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Watkins v. Berryhill

United States District Court, D. Massachusetts

September 29, 2017

KARL VICTOR WATKINS, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant

          MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER (DKT. NOS. 12 & 17)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.

         Before the court is an action for judicial review of a final decision by the Acting Commissioner of the Social Security Administration ("Commissioner") regarding an individual's entitlement to Supplemental Security Income ("SSI") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Plaintiff Karl Victor Watkins ("Plaintiff") asserts that the Commissioner's decision denying him such benefits -- memorialized in a March 3, 2015 decision of an administrative law judge ("ALJ") -- contains legal error and is not supported by substantial evidence. Specifically, Plaintiff alleges that the ALJ erred by failing to: (1) adopt the 2012 decision of another ALJ who found Plaintiff disabled; (2) fully adopt the opinions of the state agency examiners and a consultant when crafting Plaintiff's RFC; and (3) afford a treatment provider's opinion controlling weight. Plaintiff has moved for judgment on the pleadings (Dkt. No. 12), while the Commissioner has moved to affirm (Dkt. No. 17).

         The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the following reasons, the court will DENY the Commissioner's motion to affirm, and ALLOW Plaintiff's motion for judgment on the pleadings to the extent it seeks a remand on a single issue.

         I. Procedural Background

         Plaintiff first applied for SSI on July 16, 2010 alleging an onset of disability on May 2, 2008 (Administrative Record "A.R." at 87). On February 24, 2012, after a hearing, ALJ Judith M. Stolfo (hereinafter "first ALJ") found Plaintiff to be disabled (id. at 21, 79-87). However, Plaintiff's SSI benefits were suspended because he did not meet the financial eligibility standard for the SSI program and they were ultimately terminated (A.R. at 21-22 & nn.3 & 4; Dkt. No. 18-1 ¶ 4(f)). See 42 U.S.C. § 1382(a).

         Plaintiff submitted a second application for SSI on August 13, 2013, when he was 49 years old, again alleging an onset of disability on May 2, 2008 (id. at 19, 26). In his second SSI application, Plaintiff alleged that he was disabled due to depression, anxiety, and paranoia (id. at 88). The application was denied initially on January 16, 2014 and upon reconsideration on June 4, 2014 (id. at 19). Following a hearing before a different ALJ (hereinafter "second ALJ" or "ALJ") on February 17, 2015, the second ALJ issued his decision on March 3, 2015 finding Plaintiff was not disabled since the application was filed on August 13, 2013 (id. at 19). On April 28, 2016, the Appeals Council denied review of the ALJ's decision (id. at 1), and this appeal followed.

         II. Factual Background

         In support of the disabling conditions listed in Plaintiff's application for SSI benefits, he presented the second ALJ with medical evidence spanning the period from 2010 through 2014.[1]

         A. Treatment Providers

         Plaintiff was treated by Valley Psychiatric Service, Inc. ("VPS") beginning in March 2010 (id. at 83, 366). On April 17, 2013, Plaintiff's treatment provider Glenroy Bristol completed a "Brief Psychiatric Rating Scale for Adults" (id. at 350). Plaintiff's anxiety was "moderately severe, " his depression was "moderate, " and his conceptual disorganization was "very mild" (id.). Plaintiff displayed no indication that he suffered from hallucinations, unusual thought content, bizarre behavior, self-neglect, disorientation, and distractibility (id.).

         Plaintiff's therapist, Glenroy Bristol, completed Plaintiff's mental status exam at VPS on July 1, 2013 (id. at 290). Plaintiff was oriented x 3 (id.). Although Plaintiff reported experiencing auditory hallucinations "'once in a while, '" they were not "command hallucinations" and he did not understand what he heard (id.). His behavior, speech, mood/affect, and thought content were within normal limits (id.). His mood was stable, his thought processes were logical and rational, he was well-rested, his appetite was good, and he had no current SI/HI (id.). Mr. Bristol noted that Plaintiff was "pleasant and in good spirits" (id.). According to Plaintiff, his medications -- Wellbutrin, Risperdal, Cogentin, Trazodone, and Hydroxyzine -- were effective, but because Trazodone was upsetting his stomach, his dosage was decreased (id.).

