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Powell v. Berryhill

United States District Court, E.D. Tennessee, Chattanooga

March 12, 2018

CHARLES POWELL Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION

          CHRISTOPHER H. STEGER UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff seeks supplemental security income under Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 1381 et seq. The parties have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Sixth Circuit [Doc. 16]. Pending before the Court are Plaintiff's Motion for Summary Judgment [Doc. 13] and Defendant's Motion for Summary Judgment [Doc. 17].

         For the reasons stated herein, the Court will REVERSE the Commissioner's decision and REMAND for further proceedings consistent with this opinion. Accordingly, the Court GRANTS Plaintiff's Motion [Doc. 13] as stated herein and DENIES Defendant's Motion [Doc. 17].

         II. Background

         A. Procedural History

         On July 13, 2012, Plaintiff protectively filed for supplemental security income (“SSI”) under Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 1381 et seq., with an alleged onset date of November 18, 2011 (Tr. 167-172). Section 1631(c)(3) of the Act, 42 U.S.C. § 1383(c)(3), provides for judicial review of a “final decision” of the Commissioner of the Social Security Administration (“SSA”). Plaintiff's claims were denied initially and upon reconsideration (Tr. 75, 87). On October 3, 2014, following a hearing held on July 25, 2014, administrative law judge (“ALJ”), Henry Kramzyk, found that Plaintiff was not under a “disability” as defined in the Act (Tr. 9-20).2 Plaintiff had sought disability due to illiteracy, IQ score of 69, depression, anxiety, anti-social disorder, and that he met the requirements of Listing 12.05C (Tr. 232-233). On March 22, 2016, the Appeals Council denied Plaintiff's request for review (Tr. 1-4). Thus, Plaintiff exhausted his administrative remedies, and the ALJ's decision stands as the final decision of the Commissioner subject to judicial review pursuant to 42 U.S.C. § 405(g).

         B. Relevant Facts

         Plaintiff's Age, Education, and Past Work Experience

         At the time of the hearing before the ALJ on October 3, 2014, Plaintiff was 53 years old. He was 50 years old at the time of his alleged onset of disability on November 18, 2011, and he has past relevant work as a dish washer/kitchen helper. He completed the eighth grade, having repeated the third and seventh grade twice (Tr. 298).

         Plaintiff's Testimony and Medical History

         On November 15, 2012, Plaintiff was evaluated as having a full scale IQ of 69, which is considered “extremely low” intellectual functioning (Tr. 301). In his disability report, Plaintiff alleged disability based on nerves, depression, and illiteracy (Tr. 185). Plaintiff's girlfriend helped Plaintiff fill out his function report because he cannot read or write beyond a very basic level. Plaintiff reported he lived with his mother, watched television, fed and petted his pets, performed personal care without assistance when reminded by his mother to do so, and prepared sandwiches and frozen dinners (Tr. 191-93, 195). He also wrote that he performed yard work when “Mom tells me to, ” and if he doesn't, he “get[s] whipped” (Tr. 194). He also reported he went outside daily, went shopping for groceries once a month, and he checked the box on the activities form indicating that he could pay his bills and count change; however, he reported he could not handle a savings account and use a checkbook “cause I can't read or wright [sic]” (Tr. 193-94). It is unclear what bills he paid since he lived with his mother and later his girlfriend. There is no evidence in the record that he has ever lived independently. For Plaintiff, paying bills may simply mean that he paid for groceries on his monthly shopping trip. It could mean something else. The record is undeveloped on this subject.

         Plaintiff reported he did not spend time with others and did not get along with authority figures. He checked the box that he had no problem getting along with family, friends, and neighbors, and that he had never been fired due to inability to get along with others (Tr. 195-97). Plaintiff also reported during his November 15, 2012, evaluation that, in his last job as a dishwasher, he “cussed out” his boss (Tr. 300). On the activities form, Plaintiff reported he went to church twice per week (Tr. 195). He reported also that he could not finish what he started, or follow instructions or pay attention. (Tr. 196-97). Plaintiff thought he handled stress “very badly, ” but handled changes in routine “very well” (Tr. 197).

