United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. Krask, United States Magistrate Judge.
Ollis brought this action, pursuant to 42 U.S.C. §§
405(g), 1383(c)(3), seeking judicial review of a decision of
the Acting Commissioner ("Commissioner") of the
Social Security Administration ("SSA") denying his
claim for a period of disability and disability insurance
benefits ("DIB") under Title II of the Social
Security Act, as well as his claim for Supplemental Security
Income ("SSI") under Title XVI of the Social
order of reference assigned this matter to the undersigned.
ECF No. 12. Pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of
Civil Procedure, and Local Civil Rule 72, it is hereby
recommended that Ollis's motion for summary judgment (ECF
No. 14) be GRANTED in part and DENIED in part, the
Commissioner's motion for summary judgment (ECF No. 15)
be DENIED, and the decision of the Commissioner be VACATED
and REMANDED for further consideration.
Todd Ollis, protectively filed an application for a period of
disability and DIB on April 3, 2013, alleging that he became
disabled on January 30, 2012, due to anxiety, depression,
bipolar disorder, and Crohn's disease. R. 225, 269. SSA
denied Ollis's application on December 5, 2013, and, upon
reconsideration, on February 4, 2014. R. 108-09, 146-47. An
Administrative Law Judge ("ALJ") heard the matter
on October 1, 2015, and received testimony from Ollis (who
was represented by counsel) and an impartial vocational
expert. R. 41-71. On November 5, 2015, the ALJ denied
Ollis's claim, finding that he was not disabled from
January 30, 2012 through the date of the decision. R. 19-35.
November 10, 2016, the Appeals Council denied Ollis's
request for review of the ALJ's decision. R. 1-5.
Therefore, the ALJ's decision stands as the final
decision of the Commissioner for purposes of judicial review.
See 42 U.S.C. §§ 405(h), 1383(c)(3); 20
C.F.R. §§ 404.981, 416.1481. Having exhausted all
administrative remedies, Ollis filed a complaint with this
Court on January 18, 2017. ECF No. 3. The Commissioner
answered on March 31, 2017. ECF No. 10. In response to the
Court's order, the parties filed motions for summary
judgment, with supporting memoranda, on May 10 and June 7,
2017, respectively. ECF Nos. 14-16. As neither party has
indicated special circumstances requiring oral argument, the
case is deemed submitted for a decision.
RELEVANT FACTUAL BACKGROUND
Background Information and Hearing Testimony by Todd
1964, Ollis completed two years of college, and was 47 years
old as of the alleged, onset date of disability of January
30, 2012. R. 44. Ollis's past relevant work experience
includes work as a kitchen helper, a short order cook, chef,
and retail manager. R. 60-61. At the October 1, 2015 hearing
before the ALJ, Ollis testified that, for approximately 18
months through April 2014, he also worked for McDonald's
doing maintenance, cleanup, and unloading trucks. R. 45.
Ollis testified that he routinely lifted and carried items
weighing 50 pounds and had no problems interacting with the
manager at McDonald's, but stopped working due to his
inability to "do the lifting or the standing that
long." R. 45, 54.
divorced, Ollis reported living in an apartment with his
ex-wife. R. 45-46. Ollis testified that he suffers from low
back and shoulder pain, anxiety, depression, and bipolar
disorder. R. 47, 49-50, 52-53, 55. Ollis reported recently
receiving mental health services from the Community Services
Board ("CSB") of Suffolk. R. 46-47, 58. He also
reported receiving medical services from his family doctor
and the Tidewater Free Clinic. R. 47, 58-59. Ollis testified
about having difficulty getting medications due to insurance
and finance issues, R. 47, 53, but indicated he was taking:
(1) Seroquel (for roughly three years) for anxiety/depression
and it worked for him as a sleep aid, R. 47, 53-54; (2)
clonazepam for bipolar mood swings, anxiety, and depression,
R. 47, 53, 55; and (3) oxycodone and a fentanyl patch for
back pain, R. 49. He also testified that he has not had his
"proper medications" for several years, due to lack
of insurance. R. 53. Ollis readily admitted to a past history
of abusing cocaine and alcohol and receiving treatment for
the same, but stated that he ceased substance abuse three
years earlier, so that he could "maintain a place to
live." R. 47-48.
testified that his back problems dated back 10 to 15 years,
and after standing 15 to 20 minutes he needs to sit down due
to back pain. R. 49, 52 (reporting that his need for medical
help for back pain became apparent when he stopped drinking).
