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Hammack v. Berryhill

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

January 3, 2018

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



         This matter is before the Court for review of an adverse ruling by the Social Security Administration. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner's decision is reversed and the matter is remanded.

         I. Procedural History

         In July and August 2013, plaintiff Teresa Hammack filed applications for disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of August 30, 2004. (Tr. 172-80, 181-86). After plaintiff's applications were denied on initial consideration (Tr. 50-59, 60-65), she requested a hearing from an Administrative Law Judge (ALJ). (Tr. 80-81).

         Plaintiff appeared for a video hearing with counsel on August 25, 2015, [2] and testified concerning her disability, daily activities, functional limitations, and past work. (Tr. 27-42). The ALJ also received testimony from vocational expert Jerry Beltramo, D. Min. The ALJ issued a decision denying plaintiff's applications on September 4, 2015. (Tr. 9-26). The Appeals Council denied plaintiff's request for review on August 11, 2016. (Tr. 1-6). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability and Function Reports and Hearing Testimony

         Plaintiff was born on January 23, 1965, and was 48 when she filed her applications and 50 when the ALJ issued his decision. She completed two years of college and could read, write, and complete simple math. (Tr. 30-31). She owned and operated a janitorial business between 1994 and 2003. In addition to performing janitorial functions, she supervised between 4 and 30 employees, managed hiring and firing, promoted the business, and handled payroll, billing, and accounts receivable. (Tr. 210-11). She stopped working due to her impairments. (Tr. 209).

         Plaintiff listed her impairments as generalized anxiety disorder, chronic schizoaffective disorder with acute exacerbation, and recurrent major depressive disorder. (Tr. 31, 209). She had psychiatric admissions in 1985 and July 2014. (Tr. 31). She received psychiatric treatment from psychiatrist Deborah B. Krause, D.O. (Tr. 35). Between August 2013 and August 2015, plaintiff was prescribed a number of psychotropic medications, including lithium carbonate, loxapine, paroxetine, clonazepam, and Latuda. She also took levothyroxine for the treatment of hypothyroidism. (Tr. 212, 324, 342).

         Plaintiff's neighbor Mary White completed a third-party function report in August 2013. (Tr. 217-27). According to Ms. White, plaintiff had taken care of her elderly mother for several years until her death in November 2012. The loss of her mother and her inability to work caused plaintiff's conditions to worsen to the point that she was unable to take care of her daily chores. Sometimes plaintiff had insomnia and, at other times, she slept “all the time.” (Tr. 218). Ms. White and her husband spent between two and six hours every day with plaintiff, making sure she ate two meals and took her medications. Plaintiff had periodic panic attacks and was sometimes afraid to go outside. She did not like to go out on her own, but she did go to church with Ms. White and participate in the service. She liked to take walks, do yard work, and visit with neighbors. Plaintiff stated in her own function report (Tr. 230-38) that when she was really depressed she did not care if she ate and that she had difficulties with talking, memory, completing tasks, concentrating, understanding and following instructions, while Ms. White opined that plaintiff followed written instructions quite well. Both Ms. White and plaintiff stated that plaintiff got along well with others, with the exception of plaintiff's brother. The Field Office interviewer described plaintiff as “confused and irritated” and observed that plaintiff had difficulty with understanding, coherence, concentration, talking, and answering. (Tr. 206).

         Plaintiff lived alone in August 2013 when she filed her applications but planned to move in with a roommate in the near future. (Tr. 231). In describing her daily activities, plaintiff stated that she napped in the mornings and afternoons and watched television. She tried to walk with a friend, but was often unable to leave her house. She considered any day she went outside to be “a good day.” (Tr. 231). In October 2013, plaintiff reported to the State agency that she showered infrequently because she had hallucinations of things coming out of the shower head. She also did not wash the dishes and just let them pile up until someone else washed them for her. She stated that since her last disability report she had begun to avoid going into public or crowded situations and that she got very behind on laundry. (Tr. 245).

