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James F. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Eugene Division

May 3, 2019

JAMES F., [1] Plaintiff,




         James F. (“Plaintiff”) seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying his claim for Title XVI Supplemental Security Income (“SSI”) under 42 USC §§ 1381a and 1382c(a)(3)(A). This Court has jurisdiction pursuant to 42 USC § 405(g) and § 1383(c)(3). For the reasons set forth below, the Commissioner's decision should be reversed and remanded for award of benefits.


         Plaintiff applied for SSI on October 31, 2013. Tr. 207.[2] Plaintiff's claim was initially denied May 30, 2014, and again after reconsideration on September 12, 2014. On July 14, 2016, Administrative Law Judge (“ALJ”) Vadim Mozyrsky reviewed Plaintiff's case at a hearing. Tr. 18, 38. Plaintiff and a vocational expert, Ms. Erin Hunt, both testified at that hearing. Tr. 38.[3] On September 12, 2016, the ALJ found Plaintiff not disabled. Tr. 29. The Appeals Council denied Plaintiff's request for review. Tr. 1. Thus, the ALJ's decision became the final decision of the Commissioner, which Plaintiff now appeals. Compl., ECF No. 1.


         Plaintiff is a man in his early 50's who has suffered from HIV and associated conditions for over twenty years. Tr. 598. He is intermittently homeless, Tr. 713, 940, lives with family, Tr. 618, or with friends, Tr. 586. After Plaintiff filed his claim, Disability Determination Services (“DDS”) psychologist Joshua Boyd, PsyD. reviewed Plaintiff's medical records. TR 71. The DDS psychologist opined in a “Disability Determination Explanation” that Plaintiff had a history of mood and anxiety issues, as well as suicidal ideation in 2013. Id. He noted that while Plaintiff had an “unfortunate living situation and stress related to it, as well as HIV, there is no evidence clmt sx's [symptoms] preclude him from simple tasks at this time.” Id.[4] Dr. Boyd opined that Plaintiff could tolerate co-worker and supervisor contact for brief work-related tasks that were simple and routine. Tr. 77.

         On May 16, 2014, DDS physician Dr. Neal Berner noted Plaintiff's history of HIV, depression, anxiety, pain, and fatigue, but found Plaintiff oriented, able to prepare meals at times, get to food banks, bathe, use his phone, track multiple prescriptions, and perform calculations appropriately. Tr. 71. He noted that Plaintiff described his own barriers to employment at that time as primarily due to his physical condition. Id. Dr. Berner found that Plaintiff was restricted to sedentary level exertion. Tr. 75. Dr. Berner reviewed Plaintiff's counselor, Barbara Gibby-Smith's opinion, which stated that after observing Plaintiff, she “strongly believe[s] that he can't perform any kind of work.” Tr. 74. Dr. Berner found that this restriction was not consistent with objective psychological findings. Id. Dr. Berner also found there was “no evidence of any substance abuse disorder.” Tr. 79.

         DDS physician Dr. James Buskirk's opinion upon reconsideration reflected no substantial differences from the above opinions of Dr. Berner and Dr. Boyd, except that he found Plaintiff could perform light work. See Tr. 101-132. None of the physicians document drug or alcohol use in their reports. Id. Dr. Nathaniel Acrega, another DDS physician who reviewed Plaintiff's file upon reconsideration, stated that “this reviewer notes some limitation related to his narcotic therapy. However there is no evidence that he is affected by daytime sleepiness, his medication is at a plateau, ” Tr. 127.[5]

         At some point in the spring of 2015, Plaintiff began experiencing increased paranoia and hallucinations over a period of three to four weeks, and on June 1, 2015, voluntarily sought care at the Oregon Health and Science University (“OHSU”) Emergency Department (“ED”). Tr.1011-19. Plaintiff told nursing staff that he had lost time and memory and he wanted a full work-up because he feared he had been raped or drugged. Tr. 1019.

         Plaintiff's urinalysis that day was positive for methamphetamines. Tr. 1014, 1016. Plaintiff reported to ED staff that he “was given water a few days ago ‘that had something in it' and has not been eating or drinking since.” TR 1017-18. He denied taking methamphetamines and told the ER doctor that he thought someone was poisoning him. TR. 1016.[6] Although the ED physician considered the drug one of the potential causes of Plaintiff's altered mental condition, the ED physician did not diagnose Plaintiff with a drug-induced mental disorder. Tr. 1012, 1016. OHSU ED physicians discussed with Plaintiff the option of staying in the hospital for further evaluation of his physical and psychiatric condition. TR 1015-16. Plaintiff declined in-patient treatment at that time but went home with his mother, agreeing to follow up with his primary care physician. Tr 1016.

