United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PAUL R. CHERRY, Magistrate Judge.
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Nathaniel Lucas on January 29, 2013, and a Plaintiff's Memorandum in Support of His Motion for Summary Judgment [DE 16], filed by Plaintiff on July 19, 2013. Plaintiff requests that the September 2, 2011 decision of the Administrative Law Judge denying his claim for supplemental security income ("SSI") be reversed and remanded for further proceedings. On September 23, 2013, the Commissioner filed a response, and Plaintiff filed a reply on October 23, 2013. For the following reasons, the Court grants Plaintiff's request for remand.
On March 30, 2010, Plaintiff filed an application for SSI, alleging an onset date of May 1, 2001, for disability due to anxiety, psychosis, personality disorder, seizure disorder, degenerative disc disease, gastroesophageal reflux disease, and knee arthritis. The application was denied at the administrative level, and Plaintiff requested a hearing, which was held on June 27, 2011, before Administrative Law Judge ("ALJ") Edward P. Studzinski. In appearance were Plaintiff, his attorney Velda Desari, and vocational expert ("VE") Lee O. Knutson. The ALJ issued a written decision denying benefits on September 2, 2011, making the following findings:
1. The claiment has not engaged in substantial gainful activity since March 30, 2010, the application date (20 CFR 416.971 et seq. ).
2. The claimant has the following severe impairments: degenerative disk[sic] disease, arthritis in his knees, seizure disorder, personality disorder, anxiety, and psychosis (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform less than light work as defined in 20 CFR 416.967(b). Specifically, the claimant can lift twenty pounds occasionally and ten pounds frequently. The claimant can sit for six hours and stand and/or walk for six hours for a total of eight hours in a standard workday. The claimant is limited in his ability to use his lower extremities to operate foot controls. The claimant can never climb ladders, ropes, and scaffolds, but can occasionally balance, stoop, kneel, crouch, or crawl. The claimant must avoid concentrated exposure to extreme heat and cold as well as humidity. The claimant must avoid hazardous work environments. The claimant is limited to simple, routine, repetitive tasks. The claimant is limited to simple and concrete decision making. The claimant's work must involve limited changes in the work setting in terms of place, procedures, and products. The claimant can have no interaction with the general public and very limited interaction with coworkers and supervisors, and cannot perform tandem tasks. The claimant needs to use a cane for ambulation and will need to alternate between sitting and standing at will, but will not spend more than one minute of every twenty minutes in the workday shifting position and will remain on task when he is shifting position.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born [in 1965] and was 45 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 FR 416.964).
8. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 416.968).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since March 30, 2010, the date the application was filed (20 CFR 416.920(g)).
On November 26, 2012, the Appeals Council denied Plaintiff's request for review, leaving the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. On January 20, 2013, Plaintiff filed this civil action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the Agency's decision.
The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C. § 405(g).
A. Medical Evidence
1. Records Prior to Plaintiff's Release from the Indiana Department of Corrections
a. Physical Health
At the Indiana Department of Corrections, on January 31, 2007, Perry Dobyns, M.D. noted that Plaintiff was "very argumentative and abusive" when told to complete a form for evaluation of his knee and arthritis [back] pain. (AR 272). Plaintiff was diagnosed with possible sacroilitis of the lower spine and osteoclastic reaction in the right elbow. The x-ray of the elbow showed slight hypertrophic spurring from the olecranon process. Lumbar spine films showed degenerative and hypertrophic changes at L4 with more severe changes at L5-S1.
The January 31, 2007 treatment notes indicate chronic esophageal reflux and osteoarthritis and that Plaintiff complained of chronic pain from his knee injury and arthritis. The doctor noted that there was no formal evaluation or documentation. When Plaintiff was told to complete the health care form in order to start an evaluation, Plaintiff was combative and abusive.
On February 15, 2007, the treatment record notes that Plaintiff had joint pain and chronic osteoarthritis. On April 19, 2007, Plaintiff requested treatment for joint pain (back and knee) and for GERD. The treatment notes report chronic osteoarthritis and allied disorders. On May 4, 2007, the treatment notes show that Plaintiff had chronic esophageal reflux, osteoarthritis, and allied disorders. The doctor noted that Plaintiff had severe arthritis in his back and knee joints that was exacerbated with inclement weather. The doctor ordered a bottom bunk pass for ninety days and a lower back brace. On July 26, 2007, Diane Elrod, D.O. wrote that Plaintiff was doing much better walking and that Plaintiff did not need crutches but requested a cane. Dr. Elrod ordered a cane and a bottom bunk. On September 1, 2007, Plaintiff had a follow up visit for his arthritis. He reported that he was still hurting but felt better after prednisone.
