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Sara A. v. Saul

United States District Court, N.D. Indiana

December 5, 2019

SARA A.[1], Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.



         This matter is before the court for judicial review of a final decision of the defendant Commissioner of Social Security Administration denying Plaintiff's application Supplemental Security Income (SSI), as provided for in the Social Security Act. Section 205(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).

         The law provides that an applicant for SSI must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of no less than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).

         Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed, 42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).

         In the present matter, after consideration of the entire record, the Administrative Law Judge (“ALJ”) made the following findings:

1. The claimant has not engaged in substantial gainful activity since July 16, 2014, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: residuals of a cerebral vascular accident (CVA), organic brain disorder, depression, and personality disorder (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, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except she has additional limitations. She can lift twenty pounds occasionally and ten pounds frequently. She can stand or walk two hours in an eight-hour workday. She can sit six hours in an eight-hour workday. She cannot climb ladders, ropes, or scaffolds. She can perform all other postural maneuvers occasionally. The claimant is limited to simple, repetitive tasks with no hourly quotas, but she can do end-of-day quotas. She can have occasional contact with the general public. She can adapt to routine changes in the work environment.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on February 3, 1992 and was 22 years old, which is defined as a younger individual age 18-49, on the date the application was filed (10 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (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 July 16, 2014, the date the application was filed (20 CFR 416.920(g)).

(Tr. 37- 45).

         Based upon these findings, the ALJ determined that Plaintiff was not entitled to SSI. The ALJ's decision became the final agency decision when the Appeals Council denied review. This appeal followed.

         Plaintiff filed her opening brief on August 7, 2019. On October 9, 2019, the defendant filed a memorandum in support of the Commissioner's decision to which Plaintiff replied on October 24, 2019. Upon full review of the record in this cause, this court is of the view that the ALJ's decision should be remanded.

         A five step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:

The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature of the ALJ's decision to deny benefits, it is clear that Step 5 was the determinative inquiry.

         On October 27, 2008, at age 16, Plaintiff suffered a spontaneous right frontal intracranial hemorrhage with left hemiparesis. (Tr. 321, 419, 440-42.) The extent and severity of the cerebrovascular accident was confirmed by CT scan of the head. (Tr. 441, 448, 450.) Plaintiff suffered a grand mal seizure during this episode and sustained a tongue laceration. (Tr. 419.) She was "life-flighted" to Indiana University Hospital for hematoma evacuation. (Tr. 456.) However, the surgery had to be stopped because of low clotting factor, and she was placed in an artificial coma for several days. (Tr. 421.) Plaintiff underwent an external shunt placement. (Id.) Once the bleeding and pressure of the brain were stabilized, the shunt was removed, and on November 21, 2008, she was transferred back to Memorial Hospital's Intensive Care Unit. (Id.)

         Plaintiff was an inpatient at Memorial Hospital until December 4, 2008, where she continued to undergo intensive treatment and testing. (Tr. 670.) On November 22, 2008, she underwent an inferior venocavogram, which showed chronic venous thrombosis/occlusion of the iliac veins as well as the distal inferior vena cava. (Tr. 668.) On November 25, 2008, Plaintiff had a hematology consultation for bleeding diastasis. (Tr. 661-62.) She was unresponsive, only moving her eyes. (Tr. 662.) The December 1, 2008 brain CT scan showed that she was status post right hemicraniectomy. (Tr. 664.) There was extensive edema and encephalomalacia involving the right temporal and parietal lobes. (Id.) Compared to the November 22, 2008 CT scan, the test showed increased (1) degree of edema (2) protrusion through the craniectomy defect and (3) hydrocephalus with ventricular dilatation. (Tr. 664-65.) The December 4, 2008 CT scan of the brain continued to reveal similar abnormalities. (Tr. 666.)

         At discharge from Memorial Hospital on December 4, 2008, Plaintiff's diagnoses were: (1) status post respiratory failure, resolved; currently with tracheostomy size 6 cuffless, (2) status-post subarachnoid hemorrhage with decompression craniotomy and hydrocephalus, improving, (3) hematuria with bleeding tendency, (4) UTI secondary to E. coli sensitive. (Tr. 670.)

