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Rischer v. Colvin

United States District Court, D. Kansas

July 22, 2014

BRAD RISCHER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the final decision of the Commissioner of Social Security Administration ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act, as amended. Plaintiff has filed a brief (Doc. 17) seeking judicial review of the Commissioner's decision. The Commissioner has filed a brief in opposition (Doc. 24) and submitted the administrative record with her Answer (Doc. 12). Upon the filing of Plaintiff's reply brief (Doc. 25), this matter became ripe for determination. Having reviewed the administrative record and the briefs of the parties, the Court reverses the decision of the Commissioner and remands the case for further proceedings consistent with this order.

I. BACKGROUND[1]

Plaintiff was born in 1964 and has some college education.[2] He applied for disability insurance benefits on April 12, 2010, claiming an inability to work due to his disabling condition beginning May 15, 2009.[3] He identified three mental conditions that limit his ability to work: (1) bipolar disorder, (2) depression, and (3) attention deficit disorder ("ADD").[4] During the fifteen years before the alleged onset of disability, he worked as a disability aide, laboratory technician, caregiver, library assistant, life skill coach, and clerk.[5]

After the Social Security Administration denied his application initially and on reconsideration, [6] he requested a hearing before an Administrative Law Judge ("ALJ").[7] On October 27, 2011, the ALJ conducted a hearing at which plaintiff appeared personally and through counsel.[8] The ALJ also heard testimony from plaintiff's wife and a vocational expert ("VE").[9] The VE testified that a hypothetical person with limitations described by the ALJ would not be capable of performing any of plaintiff's former jobs.[10] With respect to the ALJ's first set of described limitations, the VE further testified that jobs existed in significant numbers in the national and local economies that such hypothetical person could perform.[11] When the ALJ included more severe limitations to his hypothetical person, the VE could identify no jobs for such person.[12]

On December 22, 2011, the ALJ issued a written decision finding plaintiff not disabled.[13] On March 5, 2013, the Appeals Council accepted additional evidence but found no reason to review the ALJ's decision and denied plaintiff's request for review.[14] Consequently, the ALJ's decision is the final decision of the Commissioner.[15] Plaintiff appealed the decision to this Court pursuant to 42 U.S.C. § 405(g) on April 22, 2013.

II. MEDICAL HISTORY[16]

The administrative record contains (1) hospital records from Osawatomie State Hospital (Ex. 16F) and Lawrence Memorial Hospital (Exs. 8F and 9F); (2) inpatient treatment records from Stormont-Vail Regional Health Center (Ex. 9F); (3) treatment records from Ronald G. Graham, D.O., (Exs. 2F and 18F), Jeff Nichols, M.D., (Exs. 20E, 13F, 14F, 15F, and 17F), and licensed clinical social worker Ed Bloch (Exs. 1F, 10F, and 11F); (4) a state agency consultative examination by Stanley I. Mintz, Ph.D., (Ex. 4F); (5) two reports of a second state agency consultant, Lauren Cohen, Ph.D., (Exs. 6F and 7F) following her review of the medical record; and (6) a case analysis of Norman S. Jessop, Ph.D., (Ex. 12F) following his review of the record on reconsideration. To the extent practical, the following sections review these records in chronological order.

A. Osawatomie State Hospital

The staff of Osawatomie State Hospital diagnosed plaintiff with a depressive disorder following his admission for self-inflicted superficial lacerations to his forearms in June 2006.[17] A bipolar diagnosis noted in plaintiff's medical history remained unconfirmed because plaintiff was under the influence of multiple drugs and alcohol.[18]

B. Dr. Graham

Dr. Graham treated plaintiff from April 2008 through May 2010, [19] resulting in various impressions including ADD, bipolar, and depression.[20] While his records about plaintiff's mental impairments are mostly unremarkable or illegible, Dr. Graham noted medication problems in 2008 and plaintiff's medications were one of his chief complaints on May 5, 2010.[21] And, on that date, Dr. Graham noted: "No particular reason why depression seems to be getting worse."[22]

