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Holiday v. Berryhill

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

January 17, 2018

HELEN HOLIDAY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          Lawrence R. Leonard United States Magistrate Judge

         This matter is before the Court on Plaintiff Helen Holiday's ("Plaintiff') complaint filed pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Defendant, Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration ("the Commissioner"), denying Plaintiffs claim for Supplemental Security Income ("SSI") under the Social Security Act. Plaintiff filed a Motion for Summary Judgment, ECF No. 11, and Defendant filed a cross-Motion for Summary Judgment, ECF No. 13, which are now ready for recommended disposition. This action was referred to the undersigned United States Magistrate Judge ("the undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate Judges. After reviewing the briefs, the undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that Plaintiffs Motion for Summary Judgment, ECF No. 11, be GRANTED, that the Commissioner's Motion for Summary Judgment, ECF No. 13, be DENIED, and the final decision of the Commissioner be VACATED and REMANDED for proceedings and analysis consistent with this Report.

         I. PROCEDURAL BACKGROUND

         On February 21, 2013, Plaintiff initially filed her application for SSI, alleging disability due to psychosis, mood disorder, anxiety disorder, bilateral knee disorder, and fibromyalgia, with an onset date of February 14, 2013.[1] R. at 13.[2] Her application was initially denied on June 20, 2013, and again denied upon reconsideration on January 24, 2014. R. at 13. On March 19, 2014, Plaintiff requested a hearing before of an administrative law judge, which was conducted on September 22, 2015. R. at 13, 31-60. The administrative law judge, Judge Irving A. Pianin ("the ALJ") issued a decision denying Plaintiffs SSI application on October 2, 2015. R. at 13-22. On January 20, 2017, the Appeals Council denied Plaintiffs request for review because the ALJ's decision was supported by substantial evidence and Plaintiffs claims did not warrant review, making the ALJ's decision the Commissioner's final decision. R. at 1-3.

         Having exhausted her administrative remedies, Plaintiff filed the instant complaint for judicial review of the Commissioner's decision on February 14, 2017. ECF No. 3. The Commissioner filed an Answer on April 21, 2017. ECF No. 7. The matter was referred to the undersigned U.S. Magistrate Judge on May 24, 2017. ECF No. 9. Plaintiff filed her Motion for Summary Judgment on June 23, 2017, ECF No. 11, and the Commissioner filed a Cross-Motion for Summary Judgment and a Memorandum in Support on July 24, 2017, ECF Nos. 13-14. The motions are now ripe for recommended disposition.

         II. RELEVANT FACTUAL BACKGROUND

         Plaintiffs initial disability application alleged her physical disability onset date was February 14, 2013, and did not allege disability due to mental health impairments. R. at 72. See also ECF No. 14 at 4. After Plaintiffs application was denied at the initial level, Plaintiff alleged mental health impairments, including sleep disturbances, depression, concentration impairment, and nervousness, with an onset date of June 15, 2013. R. at 91.[3] In her Motion for Summary Judgment Plaintiff abandons her claim for disability pursuant to physical impairments. ECF No. 12 at 6. Accordingly, the Court's review will focus exclusively on Plaintiffs alleged disability due to mental health impairments. See ECF No. 14 at 5 n.l (citing Bufflngton v. Baltimore Cty., Md., 913 F.2d 113, 121 (4th Cir. 1990) (citing 9 J. Moore & B. Ward, Moore's Federal Practice, ¶ 228.02[2.-1] (1990) (appellant must raise all issues he wishes to be considered in his initial brief); Mississippi River Corp. v. FTC, 454 F.2d 1083, 1093 (8th Cir. 1972) (error relied on should not be asserted for the first time in the reply brief))).

