Ripley v. Comm'r of Soc. Sec.

• Decision Date: 04 December 2019
• Docket Number: CASE NO. 3:18-CV-02976-JDG
• Citation: 415 F.Supp.3d 752
• Parties: Timothy Lee RIPLEY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

415 F.Supp.3d 752

Timothy Lee RIPLEY, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

CASE NO. 3:18-CV-02976-JDG

United States District Court, N.D. Ohio, Eastern Division.

December 4, 2019

Edward A. Wicklund, Olinsky Law Group, Syracuse, NY, for Plaintiff.

Lisa Johnson, Office of the U.S. Attorney, Cleveland, OH, Social Security Administration, for Defendant.

MEMORANDUM OPINION & ORDER

Jonathan D. Greenberg, United States Magistrate Judge Plaintiff, Timothy Ripley ("Plaintiff" or "Ripley"), challenges the final decision of Defendant, Andrew Saul,¹ Commissioner of Social Security ("Commissioner"), denying his application for a Period of Disability ("POD") and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and 1381 et seq. ("Act"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is VACATED AND REMANDED for further consideration consistent with this opinion.

I. PROCEDURAL HISTORY

In March 2016, Ripley filed an application for POD and DIB, alleging a disability onset date of April 3, 2013, and claiming he was disabled due to bipolar disorder, depression, and anxiety disorder. (Transcript ("Tr.") at 58, 154.) The application was denied initially and upon reconsideration, and Ripley requested a hearing before an administrative law judge ("ALJ"). (Id. at 12.)

On November 9, 2017, an ALJ held a hearing, during which Ripley, represented by counsel, and an impartial vocational expert ("VE") testified. (Id. ) On April 19, 2018, the ALJ issued a written decision finding Ripley was not disabled. (Id. at 12-22.) The ALJ' s decision became final on October 30, 2018, when the Appeals Council declined further review. (Id. at 1-6.)

On December 28, 2018, Ripley filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 12, 14, 15.) Ripley asserts two assignments of error:

(1) The ALJ's mental residual functional capacity evaluation is unsupported by substantial evidence as she failed to reconcile the opinion of Dr. Warren with the RFC determination.

(2) The case was adjudicated by an improper and unconstitutionally appointed ALJ, and should be remanded for a new hearing with a different and constitutionally appointed ALJ.

(Doc. No. 12).

II. EVIDENCE

A. Personal and Vocational Evidence

Ripley was born in July 1957 and was 60 years old at the time of his administrative hearing (Tr. 12, 20), making him a "person of advanced age" under Social Security regulations. See 20 C.F.R. § 404.1563(e). He has a college education and is able to communicate in English. (Tr. 20, 60.) He has past relevant work as a retail store manager. (Id. at 20.)

B. Relevant Medical Evidence²

In 2012, Ripley spent three days at the Mt. Pleasant Hospital for a forehead laceration, alcohol abuse, and acute kidney injury. (Id. at 531, 597, 657.)

April and June 2013 therapy records reflect that Ripley was planning on moving to Ohio and was looking at businesses there, "including pizza places." (Tr. 488-89).

On August 4, 2013, Ripley's niece found him at home, and he was very confused and nonverbal. (Id. at 346, 376.) In the emergency room, Ripley remained nonverbal. (Id. ) Robert L. Hill, M.D., who evaluated Ripley, noted Ripley has a history of depression and suicide attempts, and "there was concern that he gotten [sic] a prescription for baclofen recently and may have taken extra pills and overdosed." (Id. ) Dr. Hill admitted Ripley for further evaluation and treatment. (Id. ) While Ripley exhibited some twitching when he was first seen at the ER, "no definite seizure activity was noted." (Id. ) A CT scan done that day revealed mild atrophy and chronic small vessel ischemic changes. (Id. at 376.) Ripley's urine screen was positive for opiates and benzodiazepines. (Id. at 350.) Eventually Ripley's mental status cleared, and he was discharged home three days later. (Id. at 346.) At the time of discharge, Ripley had no suicidal ideation and was instructed to follow-up with a local psychiatrist. (Id. at 347.)

On November 20, 2013, Ripley went to the Firelands Regional Medical Center emergency room complaining of depression and stating he had been unable to find a psychiatrist who could see him in a timely manner. (Id. at 343.) He felt he was "on the way back into depression" and his medications were running low. (Id. ) Ripley denied suicidal or homicidal ideation. (Id. ) Robert Ford, III, D.O., gave Ripley short refills for two of his medications but refused to refill his Xanax. (Id. at 344.)

