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Lynch v. Berryhill

United States District Court, D. South Carolina

December 28, 2018

Robert Lynch, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          Shiva V. Hodges, United States Magistrate Judge

         This appeal from a denial of social security benefits is before the court for a final order pursuant to 28 U.S.C. § 636(c), Local Civ. Rule 73.01(B) (D.S.C.), and the order of the Honorable Patrick Michael Duffy, United States District Judge, dated April 10, 2018, referring this matter for disposition. [ECF No. 16]. The parties consented to the undersigned United States Magistrate Judge's disposition of this case, with any appeal directly to the Fourth Circuit Court of Appeals. [ECF No. 15].

         Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying the claim for disability insurance benefits (“DIB”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the court reverses and remands the Commissioner's decision for further proceedings as set forth herein.

         I. Relevant Background

         A. Procedural History

         On June 12, 2015, Plaintiff filed application for DIB in which he alleged his disability began on August 19, 2014. Tr. at 172-79. His application was denied initially and upon reconsideration. Tr. at 95-98 and 101-04. On March 20, 2017, Plaintiff had a video hearing before Administrative Law Judge (“ALJ”) John T. Molleur. Tr. at 39-58 (Hr'g Tr.). The ALJ issued an unfavorable decision on April 20, 2017, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 10-26. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 2, 2017. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 58 years old at the time of the hearing. Tr. at 44. He obtained his high school GED. Id. His past relevant work (“PRW”) was as an insurance agent. Tr. at 44-45. He alleges he has been unable to work since August 2014. Tr. at 45.

         2. Medical History

         On June 25, 2015, Plaintiff's treating psychiatrist, Dr. Marshall A Staton (“Dr. Staton”), completed a medical assessment form. Tr. at 263. Dr. Staton stated Plaintiff suffered from depressive disorder and had been prescribed Wellbutrin, Effexor, and Trazodone. Id. He noted Plaintiff was oriented to time, person, place, and situation and had intact thought processes, appropriate thought content, depressed mood, adequate attention and concentration, and adequate memory. Id. Dr. Staton also indicated Plaintiff had good ability to complete basic activities of daily living (“ADLs”); adequate ability to relate to others; good ability to complete simple, routine tasks; and adequate ability to complete complex tasks. Id.

         On August 14, 2015, Dr. Dalal Akoury (“Dr. Akory”)performed a comprehensive medical examination upon Plaintiff's complaints of vision loss in his left eye, depression, and anxiety. Tr. at 265. Dr. Akoury noted Plaintiff's vision loss in the lower left eye was permanent and caused inability to focus on anything outside Plaintiff's direct line of sight. Id. Plaintiff reported losing all vision in his left eye in 2012 after experiencing a severe hypertensive episode. Id. He also reported experiencing some moderately blurry vision in both eyes with infrequent artifacts appearing. Id. Dr. Akoury noted Plaintiff's medical history included hypertension, hyperlipidemia, depression and anxiety, and vision loss in the left eye. Id. Dr. Akoury indicated Plaintiff was taking Lisinopril, Trazodone, Wellbutrin, and Atorvastatin. Id. Plaintiff denied any past use of alcohol or illicit substance use or abuse, but admitted to smoking an occasional cigar. Id. Plaintiff stated he last worked in August 2014 as an insurance agent and sales representative, but was unable to continue this type of work. Id. Plaintiff also reported he was divorced, lived alone, and did not receive assistance with his ADLs. Id. Dr. Akoury indicated Plaintiff was oriented to person, place, and time and found his neurological and mental status within normal limits. Tr. at 266-67. Dr. Akoury assessed left eye vision loss and depression and anxiety based on Plaintiff's reported history. Tr. at 267.