         Plaintiff was born on January 22, 1968, and was forty-five (45) years old at the alleged June 15, 2013 onset of Plaintiff s mental health limitations. R. at 91, 190. Plaintiff completed the ninth grade, obtained a G.E.D in 1984, and completed approximately six months of nursing school in 2010. R. at 33-34. On September 22, 2015, Plaintiff appeared with counsel, Robert W. Gillikin, II, and testified before the ALJ at the administrative hearing. R. at 31-60. Barbara Byers, a certified Vocational Expert ("VE") also appeared and testified. R. at 29, 56-58.

         On March 11, 2014, Plaintiff began receiving psychiatric treatment for her mental health issues at the Adult Outpatient Services ("Pembroke") in Virginia Beach. ECF No. 12 at 3. According to Plaintiff, this resource is a "community services board" for insured residents of Virginia Beach who require ongoing psychiatric treatment for patients who are approved for "GAP" coverage, which is a limited form of Medicaid that covers only mental treatment and medications. ECF No. 12at3-4n.l. Through Pembroke, Plaintiff has been under the care of Dr. Louis Leone, III ("Dr. Leone"), a psychiatrist, who has prescribed Plaintiff medications such as Cogentin (to treat psychosis and psychotic features), Risperdal (an anti-psychotic used in cases of bipolar disorder, schizophrenia, and/or anxiety), and lithium "to help with mood problems." R. at 653. See also ECF No. 12 at 4 nn. 2-3. When Plaintiff first presented to Pembroke in March 2014 for her intake assessment, she complained of crying, feeling out of place, nightmares, discomfort with crowds, and hallucinations of the auditory and visual variety. R. at 692, 653. Plaintiff reported that she had been experiencing such symptoms for approximately one month prior to intake. R. at 692. At her intake appointment, Plaintiff was diagnosed with (1) Psychotic Disorder, Not Otherwise Specified, (2) Depressive Disorder, Not Otherwise Specified, and (3) Anxiety Disorder, Not Otherwise Specified. R. at 683. Plaintiff has received a Global Assessment of Function ("GAP')[4] score of 40 on three separate occasions. R. at 683 (March 20, 2014), R. at 741 (January 15, 2015), R. at 743 (September 11, 2015).

         Since March 2014 to the present, Plaintiff continues to receive regular psychiatric treatment, prescription management, and counseling from Dr. Leone. On May 22, 2014, during a reassessment with Dr. Leone, Plaintiff reported that taking Risperdal had decreased the intensity of her audio-visual hallucinations, but she complained of mood swings. R. at 653. Plaintiff returned to Dr. Leone on July 14, 2014 at which time Plaintiff expressed that although her father had recently passed away, she was "doing well." R. at 656. Plaintiff reported that she was struggling with housing stability, alternating between staying with a friend in exchange for babysitting and cleaning the house, and living in her vehicle. R. at 656. She also reported that she had been experiencing audio and visual hallucinations and admitted that she was not regularly taking her medication. R. at 656. In July 2014, Plaintiff was approved to attend therapy sessions at the Psychosocial Rehabilitation Beach House ("Beach House") where Plaintiff could receive mental health services including learning coping skills to decrease and manage her mental health symptoms. R. at 623, 652, 669. Throughout the fall of 2014, Plaintiffs attendance at Beach House therapy sessions was spotty, but by late December 2014, Plaintiffs attendance had improved markedly. R. at 669-70, 674.[5] During a December 22, 2014 visit with Dr. Leone, Plaintiff reported that she was no longer homeless, was sleeping well, was taking her medication as prescribed and no longer suffered from audio-visual hallucinations. R. at 672-73. On February 10, 2015, Plaintiff presented for a scheduled follow-up appointment and reported that she was taking her medication, "doing well, " and denied any psychotic symptoms. R. at 676. Plaintiff saw Dr. Leone on March 2, 2015 and denied mood swings or issues with anger, depression, or anxiety, but on examination reported that she occasionally experienced "tolerable" auditory hallucinations manifesting as a stray voice calling her. R. at 678. A mental health status examination was performed on June 19, 2015 at which time Plaintiffs judgment was rated as fair but her thought content was rated as unreasonable. R. at 699. On August 18, 2015, Plaintiff saw Dr. Leone and again reported auditory hallucinations (the voice of a recently deceased family member) and Dr. Leone noted that Plaintiff "[d]oes display an inappropriate giggle when relaying" such information. R. at 727. On September 11, 2015, Dr. Leone completed a Medical Source Statement on behalf of Plaintiff which included the opinion that although Plaintiff was compliant with medication, and not a malingerer, Plaintiff continued to experience symptoms, including but not limited to visual or oral hallucinations and delusional thinking. R. at 743. This Medical Source Statement also included Dr. Leone's opinions that Plaintiff suffered from "marked" levels of impairment in her ability to "carry out short/simple instructions, " "maintain concentration/focus, " "make simple decisions, " "get along with supervisors, " "respond to changes in routine, " and "deal with normal work stress." R. at 744. Dr. Leone estimated that due to her mental health issues, Plaintiff would need three unscheduled breaks of at least fifteen minutes in a forty hour work week and would be absent from work more than four days a month. R. at 744.

