United States District Court, D. Oregon, Eugene Division
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHI, UNITED STATES MAGISTRATE JUDGE
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.
applied for SSI on October 31, 2013. Tr. 207. 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. 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.
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. Dr. Boyd opined
that Plaintiff could tolerate co-worker and supervisor
contact for brief work-related tasks that were simple and
routine. Tr. 77.
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.”
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.
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.
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. 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.
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.
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.
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.
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.
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.
urinalysis that day returned negative for drugs. Tr. 1050.
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.
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.
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.
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.
urinalysis from that date was again negative for drugs. Tr.
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.
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.
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.
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.
23, 2016, Plaintiff's urinalysis was negative for drugs.
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.
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.
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.
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.
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.
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.