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Hopper v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

September 25, 2017

NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.



         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner denying the applications of Kenneth Hopper (“Plaintiff”) for disability insurance benefits (“DIB”) under Title II of the Social Security Act, see 42 U.S.C. §§ 401 et seq., and supplemental security income (“SSI”) under Title XVI, see 42 U.S.C. §§ 1381 et seq. Plaintiff has filed a brief in support of the Complaint (ECF No. 16). Defendant Commissioner Nancy A. Berryhill has filed a brief in support of the Answer (ECF. No. 22) The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). Substantial evidence supports the Commissioner's decision denying benefits, and therefore it is affirmed. See 42 U.S.C. § 405(g).

         I. Procedural History

         To say this matter has a long and complicated procedural history would be an understatement. Fortunately, the ALJ summarized the history in detail in a thorough, thoughtful, and organized decision. (Tr. 411-12) Accordingly, this Court will only briefly summarize the history as necessary to understand the issues and decision of the Court. Plaintiff was awarded benefits more than 25 years ago, but those benefits ceased in 2003. In 2004, Plaintiff filed applications for DIB and SSI benefits. The case wound back and forth through the system for many years, including a couple of trips to the District Court and additional applications filed on behalf of Plaintiff. To be clear, some of the convoluted path of Plaintiff's claims was caused by missing evidence in the record. Plaintiff eventually settled on an amended onset date of January 24, 2006. Plaintiff's date of last insured for DIB purposes is March 31, 2009. The case was eventually assigned to a new ALJ to ensure proper development of the record and to give Plaintiff a fresh hearing.

         The ALJ held a hearing on July 29, 2013. Plaintiff, Plaintiff's mother, impartial medical expert Kathleen O'Brien, Ph.D., and impartial vocation expert (“VE”) Dale Thomas each testified. (Tr. 1321-1385) The ALJ held a supplemental hearing on March 4, 2014. (Tr. 1300-20) The ALJ held the supplemental hearing to ensure the completeness of the record and to give Plaintiff's attorney an opportunity to inquire further of Dr. O'Brien and the VE. (Tr. 1301) During the supplemental hearing, Plaintiff stipulated that the record as presented was complete except as to ongoing treatment he was then receiving. (Tr. 1306) Plaintiff's attorney agreed to submit his questions to Dr. O'Brien in the form of proposed interrogatories, which he sent to the Administration on March 24, 2014. (Tr. 436) The proposed interrogatories consisted of requesting Dr. O'Brien to identify sections of several psychologist ethical codes attached thereto, asking whether she agreed with a quoted section from a book, and asking for a copy of her file. (Tr. 1437) The ALJ declined to send the interrogatories to Dr. O'Brien, as discussed in more detail below.

         On September 19, 2014, the ALJ issued a decision denying Plaintiff's claims for benefits. (Tr. 411) Plaintiff then unsuccessfully sought review of the ALJ's decision before the Appeals Council of the Social Security Administration (Tr. 401), making the decision of the ALJ the final decision of the Commissioner. Plaintiff has therefore exhausted his administrative remedies, and his appeal is properly before this Court. See 42 U.S.C. § 405(g).

         In his brief to this Court, Plaintiff raises sixteen (16) points of alleged error denominated as argument. (ECF No. 16 at 11-23) Plaintiff, however, does not present any argument or meaningful analysis. Rather, Plaintiff cites purportedly applicable law, typically with a block quote of a regulatory listing followed by a broad, often one-sentence conclusion. For example, Plaintiff alleges that the ALJ erred in concluding that he did not meet or equal the requirements of Listing 12.04C, but does not actually mention those requirements, and consequently, has not applied any facts in the record to those requirements.[2] In her response, the Commissioner has attempted unpack and address Plaintiff's points of error.

         Several of Plaintiff's points of error fall into the same overall categories, which the undersigned summarizes as allegations that the ALJ erred in: (1) failing to find that Plaintiff's conditions meet the criteria of Listing 12.04C; (2) failing to accord adequate weight to the opinion of a treating physician, S.A. Raza, M.D., and failing to re-contact Dr. Raza and instead according more weight to other opinions; (3) not providing Dr. O'Brien with all of the materials she should have had, not allowing Plaintiff's attorney to “fully question” her with regard to her testimony and failing to schedule (another) supplemental hearing for Plaintiff's attorney to cross-examine Dr. O'Brien; (4) failing to order a consultative examination and to fully develop the record as to Plaintiff's mental RFC; (5) failing to consider post-hearing evidence, specifically records of a post-hearing hospitalization; and (6) failing to “comply with the Appeals Council's prior remand order.”

