Rischer v. Colvin
| Decision Date | 22 July 2014 |
| Docket Number | Case No. 13-CV-4045-DDC |
| Parties | BRAD RISCHER, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. |
| Court | U.S. District Court — District of Kansas |
Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the final decision of the Commissioner of Social Security Administration ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act, as amended. Plaintiff has filed a brief (Doc. 17) seeking judicial review of the Commissioner's decision. The Commissioner has filed a brief in opposition (Doc. 24) and submitted the administrative record with her Answer (Doc. 12). Upon the filing of Plaintiff's reply brief (Doc. 25), this matter became ripe for determination. Having reviewed the administrative record and the briefs of the parties, the Court reverses the decision of the Commissioner and remands the case for further proceedings consistent with this order.
Plaintiff was born in 1964 and has some college education.2 He applied for disabilityinsurance benefits on April 12, 2010, claiming an inability to work due to his disabling condition beginning May 15, 2009.3 He identified three mental conditions that limit his ability to work: (1) bipolar disorder, (2) depression, and (3) attention deficit disorder ("ADD").4 During the fifteen years before the alleged onset of disability, he worked as a disability aide, laboratory technician, caregiver, library assistant, life skill coach, and clerk.5
After the Social Security Administration denied his application initially and on reconsideration,6 he requested a hearing before an Administrative Law Judge ("ALJ").7 On October 27, 2011, the ALJ conducted a hearing at which plaintiff appeared personally and through counsel.8 The ALJ also heard testimony from plaintiff's wife and a vocational expert ("VE").9 The VE testified that a hypothetical person with limitations described by the ALJ would not be capable of performing any of plaintiff's former jobs.10 With respect to the ALJ's first set of described limitations, the VE further testified that jobs existed in significant numbers in the national andlocal economies that such hypothetical person could perform.11 When the ALJ included more severe limitations to his hypothetical person, the VE could identify no jobs for such person.12
On December 22, 2011, the ALJ issued a written decision finding plaintiff not disabled.13 On March 5, 2013, the Appeals Council accepted additional evidence but found no reason to review the ALJ's decision and denied plaintiff's request for review.14 Consequently, the ALJ's decision is the final decision of the Commissioner.15 Plaintiff appealed the decision to this Court pursuant to 42 U.S.C. § 405(g) on April 22, 2013.
The administrative record contains (1) hospital records from Osawatomie State Hospital (Ex. 16F) and Lawrence Memorial Hospital (Exs. 8F and 9F); (2) inpatient treatment records from Stormont-Vail Regional Health Center (Ex. 9F); (3) treatment records from Ronald G. Graham, D.O., (Exs. 2F and 18F), Jeff Nichols, M.D., (Exs. 20E, 13F, 14F, 15F, and 17F), and licensed clinical social worker Ed Bloch (Exs. 1F, 10F, and 11F); (4) a state agency consultative examination by Stanley I. Mintz, Ph.D., (Ex. 4F); (5) two reports of a second state agency consultant, Lauren Cohen, Ph.D., (Exs. 6F and 7F) following her review of the medical record; and (6) a case analysis of Norman S. Jessop, Ph.D., (Ex. 12F) following his review of the recordon reconsideration. To the extent practical, the following sections review these records in chronological order.
