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Frady v. Berryhill

United States District Court, D. South Carolina

March 5, 2019

Gary Frady, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.



         This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 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 undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.

         I. Relevant Background

         A. Procedural History

         On or about September 24, 2014, Plaintiff filed applications for DIB and SSI in which he alleged his disability began on January 2, 1995. Tr. at 205-16.[1] His applications were denied initially and upon reconsideration. Tr. at 103, 117-33. On March 17, 2017, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) James M. Martin. Tr. at 50-98 (Hr'g Tr.). The ALJ issued an unfavorable decision on June 1, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 27-49. 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 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on June 7, 2018. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 45 years old at the time of the hearing. Tr. at 57. He attended the seventh grade and obtained a high school equivalency or general education development (“GED”) diploma to be released from prison.[2] Tr. at 60. He has no past relevant work (“PRW”) for Social Security purposes. Tr. at 43. He alleges he has been unable to work since January 2, 1995. Tr. at 30.

         2. Medical History

         a. Medical Evidence Submitted to the ALJ[3]

         On June 15, 1999, Plaintiff presented to the mental health clinic at the South Carolina Department of Corrections (“SCDC”), and the attending physician noted he was talking excessively, continuously moving his extremities, and complained of anxiety or depression. Tr. at 347.

         On June 21, 1999, Plaintiff presented to the mental health clinic at SCDC, and the attending physician noted:

During today's assessment [Plaintiff] displayed appropriate affect and mood with only minimal anxiety. He reported feeling much better than when he arrived [two weeks ago]. He attributed his initial anxiety to just coming off alcohol and adjusting to prison for the first time. He related improved sleep and [denied depression]. . . . [Plaintiff] voiced belief that most of his problems have resulted from his alcohol abuse. He expressed hope for his future and plans to participate in substance abuse [treatment] as well as obtaining a job assignment at his assigned institution. [Plaintiff] was alert, oriented [], and [his] thought processes were rational. His anxiety has decreased significantly and he appears to be adjusting well to his incarceration at this time. He does not appear depressed or in need of further mental health [treatment] at the current time.

Tr. at 346-47. Plaintiff's global assessment of functioning (“GAF”)[4] score was 68.[5] Tr. at 347.

         On July 12, 1999, Plaintiff presented to the mental health clinic at SCDC, and the attending physician noted he was frustrated, but in no acute distress, had no psychosis, and was oriented, calm, coherent, and cooperative. Tr. at 346.

         On July 19, 1999, Plaintiff presented to the mental health clinic at SCDC, and the attending physician noted he was doing “tolerably well though there is some anger/anxiety.” Tr. at 345.

         On August 30, 1999, Plaintiff presented to the mental health clinic at SCDC and reported anxiety, depression, headaches, and nervousness, but stated, “I am not mentally ill, I am just nervous and just want to straighten my life out.” Tr. at 343. The attending physician noted Plaintiff maintained good eye contact, was well oriented, and had appropriate mood and affect. Id.

         On September 22, 2000, the attending physician at SCDC noted Plaintiff had panic attacks, depression, and psychiatric abnormalities with a history of anxiety and sleep disorders, and took Ativan. Tr. at 368.

         On October 24, 2000, Plaintiff presented to the mental health clinic at SCDC. Tr. at 366. He denied a mental health history, had a low violence risk, with anger that had improved. Id. The attending physician noted Plaintiff had an elated affect, logical thought process, normal speech, good eye contact and attention span, and no memory deficits. Id. The attending physician concluded Plaintiff appeared mentally stable. Id.

         On October 2, 2001, after approximately five months of treatment in group therapy and counseling, Plaintiff reported improvement. Tr. at 360-63.

         On March 10, 2004, Plaintiff reported he would like to speak with someone about his issues, including being an alcoholic, finding his parents deceased, and worrying all the time. Tr. at 356-57. The attending registered nurse noted Plaintiff did not appear depressed. Tr. at 357.