         On January 12, 2016, Plaintiff presented to Oceano Counseling, LLC, for an initial psychological assessment by Monica Sojka (“Sojka”), a licensed social worker. Tr. at 281. Plaintiff reported a 20-year history of treatment for anxiety and depression, including ten years of consultation with a psychiatrist, and indicated he had been depressed for about a year. Id. Plaintiff stated he graduated high school and attended some college and previously worked as an insurance agent, but had been out of work for a year. Tr. at 283. Plaintiff reported experiencing a transient ischemic attack (“TIA”) a few years prior and having sleep apnea, high cholesterol, and hypertension. Id. Sojka noted Plaintiff was alert and well-oriented; his mood was severely depressed, with blunted affect; and he had significant irritability. Tr. at 287. Sojka found Plaintiff met the criteria for recurrent major depression without psychosis. Id. She also indicated he might meet the criteria for generalized anxiety disorder, but she suspected his depression was the source of his anxiety. Id.

         Plaintiff had weekly counseling sessions with Sojka through February 2017. See Tr. at 289, 294-96, 297-378. In notes from each of those sessions, Sojka indicated Plaintiff was oriented to time, place, person, and situation; his perception, thought content, and judgment were normal; he had excessive appetite and sleep; his insight was fair; his thought process was coherent; he was cooperative; his appearance was appropriate to his age; he was severely depressed; he had trouble concentrating, very low energy, and low motivation; he was socially withdrawn; and he exhibited psychomotor slowing and blunted/tearful affect. Tr. at 297-378. Her diagnostic impression remained Major Depressive Disorder, Recurrent episode, Severe, throughout Plaintiff's course of treatment. Id.

         On February 25, 2016, Dr. Douglas R. Ritz (“Dr. Ritz”) performed a consultative mental status examination regarding allegations of anxiety, depression, permanent partial vision loss in the left eye, hypertension, and headaches. Tr. at 290-93. Plaintiff indicated he had received treatment for depression for 20 years, but suspected he was depressed dating back to high school. Tr. at 290. He said he thought the depression had worsened over the prior eight years since his mother died suddenly and he and his wife separated. Id. He reported low energy, trouble sleeping through the night, sleeping too much during the day, and crying easily. Id. Plaintiff reported past medical conditions of high cholesterol, sleep apnea, vision loss from a TIA, and hypertension. Id. Dr. Ritz noted Plaintiff's medications included Lisinopril, atorvastatin, bupropion, venlafaxine, and trazodone. Tr. at 290- 91. Plaintiff stated he used to drink fairly heavily, but started going to alcoholics anonymous (“AA”) and has been sober for many years. Tr. at 291.

         Plaintiff reported he began working as an insurance agent in 1989, was last employed at Allstate for a year and a half, but resigned in 2014. Id. Plaintiff stated he was prevented from working because he did not get along with people and tended to be irritable around others. Id.

         Plaintiff had a driver's license and drove himself to the evaluation. Id. Plaintiff reported he lived alone; went to bed between 1:00 and 2:00 a.m. and set an alarm for 8:00 a.m., but rarely got up on time; took medication and made coffee; did household chores when he felt like it; spent time watching television and on the computer; consistently took care of his personal grooming; regularly attended AA meetings and church; occasionally went to the golf driving range; and shopped for groceries. Id.

         Dr. Ritz noted Plaintiff maintained eye contact throughout the evaluation; his speech was low in volume and monotone; his mood was sad, but not tearful; and his affect was flat. Id. Plaintiff was alert, responsive, and in no distress. Id. He was coherent, logical, but had no goals for himself. Id. His insight and judgment were good. Id. During a Mini-Mental Status, second edition, Plaintiff did not know the correct date or the full address of the examiner's office; was able to recall one of three words after a few minutes; could do serial 7s without error, but could not accurately repeat a nine-word sentence; could point to figures in a directed order; and could draw intersecting pentagons. Tr. at 291-92. Plaintiff's score was 25 out of 30, which was in the unimpaired range. Tr. at 292. Dr. Ritz estimated Plaintiff's cognitive skills to be within the average limits. Id.

         Dr. Ritz noted Plaintiff consistently took care of his personal grooming, did household chores when he felt like it, maintained some social contacts, and was able to avoid physical danger and handle funds. Id. Dr. Ritz concluded Plaintiff had a depressive disorder that would not necessarily prevent him from performing in the work setting. Id. He opined that, while Plaintiff may have some difficulty in his prior job, he might be able to function in a more unskilled type work setting. Id. Dr. Ritz listed Plaintiff's diagnoses as recurrent mild major depressive disorder and alcohol use disorder, in sustained remission. Id.

