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Christon B. v. Berryhill

United States District Court, D. Oregon

November 30, 2018

CHRISTON B., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          AMENDED FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

         Christon B. (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons that follow, the Court recommends that the district judge reverse the Commissioner's decision because it is based on legal error and not supported by substantial evidence.

         BACKGROUND

         Plaintiff was born in December 1976, making him thirty-six years old on May 15, 2013, the day he filed his protective application.[2] (Tr. 67, 78.) Plaintiff has “at least a high school education” and past relevant work as a compression molding machine tender. (Tr. 77-78.) In his application for benefits, Plaintiff alleges disability due to schizophrenia and depression. (Tr. 124, 138.)

         On June 27, 2012, approximately one year before he filed his application, Plaintiff visited Patricia Chance (“Chance”), a licensed clinical social worker with the Oregon Department of Corrections (“ODOC”).[3] Chance noted that Plaintiff reported that he experiences “‘ghosts and cold feeling'” sensations that “started post-methamphetamine abuse, ” and that he “preferred heroin which he use[d] since 18 [years old].” (Tr. 383.) Plaintiff acknowledged that the foregoing sensations were “controlled by medication.” (Tr. 383.) Plaintiff also “acknowledged that he wants to receive [Social Security benefits] and is not motivated to return to work as a pipe fitter.” (Tr. 383.) Chance observed that Plaintiff's “[d]escribed symptoms may be post drug use or malingering for [a] depressant and [the] possibility for [Social Security], ” and no follow-up was necessary because Plaintiff is “not motivated to actively participate in counseling” sessions. (Tr. 383.)

         In a treatment record dated April 29, 2013, Brandie Fazal (“Fazal”), a social worker and certified addiction counselor with ODOC, noted that Plaintiff had been diagnosed with a psychotic disorder not otherwise specified (“NOS”) “with moderate acuity”; that Plaintiff endorsed auditory and visual hallucinations that “cannot be justified through the diagnosis of schizoaffective [disorder] or schizophrenia”; and that Plaintiff was scheduled to be released on parole on May 6, 2013, the week before he filed his protective application. (Tr. 370.) That same month, Plaintiff informed Fazal that “his current medication regimen is continuing to work for him, ” and Fazal observed that Plaintiff is “consistent about taking his medications and . . . realize[s] that he ‘needs them' and they work for him and his [mental health] symptoms.” (Tr. 371.)

         On June 19, 2013, Plaintiff visited Dr. Marcela Vinocur (“Dr. Vinocur”), a psychiatrist. Plaintiff reported that he “has not had any recent symptoms, ” he “has not had depressive symptoms in about ten years, ” he “has experienced auditory hallucinations” in the past, he has “a history of IV drug use, ” his “drug of choice is heroin, ” and he recently used methamphetamine. (Tr. 411.) Dr. Vinocur noted that Plaintiff's urinalysis was “positive for amphetamines and benzodiazepines, ” Plaintiff's cognitive function was “grossly intact, ” Plaintiff's insight and judgment seemed “fair at best, ” Plaintiff's grooming and hygiene seemed “adequate, ” and Plaintiff denied any “active psychiatric symptoms, ” including “active hallucinations.” (Tr. 411.) Dr. Vinocur's diagnoses included psychotic disorder NOS, anxiety disorder NOS, nicotine dependence, opioid dependence, insomnia, hepatitis C, and “recent use of meth[amphetamine].” (Tr. 411.)

         On July 12, 2013, Plaintiff established care with Hugh Gapay (“Gapay”), a certified physician's assistant. Plaintiff complained of a toothache and “request[ed] some additional Vicodin until he can get to the dentist which should be some time next week.” (Tr. 390.) Plaintiff also stated that his “mental health issues [were] well controlled at [that] time.” (Tr. 390-91.) Gapay noted that his exam was “[p]ositive for depression” and “[n]egative for suicidal ideas, hallucinations, memory loss, and substance abuse, ” Plaintiff was “nervous/anxious and has insomnia, ” and Plaintiff's mood, affect, behavior, judgment, and thought content were normal. (Tr. 390-91.)