         On January 24, 2005, Plaintiff reported increased stress and anxiety. Tr. at 353.[6]

         On November 13, 2014, Lisa Clausen, Ph.D. (“Dr. Clausen”), a state agency psychologist indicated there was insufficient evidence to complete a psychiatric review technique (“PRT”) questionnaire or assess Plaintiffs mental impairments, as there was no medical evidence in the file. Tr. at 101.

         On December 14, 2014, James N. Ruffing, Psy.D. (“Dr. Ruffing”), performed a consultative examination of Plaintiff due to his allegations of seeing shadows, having difficulty sleeping, worrying all the time, and hearing voices. Tr. at 299-302. Dr. Ruffing noted there were no psychological or medical records available for review and Plaintiff was not prescribed medications. Tr. at 299. Plaintiff reported he heard voices telling him to do things and had severe anxiety and panic attacks. Id. Plaintiffs activities of daily living (“ADLs”) included caring for his personal needs, light meal preparation, cleaning, laundry, and some yard work, but he did not attend church services, go shopping, pay bills, or use a computer. Tr. at 299-300. He was unable to drive due to prior driving under the influence convictions (“DUIs”), he rarely talked on the phone, and he occasionally went out to eat, but he had to leave when it got crowded or loud due to his anxiety. Id. Plaintiff denied illicit substance abuse or tobacco use, but reported treatment for alcohol-related issues and two prison sentences for DUIs and one sentence for violating probation. Tr. at 300. Plaintiff was accompanied by Cynthia Pruitt (“Ms. Pruitt”), but he fully and accurately completed the intake questionnaire himself. Id. Plaintiff reported his history was unremarkable for brain trauma. Id.

         Dr. Ruffing noted Plaintiff “tended to be rather intense” and anxious, but managed appropriate levels of eye contact, calmed down as the session progressed, and responded with spontaneous speech and linear, logical, relevant, and coherent thoughts. Id. Dr. Ruffing noted the following:

EMOTIONAL PRESENTATION: He presented with an appropriate affect of normal range and intensity and somewhat of an intense presentation. He was mostly anxious. . . . Despite rather significant and severe and long-lasting complaints of severe anxiety, panic attacks, and both auditory and visual hallucinations, he stated that he has never been treated or evaluated for mental health related concerns. He has never been in a psychiatric hospital. He has never received counseling or medication treatment.
THOUGHT CONTENT: I saw no evidence for psychosis, other than his complaints of both auditory and visual hallucinations, which at times seem to represent more of fear and disconcerting internal dialogue. At times his complaints had somewhat of a[n] actual hallucinatory quality, but it seemed rather unusual that he had no other signs or symptoms consistent with psychosis, such as avolition, disorganized or catatonic type behavior, disorganized speech, etc.
COGNITION: He attended without distractibility and demonstrated normal cognitive processing speed. He was able to recall 3 unrelated words immediately and 2 of 3 after a five-minute delay with interference task. He could not recall the 3rdword with forced choice assisted cuing. He was administered the Folstein Mini-Mental Status Exam [(“Folstein Exam”)], achieving a raw score of 30/30. A score of 24 [or] higher suggests mental status functioning is within normal limits.
PSYCHOLOGICAL IMPRESSION: Based on his complaints there is indication for panic disorder without agoraphobia, severe anxiety and auditory and visual hallucinations. It is interesting to note that I saw no other signs or symptoms consistent with psychosis or lack of reality contact.
CAPACITIES: He is able to understand and respond to the spoken word. He seems able to manage concentration, persistence, and pace. Based on his complaints, his greatest difficulty would be working in close proximity with large numbers of people. He does appear capable of managing his finances, if awarded benefits.

Tr. at 300-01.

         On December 29, 2014, Xanthia Harkness, Ph.D. (“Dr. Harkness”), a state agency psychologist, completed a PRT questionnaire and opined Plaintiffs mental impairments imposed minimal limitations on his ability to perform basic work-related tasks and functions. Tr. at 107-108, 113-15. Specifically, Dr. Harkness found Plaintiff had mild difficulties in social functioning and his anxiety was non-severe for his SSI claim. Id. However, Dr. Harkness opined there was no medical evidence in the file to evaluate whether they existed prior to his date last insured for his DIB claim. Id.