The staff of Osawatomie State Hospital diagnosed plaintiff with a depressive disorder following his admission for self-inflicted superficial lacerations to his forearms in June 2006.17 A bipolar diagnosis noted in plaintiff's medical history remained unconfirmed because plaintiff was under the influence of multiple drugs and alcohol.18
Dr. Graham treated plaintiff from April 2008 through May 2010,19 resulting in various impressions including ADD, bipolar, and depression.20 While his records about plaintiff's mental impairments are mostly unremarkable or illegible, Dr. Graham noted medication problems in 2008 and plaintiff's medications were one of his chief complaints on May 5, 2010.21 And, on that date, Dr. Graham noted: "No particular reason why depression seems to be getting worse."22
From March 27, 2009, through April 30, 2010, plaintiff met with licensed clinical social worker Ed Bloch about his mental impairments.23 Bloch noted diagnoses of depressive, bipolar,and personality disorders.24 Unlike the handwritten and sometimes illegible notes of Dr. Graham, the typed notes of Bloch identify plaintiff's (1) chief complaints (suicide ideation; severe depression and labile mood; episodic anxiety, manic behavior, poor judgment, and suicidal thinking; and chronic sleep disturbance and suspected organicity); (2) diagnoses, including GAF scores;25 (3) severe symptoms (depressed mood, excessive distractibility, feelings of hopelessness, impaired concentration, poor judgment manifested by reckless behavior that could lead to self injury, suicidal thinking, impulsivity, and instability of mood); (4) moderate symptoms (intermixed manic and depressive episodes, obsessive rumination, racing thoughts, inadequate coping skills and response to demands of living, and temper outbursts); (5) severe impairments in functioning (inability to work, diminished concentration at work, difficulty maintaining employment, and dangerous risk-taking behavior); and (6) moderate impairments in functioning (poor judgment in social situations and distance and argumentativeness with people).26 Blochdischarged plaintiff because he had achieved "crisis stabilization" with some improvement in symptom reduction following "27 psychotherapy sessions and 50 neuro trainings."27
On July 24, 2010, Dr. Mintz, a state agency consultant, examined plaintiff's mental status.28 Plaintiff reported that medications and brain training had been "helpful to him."29 Dr. Mintz assessed plaintiff's GAF at 50, with a high mark of 55 in the previous year, and diagnosed a bipolar disorder, ADD, and continuing substance abuse.30 Plaintiff exhibited symptoms of those disorders, "with considerable depression."31 Dr. Mintz opined that plaintiff "may have difficulty relating well to co-workers and supervisors," but "appears able to understand simple and intermediate instructions."32
On August 18, 2010, Dr. Cohen - a nonexamining, nontreating consultant - completed two standard forms to evaluate plaintiff's mental health: a "Psychiatric Review Technique" ("PRT") and a "Mental Residual Functional Capacity Assessment" ("MRFCA").33 She found plaintiff was suffering from ADD (Listing 12.02),34 bipolar syndrome (Listing 12.04), andsubstance abuse (Listing 12.09).35 But Dr. Cohen specifically noted that the latter impairment "does not appear relevant."36 She found that the other impairments did not satisfy the "B" criteria for their listings because plaintiff had not experienced any episodes of decompensation of extended duration and his impairments merely imposed a moderate restriction of activities of daily living and moderate difficulties maintaining social functioning and concentration, persistence, or pace.37 She also found that the evidence did not "establish the presence of the 'C' criteria" for either listing.38
In a case analysis dated January 6, 2011, Dr. Jessop affirmed Dr. Cohen's PRT andMRFCA on reconsideration.39 In doing so, Dr. Jessop acknowledged that plaintiff was hospitalized in August 2010 after an attempted suicide.40 But he stated that "[s]ubsequent progress notes indicate essential compliance and an acceptable degree of stability."41
On August 20, 2010, two days after Dr. Cohen recorded her written opinions, Lawrence Memorial Hospital admitted plaintiff following an attempted suicide by drug ingestion.42 In an initial assessment, a hospital social worker stated that plaintiff: (1) has "[t]otal independence" with respect to his activities of daily living, (2) is able to do his essential shopping independently, and (3) is independent in the home.43 Nevertheless, the social worker expressed concern about plaintiff's financial abilities, interpersonal relationships, coping difficulties, self-concept, lack of involvement, adjustment to loss, and decision-making.44 Moreover, a nurse noted "[g]rossly impaired" judgment and impaired insight.45 The attending physician, Lisa Gard, M.D., noted that plaintiff was alert without acute distress, but had a flat mood and affect with abnormal, psychotic thoughts, i.e., suicidal thoughts.46 Dr. Gard counseled plaintiff and his familyabout the diagnosis and diagnostic results.47 Hospital staff transferred him to Stormont-Vail West Adult Unit by secured transport.48
During intake at Stormont-Vail, plaintiff's symptoms included sleep problems, hopelessness, decreased behavioral control, and mood fluctuation.49 Based upon the medical evaluation of Dr. Gard, staff rated plaintiff as medically stable.50 A mental status exam conducted the next day revealed depressed mood and constricted affect, among other findings.51 Plaintiff denied any current suicidal ideation, but did not feel he could be safe outside the hospital.52 Notably, staff recorded "20" in Axis V of the five-part diagnostic impression.53 The next day, plaintiff was sleeping and eating well; denied medicinal side effects, suicidal ideation, and violent thoughts; had normal and logical thought processes, euthymic mood, grossly intact judgment, and good insight, attention, and concentration.54 In addition, the record reflects that plaintiff wrote a positive note...
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