         Over the coming months, Plaintiff's mental state declined. In August, 2015, Plaintiff's medical case worker noted that Plaintiff “presents with paranoid thoughts of government mind control, refuses MH [mental health] eval.” Tr. 1075. On August 26, 2015, after his appointment with Plaintiff, and after reviewing the Plaintiff's case worker's notes, Plaintiff's primary care physician, Dr. Michael Macveigh, confirmed that Plaintiff suffered “ongoing mental health concerns.” Tr. 944-45.

         On September 16, 2015, Plaintiff arrived at Providence Medical Center ED by ambulance, with his mother reporting that for four to five months, Plaintiff had been talking to himself and experiencing hallucinations. Tr. 1038, 1042. His urinalysis was negative for drugs. Tr. 1044. Treating physician Dr. Brentliger noted that “there may be some element of delusional thinking in this patient.” Tr. 1042. The doctor did not admit Plaintiff for inpatient treatment, noting that Plaintiff was cooperative, did not appear dangerous or evidence thoughts of self-harm. Id.

         On October 15, 2015 Dr. Macveigh again charted that Plaintiff is still “concerned about governmental monitoring.” Tr. 955. Dr. Macveigh referred Plaintiff to psychologist Renata Ackermann, Ph.D.; Dr. Macveigh explained in his notes that Plaintiff's willingness to attend sessions with Dr. Ackermann was a result of Plaintiff's conviction that he did not have mental health condition, but that he was being surveilled by the government. Tr. 957. Dr. Macveigh charted his concern about a letter Plaintiff had shared with his case manager just before his appointment with Dr. Macveigh that day. Id. Dr. Macveigh described Plaintiff's letter as a “rambling multipage frankly paranoid and probably delusional description of [a] variety of concerns and believes [sic] that he has about government surveillance of him.” Id.

         Dr. Renata Ackermann evaluated Plaintiff four times; in October and December 2015, and in March and June, 2016 while Plaintiff continued regular treatment with Dr. Macveigh and his medical caseworker. Tr. 959, 962, 976, 1084. On October 23, 2015, Dr. Ackermann noted that Plaintiff stated “fiercely that he did not have any mental health distress.” Tr. 959. Dr. Ackermann's charting illustrates Plaintiff's delusional state expertly; while Plaintiff did admit feeling severely depressed a year before,

he was not concerned about that anymore as he had more important things to focus on as was outlined in the 6 page hand-written letter he brought with him and urged this provider to read after the session and then to handover the information to the FBI. Current symptoms included: "Kristen sent me to see you. There are things going on that are out of my control." "Thought control system; they are targeting gay/ HIV people." Has to do certain activities every day; "they put these command lists on me." States that usually between 9 - 11 pm he is outside watching the satellites. Started about 6-8 months ago when 2 federal agents showed up at his house; states that he has strong evidence, video and photo documentation, for what has been going on; also states that he should not talk more about it, that otherwise it will be affecting more people, including this provider. Can't contact his friends anymore because then they would become affected as well. Thought control through a hate group; "they try to isolate you; I have proof, as people on the street will call me out because I am HIV." When the system is active in him, his voice will change, deeper, more robotic; demonstrates it in session, is able to go back and forth.

Id. Plaintiff went on to report that he was unable to communicate with his partner in West Virginia because “he has the same issues as me; I can't communicate with him because of cell phone signals; the systems can read my mind.” Id. Dr. Ackermann's diagnosis was Delusional Disorder, persecutory type. Tr. 961. Dr. Ackermann noted that Plaintiff was unlikely to follow through with her recommendation of a psychiatric medication evaluation because “he does not believe his thinking is delusional and doesn't see a need for any mental health services.” Tr. 962.

         Dr. Ackermann's December 2, 2015 chart notes reveal that Plaintiff was “very agitated; states that he is terrified and worried about bad things happening. Relates elaborate delusional system about having implants in his spinal cord and information being transmitted to his brain. FBI involvement; governmental plot. Very paranoid.” Tr. 962. Dr. Ackermann diagnosed Plaintiff again with Delusional Disorder, persecutory type. Tr. 963. She charted that his “[s]ymptoms have [w]orsened as delusional thinking and sense of doom and urgency have increased.” Id. She stated Plaintiff was “insistent on delusions; cannot be redirected, ” and suffered from bizarre reasoning, poor judgment, and poor insight because he was “preoccupied with delusions.” Id. Dr. Ackermann described Plaintiff as red-faced, with pressured speech, restless, and with some rigidity to his motor control. Id. Plaintiff continued to refuse treatment with psychotropic medication, yet “due to his urgency and focus on delusional thinking, ” Dr. Ackermann reported that she was unable to work with Plaintiff to develop treatment goals. Id.

