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Suber v. Berryhill

United States District Court, D. South Carolina

June 10, 2019

Christopher Andrew Suber, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges Columbia, South Carolina United States Magistrate Judge.

         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 March 7 and 12, 2014, [1] Plaintiff filed applications for DIB and SSI, respectively, in which he alleged his disability began on February 27, 2012. Tr. at 228-39. His applications were denied initially and upon reconsideration. Tr. at 99-100, 129-40, 149-54. On October 21, 2016, Plaintiff had a hearing scheduled before Administrative Law Judge (“ALJ”) Colin Fritz. Tr. at 71-74. The ALJ identified a potential issue regarding Plaintiff's cognitive capacity, as it appeared he had obtained a certificate through special education classes, rather than a high school diploma. Id. The ALJ determined it prudent to obtain a mental status examination and relevant high school records and rescheduled the hearing. Id.

         On April 21, 2017, Plaintiff had a hearing before the ALJ. Tr. at 32-70. (Hr'g Tr.). The ALJ issued an unfavorable decision on May 3, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 9-25. 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 February 14, 2018. [ECF No. 1].

         B. Plaintiff's Background, Medical, and Educational History

         1. Background

         Plaintiff was 24 years old at the time of the hearing, attended an alternative school, and received a certificate. Tr. at 34-38. His past relevant work (“PRW”) was as an assembly line worker. Tr. at 40-41. He alleges he has been unable to work since February 27, 2012. Tr. at 228-39.

         2. Medical History[2]

         On February 27, 2012, Plaintiff was admitted to Self Regional Healthcare (“Self Regional”) due to suicidal ideation. Tr. at 478-504, 573. A head computerized tomography (“CT”) scan and chest radiograph were unremarkable, but Plaintiff tested positive for marijuana. Tr. at 495, 502-04. Gregory Givens, M.D. (“Dr. Givens”), diagnosed depressive disorder and discharged Plaintiff on February 29, 2012. Tr. at 480.

         On May 29, 2012, Plaintiff was transported by law enforcement pursuant to a court order and admitted to Self Regional for evaluation. Tr. at 505-28. Plaintiff reported he did not “know why he [was] [t]here, ” and the sheriff reported Plaintiffs mother had requested assistance when he began making threats that he was going to kill someone. Tr. at 518-19. The attending physician noted Plaintiff was cooperative upon arrival, but became irate the following day while on the phone with family members and made several accusations and threats. Id. The attending physician administered medication, and Plaintiff became more cooperative and polite. Tr. at 521-26. A hand x-ray was unremarkable, but Plaintiff tested positive for tetrahydrocannabinol (“THC”) or marijuana. Tr. at 514, 516-17. Dr. Givens diagnosed paranoid state and discharged Plaintiff on June 2, 2012. Tr. at 507.

         On July 13, 2012, Plaintiff presented to Self Regional with complaints of high blood pressure, but “left after triage.” Tr. at 529-31.

         On October 20, 2012, Plaintiff presented to John Baker, M.D. (“Dr. Baker”), at the Family Healthcare Ware Shoals Self Medical Group (“SMG”), for a mental consultation. Tr. at 432-34. Dr. Baker noted Plaintiff had been walking around, having conversations with himself, going into rages, and knocking on doors for keys to a vehicle at 1:00 a.m. Id. Plaintiff was “very paranoid” and had been employed by several different employers. Id. Dr. Baker found Plaintiffs mood and affect were normal, but assessed acute paranoid disorder and referred him for a mental health “urgent visit.” Id.[3]

         On December 30, 2013, Plaintiff was admitted to Self Regional for evaluation. Tr. at 532-40, 561-72. Plaintiffs mother, Angela Martin (“Ms. Martin”), initiated involuntary commitment paperwork after he burned his clothes, ran into the woods, and stated he would shoot others. Tr. at 535. Amanda B. Salas, M.D. (“Dr. Salas”), noted Plaintiff had a two-year history of “indolent, but progressively worsening psychotic symptoms, and paranoia who now presented] on probate pick up through the emergency department for bizarre behavior and ongoing paranoia.” Tr. at 535. Dr. Salas also noted Plaintiff appeared to be “rather self protective and paranoid.” Id.