He reported no back problems associated with sitting while
testifying. R. 56. He testified to experiencing constant pain
in his left shoulder dating back roughly 10 years and
reported having dislocated that shoulder on multiple
occasions due to a prior injury. R. 50. More recently, he
attended one month of physical therapy for the shoulder and
found that it caused the joint to tighten up and failed to
provide pain relief. R. 50-51.
respect to mental health, Ollis testified that he was
diagnosed with bipolar disorder and anxiety attacks in 2003,
and experiences mood swings, severe depression, and has
difficulty dealing with and working around people, which
symptoms are reduced with access to proper medication. R.
52-54, 56. He also reported that his anxiety attacks, which
are accompanied by a pounding heartbeat and an inability to
concentrate and focus for up to one hour, are mostly
controlled by taking clonazepam. R. 55, 59 (when medicated,
he has occasional "flare-up[s]" and
"outbursts" towards others). He also testified that
he does not talk on the telephone, other than about
doctor's appointments. R. 58.
also testified that he possessed a driver's license and
occasionally drove to the store to buy needed items. R. 48.
At the time of the hearing, he reported weighing 275 pounds,
had no problems with personal care activities, but sometimes
lacked the energy to bathe or dress every day. R. 49, 59-60.
Although he denied performing housework, Ollis testified that
he fed the cats, watched television, occasionally cooked and
washed dishes, did his own laundry, and shopped for groceries
every couple of weeks. R. 57-58. He reported that he could
lift and carry approximately 20 pounds using his right,
dominant hand, and approximately 10 pounds with his left
hand, and had no issues reaching overhead with that hand. R.
submitted an adult function report on June 12, 2013. R.
285-92. In addition to the matters noted above, he reported
that his conditions prevented him from achieving deep and
lasting sleep. R. 286. With respect to grooming and caring
for himself, he reported failing to regularly perform such
tasks and that his ex-wife reminded him when to bathe. R.
286-87. Although reporting that he previously "used to
cook a lot, " Ollis reported that he continued to fix
his own meals, typically comprised of sandwiches. R. 287.
Ollis listed vacuuming, done once a week for 20 minutes, as
the sole household and yard chore that he performed. R. 287.
Ollis also reported that he could pay bills, count change,
and use a checkbook, but advised that he spent too much money
and incurred overdrafts. R. 288. Ollis listed that he left
the house four times per week, and typically drives to the
store to buy food one time a week. R. 288. With respect to
social interaction, he advised that he was unable to be with
people for extended time periods and handled stress and
changes in routine poorly. R. 290-91. Ollis reported that,
due to Crohn's disease, he found it difficult to lift,
squat, bend, or kneel, and that his bipolar disorder and
depression interfered with his concentration and ability to
complete tasks and get along with others. R. 290.
ex-wife, Debra Ollis, also completed a third-party function
report on June 12, 2013. R. 277-84. She reported that she and
Ollis live together and she has known him for 14 years. R.
277. She reported that Ollis then worked three days per week
(apparently at McDonald's) and, when not at work, slept,
watched TV, cooked simple meals three to four times a week,
vacuumed once a week, took out trash for weekly pickup, went
to a nearby grocery store once a week, occasionally fed and
swept up cat fur, and showered once a week. R. 277-80. Ms.
Ollis also reported that before his conditions began, Ollis
was motivated, had ideas, liked to drive, and enjoyed work.
R. 278. After onset, he lost motivation and interest in
driving, wore the same clothes, preferred to stay in the
apartment (other than when working), did not do much, no
longer engaged in reading, had issues managing bank accounts
and money, and required prodding concerning bathing and
grooming. R. 277-81. She noted that Ollis had problems
relaxing and sleeping, handling stress and changes in
routine, concentrating, and complained of racing thoughts and
an inability to quiet his mind. R. 278, 282-83. With respect
to social functioning, Ms. Ollis noted that Ollis found
people annoying, had significantly withdrawn from talking and
interacting with others, both socially and at work, and had
exhibited paranoid behavior at a prior apartment in a bad
neighborhood. R. 281-83. She reported that the condition of
Ollis's knees and hips affected his ability to squat,
bend, stand, and kneel. R. 282. Ms. Ollis also reported that
Ollis cannot function without his medicine. R. 284.
Relevant Medical Record
Pre-Onset Medical Records
to the onset date of disability of January 30, 2012,
Ollis's medical history includes diagnoses of
gastroesophageal reflux disease ("GERD"), as well
as Crohn's disease, for which he underwent a resection of
the terminal ileum in 2004 and in 2008. R. 335, 339, 343-50,
February 2007 through September 2010, Ollis saw Dr. Jose
Villongco in Roswell, GA, for mental health treatment. R.
