to the
opinion of consultative examining psychologist Dr. Hill.
As set forth in the regulations, unless a treating source’s opinion is assigned controlling
weight, and ALJ is to consider the factors set forth in 20 C.F.R. § 404.1527(c) in deciding the
weight assigned to any medical opinion. 20 C.F.R. § 404.1527(c). Here, again, the ALJ’s
analysis falls short of satisfying the regulatory requirements for considering and weighing
medical opinion evidence.
The ALJ acknowledged and recited Dr. Hill’s opinion regarding Gargano’s functional
work-related limitations. Tr. 28-29. Immediately preceding that recitation, the ALJ discussed
and clearly assigned little weight to a report from Gargano’s mother. Tr. 28. Thus, while the
ALJ assigned specific weight to the statement from a lay person, the ALJ did not assign weight
or clearly explain his consideration of Dr. Hill’s opinion. Tr. 28-29. Instead, the ALJ’s
conclusory statements that follow his discussion of Dr. Hill’s opinion further complicates this
35
Court’s review and assessment of whether the ALJ’s decision is supported by substantial
evidence. In particular, following his recitation of Dr. Hill’s opinion the ALJ stated:
Based upon these opinions and the record, the state agency psychologist placed
limitations upon the complexity of tasks the claimant could perform and upon the
interaction with others (Ex. 6A). The undersigned has incorporated these
limitations into the determined residual functional capacity (SSR 96-6p).
Tr. 29. (emphasis supplied). Exhibit 6A contains the December 13, 2013, opinion of state agency
reviewing psychologist Dr. Rudy. Tr. 105-110. However, it is not clear which opinions are
“these opinions” that the ALJ is referring to. It is not clear how much weight the ALJ assigned
to Dr. Hill’s opinion or to the state agency reviewing psychologist’s opinion. Also, it is not clear
which limitations the ALJ was referring to when he stated “these limitations” have been
incorporated into the RFC. Was the ALJ referring to the state agency reviewing psychologist’s
limitations, Dr. Hill’s limitations, or some combination? Also, Dr. Hill’s opinions regarding
Gargano’s work-related limitations were dependent upon his compliance with medication and/or
whether he was experiencing a manic episode. However, the ALJ does not make clear how these
different opinions were considered and the reasons why the more limiting opinions were
apparently rejected.
Although Dr. Hill and Dr. Rudy are not treating physicians entitled to deference under the
treating physician rule, without a more thorough and clear articulation of the weight assigned to
their opinions, including an explanation as to which opinions were accepted and which were not
and the reasons why, the Court is left to speculate as to what evidence the ALJ relied upon to
support his RFC assessment and, therefore, is unable to determine whether the decision is
supported by substantial evidence.
36
VII. Conclusion
For the reasons set forth herein, the Court REVERSES and REMANDS the
Commissioner’s decision for further proceedings consistent with this opinion.
Dated: March 13, 2017
Kathleen B. Burke
United States Magistrate Judge
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