         On July 31, 2013, Plaintiff presented for a follow-up visit with Dr. Vinocur. Plaintiff reported that “he recently ‘detoxed off Vicodin, '” he experienced “withdrawal symptoms including nausea and emesis” when he stopped taking Vicodin, his mood was “good, ” he had “not experienced depression symptoms for a month or two, ” he felt “poorly after he relapsed on meth approximately two months ago, ” he “has not experienced any recent psychotic symptoms, ” his “mood has been fairly stable, ” and “[i]n general, he feels as if he has been doing fairly well.” (Tr. 416.) Dr. Vinocur noted that Plaintiff seemed “to be doing fairly well” overall, Plaintiff's grooming and hygiene seemed “fair to good, ” Plaintiff exhibited “good eye contact, ” Plaintiff's affect was “full-range and appropriate, ” Plaintiff's thought process was “generally goal-directed, ” Plaintiff's thought content was “appropriate, ” and Plaintiff's insight and judgment seemed “fair.” (Tr. 416.)

         On August 16, 2013, Kara Radecki (“Radecki”), a qualified mental health practitioner, noted that Plaintiff's recent urinalysis “came up positive for amphetamines, ” and Plaintiff “self-admitted to his amphetamine use, reporting that he relapsed after a breakup with his girlfriend.” (Tr. 418.)

         On September 23, 2013, Radecki noted that Plaintiff showed “little willingness to discuss his recent relapses” and reported “he's now enrolled in classes” at Portland Community College (“PCC”). (Tr. 419.) Shortly thereafter, Radecki stated that Plaintiff had been “properly managing his [financial aid] paperwork and submitting necessary forms in a timely manner, ” Plaintiff “self-report[ed] no current mental health-related symptoms or stressors, ” and Plaintiff presented “as goal-oriented and positive while talking about school and becoming a diesel mechanic.” (Tr. 420.)

         On October 3, 2013, Radecki noted that Plaintiff missed his appointment, but he had “been doing ‘good' and keeping busy with going to school and to the gym three times per week.” (Tr. 421.)

         On November 13, 2013, Plaintiff presented for a follow-up with Dr. Vinocur. Plaintiff reported that he was “doing quite well” and denied “current affective or psychotic symptoms.” (Tr. 426.)

         On December 11, 2013, Dr. Vinocur noted that Plaintiff seemed “to be doing fairly well, ” Plaintiff “got a C in his math class and [was] pleased, ” Plaintiff planned “to take an engine rebuilding class” after his winter break, Plaintiff was “alert and fully oriented, ” Plaintiff denied “any recent psychotic symptoms, ” and Plaintiff's insight and judgment seemed “fair to good.” (Tr. 426-27.)

         On December 17, 2013, Plaintiff was referred to Dr. Donna Wicher (“Dr. Wicher”), a medical and clinical psychologist, for a comprehensive psychodiagnostic evaluation. (Tr. 404-08.) Plaintiff complained primarily about “depressed mood, impaired memory and concentration, fearfulness, fatigue, stress, nervousness, extreme sadness, low self-esteem, momentary feelings of panic, compulsiveness, and sleep disturbance.” (Tr. 404.) Plaintiff also reported that he “fears that ghosts are present at times, ” that he “no longer hear[s] voices since shortly after he began taking risperidone, ” and that it “has been 10 years since he used any” methamphetamine. (Tr. 404-06.)

         Based on a clinical interview and review of Plaintiff's ODOC records, an adult function report, and an activities of daily living form, Dr. Wicher's primary diagnoses were schizophrenia and polysubstance abuse “presently in remission.” (Tr. 407.) Dr. Wicher also stated that: (1) Plaintiff reported “ongoing symptoms of depression, but they appear to be an associated feature of his underlying Schizophrenia, ” a condition that is “chronic and is unlikely to remit”; (2) Plaintiff reported “improvement in his symptoms with his current medication regimen”; (3) “any type of substance abuse could easily aggravate [Plaintiff's] symptoms of psychosis”; (4) Plaintiff “described moderate deficits in his ability to perform activities of daily living, based on his lack of a regular routine, neglect of grooming and hygiene needs, and irresponsibility in handling money”; (5) Plaintiff “appears to have moderate to marked deficits in social functioning, based on his relative social isolation and discomfort around others”; (6) “some mild concentration difficulties were suggested by [Plaintiff's] mental status testing”; (7) Plaintiff's “pace was not formally assessed, but he was unable to complete a background questionnaire administered prior to the evaluation in a typical amount of time”; (8) Plaintiff's “deficits in concentration, persistence, and pace appear to be moderate”; (9) Plaintiff “did not report a history of any recent, lengthy episodes of psychological decompensation, but he appears to function at a marginal level on an ongoing basis”; (10) Plaintiff's “moderate deficits in his ability to perform activities of daily living, moderate to marked deficits in social functioning, and moderate deficits in concentration, persistence, and pace represent the primary psychological barriers to returning him to full-time, sustained employment”; and (11) “[w]ith ongoing medication management and continued abstinence from drug use, [Plaintiff's] functioning may stabilize further, increasing the likelihood that he could sustain employment more successfully in the future.” (Tr. 407-08.)

