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Lee v. Colvin

United States District Court, D. Oregon, Portland Division

December 15, 2014

FRANKLIN LEE, Plaintiff,
CAROLINE W. COLVIN Acting Commissioner of Social Security, Defendant

For Franklin R. Lee, Plaintiff: Kathryn Tassinari, LEAD ATTORNEY, Brent Wells, Harder, Wells, Baron & Manning, P.C., Eugene, OR.

For Commissioner Social Security Administration, Defendant: Lisa Goldoftas, LEAD ATTORNEY, Social Security Administration, Office of General Counsel, Seattle, WA; Ronald K. Silver, LEAD ATTORNEY, United States Attorneys Office, Portland, OR.


JOHN V. ACOSTA, United States Magistrate Judge.


Claimant Franklin Lee (" Claimant") seeks judicial review of the final decision by the Commissioner of Social Security (" Commissioner") denying his application for Supplemental Security Income (" SSI") under Title XVI of the Social Security Act. See 42 U.S.C. § § 1381-83(f). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Following a careful review of the record, the court should reverse the Commissioner's decision and remand with instructions to award disability benefits to Claimant.

Procedural History

Claimant previously applied for SSI benefits in June 1993, November 1996, May 2000, and August 2004. Tr. at 15. On March 29, 2007, an ALJ denied the August 2004 application. Id. Claimant did not appeal the decision, Tr. at 17.

Claimant most recently filed for SSI benefits on January 17, 2010, alleging disability beginning October 10, 2009. Tr. at 15. The Commissioner denied the claim initially and upon reconsideration. Id. Claimant appeared and testified at a hearing before Administrative Law Judge Mary Kay Rauenzahn (the " ALJ"), who issued a decision finding Claimant was not disabled. Tr. at 15, 27. Claimant timely requested review of the ALJ's decision, but the Appeals Council denied the request, making the ALJ's opinion the Commissioner's final decision. Tr. at 1. Claimant filed for review of the final decision in this court on May 13, 2013.

Factual Background

Claimant is forty-three years old and lives in Lebanon, Oregon. Tr. at 42. He is not married and currently lives with his mother. Id. Claimant was married twice before and has three children who live with their respective mothers. Tr. at 405. Claimant does not appear to have a relationship with his children. Tr. at 405-06. He does not have a driver's license and stated the DMV rescinded it in 2003 after his doctor " put a thing with the DMV to stop [his] license." Id. Claimant graduated from high school, where he was enrolled in special education classes for reading and writing. Tr. at 43. He currently receives food stamps and depends on his mother for all other expenses. Tr. at 50.

Prior to his most recent application for disability benefits, Claimant served an eighteen-month prison sentence for " encouraging child sex" by possessing child pornography on his computer. Tr. at 253. Claimant completed a psychological evaluation while at the Oregon State Correctional Institution (" OSCI") and was diagnosed with schizophrenia-paranoid type, borderline intellectual functioning, and Fetal Alcohol Syndrome (FAS). Tr. at 405-414. The FAS diagnosis was based on Claimant's self-reports of his mother's heavy alcohol use during pregnancy and a FAS diagnosis by a previous doctor. Tr. at 412, 415. In his evaluation, Claimant reported auditory hallucinations, depression, and sleep problems. Tr. at 406. Claimant was granted parole and released from prison in October 2009. Tr. at 52.

Shortly after his release from prison, Claimant completed an intake evaluation with Laura Smith, M.A., at Linn County Mental Health (LCMH). Tr. at 253-67. Smith diagnosed Claimant with schizophrenia-paranoid type and pedophilia. Tr. at 255, 264.

In November 2009, Claimant completed a follow-up comprehensive evaluation with therapist Alice B. Cole, M.S., Q.M.H.P., at LCMH. Tr. at 249-52. Cole diagnosed Claimant with schizoaffective disorder-bipolar type, schizophrenia-paranoid type, pedophilia, and a possible factitious disorder. Tr. at 250.

Currently, Claimant receives ongoing medical treatment from primary care physician Dr. Mary Lou Belozer, M.D. (" Dr. Belozer"). Tr. at 57. Claimant has seen Dr. Belozer since 2010 for various medical complaints, including asthma, gout, and possible gallstones. Tr. at 234-36, 310-21, 331-32, 337. Claimant has not disclosed any psychiatric symptoms to Dr. Belozer. Tr. at 286-307. However, Dr. Belozer noted a diagnosis of paranoid schizophrenia in remission. Tr. at 289.