         At the August 2015 hearing, plaintiff reported that she had stopped taking the antipsychotic Latuda while undergoing antibiotic treatment for a peptic ulcer but expected to resume in a few days at an increased dosage. (Tr. 32). When she was taking her antipsychotic medications, she had four or five good days every week. (Tr. 34). On such days, she woke up at 8:00, had breakfast, walked the dog and fed the cats, and “tr[ied] to stay out of bed as much as possible.” (Tr. 33). Even on good days, it was hard for her to leave the house, so she made excuses to stay home. She was responsible for the majority of the housework in exchange for rent and washed dishes, cleaned the floors, and changed litter boxes. (Tr. 34). When she felt up to it, she prepared meals for herself and her roommate. She was able to watch television on good days, and sometimes was able to watch an entire hour-long show; other times, she got distracted or lost interest after 10 or 15 minutes. (Tr. 35-36). She liked to do yard work when her roommate was willing to be outside with her. (Tr. 36). On bad days, such as when she could not take her antipsychotic medications, she wanted to sleep to avoid the anxious and depressed feelings. She got up for an hour around 10:00 or 11:00 and then slept until 5:00 or 6:00 before getting up to eat supper. She then stayed awake until 9:00 before returning to bed. (Tr. 33-34). She did not watch television on those days. (Tr. 38). She testified that she had recently experienced paranoid thoughts while at Wal-Mart and left her cart in the aisle and went home. (Tr. 37). The medications caused generalized sleepiness, dry mouth, upset stomach and occasional diarrhea, but she was willing to deal with the side effects in order to control her psychotic episodes. (Tr. 33).

         Vocational expert Jeremy Beltramo was asked to testify about the employment opportunities for a hypothetical person of plaintiff's age, education, and work experience who was able to perform work at all exertional levels but who was limited to performing simple work as defined in the Dictionary of Occupational Titles as specific vocational preparation (SVP) levels one and two - which the ALJ defined as routine tasks with only occasional decision-making, only occasional changes in the work setting, and no strict production quotas, emphasizing a per shift rather than per hour basis. (Tr. 40). In addition, the hypothetical individual was limited to only occasional interaction with the public, coworkers, and supervisors. Such an individual would not be able to perform plaintiff's past relevant work, but could perform other work that was available in the state and national economy, including stubber, machine packager, and industrial cleaner. (Tr. 40-41). Each of these jobs had an SVP level of two. An individual who was unable to concentrate for more than 30 minutes at a time, was off-task 20 percent of the workday, or had more than two unexcused absences in a month or repeated tardiness would not be employable.

         B. Medical Evidence

         The largest portion of the medical evidence in this case consists of psychiatric treatment records from Dr. Krause from November 2007 through August 2015.[3] In addition, there are records from plaintiff's inpatient admission in July 2014. The opinion evidence consists of a Psychiatric Review Technique form completed by the State agency psychologist in September 2013, medical source statements completed by Dr. Krause in April 2014, and a psychological evaluation completed by Thomas J. Spencer, Psy. D., in January 2015.

         1. Treatment Records

         In March 2007, plaintiff underwent a new patient evaluation at University Hospital in Columbia, Missouri, with the goal of enrolling in a patient assistance program for her medications. Plaintiff reported that she experienced highs and lows, with symptoms of mania and depression, and auditory command hallucinations telling her to kill herself. She had about 20 prior suicide attempts, through attempted drowning and overdoses. She slept 18 to 20 hours a day, and had poor appetite, decreased motivation and energy, crying spells, poor concentration, feelings of guilt and worthlessness, distractibility, derealization, and depersonalization. She had been treated by a psychiatrist in St. Louis, but he no longer offered a patient assistance program for her prescriptions, which included Lexapro, Abilify, BuSpar, Wellbutrin, and Klonopin. On examination, plaintiff was alert and oriented, with good eye contact. Her hygiene was fair. She appeared anxious with restricted affect. She was diagnosed with schizoaffective disorder, bipolar type, and assessed as moderately ill. She was referred to counseling services.