C. Social Worker Bloch - First Treating Period

From March 27, 2009, through April 30, 2010, plaintiff met with licensed clinical social worker Ed Bloch about his mental impairments.[23] Bloch noted diagnoses of depressive, bipolar, and personality disorders.[24] Unlike the handwritten and sometimes illegible notes of Dr. Graham, the typed notes of Bloch identify plaintiff's (1) chief complaints (suicide ideation; severe depression and labile mood; episodic anxiety, manic behavior, poor judgment, and suicidal thinking; and chronic sleep disturbance and suspected organicity); (2) diagnoses, including GAF scores;[25] (3) severe symptoms (depressed mood, excessive distractibility, feelings of hopelessness, impaired concentration, poor judgment manifested by reckless behavior that could lead to self injury, suicidal thinking, impulsivity, and instability of mood); (4) moderate symptoms (intermixed manic and depressive episodes, obsessive rumination, racing thoughts, inadequate coping skills and response to demands of living, and temper outbursts); (5) severe impairments in functioning (inability to work, diminished concentration at work, difficulty maintaining employment, and dangerous risk-taking behavior); and (6) moderate impairments in functioning (poor judgment in social situations and distance and argumentativeness with people).[26] Bloch discharged plaintiff because he had achieved "crisis stabilization" with some improvement in symptom reduction following "27 psychotherapy sessions and 50 neuro trainings."[27]

D. State Agency Consultants

On July 24, 2010, Dr. Mintz, a state agency consultant, examined plaintiff's mental status.[28] Plaintiff reported that medications and brain training had been "helpful to him."[29] Dr. Mintz assessed plaintiff's GAF at 50, with a high mark of 55 in the previous year, and diagnosed a bipolar disorder, ADD, and continuing substance abuse.[30] Plaintiff exhibited symptoms of those disorders, "with considerable depression."[31] Dr. Mintz opined that plaintiff "may have difficulty relating well to co-workers and supervisors, " but "appears able to understand simple and intermediate instructions."[32]

On August 18, 2010, Dr. Cohen - a nonexamining, nontreating consultant - completed two standard forms to evaluate plaintiff's mental health: a "Psychiatric Review Technique" ("PRT") and a "Mental Residual Functional Capacity Assessment" ("MRFCA").[33] She found plaintiff was suffering from ADD (Listing 12.02), [34] bipolar syndrome (Listing 12.04), and substance abuse (Listing 12.09).[35] But Dr. Cohen specifically noted that the latter impairment "does not appear relevant."[36] She found that the other impairments did not satisfy the "B" criteria for their listings because plaintiff had not experienced any episodes of decompensation of extended duration and his impairments merely imposed a moderate restriction of activities of daily living and moderate difficulties maintaining social functioning and concentration, persistence, or pace.[37] She also found that the evidence did not "establish the presence of the C' criteria" for either listing.[38]

In a case analysis dated January 6, 2011, Dr. Jessop affirmed Dr. Cohen's PRT and MRFCA on reconsideration.[39] In doing so, Dr. Jessop acknowledged that plaintiff was hospitalized in August 2010 after an attempted suicide.[40] But he stated that "[s]ubsequent progress notes indicate essential compliance and an acceptable degree of stability."[41]

E. Lawrence Memorial Hospital and Stormont-Vail

On August 20, 2010, two days after Dr. Cohen recorded her written opinions, Lawrence Memorial Hospital admitted plaintiff following an attempted suicide by drug ingestion.[42] In an initial assessment, a hospital social worker stated that plaintiff: (1) has "[t]otal independence" with respect to his activities of daily living, (2) is able to do his essential shopping independently, and (3) is independent in the home.[43] Nevertheless, the social worker expressed concern about plaintiff's financial abilities, interpersonal relationships, coping difficulties, self-concept, lack of involvement, adjustment to loss, and decision-making.[44] Moreover, a nurse noted "[g]rossly impaired" judgment and impaired insight.[45] The attending physician, Lisa Gard, M.D., noted that plaintiff was alert without acute distress, but had a flat mood and affect with abnormal, psychotic thoughts, i.e., suicidal thoughts.[46] Dr. Gard counseled plaintiff and his family about the diagnosis and diagnostic results.[47] Hospital staff transferred him to Stormont-Vail West Adult Unit by secured transport.[48]

During intake at Stormont-Vail, plaintiff's symptoms included sleep problems, hopelessness, decreased behavioral control, and mood fluctuation.[49] Based upon the medical evaluation of Dr. Gard, staff rated plaintiff as medically stable.[50] A mental status exam conducted the next day revealed depressed mood and constricted affect, among other findings.[51] Plaintiff denied any current suicidal ideation, but did not feel he could be safe outside the hospital.[52] Notably, staff recorded "20" in Axis V of the five-part diagnostic impression.[53] The next day, plaintiff was sleeping and eating well; denied medicinal side effects, suicidal ideation, and violent thoughts; had normal and logical thought processes, euthymic mood, grossly intact judgment, and good insight, attention, and concentration.[54] In addition, the record reflects that plaintiff wrote a positive note about his feelings.[55] He felt safe in the hospital and wanted to stay another day.[56]