         Ms. Martin reported Plaintiff had “been walking around in the rain conversing with himself for hours on end, and responding to internal stimuli, ” he walked around that morning stating he smelled blood, and held a tire jack like a gun to protect himself. Tr. at 536. Ms. Martin was concerned “because his thinking ha[d] been so bizarre and unlike himself, that he perhaps could be at increased risk of harming others due to his disorganization” and noted he had been wandering the streets in a confused state for a period of time. Id. Ms. Martin reported incidents when Plaintiff accused others of “talking about him” or “pulling guns on him, ” noted he threw out a television because he believed it was “talking about him, ” lost his job working on refrigerators due to a failed drug screen, and lost four jobs in 2012 “due to his disorganization.” Id. Ms. Martin also reported members in the community and family members had contacted her to voice concerns and she feared “for the safety of people in the family as well as in the community.” Id.

         Dr. Salas noted it was Plaintiffs first formal hospitalization in a psychiatric facility, but he had two evaluations at a behavioral health holding unit in 2012 after using synthetic marijuana, with Ms. Martin reporting Plaintiff had “not been right in his thinking ever since.” Tr. at 537. Ms. Martin reported she moved Plaintiff out of her home in October 2012 because she “no longer fe[lt] safe with him.” Tr. at 537-38. After a failed attempt to live with his grandparents, Plaintiff moved to a trailer alone and his mother paid his expenses. Id. Plaintiff had failed attempts to quit smoking marijuana and cigarettes, but he did not drink alcohol. Tr. at 538.

         Dr. Salas found Plaintiff had increased latency to speech onset, diminished psychomotor activity and impoverished thought content and was guarded, suspicious, paranoid, and malodorous, with blunted affect and narrowed insight and judgment, but he reported a normal mood and was alert. Id. Dr. Salas noted Plaintiff was not responding to internal stimuli, but “his avoidance of stimuli suggested] that it [was] difficult for him to manage being in an overly stimulating environment.” Tr. at 538-39. Dr. Salas also noted Plaintiff was “willing to take medications, as he recogniz[ed] his thinking [was] off.” Tr. at 539. A brain CT scan from February 2012 showed “an incidental finding of left mastoid effusion, but no evidence of mass shift, herniation or intracranial hemorrhage for calvarial fracture.” Tr. at 538. Dr. Salas diagnosed chronic paranoid-type schizophrenia and cannabis and nicotine dependence, with a Global Assessment of Functioning (“GAF”)[4] score of 25.[5] Tr. at 534, 539. Dr. Salas involuntarily committed Plaintiff and noted,

I have reviewed the case records from February and May of 2012 as well as obtained collateral information from his mother Angela Martin as noted per above. This appears to be in an indolent yet chronic and progressively worsening onset of psychosis with positive and negative symptoms now congruent with the pattern of schizophrenia, despite previous treatment. He has attempted to abstain from marijuana, but now appears to be dependent on this substance which perhaps contributes to his worsening of psychiatric symptoms. Nonetheless, the chronicity of his symptomatology suggest exacerbation of primary severe mental illness, that is in need of antipsychotic treatment. Historically [Plaintiff] has been minimally cooperative and compliant with recommendations for treatment.

Tr. at 539. Dr. Salas prescribed Invega and anticipated a two-week hospitalization. Tr. at 539-40.

         On January 1-3, 2014, Dr. Salas and Emile A. Barrouk, M.D. (“Dr. Barrouk”), completed various progress notes. Tr. at 545-51, 559-60.

         On January 6, 2014, Dr. Salas noted Plaintiff had a guarded demeanor, blunted affect, narrow-to-poor insight and judgment, and increased latency to onset of speech with possible thought blocking and cognitive dulling. Tr. at 552-53. Dr. Salas also noted Plaintiff denied auditory and visual hallucinations, but staff had observed him responding to internal stimuli. Id. Plaintiff agreed to receive Invega Sustenna injections. Id.; Tr. at 463-67.

