Herron v. Comm'r of Soc. Sec.

• Decision Date: 04 March 2011
• Docket Number: No. 3:09–CV–519–PPS–CAN.,3:09–CV–519–PPS–CAN.
• Citation: 788 F.Supp.2d 809
• Parties: Jerry Gene HERRON, Plaintiff,v.COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of Indiana

788 F.Supp.2d 809

Jerry Gene HERRON, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 3:09–CV–519–PPS–CAN.

United States District Court, N.D. Indiana, South Bend Division.

March 4, 2011.

Alfred H. Plummer, III, Plummer Law Office, Wabash, IN, for Plaintiff.Clifford D. Johnson, AUSA, U.S. Attorney's Office, South Bend, IN, for Defendant.

OPINION AND ORDER

PHILIP P. SIMON, Chief Judge.

Everyone seems to agree that Jerry Herron suffers from bi-polar disorder and other mental illnesses. But following a hearing before an administrative law judge, Herron was denied Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) because the ALJ did not find him to be credible and because, in the view of the ALJ, his impairments were not severe enough to prevent Herron from doing simple, repetitive jobs. Herron asks this Court to reverse the ALJ's decision. Because I find that the ALJ improperly ignored evidence in the record that supported Herron's claim, I am remanding this matter to the ALJ to fully and properly develop the administrative record.

Procedural History

Herron applied for DIB and SSI on July 5, 2006, alleging disability beginning on June 26, 2006, due to bipolar disorder, schizoaffective disorder and muscle strain [Tr. 14, 97–100 & 120]. At a hearing before the ALJ on September 10, 2008, Herron, his ex-wife Tena Herron, his step-son Chad Morris, and vocational expert Joseph Havernack all testified [Tr. 29]. The ALJ eventually denied Herron's claim, finding that he was not disabled under the Social Security Act, [Tr. 22]. After the Appeals Council denied Herron's request for review [Tr. 1–3], this appeal followed. Because the Appeals Council denied further review of the ALJ's decision [Tr. 1–4], that decision is treated as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981 & 416.1481; Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir.2007); (citing Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir.2005)).

Factual Background

Herron is a 49–year–old man, and was 47 at the time of the ALJ's decision [Tr. 33]. He has a high school education and past relevant work experience working as a small parts molder [Tr. 34–35 & 97]. Herron claims he has been disabled since June 26, 2006 due to bipolar disorder and schizophrenia [Tr. 120]. Herron contends that the ALJ improperly relied on the opinion of the state agency psychologist, who did not examine Herron, and basically ignored conflicting evidence, including examining psychologists and psychiatrists, the HR manager at Herron's former employer, and testimony at the hearing. Thus, in setting forth the relevant factual background, I will focus on the allegedly conflicting evidence.

A. Employment History

From 1998 to 2006, Herron worked as a small parts molder at Bulldog Battery, where he poured hot lead into molds, and removed the resulting parts [Tr. 35 & 275]. From 1999 through 2004, Herron received numerous employee warnings from Bulldog for tardiness, poor performance and workmanship, and absence from his work station [Tr. 275]. By 2004, Bulldog had placed Herron in a work station where he had no contact with other employees, and where his tasks were rudimentary: he examined parts and dropped them into buckets [ Id.]. Herron was unable to perform even this simple task [ Id.], and he stopped working on June 26, 2006 due to his disabilities [Tr. 120].

On July 17, 2006, Herron filed for short term disability leave from Bulldog, due to “pulled muscles and mental disorder” [Tr. 315]. Shortly thereafter, in August 2006, Herron informed Bulldog that he would not be returning to work, explaining that he could no longer perform his job [Tr. 35 & 275]. Bulldog's HR manager, Terry France, submitted a telling letter which stated that, in France's opinion, Herron “could not perform any job in a competitive employment setting” [Tr. 275].

B. Psychological and Psychiatric Diagnoses

Herron first sought treatment for his psychological impairments in October 2004, at the Michiana Behavioral Health Center [Tr. 155]. At that time, Herron was taking Seroquel [Tr. at 156], an antipsychotic medication used to treat bipolar disorder and depression. Upon examination, Herron was diagnosed by Dr. Haskins, a psychiatrist, with schizoaffective disorder [ Id.]. Dr. Haskins also gave Herron a Global Assessment of Functioning (GAF) score of 15 at that time, with the best GAF in the past year as 45 [ Id.]. Using the GAF, a clinician rates an individual's ability to function on a scale of 1, the lowest functioning, to 100, which reflects superior functioning. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., Text Revision 2000) (“DSM–IV–TR”). By the time of Herron's November 29, 2004 discharge from the Behavioral Health Center, Dr. Haskins gave him a GAF score of 50 [Tr. 156]. Upon discharge, Herron was referred for partial treatment programming and medication management [ Id.].