         Plaintiff established services with Dr. Krause at the University of Missouri Center for Mental Wellness in Jefferson City on November 15, 2007.[4] (Tr. 291-93). She reported that she was hospitalized in her late teens for suicidal ideation. She began experiencing daily auditory and visual hallucinations as a teenager, but she did not report them to anyone until 2005 because she did not know that hallucinations were unusual. In 2004, she shut down the commercial cleaning business she had operated for 12 years, keeping one account that she worked for when she was able. She described a prior long-term relationship but was not presently involved with anyone.[5] Plaintiff stated that she experienced mood swings. During depressive phases, she experienced low mood, anhedonia, anergia, hypersomnia, social isolation, insomnia, and severe suicidal thoughts. And, during manic phases, she experienced decreased sleep and increased energy, elevated mood, an inability to complete tasks, and excessive cleaning.[6] Plaintiff's prior psychiatric treatment ended in January 2007 when she lost medical insurance. She continued to take her prescribed medicine even though she did not feel she was getting much benefit. She smoked a pack of cigarettes a day and used methamphetamine two or three times a month. She denied using alcohol. On examination, plaintiff presented with good hygiene and grooming, was cooperative and interactive, made good eye contact, and did not have psychomotor abnormalities or pressured speech. She was alert and oriented, her thought processes were linear, and she had good insight and judgment. Her diagnoses were schizoaffective disorder, methamphetamine abuse, and nicotine dependence. Her Global Assessment of Functioning (GAF) score was 50.[7]Dr. Krause continued plaintiff's prescriptions for Lexapro, BuSpar, Wellbutrin, and Klonopin (as needed); discontinued plaintiff's Abilify; started a trial of Invega to address hallucinations; and started a trial of Depakote to target mood swings and manic and depressive episodes. She also ordered comprehensive blood tests.

         In December 2007, plaintiff reported that she had been unable to afford the blood tests. (Tr. 305-07). Her mother had moved in with her for mutual support during the winter. She had stopped taking Invega and Depakote after three days because of unpleasant side effects. She reported that her mood swings were increasing in frequency. She had several days of depression but now was entering a manic phase - she was unable to sleep and felt edgy, wired, and nervous. She presented with significant involuntary facial movements, which she said began when she first took Abilify. She continued to experience auditory hallucinations.[8] She denied any methamphetamine use since her last visit. On examination, plaintiff presented with good hygiene and grooming, was pleasant, cooperative and interactive, and made good eye contact. She had significant involuntary facial movements and lip smacking throughout the visit. She was alert and oriented, her thought processes were linear, and she had good insight and judgment. Her diagnoses remained unchanged. Plaintiff agreed to retry Depakote. Dr. Krause delayed prescribing Seroquel to address plaintiff's ongoing psychotic symptoms until baseline blood work was completed. Plaintiff called on December 11, 2007, to report an extended period of feeling manic with an inability to focus. Dr. Krause changed the dosage of plaintiff's Wellbutrin and added clonazepam. (Tr. 308).

         On January 7, 2008, plaintiff reported mood swings with significant alteration in her sleeping. (Tr. 303-05). During a “mildly manic” phase, she slept three or four hours a night, with racing thoughts and increased hallucinations. In the subsequent depressive phase, she slept up to 20 hours a day. The clonazepam provided some relief for her anxiety and sleep issues. She did not display involuntary facial movements; otherwise her mental status was essentially unchanged. Dr. Krause prescribed a trial of Seroquel to target the hallucinations. Dr. Krause modified her diagnosis to methamphetamine abuse in remission. In February 2007, plaintiff reported that she continued to have rapid changes in mood, but thought they were happening less often. (Tr. 301-02). She still had daily hallucinations. She was not sleeping as much during the daytime and was sleeping 12 to 14 hours at night. Nonetheless, she had more bad days than good and isolated herself somewhat because she was self-conscious about her facial tics. She reported feeling a general lack of interest. She used Klonopin three or four times a week to treat acute anxiety. Her mother was continuing to stay with her, which was a benefit to both of them. On examination, she was pleasant, interactive and talkative, with good eye contact and occasional smiles. She had prominent facial tics. Dr. Krause increased plaintiff's Seroquel dosage and added Cogentin to treat muscle stiffness. Plaintiff's amphetamine abuse was now in full sustained remission.