         On or about January 24, 2014, after an initial evaluation and reconsideration, a state agency physician reviewed Plaintiffs medical records and found that Plaintiff suffered from no medically determinable mental health impairment. R. at 96. Plaintiff notes that because she did not seek mental health treatment until nearly a month afterwards, on March 11, 2014, the state agency did not have a medical expert or consulting physician review the file or form an opinion as to Plaintiffs level of mental health function. ECF No. 12 at 5. Accordingly, Plaintiff contends that because Dr. Leone was the only physician to evaluate Plaintiffs mental health and to render medical source opinion support, Dr. Leone's findings regarding Plaintiffs mental health function remain unrebutted. ECF No. 12 at 9 n.6. The Commissioner specifically disputes this contention, arguing that in January 2014, the state agency psychologist reviewed Plaintiffs mental health records to determine that Plaintiff did not suffer from any medically determinable health impairment. R. at 95 ("[Plaintiff] is not able to identify who diagnosed her with depression and she is not on medication or in treatment for this condition. She has never been treated or hospitalized for a psychiatric impairment. There is no medically determinable mental health impairment in file."). The Commissioner also notes that the consultative examiner's June 8, 2013 evaluation of Plaintiff included a mental status examination during which the examiner concluded that Plaintiff was "alert and oriented x3" and "[a]ttention span and concentration normal." R. at 322.

         At the administrative hearing before the ALJ, Plaintiff supplemented the factual record and testified that although she had only recently began receiving treatment for her mental health problems, she had experienced them for "[a] long time, since I was twelve, " and that the severity of the symptom manifestation fluctuated, compounded by the fact that when she was young, Plaintiff reported the symptoms to her family but "they never believed it." R. at 54-55. Plaintiff also testified that when she takes her medication as prescribed, the visual hallucinations subside, but she continues to hear things, though she is unsure whether the sounds are real or imagined. R. at 42-44. Plaintiff also confirmed her past work experience to include cleaning offices at Redcoats, babysitting, housekeeping, and as a child care assistant teacher. R. at 35, 37-39, 49.

         When presented with a hypothetical assuming the same age, education, and work background as Plaintiff, capable of medium work that did not require more than occasional postural activities, no more than occasional contact with coworkers, supervisors, or the general public, performing only simply, repetitive and routine tasks, the VE testified to the wide availability of medium unskilled work such as hand packager and laundry laborer and of light unskilled work as cafeteria attendant and assembler. R. at 56-57. The ALJ also presented a second hypothetical, asking the VE to credit Dr. Leone's assessment, by assuming the "marked" limitations on categories as offered by Dr. Leone's Medical Source Statement, R. at 744, to determine whether any one of the markedly limited categories and need for unscheduled breaks and absences from work would preclude full time employment entirely, to which the VE answered affirmatively, R. at 57-58.

         III. THE ALJ'S FINDINGS OF FACT AND ...


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