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Phares v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

March 27, 2017

JOHNNY W. PHARES, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of the Social Security Administration, Defendant.

          ENTRY ON JUDICIAL REVIEW

          TANYA WALTON PRATT, JUDGE

         Plaintiff Johnny W. Phares (“Phares”) requests judicial review of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”), denying his application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 423(d) (“the Act”). For the following reasons, the Court reverses in part the final decision of the Commissioner and remands this action for further proceedings.

         I. BACKGROUND

         A. Procedural History

         On January 9, 2013, Phares filed an application for DIB, alleging a disability onset date of June 30, 2010, due to hypertension, insomnia, depression, and a panic disorder with agoraphobia. His claim was initially denied on February 18, 2013, and upon reconsideration on March 28, 2013. Phares filed a written request for a hearing on May 9, 2013. On July 10, 2014, a hearing was held via telephone conference before Administrative Law Judge Daniel J. Mages (“the ALJ”). Phares was present and represented by Andrew S. Youngman, a non-attorney, as well as by counsel. A vocational expert, Ray O. Burger (“the VE”), appeared and testified at the hearing. On August 8, 2014, the ALJ denied Phares' application for DIB. Following this decision, Phares requested review by the Appeals Council on September 2, 2014. On November 5, 2015, the Appeals Council denied Phares' request for review, thereby making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. On December 28, 2015, Phares filed this action for judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). (Filing No. 1.)

         B. Factual Background

         At the time of his alleged disability onset date, Phares was forty-seven years old, and he was fifty-one years old at the time of the ALJ's decision. He is a high school graduate. Prior to the onset of his alleged disability, Phares worked as a self-employed carpet installer. On January 30, 2010, he stopped working after suffering a panic attack and he has not worked since that date.

         In June 2010, an emergency room physician diagnosed Phares with anxiety, and discharged him with a prescription for Xanax. (Filing No. 8-8 at 5-6.) One month later, on July 13, 2010, Phares had a followed-up visit with Lonna Weaver, APN[2] and reported that Xanax worked well and prevented panic attacks, however, once he completed the prescription he experienced another panic attack. Id. at 77. Nurse Weaver prescribed Zoloft, Xanax, and Ambien, which Phares later reported helped ease his anxiety and panic disorder. Id. at 75, 78. On October 12, 2010, Nurse Weaver changed Phares' Zoloft prescription after he complained of certain side effects. Id. at 73. The following month, Phares reported to Nurse Weaver that he suffered approximately four to five panic attacks. Thereafter, Nurse Weaver adjusted Phares' medication and referred him to a psychiatrist. Id. at 71-72.

         On February 21, 2011, Nurse Weaver increased Phares' Xanax dosage after he complained that the medication did not control his anxiety as well as before. Id. at 66-67. Nurse Weaver again increased Phares' Xanax dosage on May 10, 2011, because Phares reported suffering several panic attacks. Id. at 65. Ten days later, Phares reported suffering insomnia, as well as panic attacks at bedtime, but stated that he felt better than he had felt in a long time. Id. at 62. Nurse Weaver observed that Phares appeared less anxious than he had in the past. Id.

         On January 20, 2012, Phares visited his primary care provider, Stina Wedlock, M.D., regarding his anxiety and panic disorder. Id. at 58. Phares reported “functioning as somewhat difficult, ” and complained of anxious thoughts, difficulty sleeping, excessive worry, racing thoughts, and restlessness. Id. Phares stated that conflict and stress aggravated his anxiety. Id. Dr. Wedlock opined that Phares had a good response to medication, and prescribed Xanax and Amitriptyline. Id.

         On April 23, 2012, Phares visited Dr. Wedlock and again reported his functioning as somewhat difficult, as well as anxious thoughts, difficulty falling asleep, excessive worry, and shaking. Id. at 54, 56. Dr. Wedlock noted that Phares demonstrated the appropriate mood and affect, and continued Phares' Xanax prescription. Id. at 57. On July 26, 2012, Dr. Wedlock opined that Phares' panic disorder was stable and Phares handle medication well. Id. at 51. Dr. Wedlock refilled Phares' medications without change. Id. at 53. On October 18, 2012, Dr. Wedlock again noted that Phares remained stable. Id. at 48. On January 11, 2013, Dr. Wedlock indicated that Phares' panic attacks were under “fair control, ” Phares demonstrated the appropriate mood and affect, and continued Phares' Xanax prescription without change. Id. at 45-47.

         On February 12, 2013, at the request of the state agency, Robert Kurzhals, Ph.D., evaluated Phares and reported that Phares goes out on his own once a month to purchase groceries, serves as his father's power of attorney, and manages his father's finances. Id. at 90. Phares also informed Dr. Kurzhals that he has anxiety about driving, but he maintains a driver's license and drives himself to appointments. Id. at 90-91. Dr. Kurzhals suggested a diagnosis of panic disorder with agoraphobia and personality disorder NOS with dependent traits. Id. at 93.

         On April 16, 2013, Phares returned to Dr. Wedlock and reported that he was doing well. (Filing No. 8-9 at 46.) Dr. Wedlock noted that Phares' condition was stable, and continued his medication without change. Id. at 46-48. On July 16, 2013, Dr. Wedlock opined that Phares' panic attacks were stable, and again continued his medication without change. Id. at 45. On October 17, 2013, Dr. Wedlock again reported that Phares' panic attacks were stable, and noted that Phares had no associated symptoms. Id. at 37.

         On January 17, 2014, Phares visited Dr. Wedlock and reported that driving and being around people made his panic attacks worse. Id. at 36. Dr. Wedlock refilled Phares' medication and recommended that he return in three to four months. Id. When Phares returned on April 18, 2014, he reported that his Xanax and Amitriptyline prescriptions ...


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