         During a VPS session on July 24, 2013, Plaintiff's "mood was euthymic with bright affect, he denied [SI/HI] intent or plan, [he] did not express or exhibit signs of psychosis, [and his] thoughts were clear, logical, organized, and reality base[d]" (id. at 287).

         Plaintiff terminated service with VPS on August 14, 2013 because he failed to comply with VPS's attendance policy (id. at 287, 288). The discharge summary noted that Plaintiff "was medication compliant throughout treatment and was clinically stable when last seen" (id.). He was diagnosed with schizoaffective disorder and polysubstance dependence (id. at 288). Further, post-traumatic stress disorder ("PTSD"), intermittent explosive disorder, and antisocial personality disorder were to be ruled out (id. at 288).

         Plaintiff returned to VPS on November 4, 2013 when he reported flashbacks, auditory and visual hallucinations, and paranoia in social settings (id. at 316, 325). He also complained of "severe [recent] memory problems" (id. at 316). According to the intake assessment that Mr. Bristol completed, Plaintiff was not taking medication (id. at 319). His mental status examination showed that he was oriented x 3 and his appearance, eye contact, speech, perception, and orientation were within normal limits (id. at 321, 325). He did not report delusions or hallucinations during the session, but was depressed, restless, and anxious, and experienced racing thoughts, impaired concentration, and "some" (as opposed to "severe") impairment of judgment (id. at 321, 325). He also reported difficulty falling or staying asleep (id. at 323, 325). The intake record also indicated that Plaintiff last drank alcohol about one month before the assessment and stopped smoking crack cocaine in 2010 (id. at 329). Mr. Bristol diagnosed Plaintiff as having schizoaffective disorder and PTSD and assigned him a Global Assessment of Functioning ("GAF") score of 56 (id. at 325).[2]

         Elizabeth Benedict of the Center for Human Development ("CHD") conducted an Outpatient Adult Comprehensive Assessment of Plaintiff on February 4, 2014 (id. at 298). Plaintiff complained of anxiety and "mood swings" (id. at 302). Ms. Benedict described Plaintiff as "friendly and talkative" (id. at 301). He reported sleeping only one to two hours each night and experiencing difficulty leaving his home due to "panic and anxiety" (id. at 302-03). Ms. Benedict diagnosed Bipolar I Disorder, most recent episode mixed, severe with psychotic features and a GAF score of 45 (id. at 303).[3]

         On May 5, 2014, Aisha Ellis, NP of CHD's Caring Health Center saw Plaintiff for an office visit to establish primary care, including medication (id. at 310, 312). Plaintiff reported being "a little off" because he had not taken Risperidone and Trazodone in two weeks (id. at 310). The record of Plaintiff's behavioral assessment indicated that Plaintiff suffered from insomnia, but was "[n]egative for depression, " nervousness, and anxiety (id. at 310). He was oriented x 3 and his mood and affect, behavior, judgment, and thought content were normal (id. at 311). He was prescribed Risperidone and Trazodone (id. at 312).

         On May 14, 2014, Kimberly Gage, APRN, conducted Plaintiff's medication evaluation at CHD (id. at 390). Plaintiff complained of sleep disturbance, hearing voices that "sound like 'a lot of scrambling, '" but not commands, and depression (id. at 390, 392, 393). He was euthymic, oriented x 3, and his recent and remote memory and his attention/concentration were fair (id. at 392, 393). His speech was within normal limits and he displayed no problems with his receptive or expressive language (id. at 392). His thinking was "somewhat concrete but clear and organized, " and his associations were intact (id.). Plaintiff reported experiencing racing thoughts during the two weeks he was not taking Risperidone (Risperdal), but the racing thoughts decreased once he resumed taking Risperidone (id. at 392, 393). Because Plaintiff was unaware that Risperidone was also prescribed for mood symptoms, he was taking it once daily instead of twice daily as prescribed (id. at 392). Plaintiff was diagnosed with Bipolar I Disorder, most recent episode mixed, severe with psychotic features, cognitive disorder NOS, and learning disorder NOS, and was again assigned a GAF score of 45 (id. at 392). APRN Gage directed him to continue with his medication with the adjustment to the Risperidone dose (id. at 393).