         On March 9, 2016, Sojka wrote a letter disagreeing with Dr. Ritz's diagnosis of mild recurrent major depression. Tr. at 294-96. Sojka opined Dr. Ritz's mental status exam, in which he noted Plaintiff's speech was low and monotone and his affect was flat, was consistent with severe depression, not mild. Tr. at 294. Sojka noted Plaintiff's 20-year history of severe depression that had been only minimally responsive to medication. Id. She listed Plaintiff's symptoms of severe depression as trouble concentrating, very low energy, low motivation, social withdrawal, psychomotor slowing, and blunted affect. Tr. at 294-95. Sojka indicated in her initial assessment Plaintiff had scored a five on the SADPERSON screening, a score that suggests a significant risk and a need for immediate suicide screening. Tr. at 295. She stated in her 30 years of experience as a mental health clinician, she had only seen five or six patients as depressed as Plaintiff and the Social Security Administration found those patients disabled. Id. Sojka emphasized her diagnosis was made solely based on clinical presentation and prior to knowing Plaintiff had applied for disability. Id. She concluded by offering her professional opinion that Plaintiff was fully and completely disabled by his severe recurrent major depression. Id.

         On April 5, 2016, in a counseling session with Sojka, Plaintiff reported worsening anxiety and muscle tension. Tr. at 304.

         On April 21, 2016, Plaintiff returned to Dr. Staton for psychotherapy and medication management. Tr. at 379. Plaintiff reported seeing a psychotherapist for four months and wanting to reestablish treatment with Dr. Staton to assist with his disability application. Id. Plaintiff expressed distress over the state of his life and indicated a lack of support system. Id. Dr. Staton noted Plaintiff was taking Wellbutrin, Effexor, and Trazodone and prescribed Abilify to augment Plaintiff's other medications. Id. Plaintiff continued to see Dr. Staton every several months until March 2017. Tr. at 379-84. In records from each of these sessions, Dr. Staton notes Plaintiff as oriented, his affect is depressed, associations are intact, speech is within normal limits, he does not have psychotic symptoms, and he denies suicidal or homicidal ideations. Id. Dr. Staton continued his diagnosis of recurrent major depressive disorder throughout Plaintiff's treatment. Id.

         On May 10, 2016, Plaintiff told Sojka that Dr. Staton had prescribed Abilify. Tr. at 310. He said the medication made him edgy, so he cut the dosage in half, and indicated he did not think it was helping his depression at all. Tr. at 310-11.

         On May 19, 2016, Plaintiff told Dr. Staton the Abilify had not been helpful and Dr. Staton discontinued it and renewed Plaintiff's other medications. Tr. at 380.

         On June 16, 2016, Plaintiff reported he did not feel any better or worse after stopping Abilify and Dr. Staton supplied Plaintiff with Deplin samples to augment his antidepressants. Tr. at 381.

         On June 17, 2016, Plaintiff told Sojka that Dr. Staton had prescribed another medication to boost the effect of his current medications. Tr. at 319.

         On July 19, 2016, Dr. Staton counseled Plaintiff on structuring his free time. Tr. at 382. Plaintiff stated he attended AA meetings three or four times per week, despite being sober for 30 years, because it helped his mood and feelings of isolation. Id. Plaintiff indicated the Deplin had not helped and Dr. Staton discontinued it and stated he would consider other antidepressant options. Id.

         On August 30, 2016, Plaintiff reported worsening depression due to financial struggles and told Sojka he was finding it difficult to get out of bed. Tr. at 328. He also stated he had not responded to his new medication. Tr. at 331. Sojka noted Plaintiff had severe treatment resistant depression. Id.

         On December 8, 2016, Dr. Staton noted Plaintiff was also taking Lisinopril and a cholesterol medication and stated Plaintiff's current psychiatric medications were helpful and well-tolerated. Tr. at 383. Plaintiff reported he was no better than his prior visit. Id.

         On January 24, 2017, Plaintiff told Sojka he continued to struggle with multiple stressors and a lack of resources. Tr. at 366. He felt discouraged about his future and ...


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