         On January 7 and 8, 2014, Dr. Salas completed progress notes. Tr. at 554-58. Dr. Salas noted Plaintiff had a court hearing scheduled the following day and she would recommend discharge with mandated outpatient mental health and substance abuse treatment. Tr. at 558.

         On January 9, 2014, Dr. Barrouk and Dr. Salas discharged Plaintiff and prescribed Trazodone. Tr. at 468-72. Dr. Salas diagnosed chronic paranoid-type schizophrenia and cannabis dependence and assessed a GAF score of 45 to 50.[6] Tr. at 542. Dr. Salas noted,

These last several days of time in the inpatient setting, he has been at least 48 hours without active symptoms of psychosis, although it is noted that his negative symptoms appear to persist at a level that is not congruent with where he was functioning in high school; however, they are not interfering with his ability to engage in daily activities or relationships that would otherwise warrant ongoing inpatient stay.

Tr. at 543. Dr. Salas noted an improved condition and discharged Plaintiff with mandated outpatient treatment at Beckman Mental Health Center (“BMHC”) and substance abuse treatment and scheduled monthly Invega injections. Id.

         On February 20, 2014, Plaintiff presented to Alfred R. Ebert, M.D. (“Dr. Ebert”), at BMHC. Tr. at 447-48. Plaintiff denied hallucinations or feelings that others were “out to get him” and reported his “mood [wa]s 100%.” Id. Plaintiff also reported he had not smoked cannabis or used any illicit drugs since discharge from the hospital and he felt “good about himself.” Id. Dr. Ebert found Plaintiff was alert, oriented, and cooperative and had good judgment and insight, euthymic mood, appropriate affect, logical or goal-directed thought process, and intact attention, concentration, and memory, with no psychomotor abnormalities. Tr. at 447-48. Dr. Ebert assessed paranoid-type schizophrenia and cannabis dependence with migraine headaches and prescribed Invega Sustenna shots every month with Trazodone. Tr. at 448.

         On February 23, 2014, Plaintiff presented to Self Regional via ambulance after a motor vehicle accident, with complaints of headaches, lacerations, contusions, swelling, and lower extremity pain. Tr. at 575-600. The attending nurse found Plaintiff was alert and oriented, with developmentally age-appropriate responses, but had pain and swelling over his left orbit. Tr. at 579. The attending physician found Plaintiffs left eye was swollen shut and his right lower leg was swollen, with ankle and foot tenderness, but his mood and affect were normal. Tr. at 580. Head and cervical spine CT scans reflected no evidence of acute intracranial abnormality, calvarial fracture, or malalignment, but reflected a left orbital blowout fracture. Tr. at 462, 596-97. A face CT scan reflected fractures of the left orbit involving the medial wall and floor, mild enlargement of the inferior rectus muscle, hemorrhage within the left maxillary sinus, left periorbital soft tissue swelling, and left mastoid effusion. Id.; Tr. at 595. A right ankle x-ray reflected moderate soft tissue swelling above the entire right ankle with a small joint effusion, and a foot x-ray reflected mild soft tissue swelling, but a leg x-ray reflected no tibial or fibular injury. Tr. at 598-600, 609-11. The attending physician assessed orbital and foot fractures, prescribed medications, discharged Plaintiff in stable condition, and recommended follow up with an orthopedist and Greenwood Eye Clinic. Tr. at 584-91.

         On February 26, 2014, Plaintiff presented to Jennifer Hershberger, M.D. (“Dr. Hershberger”), at Greenwood Eye Clinic, with complaints of pain, swelling, and blurry vision in his left eye. Tr. at 628-30. Dr. Hershberger assessed a left orbital floor fracture, tissue contusion, and conjunctival hemorrhage and scheduled a return visit in three weeks. Id.