         In his August 27, 2012, work history report, Plaintiff wrote that he worked labor and lawn maintenance jobs from 1990 to 1996, washed dishes from 1998 to 2000, and engaged in carpentry work and building clean-up in 2000 and 2001 (Tr. 205). On November 21, 2012, Jenaan Khaleeli, Psy.D., a state agency psychological consultant, reviewed Plaintiff's records and opined that Plaintiff had no episodes of decompensation; mild limitations in activities of daily living; moderate limitations in social functioning and concentration, persistence, or pace; and moderate limitations in the ability to interact with the public, the ability to accept instructions and criticism, the ability to get along with others and to engage in socially appropriate behaviors (Tr. 80-81). Upon reconsideration, Amin Azimi, Ed.D., reviewed Plaintiff's records and opined on February 13, 2013, that Plaintiff had no episodes of decompensation and moderate limitations in daily living, social functioning, and concentration, persistence, or pace (Tr. 92-93). Dr. Azimi found Plaintiff had severe impairments of anxiety and antisocial personality disorder, unspecific organic mental disorder, and a substance addiction disorder (Tr. 91).

         Medical records predating Plaintiff's July 13, 2012, application date show that he received mental health treatment from October 2009 to October 2010 when he was incarcerated (Tr. 237-291). Plaintiff told providers that he had been in and out of prison since 1984 (Tr. 237). He said that he had previously received disability benefits but that they were terminated when he went to jail in 1988 (Tr. 247). Plaintiff reported working part-time in 2010 (Tr. 251). In May and July 2010, he reported doing odd jobs for people with whom he went to church (Tr. 267, 269, 284). He also reported that he took care of his mother and did things around the house (Tr. 267).

         Evidence after Plaintiff's application date shows that he saw Dee Langford, Ed.D., for a psychological consultative examination on November 15, 2012 (Tr. 297-303). Plaintiff reported that he had received disability benefits for about a year beginning in 1987 until he was incarcerated (Tr. 297). Plaintiff told the doctor that he completed the eighth grade and had difficulties in school with truancy and fighting (Tr. 298). He said that he repeated grades three and seven, but he denied attending special education classes (Tr. 298). Plaintiff listed legal charges of driving on a revoked license, aggravated assault on police officers, assault with attempted murder, and possession of stolen property (Tr. 299).

         Plaintiff told Dr. Langford that he received mental health treatment before his incarceration, before his insurance ran out when he was locked up. (Tr. 299). The ALJ noted in his decision that Plaintiff had failed to fill out the paperwork to keep his state sponsored insurance. Plaintiff was living with his mother in a trailer (Tr. 298). He reported he had not had alcohol in about nine years. (Tr. 298). He reported homicidal and suicidal ideations with no intent or plans (Tr. 299). Plaintiff denied hallucinations, and the doctor noted that he did not appear to experience delusional thinking (Tr. 299). Plaintiff described his mood as sad, anxious, and depressed (Tr. 299). He reported daily activities of watching television, cleaning around the house doing “odds and ends, ” walking to the park, going to the store, cooking, washing dishes, sweeping, doing laundry, mowing the grass, and going to church (Tr. 300). He said that he could manage his medications and his finances with little difficulty (Tr. 300), “but he might need supervision” with his finances. (Tr. 303). Plaintiff lost his driver's license due to driving infractions (Tr. 300). Dr. Langford stated, “[h]e has seemingly exhibited anti-social behaviors for years, causing him to have been incarcerated at least 14 times. He appears to have had a sporadic work history, interspersed with these incarcerations, mostly related to his alcohol use” (Tr. 303).

         Upon mental status examination, Dr. Langford found Plaintiff was oriented and cooperative and displayed good eye contact (Tr. 299-300). He had normal speech and flat mood (Tr. 299-300). Plaintiff's responses were coherent and easy to understand, although also simplistic and concrete (Tr. 299). Plaintiff's thought processes were clear and logical (Tr. 299). He recalled his date of birth and social security number and knew how many months were in a year, but not how many weeks in a year (Tr. 299). Plaintiff could follow spoken, but not written, directions (Tr. 299). He could name common objects, but he showed poor use of basic vocabulary and poor basic math skills (Tr. 299).

         Testing revealed that Plaintiff obtained a full-scale IQ score of 69 on the Wechsler Adult Intelligence Scale, 4th edition (Tr. 301) . His reasoning abilities on verbal tasks were generally in the extremely low range, while his nonverbal reasoning abilities were in the low average range (Tr. 302). Dr. Langford stated the evidence showed that Plaintiff fell into the extremely low range of intellectual functioning and that he had mild problems with short-term memory and moderate concentration problems (Tr. 299-300). The doctor found moderate impairment in long-term memory (Tr. 300, 302). Dr. Langford wrote that Plaintiff had a moderate impairment in social relating and a marked impairment in his ability to adapt to change (Tr. 303). Diagnoses included generalized anxiety disorder, dysthymic disorder, and a rule-out diagnosis of mild mental retardation (Tr. 303). She assigned Plaintiff a GAF score of 45[1] (Tr. 303).