         II. Background

         Plaintiff is currently 54 years old. He was living with his parents for much if not most of the time period at issue in this case. (Tr. 36-37, 1361) There is no doubt that Plaintiff suffers from Bipolar Disorder. Plaintiff graduated from high school, and then attended some college at the University of Missouri-Science and Technology and at a community college. (Tr. 354-355) It appears that Plaintiff did not finish his studies due to substance abuse issues. (Tr. 355)

         Plaintiff helps his parents with household chores, including laundry, shopping, and mowing the lawn. (Tr. 180, 1361) Plaintiff reports no problems with personal care. (Tr. 180) Plaintiff reported the ability to shop for himself, though infrequently due to a lack of money. (Tr. 182) Plaintiff can do some basic cooking for himself when necessary-one of his parents stated that he simply does not take the time to do it. (Tr. 1134, 1363) During the pertinent period, Plaintiff's parents have left Plaintiff and traveled internationally, and Plaintiff has successfully cared for himself. (Tr. 817, 1363)

         Plaintiff is divorced and has three children. (Tr. 1368) During at least one point during the pertinent period, he also had a girlfriend. (Tr. 845) Plaintiff has traveled with one son and his parents to Vermont and the same son had spent two summers at the house. (Tr. 1367-69) Plaintiff was also able to travel with his parents to Florida. (Tr. 1368-69) Much of Plaintiff's time and effort is directed toward computer gaming and the Internet, where he is involved in a “guild” gaming, as well as maintaining two blogs and other websites. (Tr. 180, 183, 355, 370)

         Plaintiff's work history is minimal and poorly documented in that he seems to have had difficulty keeping track of where he worked and for how long. In addition, the ALJ found that Plaintiff lacks any motivation or desire to work. For example, in 2010, Plaintiff wrote a letter to the ALJ then presiding over the case, in which he declared “I really am trying to avoid returning to work.” (Tr. 1176) Plaintiff notes that he “can get the job yes maybe, I can perform the labor ok its true, but my personal history demonstrates my inability to hold a job for any duration.” (Id.)

         Plaintiff has been hospitalized a number of times since the early 1980s, including for a suicide attempt and hospitalization in 2004, and over numerous hospitalizations before that. (Tr. 42-43, 307) At the time of the amended alleged onset date, however, Plaintiff had found a medication regimen (Celexa, Wellbutrin, and Geodon) which managed his symptoms very well-his own characterization was that they were “pretty effective” though he had sleep issues. (Tr. 40, 354) Plaintiff reported only mild side effects from medications. (Tr. 41) Plaintiff testified that he has still had anxiety over working with other people. (Tr. 40) Plaintiff also reported that he sometimes does not eat or sleep for 24 hours, resulting in concentration issues. (Tr. 44) At the time of the 2013 hearing, Plaintiff testified that these wakeful periods occurred up to twice a week, and that when he does sleep, it is generally for 14 hours or longer. (Tr. 1360-61)

         The most significant psychological events during the pertinent time period took place after the 2014 supplemental hearing. In April 2014, Plaintiff's parents filed to have him involuntarily committed. Coinciding with a change in his psychiatric medication, Plaintiff's condition began to deteriorate, culminating in a violent confrontation with his younger brother involving a threat to kill him. (Tr. 956-57) This encounter, witnessed by his parents, also involved Plaintiff pushing his father when he got involved in the argument. (Tr. 957) Plaintiff was committed to St. Joseph's Hospital from April 16 to April 22, 2014. (Tr. 977- 1011) The application and supporting affidavits for the commitment order were submitted to the Administration on April 23, 2014, but the corresponding hospitalization records were not submitted until September 16, 2014, three days before the ALJ's decision was issued. (Tr. 953, 976)

         On May 2, 2014, Plaintiff's parents again filed for involuntary commitment, after Plaintiff allegedly broke into his parents' basement to retrieve his computer and left a note for his father demanding his inheritance. (Tr. 964-966) In her affidavit, Plaintiff's mother stated that Plaintiff's mental state had continued to deteriorate, that he had been talking wildly about knowing how to save the world from nuclear Armageddon and asking her to convey a veiled threat to his brother regarding his children. (Tr. 963) No records were produced from this hospitalization.

