Creekmore v. Colvin, Civil Action No. 5:14-3019-RMG-KDW

• Decision Date: 23 July 2015
• Docket Number: Civil Action No. 5:14-3019-RMG-KDW
• Court: U.S. District Court — District of South Carolina
• Parties: Tracy Reynolds Creekmore, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

Tracy Reynolds Creekmore, Plaintiff, v. Carolyn W. Colvin,Acting Commissioner of Social Security, Defendant.

Civil Action No. 5:14-3019-RMG-KDW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

July 23, 2015

REPORT AND RECOMMENDATION

This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Income Benefits ("DIB"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action.

I. Relevant Background

A. Procedural History

On November 7, 2007, Plaintiff protectively filed an application for DIB alleging a disability onset date of July 15, 2007. Tr. 120-27, 216. Her application was denied initially and upon reconsideration. Tr. 74, 86. Plaintiff requested a hearing and on August 21, 2009, a hearing was held before Administrative Law Judge ("ALJ") Ivar E. Avots. Tr. 25-57. On September 4, 2009, ALJ Avots issued an unfavorable decision finding Plaintiff was not disabled. Tr. 16-24. After the Appeals Council denied her request for review, Tr. 1-6, Plaintiff appealed the unfavorable decision to the United States District Court for the District of South Carolina and obtained an Order, filed July 13, 2012, reversing the Commissioner's decision and remanding thecase for further proceedings, Tr. 1045-52. Based on the court's order, on July 18, 2012, the Appeals Council remanded the matter for further consideration. Tr. 1084-87. Plaintiff filed a subsequent application for DIB on July 19, 2010, alleging an onset date of September 15, 2007. Tr. 1104-05. The Appeals Council consolidated the two matters, Tr. 1086, and ALJ Avots conducted a second administrative hearing on August 15, 2012, Tr. 901-74. Plaintiff appeared and testified; Plaintiff's husband also testified at the hearing, along with an impartial medical expert and vocational expert. Id. On October 4, 2012, the ALJ issued an unfavorable decision denying Plaintiff's claim. Tr. 879-89. Plaintiff filed a request for review of the ALJ's decision on or about November 14, 2012, Tr. 865-75, which was denied by the Appeals Council on June 11, 2014, Tr. 838-841. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on July 29, 2014. ECF No. 1.

B. Recent Administrative Proceedings

Plaintiff's second administrative hearing was held on August 15, 2012. Tr. 903. Plaintiff appeared with counsel, along with the following: Dr. Alfred G. Jonas, Medical Expert; Bryne Creekmore, Plaintiff's husband and lay witness; and Robert E. Brabham, Sr., Vocational Expert. Tr. 901. The ALJ elected to first take testimony from Dr. Jonas "because we are dealing with the period now in the past. We're dealing with the period of her alleged onset date . . . of July 15, 2007 through her date last insured of June 30, 2012 now." Tr. 905.

1. Medical Expert Testimony

Dr. Jonas testified that he was board certified in psychiatry and was responding to questions in the role of an impartial medical expert or advisor. Tr. 905. Dr. Jonas testified that he had not personally examined Plaintiff but he had reviewed all of the medical information. Tr. 906. Before offering his opinion, Dr. Jonas requested clarification on two issues. First, he notedthat Exhibit 5F, dated March 19, 2006, indicated an issue with seizure disorder and Plaintiff was instructed not to drive. Then, Exhibit 7F, dated April 27, 2006, indicated Plaintiff drove herself to the examination. Dr. Jonas inquired as to why Plaintiff continued to drive if she was advised not to drive. Tr. 906. Plaintiff responded that it was determined the only reason she had the seizure was because she had gone off her Ativan medication. Tr. 907. Dr. Jonas's next issue related to Exhibit 49F, dated March 22, 2011, which discussed the possibility of shock treatment for Plaintiff's persistent complaints of depression but Plaintiff did not want the treatment. Dr. Jonas inquired as to why "in view of the complaint of depression and what appears to have been a lack of adequate success from other intervention why she didn't want shock treatment." Id. Plaintiff testified that she was "scared of it." Id.