         Also on February 26, 2014, Plaintiff presented to Charles D. Gray, M.D. (“Dr. Gray”), at Lakelands Orthopaedic and Sports Medicine Clinic (“Lakelands Orthopaedic”). Tr. at 612-14. Dr. Gray found swelling and tenderness along the medial and lateral aspect of the ankle and dorsum aspect of the midfoot and noted Plaintiff was unable to flex his ankle due to pain. Tr. at 613. X-rays revealed an avulsion fracture of the right foot's dorsum navicular. Tr. at 612. Dr. Gray assessed an avulsion fracture, with a large amount of swelling. Tr. at 613. Dr. Gray provided a splint, instructed Plaintiff not to place weight on his foot, and scheduled a follow-up visit. Id.

         On March 7, 2014, Plaintiff presented to Douglas F. Powell, M.D. (“Dr. Powell”), at Lakelands Orthopaedic, with continued complaints of pain and swelling. Tr. at 615-16. Dr. Powell found significant ankle and foot swelling with tenderness. Tr. at 616. Dr. Powell noted he could not rule out a medial malleolus or talus fracture, ordered a magnetic resonance image (“MRI"), and provided a walker. Id.

         On March 10, 2014, an MRI reflected multifocal osteo-edema, but no distinct fracture. Tr. at 617.

         On March 19, 2014, Plaintiff presented to Dr. Hershberger at Greenwood Eye Clinic for follow up. Tr. at 625-27. Dr. Hershberger performed an exam and noted Plaintiffs orbital floor fracture was doing well, his orbital tissue contusion and edema had improved, and his conjunctival hemorrhage was “almost resolved.” Id.

         On April 1, 2014, Dr. Hershberger noted Plaintiff had been seen twice for his left orbital fracture and swelling, there was “no treatment, ” his injury was “healing well, ” and he “should have no lasting effects.” Tr. at 623-24.

         On June 23, 2014, Aroon Suansilppongse, M.D. (“Dr. Suansilppongse”), a state agency physiatrist, reviewed the record and provided a psychiatric review technique (“PRT”) assessment. Tr. at 79-81, 92-93. Dr. Suansilppongse opined Plaintiff had mild restrictions in activities of daily living (ADLs”), moderate difficulties in maintaining social functioning, concentration, persistence, or pace, and one or two episodes of decompensation of extended duration. Id. Dr. Suansilppongse also completed a mental residual functional capacity (“RFC”) assessment. Tr. at 81-83, 93-95. Dr. Suansilppongse opined Plaintiff was moderately limited in his abilities to understand, remember, or 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, or complete a normal workday without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. Id. Dr. Suansilppongse explained,

[Plaintiff] is able to carry out simple instructions. His depressive reaction and alleged hallucinatory experience would interfere with his ability for sustained concentration and persistence or for task completion. However, [Plaintiff] would be able to complete tasks at an acceptable pace.

Tr. at 82.

         Dr. Suansilppongse opined Plaintiff would be moderately limited in his abilities to interact appropriately with the general public, accept instructions and respond appropriately to criticism, or get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 82-83. Dr. Suansilppongse explained, “[h]is social withdrawal and paranoid tendencies would interfere with his ability to interact appropriately with supervisors, coworkers or the public. However, he would be able to complete tasks with infrequent contact with others.” Tr. at 83. Dr. Suansilppongse opined Plaintiff would be moderately limited in his ability to respond appropriately to changes in the work setting or set realistic goals or make plans independently of others. Id. Dr. Suansilppongse explained Plaintiffs “transient cognitive dysfunction and marijuana abuse would occasionally interfere with his adaptability in a routine work setting.” Id. Dr. Suansilppongse provided an additional explanation for his overall mental RFC assessment, noting, “[Plaintiff] has [the] mental capacity for simple work related activity (1-2 steps tasks) with infrequent interactions with coworkers and the public. . . . [Plaintiff's] allegations are supported by [the medical evidence record] and credible.” Id.

         On June 24, 2014, Sonia Williams, M.D. (“Dr. Williams”), a state agency physician, reviewed the record and opined Plaintiff had no lasting effects from any physical injuries. Tr. at 78-79.

