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Ollis v. Berryhill

United States District Court, E.D. Virginia, Norfolk Division

December 18, 2017

TODD OLLIS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Robert J. Krask, United States Magistrate Judge.

         Todd 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 Security Act.

         An 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.

         I. PROCEDURAL BACKGROUND

         Plaintiff, 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.[1] 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.

         On 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.

         II. RELEVANT FACTUAL BACKGROUND

         A. Background Information and Hearing Testimony by Todd Ollis

         Born in 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.

         Although 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.[2] 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.

         Ollis 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.

         With 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.

         Ollis 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. 50-51.

         Ollis 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.

         Ollis's 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.

         B. Relevant Medical Record

         1. Pre-Onset Medical Records

         Prior 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, 443.

         From 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.

         2. Treatment with Dr. James Early

         During 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. 397.

         After 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").

         3. Treatment with RHA Behavioral Health

         From 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.

         When 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.

         4. Treatment with Dr. Paa-Kofi Obeng and Dr. Philip Kondylis and In Motion Physical Therapy

         After 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.

         Ollis 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.

         On 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.

         On a 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 ...


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