         Plaintiff was transferred to Rivercrest, a long-term care facility, on December 4, 2008, and continued outpatient diagnostic testing. (Tr. 670-72.) The December 12, 2008 brain CT showed (1) interval increased size of the ventricles with increasing herniation of the brain through the craniectomy defect on the right, and (2) rounded focus of hyperattenuation of the region of the right sylvian fissure measuring 9mm. (Tr. 650-51.) A follow up brain CT scan on December 18, 2008, showed: (1) continued herniation of the brain through the craniotomy site, which is similar to, perhaps slightly increased, and (2) rounded focus of hyperattenuation in the region of the right sylvian fissure again noted, previously measuring 9 mm and then 7mm. (Tr. 648-49.)

         Plaintiff was at Rivercrest for approximately 18 days when she developed headaches and vomiting. On December 22, 2008, she was transferred back to Memorial Hospital and found to have increased hydrocephalus. (Tr. 448, 450, 461.) She was admitted to the Neurosurgical Department and monitored for signs of intracranial pressure until her discharge back to Rivercrest on December 29, 2008. (Tr. 461.) Plaintiff was admitted to Indiana University Hospital from January 5 to 13, 2009, and during this admission, she underwent a replacement of hemicraniectomy bone flap and a ventriculoperitoneal shunt drain. (Tr. 460-62.) She was transferred to the Rehabilitation Hospital of Indiana on January 13, 2009, to "undergo daily physical therapy, occupational therapy, and speech therapy for cognition." (Tr. 462.)

         On January 23, 2009, Bradley Hufford, Ph.D., conducted an inpatient neuropsychological examination of Plaintiff. (Tr. 608-12.) During his initial examination on January 16, 2009, he observed that Plaintiff exhibited organizational difficulties, slowed processing speed, sustained attention problems, and impulsivity/disinhibition. (Tr. 608.) She had increased emotional lability, helped significantly by Zoloft. (Id.) Besides a flat affect, no other neurobehavioral difficulties negatively impacted test performance. (Tr. 609.) Her IQ scores were: Full Scale, 83 (low average range); Verbal, 103 (average); and Performance, 67 (extremely low range) (Id.) Dr. Hufford noted that her verbal IQ score is "the most meaningful predictor of her intellectual ability as Performance IQ estimates are attenuated by visual spatial difficulties secondary to her hemorrhage." (Id.)

         The neuropsychological screening results showed impairment in brain functions affecting the anterior cerebral areas more than the posterior regions and the right cerebral hemisphere more than the left. (Tr. 610.) Other findings included: (1) average range of intelligence, (2) left-handed motor impairment, (3) moderately impaired executive functions, (4) mild to moderately impaired visual spatial deficits, (5) mildly impaired attention, and (6) prominent disinhibition, flat affect and emotional lability. (Tr. 610.) Dr. Hufford opined that Plaintiff will likely have greater difficulties with attention in busy/demanding situations or when particularly tired, stressed or ill. (Tr. 611.) She should be allowed socialization with peers but, early after discharge, this should supervised by parents or other knowledgeable adults. (Id.) Repeat testing within three to six months was recommended. (Id.) In the academic setting, attentional compensations will be necessary, including: (1) extra time to take tests in quiet area, (2) avoiding multi-tasking, and (3) having instructors make eye contact with her when giving directions and ensuring she understands by having her repeat back important information. (Id.) Dr. Hufford anticipated she will have significant difficulty attempting to listen to lecture-type material and taking notes at the same time. (Id.) Additionally, Plaintiff requires organizational compensations. (Tr. 611-12.)