365-77. The treatment notes reflect that Ollis reported
having a lengthy history of anxiety, depression, and periodic
bouts with alcohol and drug abuse. R. 365-77. Dr. Villongco
diagnosed Ollis with bipolar disorder and alcohol and/or
marijuana dependence (sometimes in remission). R. 366,
372-73. He prescribed various medications at different times,
including Seroquel, clonazepam, Geodon, lamitrigine, and
Ollis generally responded well to the medications and
treatment with Dr. Villongco. R. 365-77.
Treatment with Dr. James Early
nine office visits from May 24, 2012 through December 30,
2013 and after apparently having moved to North Carolina,
Ollis received treatment from Dr. James Early with East
Asheville Family Health Care. R. 378-403, 454-56. During his
initial visit, Ollis sought to get established with a primary
care physician and primarily complained of severe and
worsening right hip pain, which caused him to sleep in a
chair. R. 396. Dr. Early's examination revealed
degenerative changes in both knees, severe right hip pain
with limited range of movement and pain on weight bearing,
and noted that Ollis reported having occasional flare-ups of
Crohn's disease. R. 396. Dr. Early assessed hip pain with
severe degeneration (avascular necrosis), anxiety disorder,
and tobacco abuse, prescribed Percocet, and directed Ollis to
take Advil liquid capsules and continue with clonazepam. R.
having right hip replacement surgery on July 21, 2012, Ollis
reported to Dr. Early on August 9, 2012 that he planned to
return to work in six weeks and that he had some right knee
pain. R. 388. Dr. Early's physical examination found
that, aside from right hip pain and a limp and the previously
noted knee changes, Ollis exhibited normal neurological
findings, normal spine range of motion, and normal upper
extremity joints. R. 388-89. On October 4, 2012, Ollis
reported that his right hip pain had improved, therapy was
completed, and he was tolerating the switch from Percocet to
Norco, which occurred on August 21, 2012. R. 384-87. During
examinations on January 3 and April 4, 2013, Ollis complained
to Dr. Early about abdominal pain and flare-ups and some
swelling and pain with his right side and knee. R. 378, 381.
Aside from the previously noted degenerative changes in
Ollis's knees and a limp on the right side, Dr.
Early's musculoskeletal and neurological examinations
revealed normal findings. R. 379, 381-82. On January 3, 2013,
Dr. Early re-started Ollis on Norco (for chronic back pain
and osteoarthritis) and prescribed prednisone for Crohn's
disease. R. 382. On April 4, 2013, Dr. Early directed that
Ollis no longer use prednisone and prescribed Pentasa for
Crohn's disease and omeprazole for GERD, and continued
Ollis on Advil for hip pain and clonazepam for anxiety. R.
379. Ollis last saw Dr. Early on December 30, 2013, when he
complained of lower back and knee pain and abdominal cramps
due to inability to afford his Crohn's medication. R.
454-56. After examination, Dr. Early added new assessments
for bipolar disorder and low back pain and continued Ollis on
the medications previously noted, with the addition of
prescriptions for Invega, lamotrigine, and Seroquel for
bipolar disorder. R. 455-56 (noting that Ollis "goes to
RHA for medications").
Treatment with RHA Behavioral Health
January through May 2013, Ollis received treatment on five
occasions from RHA Behavioral for mental health matters. R.
404-34. Following a referral to the clinic, Ollis received a
comprehensive clinical assessment on January 10, 2013 from
Scott Hart, M.A., L.P.C. R. 404-21. During the assessment,
Ollis reported that: (1) he was withdrawn and unstable,
unable to-hold a job, without interests, and
"stuck"; (2) he was recently arrested, while in a
manic state, for having repeatedly called 911 concerning the
presence of people outside his house; (3) after a ten-year
period of sobriety, during the preceding year he had relapsed
and had been abusing alcohol, cannabis, opiates,
over-the-counter sleep aids, and synthetic drugs (such as
synthetic marijuana (K-2) and bath salts); (4) his
concentration was moderately poor and he was unable to
complete tasks, due to "internal distraction"; (5)
he had extended periods of mania, with racing thoughts,
flight of ideas, pressured speech, extravagant behavior, and
decreased need for sleep; (6) he was anxious and had
difficulty sleeping when not in a manic episode; (7) he had
an extended personal and family history of substance abuse;
(8) he received substance abuse treatment on multiple
occasions; and (9) he was currently taking Klonopin,
prednisone, and Vicodin. R. 419-20. Counsellor Hart assessed
Ollis with "bipolar disorder depressed, severe";
alcohol, opiate, synthetic, and polysubstance dependence;
knee pain; and Crohn's disease. R. 420. After another
treatment session on January 11, 2013, Ollis received
prescriptions for Geodon (for mood), Seroquel (for sleep),
and Lamictal (for mood). R. 428, 431-34.