The ALJ asked Dr. Jonas to testify as to Plaintiff's "most significant" problems. Tr. 908. Dr. Jonas confirmed that Plaintiff's problems were all mental, and outlined diagnoses obtained before Plaintiff's alleged onset date that included anxiety, personality disorder or personality traits of a histrionic quality, depression, substance abuse, and attention deficit disorder. Id. Dr. Jonas also noted that for a short time after Plaintiff's alleged onset date there was persistent substance abuse—mainly alcohol but there was also reference to methamphetamine and marijuana. Tr. 908-09. Dr. Jonas noted that after a two-or-three day detox hospitalization in September 2007, there was no more substance abuse. Tr. 909. Based on his review of the record Dr. Jonas determined that after 2007 Plaintiff had a "mix of considerations, which would mostly center on depression and anxiety, which is to say [Listing] 12.04(1) and 12.06." Id. Dr. Jonas noted one diagnosis for bipolar disorder but found no support for that diagnosis. Id. Dr. Jonas considered the A criteria of the Listings to be determinable, but found under the B criteria "things [got] a little bit more ambiguous and a little bit more murky." Id. Dr. Jonas notedinconsistencies in certain reports of Dr. Khan and Dr. Bruce where they rated Plaintiff "poor" in almost all categories in her ability to do work-related activities, but still concluded she was capable of independent management of finances. Tr. 910-11. Dr. Jonas also noted inconsistencies in reports of adaptive functioning and Plaintiff's mental state and "felt that there was not enough reasonable, consistent and reliable support for these kinds of dire B Criteria conclusions and estimations. So [he] did not conclude that she was really that functionally impaired." Tr. 911. Dr. Jonas stated he did not have enough information for the period at issue to rate Plaintiff's activities of daily living ("ADLs"); however, for social functioning the impairment would be at moderate-to-marked level and for concentration, persistence and pace his sense was the impairment was in the mild-to-moderate range. Tr. 911-12. Dr. Jonas concluded that Plaintiff did not meet or equal Listing 12.04(1) or 12. 06 and he thought "the record is a little bit inconsistent and ambiguous." Tr. 912.

The ALJ asked Dr. Jonas to consider an assessment by Dr. Khan noting that Plaintiff experienced three episodes of decompensation each of extended duration and asked if there was any evidence in the record to support that finding. Tr. 913 (citing to Exhibit 54F, pg. 14 at Tr. 1369). Dr. Jonas responded "there are no episodes of decompensation at all after that September of '07 hospitalization." Id. The ALJ also inquired regarding Dr. Khan's diagnosis in that same exhibit of a GAF score of 55. Tr. 914. Dr. Jonas responded that he did not believe in the application of GAF, but if he did, someone as "functionally impaired as Dr. Khan generally says really could not have a GAF estimated in the mid-50s." Id. Dr. Jonas stated that nothing in Dr. Hossain's subsequent treating notes would change his opinion. Id. The ALJ asked Dr. Jonas to discuss the consultative opinion at 50F.¹ Tr. 916. Dr. Jonas opined the examination revealed"something of a concentration impairment" that would be in the mild-to-moderate range. Tr. 917. The ALJ asked Dr. Jonas if he saw any evidence of continuing alcohol problems after 2007, and he responded in the negative. Id.

Plaintiff's counsel questioned Dr. Jonas on his background. Tr. 918. Dr. Jonas testified that he has been in practice since he completed his formal training and fellowship in 1983, and has a general psychiatry practice in Miami, Florida treating "everyone except young children." Id. Dr. Jonas stated he does not do any hospital work, only outpatient treatment. Id. Dr. Jonas confirmed that he reviewed all the medical records and found "potentially adequate support" for the diagnoses of depression and anxiety but no support for the diagnosis of bipolar disorder. Tr. 919. Counsel questioned whether Plaintiff's inpatient stay at Carolina Center for Behavioral Health in 2005 could be considered a type of mania. Tr. 920. Dr. Jonas stated the hospitalization appeared to be "about substance abuse and the problems caused by the substance abuse, which looked in part like psychosis and in part like behavioral problems and maybe in part like some depressiveness." Tr. 921. Dr. Jonas agreed that in some cases substance abuse can be symptomatic of bipolar. Id. Dr. Jonas reiterated that there was no support in the record for a diagnosis of bipolar disorder for Plaintiff. Tr. 923.

Plaintiff's counsel asked if Dr. Jonas saw any internal inconsistencies in Dr. Khan's statements in Exhibit 31F, and Dr. Jonas replied that he did not. Tr. 925. Counsel asked Dr. Jonas, assuming he had treated a patient for six years and tried multiple medications, if he thought he would be the "best expert to provide an opinion regarding [his] patient and his or her ability to work." Id. Dr. Jonas responded in the affirmative. Id. Counsel then asked Dr. Jonas to agree that he was giving an opinion based on the written record without actually speaking to Plaintiff's treating physicians, and Dr. Jonas agreed. Tr. 926. Counsel then commented thattreating physicians would have more knowledge and information than what "was physically stated in the records." Id. Dr. Jonas stated that that was a "tricky assumption to make" and opined as follows:

[A] doctor who treats

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