After his discharge from the Behavioral Health Center, Herron saw doctors at Family Physicians Incorporated on a number of occasions throughout 2005–2006 [Tr. 204–211]. During this time period, Dr. Levine diagnosed Herron with schizoaffective disorder, bipolar disorder, and depression [Tr. 207]. However, another doctor at Family Physicians, Dr. Fishberg, doubted that Herron had bipolar disorder, but noted that schizoaffective disorder was possible [Tr. 210]. The Family Physicians doctors' notes indicate that Herron was taking a number of antipsychotic medications and antidepressants during this period, including Zoloft, Zyprexa, Seroquel and Symbyax [ Id.]. Those notes further indicate that Herron was getting “mixed up” with respect to these medications, including by not taking them as prescribed [Tr. 207].

On August 9, 2006, Herron was given a mental status examination by a state agency psychologist, Dr. Coulter–Kern, on a referral from the Disability Determination Bureau (DDB) [Tr. 225–228]. At that time, Herron reported taking Zyprexa, Zoloft and Lamatol for mood swings, and alleged that he was disabled due to bipolar disorder, schizophrenia, schizoaffective disorder and muscle strain [Tr. 226]. Dr. Coulter–Kern diagnosed Herron with bipolar disorder, and gave him a current GAF of 45, with a GAF of 45 as the highest during the preceding six months [Tr. 228]. Dr. Coulter–Kern indicated that Herron was experiencing stress relating to his job, his inability to control his symptoms, and the fact that his wife had recently filed for divorce [Tr. 226 & 228].

On August 27, 2006, Dr. Menon performed a consultive examination of Herron for the DDB [Tr. 230–232]. At that time, Herron reported taking Zyprexa, Zoloft and Lamictal [Tr. 230]. Dr. Menon diagnosed Herron with bipolar disease and schizoaffective disorder with depression [Tr. 230–232].

On September 28, 2006, a state agency reviewing psychologist, Dr. Larsen, prepared for the DDB a mental Residual Functional Capacity (RFC) assessment, and a Psychiatric Review Technique form [Tr. 20 & 235–252]. Dr. Larsen opined that Herron's attention and concentration were moderately limited, which she thought might interfere with the complex task completion required by Herron's former job at Bulldog [Tr. 237]. But she added that Herron retained the ability to perform simple, repetitive tasks, and to follow single, as opposed to multiple or complex, instructions [ Id.]. Dr. Larsen further noted that Herron's daily living activities indicated that he was able to perform a wide range of tasks without difficulty, and that he was capable of cooperating and tolerating the casual interactions with others necessary to perform those tasks [ Id.].

On December 11, 2006, Herron received a psychiatric evaluation by Dr. Ahmad at the Bowen Center, where Herron received treatment from that date through May 13, 2008 [Tr. 255–259]. Dr. Ahmad noted that Herron had stopped taking medications two-to-three months prior to his intake at Bowen, due to the discontinuation of his insurance [Tr. 256]. Dr. Ahmad further noted that Herron did not exhibit any symptoms of mania or depression [Tr. 258], and gave him a GAF score of 50 at admission [ Id.]. Dr. Ahmad observed, however, that Herron was nonetheless undergoing moderate to severe psychosocial and environmental problems (Axis IV),¹ including his then wife's recent divorce filing, unemployment, and his recent application for disability [Tr. 258].

C. Testimony at the Hearing

During the administrative hearing, Herron testified that his ability to work was affected by depression, occasional manic episodes, and his bipolar disorder, all of which prevented him from focusing and concentrating on what he is doing [Tr. 42 & 45]. Herron also testified that he was then taking Sertraline, Zoloft and Abilify, and that these medications were helping with these conditions [Tr. 38]. Herron further testified that his ability to work is affected by occasional muscle soreness [Tr. 37].

As for his mania, Herron testified that it renders him “real speedy,” “jumpy,” “zipping all over the place,” and unable to sleep, even when he is taking his medication [Tr. 50]. Herron elaborated that he is unable to focus even on simple tasks, and his thoughts are “all over the place,” during these manic periods [Tr. 50 & 52]. Herron further testified that his mania, and his corresponding inability to focus, resulted in his 2005 hospitalization at the Behavioral Health Center, and his 2006 decision to take disability leave from work [Tr. 51]. Herron added that, prior to his 2004 hospitalization, his manic episodes occurred every eighteen months, and usually lasted for three-to-four weeks [Tr. 53]. He estimated that he has had six-to-seven such episodes since he quit drinking in 1997 [ Id.].

At the time of the hearing, Herron was seeing a psychiatrist at the Bowen Center approximately once every three months [Tr. 43]. He testified that the treatment he was getting at Bowen was helping him [...