         Plaintiff's urinalysis that day returned negative for drugs. Tr. 1050.

         Dr. Macveigh's treatment notes from December 14, 2015 elaborate findings similar to those of Dr. Ackermann almost two weeks earlier. Tr. 964. The doctor wrote that Plaintiff “believes he had transmitters place in his spine, ” that he was being targeted to be killed due to a book he was writing, stated that “systems can raise his IQ to 232, ” and that he designed a car in three days. Id. Dr. Macveigh charted that Plaintiff gave comprehensive and detailed explanations, including hand-drawn depictions, of satellite tracking mechanisms and how they tracked his activities. Id. Plaintiff told Dr. Macveigh that the FBI would take the data out of him through removing the transmitters and that he would need medicating to undergo that procedure. Id. Out of fear of the imagined upcoming procedure, Plaintiff agreed to try psychotropic medication. Id.

         On January 13, 2016, Dr. Macveigh again charted that, “although it appears (to me [a]nd other staff) that he has a fixed delusion-he utterly rejects that label, ” and that Plaintiff continued to complain of FBI/CIA involvement in controlling him in great detail. Tr. 967. Dr. Macveigh noted that despite Plaintiff's persistent delusions, Plaintiff reported that the psychotropic medication helped him to relax and sleep, though he believed even his symptom management “related to how the CIA and other satellite controls are affecting him[.]” Tr. 968. Plaintiff refused to accept Dr. Macveigh's diagnosis of delusions, and Dr. Macveigh charted that Plaintiff attempted to provide him with “proof…shows me his phone (pictures of what look like the moon=(to him) a satellite tracking and following him.” Tr. 969.

         Dr. Macveigh's treatment notes from February 3, 2016 relate Plaintiff's continued delusional beliefs. Tr. 971. Dr. Macveigh described Plaintiff as flushed, in “moderate distress…and agitated form [sic] the get-go [;] specifically upset that I called out my impression re his descriptions as ‘fixed delusion'- and gives clear accounting of his belief that they are ‘illusions not delusions, and I know the difference.'” Tr. 972. The doctor stated that Plaintiff demonstrated to him “humanly, physically impossible' [sic] voices, robot-like movements, and ‘anti-gravity motions[.]' None are notable for what he believes them to represent.” Id. Plaintiff informed the doctor that he had been in contact with the FBI the previous day, discussing how to remove the implants. Tr. 973.

         On March 2, 2016, Dr. Macveigh charted Plaintiff's ongoing and increasingly detailed explanations of a system of surveillance which by that time Plaintiff had named “Mkultra.” Tr. 975. Dr. Macveigh wrote that Plaintiff listened to the doctor's recommendation regarding attempting another medication, but stated he was not amenable to trying it “right now.” Id. The doctor reported that Plaintiff informed him that he had spoken with an Mkultra expert in Utah about removal of his implants. Id. Dr. Macveigh concluded his exam by stating “I truly believe he is not able to work due to his psychiatric condition.” Tr. 976.

         Plaintiff's urinalysis from that date was again negative for drugs. Tr. 1047.

         Dr. Ackermann's assessment that same day paralleled Dr. Macveigh's and included details such as Plaintiff's claims that “God had come through, ” and that Plaintiff had “visions of angels sitting in trees. Knows they are real as he took pictures of them and they showed up in the pictures.” Tr. 976. Dr. Ackermann charted that Plaintiff reported that he “spends most of his days outside because he has to talk a lot to relieve tension; all of his muscles are really tense and taught [sic]; reports ‘bone crushing pain in his jaw.'” Tr. 977. She described Plaintiff as red faced, intense, agitated, intent on his delusional system of having his brain controlled, and unable to be redirected. Id. As in her previous evaluations of Plaintiff, Dr. Ackermann noted that he had poor judgment and insight as to his condition. Id. She noted that her plan was to see him again in one month and try again to convince him to accept psychotropic medications to control his delusions.

         On April 18, 2016, Dr. Macveigh, again reported that Plaintiff feared “body implanted devices by the government “mcKultra” (? Sp).” [sic]. Tr. 1080. Plaintiff told Dr. Macveigh that he had spoken to the FBI and that the FBI had confirmed the implants. Id. Plaintiff reported that a doctor from Providence had told Plaintiff that she should consult with Dr. Macveigh about the scan Plaintiff needed to “detect that microfilament nanotechnology.” Id. Dr. Macveigh wrote that Plaintiff “specifically denies ‘being crazy, but I know it sounds it.'” Id.