         III. Medical Records

         Plaintiff's psychological treatment records for the pertinent time period are, on the whole, relatively routine and unremarkable. They are summarized in pertinent part here.

         For the first part of the period at issue, Plaintiff's psychological care was provided by Dr. Raza, who had treated him since 2002. (Tr. 324) Dr. Raza's treatment records reflect that Plaintiff's moods were generally stable and that he was functional. In January 2006, near the amended alleged onset period, Plaintiff reported that “everything was going 'all right', ” that he had spent three days with his children, and that his sleep and appetite were good. (Tr. 360) Dr. Raza characterized him as “alert, oriented, coherent, relevant and non-psychotic.” (Id.) Similarly, his visit of six months later found him “doing well, ” sleeping well, rational and with a stable mood. (Tr. 358) At various points, Plaintiff reported being anxious or depressed, generally in relation to either chances to see his children or negative developments in his efforts to obtain disability benefits, but with no indication of significant deterioration or relapse. In late 2009, Plaintiff reported anxiety over his disability determination, blacked out while driving and was feeling “manicky.” (Tr. 842-43) At his next appointment, Plaintiff reported the blackout had been determined to be a vasovagal issue (as opposed to a seizure), and at his following appointments, Plaintiff reported being happier than usual and back to his normal relevant, coherent, non-psychotic state. (Tr. 845-46) Overall, Dr. Raza's notes record very few signs of significant psychological impairment or recurrence of severe symptoms, and those few that did show up appear to have resolved without significant intervention or disruption.

         The only significant deviation from this pattern is found in a February 25, 2009, note. In that note, Dr. Raza records Plaintiff telling of a psychotic episode “in the past, ” during which he was seeking a wise man to explain the truth of life. (Tr. 816) During this episode, Plaintiff entered a purple house where he believed he might find the man, only to be arrested and held for a day. (Id.) It is unclear when this incident took place.

         In December 2011, Plaintiff switched his psychiatric care to David Goldmeier, M.D. Dr. Goldmeier's treatment records are, if anything, even more routine than those of Dr. Raza. During his initial visit, Plaintiff presented as anxious and depressed, though with no psychosis, thought disorders, or delusions. (Tr. 855) Dr. Goldmeier evaluated him as having fair insight and judgment, with logical and goal-directed thoughts. (Id.) Over the subsequent visits, there were minor variations in Plaintiff's mood (from “pretty good” to “a little depressed”), sleep (from “ok” to “up and down” to “excessive”) energy and other factors, but no evidence of mania, disordered thought processes, or other signs of significant disruption. Overall, Dr. Goldmeier's notes suggest that Plaintiff's psychological issues were generally stable and well-controlled, with normal minor variations.

         Plaintiff also saw several other physicians during the pertinent time period for a variety of physical problems. Of some interest in this matter are Plaintiff's consultations with Frank Calandrino, M.D., for sleep issues. Dr. Calandrino noted Plaintiff's irregular sleep cycles and hypersomnia and ordered a sleep study, as well directed that Plaintiff reduce his significant caffeine intake (i.e., an entire pot of coffee or 100 ounces of caffeinated soda), as well as using melatonin and light exposure to regulate his sleep cycles. (Tr. 808-11) A September 10, 2007, sleep study revealed severe obstructive sleep apnea, with 53 events of apnea or hypopnea per hour. (Tr. 812, 799)[3] Once a CPAP device was introduced and adjusted, the rate of events dropped to 3.1 per hour. (Tr. 799) Plaintiff's oxygen saturation also rose from 88.7 percent to 94-95 percent. (Id.) Dr. Calandrino prescribed a CPAP for Plaintiff's home use. (Tr. 813) Plaintiff was non-compliant and discontinued CPAP use by January 2008. (Tr. 802) At the hearing, Plaintiff testified that he “couldn't tolerate the discomfort and noise.” (Tr. 1358-59)

         IV. Opinion Evidence

         There were numerous medical opinion statements in this case, most of which were consistent.