seen on March 5, 2013, Ollis denied further substance abuse,
but recited that he remained unemployed and was still
'"not very functional.'" R. 426. When seen
on May 3, 2013, Ollis reported that he was working at
McDonald's and had been clean for approximately six
months. R. 424-25. At this visit, his dosage of Geodon was
modified and he was prescribed Ability, and his prior
prescriptions were continued. R. 425. Ollis's last
treatment at RHA occurred on May 24, 2013, when his mood was
assessed as "ok, " and his hygiene, grooming,
psychomotor activity, dress, eye contact, speech, thought
process, associations, and thought content were all found to
be within normal limits. R. 423. He also exhibited some
flight of ideas, with slightly reduced attention and impaired
attention and concentration, but was found to be well
oriented, with an intact memory, and fair insight and
judgment. R. 423. Ollis reported on this date that he had
been clean for approximately seven months and experienced no
cravings. R. 422.
Treatment with Dr. Paa-Kofi Obeng and Dr. Philip Kondylis and
In Motion Physical Therapy
re-locating to Hampton Roads from North Carolina, R. 462-63,
Ollis began receiving treatment from persons affiliated with
the Bon Secours Health System, including at the Nansemond
Suffolk Family Practice (Paa-Kofi Obeng, D.O.), at In Motion
Physical Therapy, and from Dr. Philip Kondylis. R. 457-96,
527-623, 624-44. On May 7, 2014, Ollis received a new patient
examination from Dr. Obeng. R. 462. Ollis told Dr. Obeng that
he suffered from knee, hip, and back pain, depression,
anxiety, and inflammatory bowel disease, and could not afford
medications to treat the latter condition. R. 462. With
respect to his knee, Ollis reported breaking it in 2011 and
having pain upon bending it. R. 462. Dr. Obeng reported
positive findings: (1) for bipolar disorder and depression in
his review of behavioral/psychiatric systems; and (2) for
arthralgia and back pain with the musculoskeletal system. R.
464. During the course of his physical exam, Dr. Obeng noted
that Ollis presented with a flat affect and that
neurologically Ollis was well oriented, had normal and
symmetric motor and muscle strength, a normal gait, and
normal reflexes, with the exception of a diminished biceps
reflex. R. 465. Dr. Obeng assessed: (1) chronic back pain and
refilled a prescription for Norco; (2) avascular necrosis of
the hip, status post-replacement, with continued use of Norco
as needed; (3) bipolar disorder with depression and refilled
his Seroquel and Invega prescriptions (with a referral for
psychiatric management); and (4) Crohn's disease, noting
the need to get Ollis back on medication as soon as possible,
subject to insurance and cost. R. 465-66.
had seven follow-up appointments with Dr. Obeng and/or his
practice from June 2014 through July 2015, repeatedly
presented with a flat affect, and was regularly prescribed
Norco, Klonopin (clonazepam), Seroquel, Lamictal, and Invega,
and other medications noted below. R. 527-623. On June 9,
2014, Ollis reported no changes in his medical condition, but
indicated that, without medications for Crohn's disease,
he had frequent flare-ups. R. 613. Ollis also advised that
the mental health treatment provider declined to treat him
because he failed to satisfy their criteria. R. 613. Dr.
Obeng referred Ollis to a gastroenterologist, continued the
same medications previously noted, and also prescribed
sulfasalazine (pending the gastrointestinal referral) and a
Vitamin D supplement. R. 615. During a September 9, 2014
examination for back and abdominal pain, Ollis continued to
report issues paying for medications and said he would
follow-up with the Tidewater Free Clinic. R. 595-97.
October 22, 2014, Philip Kondylis, M.D., examined Ollis with
regard to his Crohn's disease. R. 458-60. During a
systems review and physical examination, Dr. Kondylis noted,
among other things, that Ollis: (1) had diarrhea; (2) denied
recent anxiety or depression; (3) appeared to have a hernia;
and (4) had a normal gait. R. 458-59. With respect to the
Crohn's, Dr. Kondylis advised that studies were needed to
assess the disease's current stage and appropriate
treatment, that Ollis was overdue for a colonoscopy, and
ordered a CT scan of the abdomen. R. 460. Ollis later advised
Dr. Obeng that he could not afford these procedures. R. 540.
December 9, 2014 follow-up exam with Dr. Obeng, Ollis
reported having pain down his sides and his lumbar region. R.
578. Dr. Obeng prescribed an albuterol inhaler for
Ollis's wheezing, directed him to follow-up with Dr.
Kondylis, and noted that Ollis remained stable on Norco for
back pain while awaiting a response from pain management. R.
580. Two weeks later, Ollis returned to Dr. Obeng complaining
of acute back and side pain and muscle spasms in his mid to
lower back. R. 562, 564. Dr. Obeng noted that a recent MRI,
which revealed a healing rib fracture at ...