Meuser v. Colvin

• Decision Date: 03 October 2016
• Docket Number: No. 16-1052,16-1052
• Citation: 838 F.3d 905
• Parties: George B. Meuser, Plaintiff–Appellant, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

838 F.3d 905

George B. Meuser, Plaintiff–Appellant,

v.Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant–Appellee.

No. 16-1052

United States Court of Appeals, Seventh Circuit.

Argued July 7, 2016

Decided October 3, 2016

Eric J. Yocum, Attorney, Yocum Law Office, Evansville, IN, for Plaintiff–Appellant.

Cynthia A. Freburg, Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, Thomas E. Kieper, Attorney, Office of the United States Attorney, Indianapolis, IN, for Defendant–Appellee.

Before Wood, Chief Judge, and Bauer and Kanne, Circuit Judges.

Per Curiam.

George Meuser suffers from schizophrenia

and applied for Disability Insurance Benefits principally because of that impairment. But an administrative law judge concluded at Step 2 of the 5–step disability analysis that Meuser's schizophrenia

was not a severe impairment and denied benefits on that basis. A magistrate judge presiding by consent, see 28 U.S.C. § 636(c), upheld that ALJ's decision, but Meuser argues that it rests on a profound misunderstanding of the medical evidence and thus is not supported by substantial evidence. We agree.

I. BACKGROUND

Meuser, who is 46 years old, was diagnosed with schizophrenia

in 1996, and for 15 years he managed his symptoms with the antipsychotic drug Zyprexa. Throughout that time, from 1995 through March 2012, Meuser worked in the mail-room at a publishing company. Although he described himself as “socially impaired somewhat,” he generally got along well with his coworkers.

But Meuser's health began deteriorating in late 2011 after his pharmacist gave him the generic version of Zyprexa

. Before that switch, as evidenced by nearly two years of physicians' progress notes, Meuser was sleeping eight to ten hours per night, was not experiencing side effects from his medication, and was showing “good” and “euthymic” mood and affect, meaning neither elevated nor depressed, see DORLAND'S MEDICAL DICTIONARY 655 (32d ed. 2012). But after the drug substitution, Meuser started having insomnia and would sleep only four to six hours per night. He said that he could not focus at work. He told clinicians that an increased work load over the preceding six or seven months was causing him stress. Hoping that a break would improve his symptoms, Meuser took a leave of absence from his job in December 2011. He apparently was living with his parents at the time, and he continues to live with them.

Meuser changed psychiatrists in January 2012. At that time he began seeing Dr. Charles Rhoton, who rediagnosed Meuser's schizophrenia

from “undifferentiated” to “paranoid type,” which involves “prominent delusions or auditory hallucinations,” see AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 313 (4th ed. text revision 2000) (DSM–IV–TR). Dr. Rhoton also noted “[p]roblems related to social environment” and assessed Meuser's Global Assessment of Functioning (GAF) score¹ as 61 to 70 with “mild symptoms.” Dr. Rhoton switched Meuser back to the brand-name Zyprexa he was taking previously and increased his dosage, but Meuser did not fully improve. Two weeks after Dr. Rhoton's initial assessment, Meuser reported that the increased dosage was causing him to sleep at least 12 to 14 hours a night. Meuser started taking a lower dosage, which helped, but still his sleep was “erratic.” Dr. Rhoton noted that Meuser's mood was “mildly dysthymic,” or mildly depressed, and his affect was “blunted,” meaning that Meuser exhibited a severe reduction in the intensity of his external expression of emotion, see DORLAND'S MEDICAL DICTIONARY at 582, 655. Dr. Rhoton now revised his diagnosis to be schizophrenia, undifferentiated type.

The next month Meuser reported to Dr. Rhoton that he was “doing pretty well,” had more energy, was falling asleep easier, and had “been getting out of the house a little more.” Dr. Rhoton noted that Meuser was responding well to his medication and that his mood and affect were normal. Nevertheless, Meuser said, he was not feeling well enough to return to work. Faced with the choice of returning to work or being fired, Meuser decided to quit his job. At his next appointment with Dr. Rhoton at the end of March 2012, Meuser said he was doing “okay,” and Dr. Rhoton assessed his mood as dysthymic.

