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Rice v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

May 8, 2018

WENDY L. RICE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.


          Susan Collins, United States Magistrate Judge

         Plaintiff Wendy L. Rice appeals to the district court from a final decision of the Commissioner of Social Security (“Commissioner”) denying her application under the Social Security Act (the “Act”) for Supplemental Security Income (“SSI”).[2] (DE 1). For the following reasons, the Commissioner's decision will be REVERSED, and the case will be REMANDED to the Commissioner in accordance with this Opinion and Order.


         Rice applied for SSI in January 2013, alleging disability as of November 20, 2007. (DE 11 Administrative Record (“AR”) 252). The Commissioner denied Rice's application initially and upon reconsideration. (AR 199-206). A hearing was held on December 3, 2014, before Administrative Law Judge William Pierson (the “ALJ”), at which Rice, who was represented by counsel; her mother; and a vocational expert, Marie Kieffer (the “VE”), testified. (AR 50-98). On March 3, 2015, the ALJ rendered an unfavorable decision to Rice, concluding that she was not disabled because despite the limitations caused by her impairments, she could perform a significant number of unskilled, light exertional jobs in the economy. (AR 24-43). The Appeals Council denied Rice's request for review (AR 1-11, 362-63), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 416.1481.

         Rice filed a complaint with this Court on September 22, 2016, seeking relief from the Commissioner's final decision. (DE 1). Rice advances two arguments in this appeal: (1) that the ALJ failed to account for her moderate deficits in concentration, persistence, or pace when assigning the residual functional capacity (“RFC”) and when posing hypotheticals to the VE at step five; and (2) that the ALJ improperly determined at step three that Rice did not meet the “paragraph C” criteria of the mental health listings.


         At the time of the ALJ's decision, Rice was 44 years old (AR 252); had a 10th grade education with some special education classes (DE 275-84, 291); and had past work experience as a cook and a cleaner, though this work did not rise to the level of past relevant work (AR 41, 87, 344, 346). In her opening brief, Rice alleges disability due to: asthma, chronic obstructive pulmonary disease (“COPD”), emphysema, diabetes mellitus with some neuropathy, obesity, recurrent major depressive disorder with psychotic features, anxiety, borderline intellectual functioning, learning disorder, and degenerative disc disease. (DE 19 at 2). Rice does not dispute the ALJ's findings concerning her physical limitations (DE 19 at 2 n.2), and thus, the Court will focus on the evidence pertaining to Rice's mental impairments.

         A. Rice's Testimony at the Hearing

         At the hearing, Rice testified as follows: Rice is single and had been living with her mother and grandmother for three years. (AR 55, 57, 74, 77). She did not have health insurance at the time. (AR 55). She did obtain Medicaid several years earlier with Park Center's assistance, but it was discontinued after her caseworker reported that she “was a whole lot better.” (AR 55). Rice has a driver's license; she drives to the store to pick up items if her mother forgets something, but she does not do the grocery shopping. (AR 57-58). She helps her mother by performing household tasks such as vacuuming and washing dishes, but sometimes she gets distracted and her mother has to tell her to finish the tasks. (AR 58, 64-65). Her mother has to remind her about appointments. (AR 60). Rice goes to church twice a week and loves spending time with the people there; sometimes she and another person go door-to-door in the community for their church's ministry. (AR 62-63, 78-79). Rice described her typical day as watching television most of the day and napping three to four hours due to boredom. (AR 63, 72, 85-86). She tries to read the Bible every day as well, but sometimes she does not understand it all; she can read and understand Genesis, but has more difficulty understanding Revelations. (AR 64).

         When asked whether she had returned to part-time work, she stated that she had not, citing her record of theft charges. (AR 59-60). Rice explained that she had applied at K-Mart and it was going to hire her that same day, until it learned about her theft charges. (AR 59-60). She had quit most every job that she had in the past either because she lost transportation or because things did not work out right with her co-workers, as she tells people off if they get on her nerves. (AR 66). All of her past jobs have been part-time. (AR 67).

         Rice stated that she still hears voices but they are not as loud as they used to be because of taking her medications. (AR 56-57). She noted no side effects from her medications. (AR 60). She sees her nurse practitioner and caseworker at Park Center once a month. (AR 55-56). She used “spice, ” an illegal drug, every day for seven or eight months in 2012 when she lived with a roommate, but she was no longer using illegal drugs. (AR 60-61).

         B. Rice's Mother's Testimony

         Rice's mother, Dottie Rice (“Dottie”), testified as follows at the hearing: Sometimes Dottie drives Rice to her appointments, but other times Rice drives herself. (AR 75). Once in a while Dottie has to “referee” spats between Rice and her grandmother, as Rice “would almost have a threatening manner at home.” (AR 75-77). Dottie felt like she had to walk on “eggshells” when Rice first moved in, but that has improved since Rice has been taking medications and “doesn't freak out as often.” (AR 76). For example, when Dottie would point out something Rice did not do quite right, Rice would throw the cleaning bottle and rags and go sit by herself a while. (AR 76). After Dottie would give her some space, Rice would eventually come back and ask Dottie what she wanted her to do, and Dottie would then instruct her again. (AR 76, 78).

         Rice started getting better after beginning treatment at Park Center and obtaining the right dosage of medications. (AR 77-78). Rice behaves better with people she does not know, such as the people she visits in the community, except that she does have a small “road rage issue.” (AR 79, 81). Rice gets lost when she drives and does not have an accurate perception of length of time. (AR 74, 78, 80-81). Dottie does not let Rice cook unsupervised because Rice does not clean up thoroughly, has left a burner on, and because Dottie finds it easier to do the cooking herself. (AR 82). Dottie has to remind Rice to perform her self care and to go to appointments. (AR 82-83).