         On January 8, 2014, Plaintiff reported that “he was doing well and . . . thing[s] were going well for him lately.” (Tr. 428.) Plaintiff also reported that he was “not having any troubles with cravings or with [mental health] symptoms, ” and he “started his next semester of school and that it seem[e]d like there [would] be a lot of reading but he [was] not too worried about it yet.” (Tr. 428.) Around the same time, Plaintiff reported that he “passed all of his [first semester] classes, ” and he was keeping busy by, inter alia, going to school and “lifting weights 3 times a week.” (Tr. 428.)

         On January 15, 2014, Dr. Bill Hennings (“Dr. Hennings”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 130.) Based on his review of the record, Dr. Hennings concluded that Plaintiff's mental impairments failed to meet or equal listings 12.03 (schizophrenic, paranoid, and other psychotic disorders) and 12.09 (substance addiction disorders).

         Also on January 15, 2014, Dr. Hennings completed a mental residual functional capacity assessment form, in which he rated Plaintiff's limitations in each of sixteen categories of mental ability. (Tr. 131-33.) Dr. Hennings rated Plaintiff to be “[n]ot significantly limited” in twelve categories and “[m]oderately limited” in four categories. (Tr. 132-33.) In addition, Dr. Hennings determined that: (1) Plaintiff can “understand and follow simple 1-2 step tasks”; and (2) if Plaintiff worked in a “slow placed routine setting not in direct contact with [the] public, ” he can sustain the attention, concentration, and pace necessary for “simple 1-2 step task completion.” (Tr. 132-33.)

         On May 12, 2014, Plaintiff visited Laura Escalona-Flores (“Escalona-Flores”), a social worker at Luke-Dorf. Plaintiff reported that he was evicted from structured housing on March 20, 2014, “due to several ‘dirty UA's, '” he was recently denied Social Security benefits, he had “been ‘depressed' since he moved out, ” and he “relapse[d] on meth approximately three weeks ago.” (Tr. 485.) Plaintiff also reported that “he dropped out of his [d]iesel mechanics program recently, ” he was “no longer attending school, ” and he “may consider employment in the future.” (Tr. 485-86.) Escalona-Flores noted that Plaintiff's “reporting appear[ed] to be inconsistent with the record from [another clinic] in regards to his substance use.” (Tr. 485.) In addition, Escalona-Flores noted that it was “unclear” how much Plaintiff's substance use and trauma history (i.e., Plaintiff's fiancé reportedly died unexpectedly in 2006) “has impacted his presenting symptoms [i.e., depression and auditory and visual hallucinations] and reported history of symptoms.” (Tr. 485.)

         On June 10, 2014, Dr. Dorothy Anderson (“Dr. Anderson”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 143.) Like Dr. Hennings, Dr. Anderson found that Plaintiff's mental impairments failed to meet or equal listings 12.03 and 12.09.

         Also on June 10, 2014, Dr. Anderson completed a mental residual functional capacity assessment form, in which she rated Plaintiff's limitations in each of sixteen categories of mental ability. (Tr. 145-46.) Like Dr. Hennings, Dr. Anderson rated Plaintiff to be “[n]ot significantly limited” in twelve categories and “[m]oderately limited” in four categories. (Tr. 145-46.) In addition, Dr. Anderson determined that: (1) Plaintiff “can consistently remember simple 1-2 step instructions”; (2) Plaintiff “can consistently maintain” the concentration, persistence, and pace necessary “for simple tasks for normal 2 hour work periods”; and (3) if Plaintiff worked in a “slow placed routine setting not in direct contact with [the] general public, ” he would be able to sustain the attention, concentration, and pace necessary for “simple 1-2 step task completion.” (Tr. 145-46.)