         The earliest opinion of note appears to be that of treating physician Dr. Raza. As the ALJ mentions, parts of this opinion are scattered throughout the record, but all appear to spring from a December 2005 statement issued shortly before Plaintiff's amended onset date. (Tr. 362) Dr. Raza's opinion of Plaintiff's functional capacities are qualified by the statement “when in a state of relapse” or other similar language. (Id.) Dr. Raza states that Plaintiff was in “a state of remission” at the time of the report. (Tr. 365) When in the “state of relapse, ” Dr. Raza stated that Plaintiff displays depression, anger, fear, feelings of guilt or worthlessness, hostility and irritability, grossly disorganized behavior, increased appetite, delusions, paranoid ideation, poor memory recall, poor insight and suicidal ideation, that his symptoms would “often” interfere with his attention or concentration, and that he would have a “marked” inability to deal with work stress. (Tr. 362-363) Dr. Raza also stated that, when in relapse, Plaintiff would have poor to no ability to remember work-like procedures, maintain attention for two hour segments, sustain an ordinary routine without special supervision, complete a normal workday and workweek without interruption from his symptoms, get along with co-workers without distracting them or being distracted by them, or deal with normal work stress.[4] (Tr. 364) Dr. Raza also opined that Plaintiff would have a poor ability to understand, remember and carry out detailed instructions, set realistic goals or make independent plans, or deal with the stress of semi-skilled or skilled work. (Id.) Dr. Raza opined that Plaintiff would have an inability to interact appropriately with the general public or maintain socially appropriate behavior, although he rated his ability to use public transportation, travel to unfamiliar places and adhere to basic standards of hygiene as “fair” and stated that Plaintiff was capable of managing any benefits he received. (Tr. 362, 364)

         At the time he actually issued the opinion, Dr. Raza described Plaintiff as coherent, relevant, alert, oriented, not depressed, rational and cooperative.[5] (Tr. 365) The ALJ gave limited weight to Dr. Raza's opinion, noting that it was from before the amended onset date and was inconsistent with his later treatment notes, which reflected a general state of remission showing few instances of the disturbances noted during a state of relapse. (Tr. 423)

         The record also includes an opinion of Dr. David A. Lipsitz, Ph.D., who conducted a consultative examination on January 24, 2006. (Tr. 353) During this examination, Plaintiff reviewed his history and subjective complaints, describing his moods as “pretty even, though he still gets depressed.” (Tr. 353-54) Plaintiff stated that his last hospitalization had been in 2004. (Tr. 354) Plaintiff noted that he was not dating at the time, but he liked to talk to friends online and participate as a member of an online gaming group. (Tr. 355) Dr. Lipsitz found no evidence of active psychotic functioning, delusions, hallucinations, paranoid ideation, ideas of reference or feelings of depersonalization. (Id.) Dr. Lipsitz also found Plaintiff to have “average” range of intellectual functioning, with no memory problems, good concentration, good insight, and good judgment, the ability to handle minor mathematical functions. (Id.) Dr. Lipsitz opined that Plaintiff was able to understand and remember instructions and maintain concentration and persistence on task, as well as manage his own financial affairs, though he noted some difficulties in social interaction and adapting to his environment. (Tr. 356)

         Dr. Lipsitz conducted a second examination of Plaintiff in January of 2013, at the instigation of Plaintiff's counsel. (Tr. 904) Dr. Lipsitz again found Plaintiff to fall within the “average” range of intellectual function, although he had some variation amongst areas of function. (Tr. 906) Dr. Lipsitz noted that Plaintiff was able to take a “systematic approach to problem solving when he is motivated[, ]” is able to adequately assimilate information from his environment, and can handle complex matrix reasoning sequencing tasks. (Id.) However, Dr. Lipsitz noted on this occasion that Plaintiff was having some difficulty concentrating and his attention span was “somewhat low, ” and that he had difficulty learning a novel task at adequate pace. (Id.) Again, Dr. Lipsitz reported no evidence of active psychotic functioning, delusions, hallucinations, paranoid ideation, ideas of reference or feelings of depersonalization at the time of the examination. (Tr. 907)

         Plaintiff's medical records were examined by medical consultant Robert Cottone, Ph.D., who issued an opinion on March 6, 2006. (Tr. 161) In pertinent part, Dr. Cottone found that Plaintiff was capable of understanding, remembering, carrying out and persisting at simple tasks, could make simple work-related judgments, relate adequately to co-workers and supervisors and adequately adjust to ordinary changes in work routine or setting. (Tr. 163) Dr. Cottone recommended that Plaintiff not be placed in situations involving intense or extensive interpersonal interaction, close proximity to co-workers, or public contact handling complaints. (Id.)