         On March 12, 2015, Jerome Aya-ay, M.D., (“Dr. Aya-ay”) evaluated Plaintiff as a new patient. Tr. at 337. Plaintiff reported he was nervous all the time, his symptoms were worsening, and he could not control his bowel movements, function, or leave his home at times. Id. Plaintiff also reported a history of being bullied and teased. Id. Plaintiff stated he was “not a normal person” and his girlfriend, Ms. Pruitt, brought him to the doctor because she cared about him. Id. Dr. Aya-ay assessed anxiety and depressive disorder, noted concern regarding post-traumatic stress disorder (“PTSD”), and prescribed Citalopram and Vistaril. Id.

         On May 4, 2015, Plaintiff presented Dr. Aya-ay's office, saw Christopher McCarthy, M.D. (“Dr. McCarthy”), and reported the medication had not helped much and he continued to have depression and anxiety with visual and auditory hallucinations. Tr. at 336. Dr. McCarthy noted Plaintiff may have bipolar disorder or severe anxiety and depression with psychotic features, recommended counseling, discontinued Vistaril and Citalopram, and prescribed Risperidone and Diazepam. Id.

         On June 8, 2015, Plaintiff presented to Dr. McCarthy and reported medication compliance with no side effects and an improved mood. Tr. at 335. Plaintiff also reported his dosages did not need to be adjusted and the voices had decreased, but he wanted to take Diazepam twice a day. Id. Dr. McCarthy refilled Diazepam and Risperidone. Id.

         On July 8, 2015, Plaintiff presented to Dr. McCarthy and reported reduced alcohol consumption, but he experienced pain in old wounds and felt stiff with increased anxiety. Tr. at 334. Dr. McCarthy encouraged counseling, prescribed Mobic, and refilled Diazepam and Risperidone. Id.

         On August 7, 2015, Plaintiff presented to Dr. McCarthy and reported he had low blood pressure, reduced his alcohol consumption, and felt well. Tr. at 333. However, Plaintiff requested increased anxiety medication. Id. Dr. McCarthy assessed anxiety state and depressive disorder, increased Diazepam, modified Valium, and refilled Risperidone and Mobic. Id.

         On November 16, 2015, Plaintiff presented to Dr. Aya-ay and reported having taken an extra Diazepam tablet daily due to a difficult month and requested a refill. Tr. at 322. Plaintiff also reported Risperidone had helped, but “things are crazy, ” as he still saw images of people coming out of the walls and he wrapped himself in plastic at home so he was not touched. Id. Dr. Aya-ay prescribed Atenolol and Diclofenac Sodium, modified Risperidone, and refilled Diazepam. Id.

         On December 14, 2015, Plaintiff presented to Dr. Aya-ay and reported Risperidone helped and his hallucinations had improved. Tr. at 331. However, Plaintiff also reported pain throughout his body, muscle aches, and a back ache. Id. Dr. Aya-ay refilled Diazepam and Risperidone and prescribed Norco. Id.

         On March 21, 2016, Plaintiff presented to Dr. Aya-ay and reported “he [was] doing okay” and “Risperidone [was] a lifesaver” because it slowed down his mind at night. Tr. at 330. Plaintiff also reported his twelve-year-old cat had died and he missed talking to it. Id. Plaintiff requested additional medication to address his pain, as it was more severe since he stopped consuming alcohol. Id. Plaintiff reported he had cut his pain medication into thirds and made it last three months. Id. Dr. Aya-ay assessed stable anxiety, depressive disorder, and psychosis and refilled Diazepam, Risperidone, and Norco. Id.

         On April 5, 2016, Dr. Aya-ay noted Plaintiffs issues as anxiety state, depressive disorder, psychosis, and hypertension, and his permanent prescriptions included Diazepam, Mobic, Norco, and Risperidone. Tr. at 303, 305. Dr. Aya-ay also noted Plaintiff seldom drank alcohol. Id. Similar notes were recorded on June 1, 2016, and November 4, 2016. Tr. at 309-13.