Meuser had applied for DIB on February 27, 2012, and based on medical records through March 2012, psychologist F. Kladder, an agency consultant, opined that Meuser's schizophrenia

was not a severe impairment. He noted that Meuser's symptoms had been well controlled for over 15 years and that, although his symptoms were not well controlled with generic medication, Meuser was again “doing well” after switching back to Zyprexa. Dr. Kladder checked boxes indicating only mild difficulties in activities of daily living, social functioning, and concentration, persistence, and pace. A month later William Shipley, an agency consultant with a Ph.D. in an unspecified field, agreed with Dr. Kladder's assessment without explanation.

Meuser's application for benefits then was denied initially and on reconsideration. For the next year and a half, until his hearing before the ALJ, Meuser visited Dr. Rhoton six times as his symptoms waxed and waned. Although at each visit Meuser reported to Dr. Rhoton that he was “well,” “stable,” “fairly well,” or “okay,” Dr. Rhoton noted during four of those visits that Meuser was exhibiting a blunted affect

, and on a fifth visit that he was dysthymic. Meuser continued to complain about erratic sleep. In November 2012, for example, Meuser reported that sleep was “an issue” but said he did not want to change his medication. Then in February 2013 he reported sleeping only three or four hours some nights and other nights twelve to fourteen hours. And as late as August 2013 he reported sleeping “poorly” and having difficulty “falling asleep and staying asleep.” But Meuser did not report “psychotic symptoms” or “positive symptoms” such as hallucinations, paranoia, or “thought broadcasting/insertion,” see AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 94 (5th ed. 2013) (DSM–V). At Meuser's last appointment before the September 2013 hearing, Dr. Rhoton noted that his “negative symptoms” (i.e., limited emotional expression and disinterest in work or social activities) “remain prominent,” see DSM–V at 88.

A week after this appointment, Dr. Rhoton completed a mental residual functional capacity assessment, marking boxes for the degree of Meuser's limitations in various categories. Dr. Rhoton opined that Meuser, in addition to being “moderately” limited in many areas, was “markedly” limited in his abilities to (1) maintain attention and concentration for extended periods, (2) regularly attend scheduled activities and be punctual, (3) “sustain an ordinary routine without special supervision,” (4) “make simple work-related decisions,” (5) “ask simple questions or request assistance,” (6) accept instructions and criticism, and (7) set realistic goals and make plans. Dr. Rhoton further opined that Meuser was experiencing “extreme” limitations in the abilities to (1) “work in coordination with or proximity to others without being distracted,” (2) “complete a normal workday and workweek without interruptions from psychologically based symptoms and ... perform at a consistent pace without an unreasonable number and length of rest periods,” and (3) “respond appropriately to changes in the work setting.” Dr. Rhoton wrote that these limitations had been present for over a year and a half, since February 2012.

Prior to the hearing Meuser submitted reports completed by himself and his parents describing his functional limitations. Meuser's mother described how Meuser's sleep “is a major problem.” She reported that he “only sleeps a couple of hours at a time,” which “causes great anxiety.” She said that Meuser's chores included doing laundry, taking out the trash, caring for their two cats, and doing “odd jobs as needed around the house.” Weekly he also prepares meals such as canned pasta or soup, frozen pizza, burgers, and cereal. She said that he “only goes out to eat or out in public about every two weeks when he sees his psychiatrist” and, even then, needs someone with him. And, his mother noted, Meuser had “become extremely reclusive” and “more obsessed with TV and with NASCAR” since his symptoms returned. She said that Meuser respects authority and “gets along with others when with them, but hardly ever goes near them.” Meuser's father echoed these observations, saying that Meuser spends no time with others and has become more withdrawn. In Meuser's own report, he recounted that his sleep is “not consistent,” and even if he does get a lot of sleep, he still feels tired. Meuser also reported difficulty with his short-term memory and concentration.

Meuser then testified about his schizophrenia

at the hearing before the ALJ in September 2013. He said that he cannot sleep more than three to five hours a night. This sleep deprivation left him so tired that he “couldn't function” at work, and after quitting his job, Meuser said, his condition had not improved. The lack of sleep also affects his short-term memory, Meuser explained, and thus he must write reminders to himself or rely on his parents to help him remember things like doctor's appointments. He also said that his parents help him with the laundry because he forgets clothes in the dryer. He said he would “really be in a bad spot” without his parents. Meuser described his daily activities as doing house chores, doing laundry, and “sometimes” cooking. He said he could drive but had not ventured beyond Henderson, Kentucky, in the previous year (about 37 miles from his home in Princeton, Indiana). He stays “at home most of the time,” said Meuser, and sometimes does not leave the house for days. He testified that he had become more socially withdrawn, and that he had no close friends, only acquaintances....