         On July 28, 2014, Plaintiff presented to Dr. Ebert for follow up. Tr. at 637-38. Plaintiff reported he took Trazodone, slept well, and his Invega shot kept him calm. Tr. at 637. Plaintiff also reported he felt “better about himself, ” went out more, and got along well with others. Id. Plaintiff denied using illicit drugs or drinking alcohol, having hallucinations and paranoia, or possessing any special powers. Id. Dr. Ebert found Plaintiff's appearance and eye contact were within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal for him, his associations, memory, attention, and concentration were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented to time, place, person, and circumstance, and his judgment and insight were good. Id. Dr. Ebert assessed a GAF score of 58[7] and noted Plaintiffs migraine headaches and diagnoses of paranoid-type schizophrenia and cannabis dependence. Id.

         On August 15, 2014, Douglas Robbins, Ph.D. (“Dr. Robbins”), a state agency psychologist, reviewed the record upon reconsideration and affirmed Dr. Suansilppongse's initial PRT and mental RFC assessments, noting Plaintiffs mental impairment was severe, but he had the capacity to perform “simple work related activity (1-2 steps tasks) with infrequent interactions with coworkers and the public.” Tr. at 107-12, 121-26.

         On August 20, 2014, George Walker, M.D. (“Dr. Walker”), a state agency physician, reviewed the record upon reconsideration and affirmed Dr. Williams' opinion, noting Plaintiff had no lasting effects from any injuries and did not allege physical limitations. Tr. at 106-07, 120-21.

         On January 21, 2015, Plaintiff presented to Dr. Ebert and reported he was “doing all right.” Tr. at 644-45. Dr. Ebert noted Plaintiff was compliant with medication and treatment, his sleep and appetite were normal, he denied mood lability, hallucinations, or delusional thoughts, and continued “to live independently and [was] looking for employment.” Tr. at 644. Dr. Ebert found Plaintiffs appearance and eye contact were within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, attention, and concentration were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented, and his judgment and insight were good. Id. Dr. Ebert assessed a GAF score of 60 and noted Plaintiffs migraine headaches and diagnoses of paranoid-type schizophrenia and cannabis dependence. Id. Dr. Ebert ordered bloodwork and noted Plaintiffs treatment goals were symptom reduction, medication adherence, maintenance of therapeutic gains, and restoration of functioning. Id. Dr. Ebert recommended follow up with a mental health clinician for psychotherapy interventions. Tr. at 645.

         On June 8, 2015, Plaintiff presented to Dr. Ebert and reported he was “working” and “doing well.” Tr. at 649-50. Plaintiff also reported his mood was good and denied hallucinations, paranoia, or marijuana use. Tr. at 649. Dr. Ebert noted counseling had been exhausted, Plaintiff was “busy, ” and he requested medical management only. Id. Dr. Ebert approved his request, with the understanding that Plaintiff would notify the nurse when he received his injection if he had any issues. Id. Dr. Ebert found Plaintiffs appearance was within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, attention, and concentration were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented, and his judgment and insight were good. Id. Dr. Ebert assessed a GAF score of 60. Id.

         On July 8, 2015, Plaintiff presented to Dr. Ebert and reported he was “doing well, ” he thought the “shot help[ed] a lot” and kept the hallucinations away, and he felt “better.” Tr. at 647-48, 660-61. Plaintiff also reported he continued to live by himself with no suicidal or homicidal thoughts. Id. Dr. Ebert noted Plaintiff was pleasant, logical, showed no evidence of decompensation, and denied use of alcohol or drugs. Tr. at 647. Dr. Ebert found Plaintiffs appearance was within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, attention, and concentration were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented, and his judgment and insight were good. Id. Dr. Ebert assessed a GAF score of 60. Id. Dr. Ebert noted Plaintiff agreed to continue his medication and understood why it was necessary. Tr. at 648.

         On February 29, 2016, Plaintiff presented to Dr. Ebert and reported he was “generally doing well, ” but sometimes heard voices or his name being called and saw shadows, with paranormal feelings. Tr. at 654-55, 658-59. Plaintiff also reported he received the Invega injection every month and had not consumed alcohol or used illicit drugs. Id. Dr. Ebert found Plaintiffs appearance was within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, concentration, and attention were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, and his judgment and insight were good, but he had delusions and “special thoughts.” Id. Dr. Ebert ...


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