On January 16, 2014, Ripley went to the emergency room at Firelands Regional Medical Center, reporting he had been having severe depression and suicidal intent for the past three to four weeks. (Id. at 335.) Ripley stated he had been going through a lot, including being unemployed and living with his brother. (Id. ) He also reported he had run out of his medication, including Seroquel and Xanax, and became very depressed. (Id. ) He described having feelings of hopelessness, worthlessness, and sadness, anhedonia,³ suicidal thought but no plan, being very anxious and nervous, and unable to sleep at night. (Id. ) Ripley stated he could not afford to buy his current medications, which were very expensive, because of his financial difficulties. (Id. ) Abas Jama, M.D., Psy.D., admitted Ripley and placed him on suicide precaution level one. (Id. at 338.)

An examination on January 17, 2014, revealed Ripley had average eye contact, clear speech, and a logical thought process. (Id. at 339, 341.) Ripley appeared very comfortable during the interview, he was cooperative, and his insight and memory seemed good. (Id. at 341.) Ripley denied suicidal and homicidal ideation, as well as hallucinations and delusions. (Id. ) Ripley remained in the hospital until January 24, 2014. (Id. at 331.)

On June 23, 2015, Ripley saw Dr. Jama for a follow up appointment. (Id. at 391.) He reported he was doing a little bit better and was still working as a driver at a car dealership. (Id. ) Ripley described his mood as better and less anxious, but somewhat sad. (Id. ) Dr. Jama found Ripley had a full and appropriate range of affect and "very good" insight and judgment. (Id. ) Ripley exhibited a goal-directed thought process and denied suicidal and homicidal ideation, as well as auditory and visual hallucinations. (Id. ) Dr. Jama recommended Ripley continue his current medications, go back to AA meetings and counseling, never mix alcohol and Xanax, and follow up in three to four months. (Id. )

On July 10, 2015, Ripley went to the Firelands Regional Medical Center emergency room, reporting suicidal ideation without any plan. (Id. at 307.) He stated he had been drinking daily for the past 30 days and drinking around the clock for the past seven days. (Id. ) He reported sleeping for two hours in the past fourteen days. (Id. ) Upon examination, Mark Schmiedl, M.D., found Ripley was intoxicated. (Id. at 309.)

Dr. Jama also examined Ripley that day. (Id. at 313.) Dr. Jama found Ripley was cooperative and appropriate, he had mild to moderate psychomotor retardation, and had a depressed, anxious mood. (Id. at 314.) Ripley exhibited a blunted affect, and his speech was low in tone and volume. (Id. ) While Ripley's thought process was goal directed, he had current suicidal ideation that was becoming very persistent and worsening, although he divulged no plan or intent. (Id. ) Dr. Jama found Ripley's insight and judgment were impaired. (Id. ) Dr. Jama admitted Ripley and placed him on level one suicide watch. (Id. at 309, 315.) Upon further examination, Ripley's treating providers found he was moderately depressed, somewhat tearful, and moderately anxious, and his insight, judgment, and behavior control were decreased. (Id. at 318.) Ripley also complained of periodic auditory hallucinations. (Id. )

On July 12, 2015, Sara Peck, LISW, MSW, examined Ripley at the hospital. (Id. at 320.) She found his appearance disheveled, his mood depressed, his affect normal, his behavior cooperative, his thoughts racing, his insight limited, and his memory intact. (Id. at 322.) Ripley reported suicidal ideation but no plan. (Id. )

On August 4, 2015, after being discharged from the hospital, Ripley saw Dr. Jama for a follow up appointment. (Id. at 397.) Ripley reported he was doing much better and described his mood as much better overall and stable. (Id. ) Ripley denied feelings of hopelessness or worthlessness, as well as suicidal ideation. (Id. ) Dr. Jama found Ripley had appropriate affect, goal-directed thought process, intact recent and remote memory, and intact concentration and focusing. (Id. ) Dr. Jama noted a well-groomed and appropriate appearance and no abnormal or involuntary movements. (Id. )

On September 4, 2015, Ripley saw Lynne Gilbert, LISW, for a follow up appointment. (Id. at 401.) He told her his depression was better, although he continued to have issues with his anxiety, and he thought he "may be ready for a job." (Id. ) Ripley reported he had been socializing with new friends and was worried about the stock market. (Id. ) Gilbert found Ripley had a full, anxious affect and his behavior was appropriate. (Id. )

On September 28, 2015, Ripley again saw Gilbert for follow up. (Id. at 404.) He told her he was not depressed, but he would wake up anxious and not know why. (Id. ) He reported being uncomfortable in crowds and grocery stores. (Id. ) He continued to work part time for a car dealership and had some friends with whom he socialized. (Id. ) Ripley felt his medications were working well and he was waiting for vocational rehab. (Id. )

On October 20, 2015, Ripley saw Dr. Jama and reported he was a little bit anxious but coping very well and described his mood as "better and improved." (Id. at 406.) He stated he had visited his daughter in...