After Stormont-Vail discharged plaintiff on August 23, 2010, Darryl Kabins, M.D., completed a discharge summary listing diagnoses of a mood disorder, a generalized anxiety disorder, and a GAF score of 50 on discharge.[57] The discharge plan included resuming treatment with Bloch the next day and prescribing three mental health medications - Effexor twice per day as an antidepressant; Seroquel four times per day as needed for anxiety, to clear thinking, or reduce agitation; and Desyrel at bedtime as a sedative, antidepressant, and pain reliever.[58]

F. Social Worker Bloch - Second Treating Period

Plaintiff resumed treatment with his social worker, Mr. Bloch, by participating in six psychotherapy sessions and five brain training sessions through October 6, 2010.[59] Bloch added the hospitalization for suicidal ideation to the chief complaints that plaintiff previously had presented and noted the same symptoms and impairments in functioning.[60] Bloch also noted a major depressive disorder diagnosis and initially assigned a GAF score of 50, which increased to 52 on October 4, 2010.[61]

Plaintiff continued to see Bloch through December 2010, but his records of this treatment are remarkable only as follows. On October 16, 2010, Bloch noted that plaintiff had been "compliant with treatment" but was still a mild suicide risk, "guarded in display of affect, " and "very passive and quiet in sessions."[62] The next week, Bloch noted: "Suicidal ideation continues post hospitalization."[63] On November 2, 2010, plaintiff reported reduced suicidal ideation, "feeling less depressed, " and more himself after session, but still represented a mild suicide risk.[64] Three days later, his suicide risk remained the same, although he "continue[d] to report improvement, less depression, [and] better energy."[65] On November 16, 2010, plaintiff reported "feeling very lethargic" and agitated, which may have related to a new medication to help stop smoking.[66] Plaintiff felt better after the session.[67] Four days later, plaintiff reported feeling "back to normal" since resuming brain training in October, but his risk of suicide remained unchanged and he remained at high risk generally given his chronic relapses when under stress.[68] By November 29, 2010, plaintiff remained a mild suicide risk and a high risk generally due to his chronic relapses, but he appeared "stable with current regimen of therapy and brain training."[69] On December 4, 2010, Bloch continued to note that plaintiff remained a mild suicide risk and a high risk generally due to his chronic relapses.[70]

G. Dr. Nichols

Dr. Nichols began treating plaintiff for his mental condition on October 5, 2010.[71] His records reflect treatment from October 2010 through March 2012.[72] He prescribed Effexor for depression and Adderall for ADD.[73] In October 2010, plaintiff was also taking Seroquel.[74] On December 6, 2010, plaintiff "fe[lt] better" and had "no need for Seroquel, " but two weeks later, Dr. Nichols increased the dosage of Adderall at plaintiff's request.[75]

On March 3, 2011, plaintiff reported to Dr. Nichols that he was "doing great" and was "at the top of [his] game."[76] But, on April 5, 2011, plaintiff reported that he had attempted suicide two days earlier by ingesting excessive Seroquel and Effexor and by cutting his wrist superficially.[77] He had stopped taking his Adderall about seven days before the attempt.[78] Despite the suicide attempt, plaintiff was "surprisingly good" at the appointment.[79] Later that month, plaintiff was not having "suicidal thoughts."[80] The next month, plaintiff was "[d]oing pretty well" with daily medication and Effexor was "working good."[81] In June 2011, plaintiff was "[d]oing fantastic, " his concentration and temper were better, and he was sleeping good.[82] The next month, Dr. Nichols again noted that plaintiff was doing fantastic and that it was the "Best summer [plaintiff] ever remembered."[83]

By September 14, 2011, plaintiff had stopped taking Effexor and Adderall because Effexor "ceased to do good.'"[84] Plaintiff complained of "night sweating" and "bad body odor" and was "[d]etermined to go off meds."[85] He was considering taking EMPowerplus.[86] Dr. Nichols cautioned him to be careful and to resume his medications if he feels worse or if his wife noticed deterioration.[87] Two weeks later, Dr. Nichols noted that plaintiff had been taking EMPower and the doctor prescribed Xanax.[88] On October 19, 2011, plaintiff was continuing to take EMPower and Xanax but said he had felt himself "being pulled down" the past week and was having some short-term concentration problems.[89] The doctor ...


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