         Plaintiff started receiving mental health treatment on July 15, 2013, when he presented for a psychological evaluation with Sheila Beard, a licensed professional counselor (Tr. 387-399). Plaintiff reported that he had anger issues and had taken medication for his depression and mood swings in the past (Tr. 387). He told Ms. Beard that he was sent to prison in 2005 for charges of driving under the influence and aggravated assault (Tr. 387). He was jailed again in 2010 for driving on a revoked license and parole violation (Tr. 387). He spent 22 months in prison, and was released in June 2012 (Tr. 387). Plaintiff reported that he had an eighth grade education, could read at a third grade level, and had a suicide attempt in 1981 (Tr. 388).

         Upon examination, Ms. Beard observed that Plaintiff's appearance and behavior were appropriate, and he had no orientation problems (Tr. 394). Plaintiff's thought process was organized (Tr. 395). His speech was soft and slow, and he had sad and anxious affect (Tr. 394). Plaintiff's mood was dysthymic, and he endorsed hallucinations, worthlessness, and hopelessness (Tr. 395). Plaintiff endorsed suicidal ideation, but denied intent or plan (Tr. 395, 397). Ms. Beard noted that Plaintiff was neat and clean in appearance and appeared somewhat anxious (Tr. 395). She wrote that Plaintiff denied being physically aggressive with anyone since his release from jail (Tr. 395). Plaintiff reported sometimes hearing voices and seeing “human distorted looking figures. Ms. Beard diagnosed major depressive disorder (Tr. 397-98).

         At his medication services appointment the next day, Plaintiff reported that he was depressed, agitated, irritable, and more angry (Tr. 376). He denied violent behaviors (Tr. 376). Plaintiff reported that he heard auditory hallucinations, but they were mostly mumbling and he could not make out what they were saying (Tr. 376). Plaintiff said that he and his girlfriend tried to get out and camp and fish (Tr. 376). He said that he worked “here and there” doing construction work and yard work, or whatever he could pick up (Tr. 377).

         Examination on July 16, 2013, revealed that Plaintiff had normal thought processes, judgment, insight, orientation, and mood and affect (Tr. 378-79). He was not homicidal, suicidal, or violent (Tr. 379). Jennifer Miller, a nurse, prescribed amitriptyline (Tr. 381). Notes indicate that Plaintiff was scheduled to attend group therapy on July 22, 2013, but he did not show up for the appointment (Tr. 373). Plaintiff attended a case management appointment on July 29, 2013, but he did not attend his group therapy appointment scheduled for the same day (Tr. 365-67, 370). At an August 12, 2013, case management appointment, Plaintiff reported that he had improved sleep and decreased depression with his medication, and he denied experiencing any symptoms since starting medication (Tr. 363). Likewise, at his appointment the next day with Ms. Miller, Plaintiff reported that he was doing "pretty good" on his medicine and was less cranky (Tr. 357). He denied suicidal or homicidal ideation and hallucinations (Tr. 357). Examination revealed that he had normal speech, thought processes, judgment, insight, orientation, mood, and affect (Tr. 359). Notes stated that he had improved mood, was euthymic, and was not irritable (Tr. 360).

         Plaintiff did not show for his August 19, 2013, group psychotherapy appointment (Tr. 356). Plaintiff reported increased anxiety on August 26, 2013, due to conflict with his mother and sibling, and he said that he and his girlfriend would be moving soon (Tr. 354). At his September 9, 2013, case management appointment, Plaintiff again reported high anxiety due to family conflict (Tr. 352). However, he said his medications continued to help, and he denied any symptoms of dangerousness (Tr. 352). Plaintiff did not attend two scheduled group psychotherapy appointments in September 2013 (Tr. 350-51). Plaintiff was not home for his scheduled case management visit on September 23, 2013, so Sandra Austin, B.S., spoke with his girlfriend (Tr. 348). His girlfriend said that Plaintiff was resistant to moving because he thought it would disrupt his disability case (Tr. 348). Plaintiff reported that his mood had been stable at his October 7, 2013, case management ...


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