         On June 10, 2016, Plaintiff presented to Dr. Aya-ay and reported increased hallucinations and anxiety. Tr. at 326-29. Plaintiff also reported a lot of stress at home and requested additional medication. Id. He indicated his medication helped, but he had been without it for a few days. Id. Dr. Aya-ay noted Plaintiff needed to see a psychiatrist and follow up with mental health or a private doctor. Id. Dr. Aya-ay assessed anxiety, depressive disorder, psychosis, and hypertension and refilled Diazepam, Norco, and Risperidone. Id.

         On August 16, 2016, Joseph Grace, Ph.D. (“Dr. Grace”) evaluated Plaintiff. Tr. at 308, 314-21. Dr. Grace based his evaluation on medical records from Dr. Aya-ay dated June 1, 2016, a plan of care submitted by the South Carolina Department of Mental Health (“Mental Health”) dated June 23, 2016, a Personal Inventory for Psychological Disability Assessment completed on July 29, 2016, extended clinical interviews and cognitive counseling on July 28, August 5, and August 16, 2016, and a Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”) administered on August 3, 2016. Tr. at 314. Dr. Grace noted Plaintiff completed the seventh grade, obtained a GED while in prison, and was accompanied to all sessions by Ms. Pruitt and her daughter, described as Plaintiffs family and caretakers. Tr. at 314-15. Plaintiff reported having been homeless for five years before moving in with Ms. Pruitt. Tr. at 315. Dr. Grace noted Ms. Pruitt and her daughter were “instrumental in obtaining comprehensive interviews” and “assisted in stabilizing [Plaintiff] emotionally when discussing stressful and tragic issues and providing information [or] clarification regarding his sometimes vague descriptions and gaps in his reports.” Id.

         Dr. Grace provided a detailed review of Plaintiffs education, conviction, family, work, marital, medical, emotional, and psychiatric histories. Tr. at 314-21. Plaintiffs mother was diagnosed with paranoid schizophrenia and was a harsh disciplinarian, and his father was abusive. Id. After harsh beatings, Plaintiffs mother kept him home from school to avoid investigation. Id. During his childhood, Plaintiff almost drowned, witnessed his mother jump from a moving vehicle, lost his best friend in a car accident, and had frequent fights with gang members for being in their territory. Tr. at 315-16. When Plaintiff was twenty-four years old, his father died from a metastatic disease and his mother starved herself to death the following year. Tr. at 316. Ms. Pruitt relayed that Plaintiff became more emotionally unstable with erratic behavior after his parents' deaths. Id.

         Plaintiff had two failed marriages and reported serving prison sentences that amounted to seven years for domestic violence, failure to pay child support, DUI, and sexually abusing a minor. Tr. at 316-17. Plaintiff reported a sporadic work history that ended due to “work-related injuries, perceived harassment by co-workers, and extreme discomfort with the work environment.” Tr. at 317.

         Plaintiff had been diagnosed with depressive disorder, panic disorder, PTSD, psychosis, schizophrenia, paranoia, bipolar disorder, and schizoaffective disorder, bipolar type, and he currently received treatment from Dr. Aya-ay. Tr. at 317-18. Plaintiffs symptoms included depressed mood, increased anhedonia, excessive worry, frequent anxiety, sleep disturbances, extreme daytime fatigue with little stamina, decreased concentration and short-term memory, difficulty making routine decisions, increased irritability with low frustration tolerance, hypervigilance and uncomfortableness around strangers, frequent nightmares, daily panic episodes, racing thoughts, inability to stay focused on any topic, alienation, hallucinations, delusions of persecution and control, and “very confused, disturbed thinking.” Tr. at 318-19.

         Plaintiff was “shabbily dressed and unkempt during all interviews.” Tr. at 315. Plaintiff “was a rambling informant, ” “emotionally labile, ” “could generally relate significant events in his life but struggled with dates, ” “strayed from issues he had presented, ” and “perseverated on issues with a tendency to provide much irrelevant information.” Id. Plaintiff was oriented to time, person, and place, but indicated he frequently experienced ...

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