         APRN Gage saw Plaintiff at CHD again on July 8, 2014 for a medication follow-up (id. at 385). Plaintiff was oriented x 3, was "pleasant and in good spirits, " his thinking was concrete, clear, and organized, his mood was stable, his memory and attention/concentration were fair, and his judgment and insight were "fair to poor depending on context" (id. at 386-87). His speech, sleep, and appetite were within normal limits (id. at 386). He reported occasionally hearing his wife calling his name and was drinking about four beers a day (id. at 386-87). His diagnoses and GAF score remained unchanged (id. at 387).

         On September 11, 2014, Peter Landstrom, RNP, of CHD assessed Plaintiff and reviewed his medications (id. at 380, 384). Plaintiff reported that he was feeling well and his medication was effective, but he continued to hear unintelligible voices (id. at 380). He reported that he occasionally smoked marijuana and had not drunk any alcohol in one month (id.). Plaintiff also reported that he liked to watch "old westerns, " and did not leave home much, but took daily walks with his wife (id. at 380). The records show that Plaintiff was euthymic and was oriented to all spheres (id. at 381-82). His speech and thought processes were normal, his memory was intact, his attention/concentration were good, and his judgment and insight were fair (id. at 381). His diagnoses and GAF score remained the same as on May 14, 2014, and RNP Landstrom recommended that Plaintiff continue with his current medication regimen and his therapy with "Marcus" (id. at 382). Plaintiff resisted Mr. Landstrom's suggestion that he increase his activities (id.).

         Aisha Ellis, NP, examined Plaintiff at the Caring Health Center on October 6, 2014 (id. at 398). He was alert, oriented x 3, and reported feeling well and continuing to maintain sobriety (id.). His mood, affect, judgment, and thought content were normal (id.).

         Plaintiff visited NP Ellis again on November 10, 2014 (id. at 396). He told her that he drank ten to fifteen cups of coffee a day, but did not drink water, and had experienced dizziness and sweating on one occasion when he ate an entire cheesecake (id.). He was oriented x 3, and his mood, affect, and behavior were normal (id. at 396-97). He was diagnosed with prediabetes and was prescribed metformin (id. at 397).

         B. Marcus Foster's Opinion

         On May 2, 2014, Marcus Foster completed a Mental Impairment Questionnaire, some of which is illegible (id. at 305). Foster had been treating Plaintiff in one hour weekly therapy sessions since February 28, 2014 (id.). Plaintiff's diagnosis was Bipolar I with a GAF score of 45 (id.). Plaintiff was being effectively treated with these psychotropic medications: Bupropion; Hydroxyzine; Risperidone; Sertraline HCL; and Trazodone (id.). The only side effect was "sleep disturbance leading to fatigue" (id.). The legible prognosis was "[c]hronic, severe mental illness requiring high level of outpatient care indefinitely" (id.).

         Foster checked the boxes indicating the presence of the following signs and symptoms: pervasive loss of interest in all activities; decreased energy; feelings of guilt or worthlessness; generalized persistent anxiety; mood disturbance; difficulty thinking or concentrating; persistent nonorganic disturbance of vision, speech, hearing, use of a limb, movement and its control, or sensation; recurrent obsessions or compulsions which are a source of marked distress; emotional withdrawal or isolation; bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes; hallucinations or delusions; vigilance and scanning; easy distractibility; memory impairment; sleep disturbance; oddities of thought, perception, speech, or behavior; decreased need for sleep; and recurrent severe panic attacks (id. at 306). Foster further indicated that Plaintiff did not have a low IQ or reduced intellectual functioning (id. at 307).