         Plaintiff was admitted to Elkhart General Hospital Rehabilitation from January 30 through February 6, 2009 to continue her rehabilitation closer to home. (Tr. 419-23.) She underwent comprehensive inpatient rehabilitation (Tr. 420, 423) and repair of the tongue laceration sustained during a seizure (Tr. 425). After discharge, she underwent comprehensive outpatient rehabilitation. (Tr. 321-34.) She presented with mild to moderate cognitive-linguistic deficits characterized by impulsivity, decreased problem solving, organization, divided attention, inferential/deductive reasoning skills, new learning/long-term memory, problem solving and decreased voicing. (Tr. 322.) Physical therapy 2-3 times weekly for 12-16 weeks for functional mobility training, balance and gait training was recommended. (Tr. 327.) An occupational therapy evaluation showed impairment in problem solving, judgment/safety and organization and planning. (Tr. 329.) The assessment also revealed decreased strength, impaired coordination, physical demand levels/vocational limitations, limited task behaviors, and impaired balance. (Tr. 328-29.) Outpatient occupational therapy two to three times per week was also recommended. (Id.)

         The April 2009 EEG was abnormal, showing "left temporal sharp and sharp wave activity" suggestive of an epileptogenic foci. (Tr. 340.) In April 2009, five months post-CVA, Plaintiff also underwent an evaluation by Dr. Wendell Roher, Ph.D. (Tr. 341-49.) The testing showed significant improvement in the areas of psychometric intelligence and attention/ concentration; however, there continued to be a decrease in psychometric intelligence from premorbid levels. (Id.) Her full-scale IQ was 91 (Tr. 343) and she was being home schooled at the time (Tr. 342). Plaintiff showed slowed gait and bilateral foot slap, with a slight shuffling movement. (Id.) Her affect "remains rather blunted and slow in formation," and insight and awareness were lacking. (Id.) On motor skill testing, performance with her dominant right hand fell in the low-average range, but "fine motor dexterity and motor speed remain[ed] severely impaired" for the left hand. (Tr. 347.) She had difficulty integrating the left hand in tasks typically bimanual. (Id.) She had difficulty with increased auditory processing demands, consistent with her right hemisphere hemorrhage. (Tr. 345.) Dr. Roher's diagnoses were: Axis I, cognitive disorder, due to spontaneous right hemisphere hemorrhage; rule out organic personality change due to right hemisphere hemorrhage (apathetic-type); Axis III, status-post spontaneous right hemisphere hemorrhage. (Tr. 347.) Ongoing physical, occupational and speech therapy was recommended. (Tr. 348.)

         On December 13, 2010, Plaintiff underwent cranioplasty, the second stage of a two- stage reconstruction to repair her cranial defect. (Tr. 464.)

         Plaintiff was hospitalized from November 17 to 23, 2012 for suicidal ideation and suicidal gestures. (Tr. 289.) She had been in psychiatric treatment with "Dr. Malik for the past 2 years." (Id.) On admission, she reported worsening depression, feeling worthless, helpless, anhedonic, and lacking energy or interest in activities. (Tr. 290.) She also reported increased panic episodes daily over the previous two weeks. (Id.) As of November 19, she still had suicidal ideation as an inpatient. (Tr. 291.) On discharge on November 23, her diagnoses were: Axis I, Major depressive disorder, recurrent/severe with suicidal ideation and gestures; cognitive disorder secondary to brain hemorrhage; Axis II, personality changes secondary to brain hemorrhage; Axis III, history of subarachnoid hemorrhage in 2008 with subsequent neurosurgery; Axis IV, family conflict, poor coping skills; Axis V, Global assessment of functioning (GAF) of 25 on admission and 70 on discharge. (Tr. 289.) She was to follow with Dr. Malik as an outpatient. (Id.)

         The May 21, 2013 brain CT scan showed evidence of previous intracranial hemorrhage and infarction in the right frontal parietal zone with persistent encephalomalacia and dural calcifications. (Tr. 633-34.) Overlying craniotomy defect present with surgical material and graft in place; appearance was not significantly changed compared to prior study other than resolution of residual areas of hemorrhage. (Id.) The shunt was in good position, no hydrocephalus. (Id.)