On July 22, 2008, the doctor wrote that Plaintiff's "biggest problem is the arthritis in his knees." (AR 282). Plaintiff requested a new left knee brace because his brace had worn out. On August 13, 2008, and September 22, 2008, it was noted that Plaintiff was taking Naprosyn. Plaintiff requested more pain medication but the doctor declined the request because of concerns with Plaintiff's kidney function. On September 22, 2008, it was noted that Plaintiff had been on Naprosyn for his arthritis but was being switched to Tylenol because of the effects of the NSAID. On October 13, 2008, Plaintiff complained of continuous arthritic pain in both hands and his left hip.
On February 3, 2009, Plaintiff reported left knee pain with chronic intermittent swelling. He reported that he had surgery on the left knee. On May 5, 2009, Plaintiff reported chronic swelling of and pain in the left knee. Plaintiff reported multiple injuries to his knee. It was noted that he had chronic osteoarthritis and allied disorders. On September 10, 2009, it was noted that Plaintiff suffered from chronic osteoarthritis and allied disorders. On November 24, 2009, Plaintiff reported that repetitive hand use during work release caused pain and swelling in his arms and hands.
Plaintiff was taking Lorazepam, Meloxicam, Omeprazole, Risperdone, Gabapentin, Salsalate, Diclofenac, and Xanax. The medical records show that he is allergic to Dilantin with the side effect of diarrhea.
b. Mental Health
On July 15, 2009, while in prison, Plaintiff requested an appointment with a counselor for complaints of paranoia, depression, and anxiety. He reported that he felt nervous and "antsy" around lots of people and felt like someone was "out to get" him. (AR 297). He said he always felt depressed. He reported that he served in the army for four years with a dishonorable discharge and experienced noise and biohazard exposure. He reported a history of homicidal and suicidal thoughts. He was the victim of physical and sexual child abuse at the hands of his foster parents. He was convicted of armed robbery and was incarcerated through April 18, 2010. He "isolated" when depressed, and could become physically aggressive when angry. He had a history of head injury. On mental status examination, Plaintiff exhibited excessive speech, anxious mood, and only "fair" reasoning. Plaintiff reported that he murdered his sister's boyfriend when he was thirteen years old but that he was never charged. He had three sons who were all dead, by shooting or drowning. He was in special education classes each year until he quit school in the ninth grade. He had a history of behavioral problems throughout school and of sleeping only two hours a night. Plaintiff reported that he had deliberately driven his car into a tree on several occasions to attempt suicide. He also tried to kill himself by walking in traffic with his eyes closed.
At his second session on July 22, 2009, Plaintiff was diagnosed with anxiety for "excessive and persistent daily worry about several life circumstances that has no factual or logical basis." (AR 256). On examination, hyperactive psychomotor behaviors were noted, along with excessive speech, and only "fair" reasoning, impulse control, and insight. His self-perception was aggrandizing, and his thought process was circumstantial. He was observed acting defiantly toward prison staff upon arriving for the appointment, refusing to use the door designated for inmates and insisting on using the visitation room entrance. He presented himself as superior to both other inmates and staff. He reported having been in six fights since arriving in minimum security without being caught and expressed anger at two staff members whom he felt were "out to get him." He felt anxious when they were on duty. He reported mood swings. He did not meet the criteria for an Axis I diagnoses of anxiety or depression. He did not mention hallucinations. 2. Medical History Following Plaintiff's Release from Prison
On May 26, 2010, Irena Walters, Psy.D. performed a consultative mental examination. Plaintiff reported poor concentration because of attention deficit disorder and that he hates men. He self reported that he was taking Dilantin. He stated that for the last twenty years, a ghost named "Reggie" followed him around. He admitted to tearfulness on a weekly basis. He had mood swings and slept only two hours a night. He became dizzy and sweaty around crowds and wanted to run. His mood was anxious; his affect was angry and irritable. He did not know the number of weeks in a year, where London is located, the capital of Italy, the author of Romeo & Juliet, the four seasons of the year, the direction in which the sun sets, the number of ounces to a pound, or a current event. He could not do simple math, or count down from 20; he became frustrated. He put forth good effort during his evaluation. Dr. Walters diagnosed anxiety disorder, psychosis, and antisocial personality disorder and assigned him a GAF score of 50-55.