         According to the boxes Foster checked on the form, Plaintiff had "marked" restrictions on his daily living activities and in maintaining social functioning and "extreme" difficulty in maintaining concentration, persistence, or pace (id.). In addition, Foster checked the box indicating Plaintiff had a "[m]edically documented history of chronic organic mental, schizophrenic, etc., or affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do any basic work activity, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following . . ." but Foster did not check any of the three choices that followed the statement (id. at 307-08). Mr. Foster anticipated that Plaintiff would be absent from work for more than four days per month (id. at 308). Mr. Foster further stated that Plaintiff could manage benefits (id.).

         C. Consultative Examination and State Agency Consultants

         1. Victor Carbone, Ph.D.

         Victor Carbone, Ph.D., examined Plaintiff on January 14, 2014 (id. at 292). Plaintiff reported being paranoid, anxious, depressed, and hypervigilant, and suffering from flashbacks of the events that occurred while he was incarcerated for seventeen years in Alabama (id. at 292, 293, 295). Plaintiff told Dr. Carbone that he experienced racing thoughts and heard mumbling voices in his head (id. at 293, 295). He also indicated difficulties with concentration and memory (id. at 295, 296). During the mental status exam, Plaintiff was oriented x 3, but was unable to complete a Mini Mental Status Examination because he reported that he could not spell and his "academics" were weak (id. at 295). Dr. Carbone noted that Plaintiff's "[i]nsight into his difficulties were quite limited" (id. at 296).

         Plaintiff initially denied any past substance abuse (id. at 293). After Dr. Carbone indicated that his history suggested drug use, Plaintiff acknowledged that he began using powder cocaine when he was 22 or 23, used crack cocaine until he was incarcerated, used again after he was released, and stopped using in 2011 (id.). He smoked two packs of cigarettes a day (id. at 294).

         Dr. Carbone noted that Plaintiff understood simple directions, but had "more difficulty with complex concepts and [got] overwhelmed very easy with much tearfulness during the evaluation" (id. at 296). According to Dr. Carbone, Plaintiff's anxiety "would certainly impact his ability to focus . . ." (id.). Dr. Carbone diagnosed depressive disorder NOS and likely borderline intellectual functioning, bipolar disorder NOS was to be ruled out, and PTSD and cocaine dependence were indicated by the history Plaintiff supplied (id.). Dr. Carbone assigned a GAF score of 52 (id.).

         2. Joseph Whitehorn, Ph.D.

         Joseph Whitehorn, Ph.D., a Disability Determination Services ("DDS") consultant, reviewed Plaintiff's treatment records on January 16, 2014 (id. at 98). He determined that Plaintiff had moderate restrictions on daily living activities, moderate difficulties in maintaining social functioning and concentration, persistence, and pace, and had experienced no repeated episodes of decompensation (id. at 93). Dr. Whitehorn reported that Plaintiff's memory and understanding were adequate for simple tasks (id. at 94). He further opined that Plaintiff was able to "sustain pace and focus on simple tasks for two hour periods during a work day, " "adhere to social norms in a work setting, " and "handle changes in simple work routines" (id. at 95-96).

         In making these determinations, Dr. Whitehorn principally relied on Plaintiff's mental status exams that were conducted on July 1 and 24, 2013 and indicated that "reports of serious [symptoms] given at [the] current [consultative examination] are somewhat doubtful" (id. at 96). Dr. Whitehorn also noted the discrepancy between Plaintiff's function report that said he was too nervous to go out alone and his treatment providers' and Dr. Carbone's reports that fail to mention this impairment (id. at 96). Dr. Whitehorn indicated that "details or data" to support Plaintiff's diagnoses of schizoaffective disorder and intermediate explosive disorder were absent from his treatment records (id. at 96). Dr. Whitehorn diagnosed: depressive ...


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