         Finally, on June 2, 2016, Dr. Ackermann's notes detail Plaintiff's conviction that he is connected to terrorist systems through Edward Snowden:

they use wireless technology to send signals through him that then create illusions; technology is made for the military. He actually feels things in his body guided by signals that are sent from satellites through these microchips into his brain. He believes that he is hooked to a super computer; and that things can be downloaded directly to his brain.

         Tr. 1084. Dr. Ackermann reported that Plaintiff finds this very distressing at times. Id. She wrote that Plaintiff described it as “human slavery by mind control, ” and that he is not allowed to have his own emotions; rather, “things will make me laugh and cry through signals that are sent.” Id. Dr. Ackermann charted that Plaintiff believes he is meant to kill on behalf of terrorist groups, but because he “has 2 PhD's…and is able to cope…they can't get me to become a killer for them; it's all in the mindset.” Id. Plaintiff told Dr. Ackermann that he is excited for “the story to be revealed soon” and to have the microchips removed, so that he can “come back to his own self.” Tr. 1085.

         On June 23, 2016, Plaintiff's urinalysis was negative for drugs. Tr. 1093.

         On June 30, 2016, Dr. Ackermann wrote a letter to Plaintiff's attorney outlining Plaintiff's mental condition as generally described above. Tr. 1096. Dr. Ackermann stated that Plaintiff “insists that he is not mentally ill, has no insight into his condition, and has refused any evaluation for or administering of psychotropic medication. He did agree to taking Remeron to be able to relax and sleep.” Id. She noted that Plaintiff was first diagnosed with depression in early 2014, and that his “mental status had been slipping and signs of delusional thinking started to be noted as early as May 2014.” Id. Dr. Ackermann opined “[g]iven that [Plaintiff's] consistent clinical presentation that has also been confirmed by his PCP, Dr. Macveigh, and his medical case manager, Kristen Meyers, it is my professional opinion that [Plaintiff] is unable to function in any type of work setting.” Tr. 1097.

         Dr. Ackermann attached a Mental Residual Functional Capacity Assessment she conducted to her letter to Plaintiff's attorney. Tr. 1098-1100. Dr. Ackermann found Plaintiff had “severe” problems in all tasks except four, out of a total of 20 possible tasks assessed. “Severe” on the check-box assessment form was defined as “totally precluded on a sustained basis and would result in failing even after short duration; e.g., 5-15 minutes.” These tasks were included in categories. First, under the category “Understanding & Memory, ” Plaintiff scored two “moderate” checks, indicating he had impaired (80-85% expected of normal levels) in his ability to remember locations and work-like procedures, and to learn to understand and remember short and simple (1 or 2-step) repetitive instructions. Id.

         Dr. Ackermann assessed Plaintiff with a severe score in his ability to understand or remember processes with more than three steps, and which may or may not be repetitive. Id.

         In all seven tasks associated with the category “Sustained Concentration & Persistence, ” Dr. Ackermann scored Plaintiff as having severe scores. Tr. 1099. Likewise, in all five tasks in the “Social Interaction” category, Dr. Ackermann scored Plaintiff as having severe limitations. Id. In the “Adaptation” category, Dr. Ackermann gave Plaintiff severe scores in three of five tasks, stating Plaintiff had moderate limits in his ability to be aware of normal hazards, and to travel in unfamiliar settings and use public transportation. Tr. 1099-1100.

         Dr. Ackermann checked each box describing “Effect of Work-Related Stressors, ” thus indicating Plaintiff would likely suffer increased impairment when encountering typical workplace stressors, such as production demands or quotas, disagreeable customers (even infrequently), attendance requirements, and the need to make either considered or quick, accurate, independent decisions for problem solving on a consistent basis. Tr. 1100. Dr. Ackermann checked “Yes” when asked if she considered Plaintiff “the type of person where a routine, repetitive, simple entry-level job would actually be a stressor and exacerbate his psychological condition.” Id. She also checked “Yes” when asked if Plaintiff suffered “a medically/psychologically determinable impairment that could reasonably be expected to produce” his symptoms. Id. Lastly, Dr. Ackermann repeatedly wrote on the form in her own handwriting that Plaintiff's “fixed delusional system” was the reason for her responses to the form questions and she referred the reader to her detailed letter accompanying the form. Tr. 1098-1100.

         Plaintiff was age 50 at the date of his hearing. Tr. 216. He is an English speaker who completed high school, Tr. 28, and then worked as a glass inspector (light level exertion work, semi-skilled); as a bar manager (light work, skilled); as an apartment maintenance person (medium work, semi-skilled); and as a caterer helper (light work, semi-skilled). Tr. 61.

         STANDARD ...

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