For mental health treatment, Claimant has seen psychiatrist Dr. Robert Vandiver (" Dr. Vandiver") since October 2009. Tr. at 240, 269-271. Shortly after Claimant was released from prison, Dr. Vandiver diagnosed him with schizoaffective disorder-bipolar type and ruled out schizophrenia-paranoid type. Tr. at 270. Claimant reported he experiences auditory hallucinations. Tr. at 244, 260, 369. Claimant told Dr. Vandiver he sometimes has difficulty sleeping because of the voices in his head but that he can ignore them at other times. Tr. at 244, 369. Dr. Vandiver prescribed Claimant perphenazine and amitriptyline to address his psychiatric condition, and his diagnosis has remained consistent over time. Tr. at 403.

In February 2012, Dr. Vandiver completed a report at the request of Claimant's counsel in which he concluded Claimant would be unable to sustain employment due to his condition. Tr. at 375. Dr. Vandiver explained that, if placed in a work environment, Claimant would probably decompensate, would be unable to take criticism, and would likely be absent more than twice each month. Id. According to Dr. Vandiver, Claimant would need a job that places very little stress and demands on him in order for him to be successful. Id.

In addition to Dr. Vandiver, Claimant sees therapist Dena McMillen, formerly Dena Oaks (" McMillen"), on a regular basis at LCMH. Tr. at 39-40, 452-60. Claimant testified that he saw both McMillen and Dr. Vandiver whenever he had appointments at LCMH, at least twice a month. Tr. at 40, 48. McMillen's progress notes indicate Claimant attended group sessions with McMillen to discuss his treatment plan, medication management, and skills training. Tr. at 453, 455-59. McMillen's progress notes also indicate Claimant is doing well with his level of treatment and is " open with his communication, " Tr. at 455, 458-59.

McMillen completed Claimant's Medical Source Statement (" Statement") for the SSA where she noted Claimant has " marked limitations" [1] in several work-related activities. Tr. at 39, 364-66. McMillen marked checkboxes indicating the extent of Claimant's ability to perform certain activities and included handwritten notes identifying the factors supporting McMillen's assessment of those abilities. Tr. at 364.

In the Part 1 of the Statement, McMillen noted Claimant has marked limitations in his ability to (1) understand and remember simple instructions; (2) make judgments on simple work-related decisions; (3) carry out complex instructions; and (4) make judgments on complex work-related decisions. Tr. at 364. McMillen's handwritten notes indicate Claimant is diagnosed and treated for schizophrenia-paranoid type and experiences constant auditory and occasional command hallucinations that interfere with his communication skills. Tr. at 364.

In Part 2 of the Statement, McMillen noted Claimant has marked limitations in " interact[ing] appropriately with supervisor(s)" and " respond[ing] appropriately to usual work situations and to changes in a routine work setting." Tr. at 365. McMillen's handwritten notes indicate Claimant " struggles when a change happens, when he is asked to do simple tasks and gets easily frustrated." Tr. at 365. McMillen's notes also indicate Claimant " struggles to find/use proper words to express his needs" in conversation. Tr. at 365. In Part 3 of the Statement, McMillen added that Claimant " continues to isolate away from social interactions." Tr. at 365.

At the Commissioner's request, Dr. Joshua J. Boyd, Psy.D., also examined Claimant and his medical record. In March 2010., Dr. Boyd filled out the Psychiatric Review, SSA Form 2506-BK, after examining Claimant. Tr. at 207-224. Dr. Boyd examined Claimant once, during which Claimant was cooperative, but had fairly vigilant eye contact and a somewhat blunted character. Tr. at 219. Dr. Boyd concluded Claimant has mild restrictions in activities of daily living, moderate difficulties in social functioning, and moderate difficulties in maintaining concentration, persistence, and pace. Tr. at 217.

In August 2010, Dr. Megan D. Nicoloff, Psy.D., reviewed Claimant's file but did not meet or physically examine Claimant. Tr. at 229. After reviewing the file, including the 2007 non-disability ruling, ...

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