         In May of 2009, Dr. David Peaco, Ph.D., evaluated Plaintiff, specifically in relation to his application for disability benefits. (Tr. 368) Dr. Peaco noted that Plaintiff's flow of thoughts was normal (though his speech a bit fast), and that he was cooperative and had a normal affect. (Tr. 369) Plaintiff was oriented, reporting and demonstrating no memory problems. (Id.) He denied being depressed. (Id.) He stated that his most recent manic episode had been five years before, although he claimed frequent hypomanic episodes. (Id.) Plaintiff also reviewed his social interactions (primarily on the computer) including online gaming, as well as maintaining two blogs and other websites. (Tr. 370) In testing, Plaintiff displayed a “high average” intellectual function, treating “these puzzles as a challenge” and putting forth “a tremendous amount of focus and energy.” (Id.) Plaintiff showed no memory or intellectual function impairments, although he had lower subscores on perceptual motor speed and rapid visual search showed mildly below-average performance in perceptual motor speed, rapid visual search and lower digit signal coding. (Tr. 371) Dr. Peaco stated that these areas “should not severely impair his overall functioning.” (Tr. 372) Plaintiff's mood and personality testing revealed an “overwillingess to endorse items of pathology and problems” but was otherwise a valid test. (Tr. 371) The testing showed “a high level of lassitude and malaise, some slight tendency toward authority problems and family discord, ” but did not show severe psychotic symptomology, severe depression or severe manic episodes at that time. (Tr. 372) Dr. Peaco characterized Plaintiff as “fairly stable” in mood and personality, consistent with “his self-report of fairly minimal symptoms and fairly stable functioning.” (Id.) Overall, Dr. Peaco opined that Plaintiff should be able to understand and remember simple instructions, having adequate persistence but some mild impairment of pace and concentration. (Id.) Dr. Peaco characterized Plaintiff as having moderate impairment of social function, though better in an internet setting. (Id.) Dr. Peaco also rated Plaintiff as mild to moderately impaired in his ability to cope with the world around him. (Id.) In a subsequent checkoff form, Dr. Peaco indicated no issues in understanding, remembering or carrying out simple instructions, with mild limitation on his ability to make judgments on simple work-related decisions. (Tr. 1281) Dr. Peaco also found that Plaintiff was mildly limited in his ability to carry out and make decisions on complex work-related matters, although he was able to understand and remember them. (Id.) Dr. Peaco rated Plaintiff as moderately impaired in his ability to interact appropriately with the public and supervisors, though markedly limited in his ability to interact with the co-workers and to respond appropriately to usual workplace situations or changes in routine. (Tr. 1282) The ALJ gave this evaluation and opinion significant weight, finding it consistent with the treatment records as a whole, as well as the findings of several other sources. (Tr. 422)

         Finally, there is the opinion of impartial medical examiner Dr. Kathleen O'Brien. Dr. O'Brien reviewed the medical records and other opinions, and opined at the administrative hearing that Plaintiff suffered from Bipolar Disorder I and Generalized Anxiety Disorder. (Tr. 1329) Dr. O'Brien asserted that Plaintiff displayed moderate limitation in social function, and mild impairment of his concentration, persistence and pace, escalating to moderate during times of great stress. (Tr. 1330) Dr. O'Brien indicated that Plaintiff's potential work should be limited to simple tasks in an effort to reduce stress, not interact with the public, and have occasional contact with co-workers and supervisors. (Tr. 1331) In terms of his treatment, Dr. O'Brien noted that Plaintiff had been on a medication regimen for some time with very little change and no noted side effects. (Tr. 1333-34) The ALJ placed significant weight on this opinion, deeming it consistent with the medical treatment records as a whole and most of the other opinions offered by medical sources.

         The record also includes, from time to time, so called Global Assessment of Functioning or GAF[6] scores for Plaintiff. The ALJ noted such GAF scores, but properly discounted those scores for the reasons stated in the written decision. See Wright v. Colvin, 789 F.3d 847, 855 (8th Cir. 2015). (finding that “substantial evidence support[ed] the ALJ's decision not to give weight to [claimaint's] GAF score because GAF scores have no direct correlation to the severity standard used by the Commissioner”).

         V. Standard of Review and Legal Framework

         To be eligible for SSI and DIB benefits, a claimant must prove that s/he is disabled within the meaning of the Act. See Baker v. Sec'y of Health and Human Servs., 955 F.2d 552, 555 (8th Cir. 1992); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the Act, a disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c (a)(3)(A). A claimant will be found to have a disability “only if [her] physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, ...

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