         On December 4 and 17, 2013, Plaintiff underwent a neuropsychological evaluation by Mark DeVries, Ph.D. (Tr. 636-42.) She was a student at Goshen College but was suspended for destruction of another student's property. (Tr. 636.) Plaintiff was treated by a psychiatrist and counselor at the Center for Behavior in Elkhart "but was dismissed from that practice after three years." (Id.) She was on Effexor 75 mg, and her parents were concerned about manic episodes associated with Effexor in the past. (Id.) Lithium was discontinued due to ineffectiveness. (Id.) Symptoms included deficits in memory and comprehension; her parents reported issues with not following through with responsibilities, manipulative behavior, poor decision-making, and cognitive problems. (Tr. 637-38.) During examination, Plaintiff was passively cooperative and very guarded with a flat affect. (Tr. 638.) She provided brief responses and one-word answers. (Id.) She worked slowly, but there was no indication of suboptimal effort or purposeful attempt to do poorly. (Id.) However, the MMPI profile was invalid due to the likelihood of over-reporting symptoms. (Id.) While the MMPI was invalid and not useful diagnostically, it indicated significant emotional distress, which was clinically evident in symptoms of depression, anxiety, derealization, distrust, suicidal ideation and confused thinking. (Tr. 640.)

         Neuropsychological testing showed a decline in general intellectual ability from baseline, but improvement since 2009. (Tr. 641.) Dr. DeVries stated that the testing "shows significant deficits in both verbal and visual memory accompanied by deficits in executive functioning." (Tr. 638.) Plaintiff currently "presents with very significant emotional distress as indicated by significant distress reported on the MMPI-2-RF and as evidenced by her behavior during the feedback session, which involved report of symptoms of derealization, thoughts of self-harm, and active suicidal ideation." (Id.) During the interview, she reported having chronic and acute suicidal thinking and was referred to Pine Rest for psychiatric hospitalization evaluation. (Id.) Dr. DeVries diagnosed: Axis I, Major depressive disorder, recurrent, severe, without psychotic features; Cognitive disorder, not otherwise specified; Axis II, diagnosis deferred (Borderline features noted); Axis III, late effects of intracranial injury. (Tr. 641.) Dr. DeVries stated that the history of impulsivity and problems with executive functioning tasks on current testing suggested ongoing frontal dysfunction. (Id.) The extent to which deficits are directly related to her brain hemorrhage is very difficult to ascertain due to the presence of "significant emotional distress." (Tr. 641.) Dr. DeVries recommended psychiatric treatment and neurological following. (Tr. 641-42.)

         Plaintiff was hospitalized again from December 13, 2013 to January 3, 2014 for depression, anxiety, and suicidal ideation with the intent and plan to overdose. (Tr. 470.) She was suspended from school for the semester for vandalism, and she had cut her wrist with a razor on the day of admission. (Id.) Plaintiff reported worsening depression for at least four months. (Id.) She endorsed difficulty concentrating, lack of enjoyment in activities, friends or socializing. (Id.) Plaintiff admitted neglecting her personal care. (Id.) She noted decreased sleep, variable appetite and weight loss. (Tr. 471.) She had stopped taking Effexor in July 2013 at the recommendation of her psychiatrist. (Id.) Her mood was depressed and affect somewhat restricted; she sometimes feels parents and family members are talking about her. (Tr. 473.) On admission, she was given Effexor as the primary antidepressant medication, and melatonin, Trazadone and Seroquel for insomnia; however, Seroquel was discontinued due to episodic tremors and replaced with Geodon. (Tr. 476.) Plaintiff had an episode of uncontrolled mood and self-harm. (Id.) At discharge, her diagnoses were: Axis I, Depressive disorder; Axis II, Borderline personality disorder; Axis III, history of brain hemorrhage, amenorrhea, self-mutilation by intentional cutting; Axis IV, problems with primary support group, problems with social environment and economic problems. Her GAF on admission was 25 and on discharge 65. (Tr. 477.)