On June 11, 2010, J. Smejkal, M.D. evaluated Plaintiff, noting a history of seizures (the most recent having occurred the previous week), anxiety, paranoia, GERD, and arthritis. On physical examination, Plaintiff was observed "talking to someone who was not there." (AR 347). Plaintiff had "abnormal mood, affect, insight, and judgment." (AR 349). Plaintiff wore a back brace, and his lumbar range of motion was abnormal. Plaintiff had a normal gait, was able to walk heel to toe with no difficulty, got on and off the examination table with no problem, could move from standing to sitting with no difficulty, and had a normal spine. He was unable to stoop and squat. He had tenderness of the lumbar region of the spine with restricted range of motion and negative straight leg raises. He had normal upper extremities and had full range of motion in his lower extremities. Dr. Smejkal listed Dilantin as a medication and listed no allergies. He noted a history of seizures since 2006.
From May 2010 through July 2011, Plaintiff treated at the VA Hospital. On June 8, 2010, primary care provider Dr. Hayssam Kadah treated Plaintiff for depression, GERD, siezures, and chronic pain due to narrowed lumbar disc space and osteoarthritis seen on June 2010 x-rays. At the initial evaluation, Dr. Kadah referred Plaintiff to specialists for counseling, due to depression and chronic post traumatic stress disorder. A PHQ-9 screening test for depression was positive, as was a PTSD 4Q screening test. On June 8, 2010, Dr. Kadah observed that Plaintiff "went straight to the examination table on account of pain" but was able to stand, sit, and walk "without undue difficulty" as the examination proceeded. (AR 376-79, 735-38).
On July 14, 2010, Benetta Johnson, Ph.D. completed a Psychiatric Review Technique form, indicating that Plaintiff suffered from psychosis disorder, anxiety disorder, and antisocial personality disorder. She opined that Plaintiff suffered moderate limitations in maintaining social functioning and in maintaining concentration, persistence, or pace and suffered mild restrictions of activities of daily living. Dr. Johnson also completed a Mental Residual Functional Capacity Assessment form, indicating moderate limitations in Plaintiff's ability to (1) understand and remember detailed instructions, (2) carry out detailed instructions, (3) maintain attention and concentration for extended periods, (4) work in proximity to others without being distracted; (5) interact with the public appropriately; and (6) get along with co-workers.
At a July 15, 2010 psychotherapy session, Plaintiff presented with complaints of isolation, poor sleep, and hallucinations. Plaintiff did not think the hallucinations were abnormal. His therapist "reframed" his experiences of seeing and talking with a dead person as a "symptom." Plaintiff did not like when others walked behind him. He reported killing several men and having experienced suicidal thoughts. He frequently felt helpless, down, nervous, and anxious and had little interest several days a week. "Reggie" talked to him and frequently was seen by Plaintiff. Plaintiff stayed away from people due to anger and agitation. The notes indicate psychomotor agitation, angry affect and mood, limited insight, and fair judgment. Plaintiff was assigned a GAF score of 49.
On July 16, 2010, M. Brill, M.D. issued a Physical Residual Functional Capacity report, limiting Plaintiff to light work and indicating that Plaintiff is only occasionally able to climb stairs and to balance, stoop, kneel, crouch or crawl and never able to climb ropes or ladders. Dr. Brill placed a limitation of avoiding all exposure to hazards (machinery, heights, etc.), due to seizure disorder, knee pain, and lumbar pain.
On August 17, 2010, Plaintiff was diagnosed with insomnia. He had difficulty maintaining sleep and was anxious. Psychiatrist Dr. Zhang observed muscle tension and easy fatigue. Ativan was started. On August 20, 2010, Dr. Kadah prescribed a back brace because the abdominal binder for chronic back pain did not provide enough support. Dr. Kadah noted that Plaintiff ambulated without an assistive device.