         C. Summary of the Relevant Medical Evidence

         In January 2010, Rice underwent a mental status examination by Aisha Devera, Psy.D., at the request of the state agency. (AR 364). Rice reported a 15-year history of auditory hallucinations, forgetfulness, and difficulty concentrating, which coincided with the time she began using Cocaine and Cannabis. (AR 364). Rice had a history of learning problems, but she reported adequate adaptive functioning. (AR 364-65). She was not receiving any treatment for her mental impairments due to lack of funds and no health insurance. (AR 365). Rice had been had been living with her girlfriend for 26 years. (AR 365). Her longest job had been at a fast food restaurant for one year, and she was terminated in 2006 for not going to work after she moved and could not find her uniform; Rice reported adequate relationships with her coworkers and supervisors. (AR 365). She admitted that in the past she had lost jobs due to drug use. (AR 365). She had been arrested for shoplifting in 2008. (AR 366).

         A mental status examination revealed no memory impairment, a flat affect, and no suicidal or homicidal tendencies. (AR 366). Dr. Devera diagnosed Rice with a mood disorder, not otherwise specified; a psychotic disorder, not otherwise specified; and cannabis abuse. (AR 367). Dr. Devera discontinued an earlier diagnosis of borderline intellectual functioning, finding that Rice did not present as intellectually impaired, had obtained a previous IQ of 85, and reported adequate adaptive functioning; Dr. Devera indicated that untreated mental illness may have impacted Rice's scores in the past. (AR 367). Rice was assigned a Global Assessment of Functioning (“GAF”) score of 52.[4] (AR 367).

         Rice received mental health treatment at Park Center from January 2012 through December 2014. (AR 509, 514, 516, 518, 570, 572, 628, 634, 707, 709, 711, 756, 774, 799, 810, 824, 828, 834, 1065, 1075, 1084). She was prescribed medications, saw a case manager, and participated in counseling and classes. (AR 610). She was seen in person or received consultation over the phone approximately 23 times during that time period. (AR 509, 514, 516, 518, 570, 572, 628, 634, 707, 709, 711, 756, 774, 799, 810, 824, 828, 834, 1065, 1075, 1084). Every three months, the Park Center treatment team reviewed her case status and progress. (AR 574, 580, 886, 743, 749, 782, 801, 836, 1077).

         During her treatment period at Park Center, Rice saw Karen Lothamer, a psychiatric nurse practitioner, approximately 13 times for medication management. (AR 523, 535, 541, 547, 553, 564, 656, 744, 756, 791, 816, 1067, 1086). In January 2012, Ms. Lothamer wrote that Rice had a cooperative attitude, appropriate behavior, coherent thought form, congruent and flat affect, depressed mood, normal thought content, no suicidal or homicidal ideation, normal perception, and good judgment. (AR 524). The following month, Rice had some anger issues and reported hearing whispering voices telling her to do things. (AR 535). Her mental status was similar to her last visit other than she had a euthymic mood, hallucinations, and fair judgment. (AR 536-37).

         In February 2012, the Park Center treatment team assigned Rice a GAF score of 42 and diagnoses of a major depressive disorder, recurrent, severe with psychotic features; and other substance abuse. (AR 574). Her strengths were normal thought content and memory, and her limitations were agitation, immaturity, poor judgment, minimal insight, denial of problems, anger, rigidity, concrete thoughts, and poverty of thought. (AR 575). She had a moderate degree of self-care impairment and had been misusing her medications or taking them inconsistently. (AR 575). After Rice moved in with her mother, Rice's compliance with medications and appointments increased, and her mood, sleep, self care, and insight then also improved. (AR 584, 590).

         In March 2012, Rice reported to Ms. Lothamer that the last increase in Latuda had almost stopped the voices. (AR 541). Her mental status was similar to her January visit, except that she had normal perception, no hallucinations, and a depressed mood. (AR 542). Ms. Lothamer indicated that Rice was “[s]ymptomatic but stable.” (AR 543).

         In June 2012, Rice reported to Ms. Lothamer that a lower dose of Latuda worked better than a higher dose, as it caused less side effects and sedation. (AR 547). She denied hearing any voices, and her mental status was unchanged, except that her mood was euthymic rather than depressed. (AR 548-49). At a visit to Ms. Lothamer in August 2012, Rice's mental status was unchanged, except that she had good, rather than fair, judgment. (AR 553). In December 2012, Rice reported to Ms. Lothamer that Latuda continued to work well, but that for the past few weeks, she had felt depressed, anxious, and restless. (AR 564). A mental status exam was about the same, other than she had a poverty of ideas, an anxious mood, and fair judgment. (AR 565-56).

         In April 2013, the Park Center treatment team viewed Rice's progress as limited. (AR 747). She had been inconsistent with attending her appointments; her GAF score was 40. (AR 747). In July 2013, Rice still had problems with anger and decision making, but she was active in her church; she was enjoying working in the yard. (AR 787). She relied on her mother a lot to get things done. (AR 787). She had some intermittent depression, but felt that it was adequately controlled with her medications. (AR 787).

         In January 2014, the Park Center treatment team assigned Rice a GAF score of 41; she was still very active in her church and was exercising on a regular basis. (AR 805-06). She appeared much more relaxed and focused in sessions. (AR 806). She denied any depression or anxiety and felt positive about her life, though she still reported issues with mood swings and feeling anger when pushed. (AR 806). In April 2014, Rice reported that her mother and grandmother help her out when she feels overwhelmed or stressed; she had cut ties to her friends who were not a good influence. (AR 840). She was making “steady progress, ” her insight was “greatly improved, ” and she felt “more empowered to go out and do things.” (AR 840). She still had some anxiety and anger at times, but was using quiet time and walking to keep them under control. (AR 840). In November 2014, Rice's GAF score ...

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