         On January 13, 2014, Plaintiff was evaluated by Tammy McDonald, LMHC, at the Oaklawn Psychiatric Center, an outpatient program. (Tr. 495-99.) She reported suicidal ideation, low energy, anhedonia, cognitive difficulties, poor sleep, episodes of derealization, isolating from others, being impulsive and harming others and herself due to poor decision-making. (Tr. 495.) Her mother also identified significant irritability and being manipulative. (Id.) Plaintiff denied current suicidal ideation, but "has had frequent thoughts of suicide in the past." (Tr. 497.) She "engaged in cutting starting a couple of months ago, with the last time being 1 week ago." (Id.) The diagnoses were: Axis I, Mood disorder, NOS; Cognitive disorder, NOS; Axis II, Borderline personality disorder; Axis III, history of brain hemorrhage in 2008; Axis IV, severe relational problems with mother; she had a GAF of 48. (Tr. 498-99.)

         On January 27, 2014, Plaintiff admitted to self-harm and anger, where she punches the wall, and some recent hallucinations. (Tr. 517.) She was not successful in holding her only two jobs, one at 7-11 and another in a restaurant, where she was fired for being "too slow." (Id.) She had not been able to pass the driver's test. (Id.)

         At the February 10, 2014 outpatient session, Plaintiff was seen by Timothy McFadden, M.D. (Tr. 510-15.) While she reported some improvement in her symptoms, her parents expressed concerns of increasing irritability and impulsiveness on the higher dosage of Effexor. (Id.) She was described as oppositional, argumentative, making poor decisions and being sexually impulsive. (Tr. 511.) On mental status exam, her affect was angry, and sometimes labile. (Tr. 512.) Her judgment was questionable based on comments about her parents and recent relationships. (Id.) Her medications were adjusted; she was to continue in the IMR intensive groups at Oaklawn. (Tr. 513-15.) Dr. McFadden confirmed previous diagnoses and rated her GAF as 45. (Id.)

         On February 14, 2014, Plaintiff was admitted to Oaklawn Hospital "on 72-hour detention papers" filed by her psychiatrist, Dr. McFadden. (Tr. 490.) Her parents reported that she was agitated, exhibited significant mood swings with demands and threats, and texted her mother stating she would kill herself or harm her parents. (Id.) She was "extremely impulsive regarding relationships and ha[d] been exhibiting impaired judgment by posting nude pictures of herself on the internet." (Id.) She has "highly impulsive sexual behavior." (Id.) She had been depressed and both gained and lost weight. (Tr. 490.) She had both auditory/visual and gustatory hallucinations. (Id.) She denied any problems or knowing why she was hospitalized. (Id.) She later acknowledged mania of 8/10 severity, poor sleep, delusional symptoms, irritability and impulsiveness without considering consequences. (Id.) She had not taken her medication the last week due to lack of insurance coverage (Id.); she took her medication every other day to make it last longer. (Tr. 505)

         On examination, her speech was mildly slurred. (Tr. 491.) Her mood was depressed, affect was blunted and cognitive functioning appeared mildly impaired. (Id.) She had fairly poor insight and was not a reliable reporter. (Tr. 493.) She was fairly isolated and non-compliant with medications. (Id.) Plaintiff's diagnoses were: Axis I, Mood disorder secondary to brain hemorrhage, bipolar type; Cognitive disorder; Axis II, Borderline personality disorder; Axis III, history of seizure secondary to brain hemorrhage, status post VP shunt placement, and history of brain hemorrhage; GAF on admission was 17. (Tr. 492-93.) On February 18, she was discharged from the hospital and was "court committed to treatment for 90 days as an outpatient with the authority to medicate." (Tr. 525.) She was prescribed Abilify, Vistaril and Effexor, and would receive the next Abilify Maintena injection in March. (Id.) Her GAF was 35. (Id.)

         On March 3, 2014, Plaintiff saw Dr. McFadden (Tr. 543-47) and reported fatigue, blurred vision, low energy and fair appetite (Tr. 545). Affect was somewhat blunted and she appeared slightly drowsy. (Id.) She minimized her prior mood symptoms and conflict with her mother. (Id.) The same medications were continued; her current GAF was 40. (Tr. 547.) When Plaintiff returned to Dr. McFadden on March 31, 2014, she complained of several Abilify side effects, most ...

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