On September 13, 2010, Drs. Jack Yen and Constance Phillips noted Plaintiff's lack of trust and his desire to avoid other men. The report notes nightmares about childhood abuse; decreased concentration, memory, and appetite; irritability; and anger outbursts. Plaintiff was anxious and felt hopeless. His girlfriend confirmed his paranoia, need for "symmetry, " and intermittent sleep pattern. Plaintiff reported that "Reggie" was following him; his girlfriend confirmed his visual hallucinations. Plaintiff was observed trying to "straighten" the interview room. (AR 713). On examination, his affect was labile, his motor activity was agitated, and his insight, judgment, and impulse control were poor. He had both suicidal and homicidal ideation. He was assessed with "PTSD chronic neurosis from childhood trauma;" "rule out" obsessive compulsive disorder (OCD), psychosis, depressive disorder with psychotic features; antisocial traits; and cocaine dependence in full sustained remission. Risperdone was started. Plaintiff was given a GAF score of 43.
October 27, 2010 left hand x-rays showed prior partial amputation of the fourth finger and mild degenerative joint disease of the distal interphalangeal joint of the left fourth finger. Bone fragments from prior trauma were noted in the right hand. No significant osteoarthritis was noted. Degenerative changes (spurring) were seen on right knee x-ray. X-rays ordered by Dr. Kadah showed narrowing of the left knee joint and osteoarthritis (patellar spurring). On October 27, 2010, Plaintiff was issued two knee braces and a back brace.
A November 18, 2010 lumbar MRI showed degenerative disc disease with protrusions and bilateral foraminal stenosis at L3-4, L4-5, and L5-S1.
On January 10, 2011, Plaintiff's girlfriend reported that he slept intermittently. Plaintiff reported decreased concentration and irritability; he still avoided concentrations of people. On examination, agitated motor activity was noted; his affect was labile, with poor insight, judgment, and impulse control. His Risperdone dosage was increased.
On February 11, 2011, Plaintiff was seen at the pain clinic for low back pain radiating to his legs and feet. He was treated with a lumbar epidural steroid injection, which provided minimal relief. A TENS unit was considered.
On March 7, 2011, Plaintiff presented to be evaluated for a cane. He was issued a wood cane and given gait training. He reported that he had surgery on his left knee in 1983 and surgery in 2000 from gunshots to both legs below the knee and right forearm. He reported that the lumbar epidural steroid injection at the pain clinic did not help. A left knee examination revealed soft tissue swelling with limited flexion. He was noted to have a steady gait.
On March 11, 2011, Plaintiff had physical therapy for lumbar dysfunction. His provider confirmed that he required an assistive device for ambulation and issued a cane because Plaintiff had lost his when his car window was open. Plaintiff's pain affected his sleep, and pain medication was required. His standing balance was only fair. Plaintiff was observed wearing a left knee brace, had a surgical scar on his knee, and walked with an antalgic gait. His posture was abnormal with his weight shifted to the right and his back muscles tight. His physical exam revealed tightness in the quads and hamstrings, poor muscle performance of the left knee extensors and flexors, and contracture tightness of the left knee joint, which can cause lumbosacral dysfunction.
On March 14, 2011, Dr. Yen noted that Plaintiff was irritable and that he was not taking Risperidone correctly. Plaintiff reported irritability, anger, decreased concentration, and nightmares.
On March 18, 2011, Plaintiff saw Paulette Stronczek, Ph.D. Plaintiff was not comfortable attending therapy without his girlfriend present. He reported wanting to hit men. He had conversations with people "no one else can see, " who told him to do bad things. Dr. Stronczek observed that Plaintiff appeared restless and used his walking cane to express his feelings, swinging it during the therapy session. Post traumatic stress disorder and psychotic disorder were diagnosed.
On April 8, 2011, Plaintiff reported receiving no relief from his current pain medication and was ambulating with a cane. Associated pain symptoms included inability to perform activities of daily living, concentrate, and anxiety.
On April 25, 2011, Dr. Yen noted irritability, outbursts of anger, and isolation. Dr. Yen noted that Plaintiff was taking his 20mg Citalopram daily, but incorrectly. His mood worsened with the medication. He continued to be distractible and picked papers out of the trash can during treatment. He still had nightmares of childhood abuse and decreased concentration, interest, and appetite. Plaintiff was anxious and hopeless. He denied hallucinations but still saw his dead friend. He was paranoid and concerned with the level of organization in his provider's office. His active outpatient medications were listed as Citalopram, Gabapentin, Guaifenesin, Omeprazole, Dilantin, Pyridoxine, Risperidone, and Tramadol. He walked with a cane. On mental status examination, agitated motor activity was noted, his affect was labile, and his insight, judgment, and impulse control were poor. Given the "possible decrease in seizure threshold [due to] drugs like ...