         On October 1, 2014, Plaintiff visited Daniel Martino (“Martino”), a certified physician's assistant. During the visit, Plaintiff complained of blurred vision, lightheadedness, and syncopal episodes, and he reported “[i]ntermittent use of methamphetamine.” (Tr. 470.) Martino encouraged Plaintiff “to commit himself to being clean” and “discussed how use of recreational drugs, specifically meth[amphetamine], complicates the work up for these concerns he has.” (Tr. 472.)

         On April 29, 2015, Plaintiff visited Dr. Vinocur and admitted that he relapsed “on meth[amphetamine] on a couple of occasions recently” because he was “having difficulties with his roommate, ” who allegedly stole from him and “damaged his personal property.” (Tr. 444.) Plaintiff also reported “doing fairly well” and having “good control of psychotic symptoms.” (Tr. 444.)

         On May 19, 2015, Plaintiff reported that he “continues to use methamphetamine.” (Tr. 494.)

         On September 8, 2015, Plaintiff informed Dr. Kimberley Neroda (“Dr. Neroda”), that he continued to experience lightheadedness and that he last used methamphetamine in August 2015. (Tr. 449.)

         On September 23, 2015, Plaintiff presented for a follow-up visit with Dr. Vinocur. Plaintiff “denie[d] auditory hallucinations but endorse[d] sometimes bothersome tactile hallucinations.” (Tr. 442.) Plaintiff also “endorse[d] some mild depressive symptoms and state[d] that he has been having nightmares.” (Tr. 442.) In addition, Plaintiff admitted that he “has made threats towards” his mother's husband because he feels disrespected “when he asks [him] to do certain things” around the house, and he “might hurt him if he continues to feel pressed[.]” (Tr. 442.)

         On May 6, 2016, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 86-109.) Plaintiff testified that he lives with his mother, he does not have a driver's license because he “got a DUI” when he was eighteen years old and “never went through their class, ” he earned his General Equivalency Degree, he went to PCC but decided to stop because “it was just too difficult, ” and he made money over the course of the last three months by “buying things from thrift stores and selling them on eBay.” (Tr. 92-94.) Plaintiff also testified that he cooks “TV dinners, ” he spends a “quarter of [his] day” taking pictures of the items that he bought at thrift stores and conducting sales on eBay, and he spends time organizing his belongings, going out to eat with “a couple friends, ” and watching movies with a friend. (Tr. 94-95.)

         When asked about his primary barriers to sustaining gainful employment, Plaintiff cited episodes of distorted vision and fainting, his “really bad” short-term memory, and the fact that he gets easily “confused” when performing multi-step tasks. (Tr. 95-98.) In addition, Plaintiff testified that he has not had any visual hallucinations “for some months now, ” he feels like he is being “touched mostly on [his] legs and [his] feet” and he “feels like it's getting worse, ” he used methamphetamine approximately three months ago, and his medications help a little bit. (Tr. 98-99.)

         The ALJ posed a series of hypothetical questions to a Vocational Expert (“VE”) who testified at Plaintiff's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform work at all exertion levels, subject to these limitations: (1) the worker cannot climb ladders, ropes, or scaffolds; (2) the worker cannot work around heights or dangerous machinery; (3) the worker is only “able to remember, understand, and carry out tasks or instructions consistent with occupations of [a Specific Vocational Preparation level of] 1 or 2”; (4) the worker cannot meet fast-paced production requirements, and therefore needs to be limited to work “involving only simple work-related decisions with few, if any, workplace changes”; (5) the worker cannot “perform work that requires interaction” with the public; and (6) the worker can “work in proximity to coworkers, but would do best performing tasks that do not require teamwork.” (Tr. 105-06.) The VE testified that the hypothetical worker could not perform Plaintiff's past work as a compression molding machine tender, but the worker could be employed as an industrial cleaner and salvage laborer. (Tr. 106-07.)

         Responding to the ALJ's second hypothetical, the VE testified that the hypothetical worker could be employed as an industrial cleaner and salvage laborer, even if he was limited to “medium work such as lifting 25 pounds frequently and 50 pounds occasionally, and stand[ing] or walk[ing] and sit[ting] for up to eight hours in each of those categories[.]” (Tr. 107.) Responding to the ALJ's final hypothetical, the VE confirmed that the hypothetical ...


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