         In March 2008, plaintiff reported that she was busy with various family matters and taking her mother to appointments. (Tr. 298-300). Her facial tics did not improve on Cogentin so she stopped taking it. She had fewer hallucinations on the higher dosage of Seroquel. In addition, she was somewhat better able to focus and her obsessive-compulsive tendencies had lessened. With respect to her mood, her lows were not as low, but her sleep pattern continued to be erratic - she had two weeks of sleeping two or three hours a night, with one 48-hour period in which she slept around the clock. Her mental status examination was largely unchanged, with no evidence of delusional thought or acute psychosis. Dr. Krause increased the dosage of Seroquel to target the hallucinations, mood swings, and erratic sleep. She delayed increasing the dosage of Depakote because plaintiff had not obtained the necessary blood work.

         In July 2008, plaintiff stated that her mother planned to stay with her until they could move together to her mother's home. She reported some conflict with her brother and concern for her future finances. The increased dosage of Seroquel reduced the frequency and intensity of her hallucinations and mood symptoms, but she ran out two weeks before the appointment, leading to increased auditory hallucinations. She found the “chatter” extremely disturbing and was preoccupied by trying to detect the source of the noises she heard. (Tr. 294-96). She stopped taking the Lexapro and BuSpar because she did not think they were helpful, and decreased the dosage of Wellbutrin to 300 mg, which was the amount she could obtain from her mother's physician. She took clonazepam as needed when she was manic or unable to sleep. She was still unable to afford the blood work Dr. Krause ordered. Dr. Krause provided plaintiff with some samples of Seroquel so she could take 600 mg a day. Plaintiff called a few days later to report that she had increased sedation, blurred vision, dizziness, and leg twitching; she was told to reduce her Seroquel dosage to 500 mg. (Tr. 297). She called again on August 12, 2008, to say that she could not keep her scheduled appointment because she had been unable to sleep for four days and was too manic to drive. (Tr. 290). Plaintiff was told to increase her Klonopin and to call to set another appointment.

         Plaintiff did not return until March 2013. (Tr. 287-89). Dr. Krause noted that plaintiff was “lost to care” while acting as the primary caregiver for her mother, who died of complications of dementia in November 2012. Since that time, plaintiff had experienced a progressive worsening of her depression and anxiety. She reported low mood, anhedonia, anergia, poor focus and concentration, procrastination, crying spells, decreased appetite, and weight loss. She had frequent panic attacks and continued to experience auditory hallucinations. She did not have mood lability or mania. She was chiefly concerned with her depression and anxiety, which interfered with her ability to go out in public and get things done. In addition, she was in conflict with her brother over whether to sell her mother's home, in which she had been living for several years. She had supportive friends and relatives. On examination, plaintiff had appropriate dress and grooming, was alert and oriented, and was interactive, pleasant, and cooperative. Her affect was anxious and tearful. Her speech patterns were normal, her thought processes were coherent, and she had no psychomotor abnormalities. Dr. Krause assessed plaintiff's fatigue as mild, her concentration as fair, and her anxiety as severe. She was paranoid at times. Dr. Krause diagnosed plaintiff with major depressive disorder, recurrent episode, severe, with psychosis; and anxiety disorder, generalized. She assessed plaintiff's GAF as 51. In discussing medications, Dr. Krause noted that plaintiff had previously done well with a combination of Seroquel, Depakote, clonazepam and Wellbutrin, but was now limited to what she could realistically afford. Dr. Krause prescribed citalopram to treat the depression and clonazepam for panic attacks, as needed.

         In April 2013, plaintiff appeared with a cousin. (Tr. 284-86). She reported that she actually felt worse after beginning the medications and assessed her mood at level 2 to 3 on a 10-point scale. She was feeling so depressed that she had considered going to the psychiatric facility in Rolla, where she lived. She was also struggling with severe anxiety and for three days had been unable to leave the house to get needed groceries. She experienced occasional paranoia with the belief that others were out to get her. She felt a lot of grief and constantly heard her mother calling for her.[9] She was napping during the day despite sleeping through the night. She tried exercising, changing her diet, and improving her sleep hygiene without effect. She and her brother were still in conflict over the disposition of her mother's home. Dr. Krause again rated plaintiff's anxiety as severe with panic attacks and worsening depression. She diagnosed plaintiff with anxiety disorder, generalized; and schizoaffective disorder, chronic with acute exacerbation; and assessed a GAF of 51. To treat plaintiff's anxiety, she tapered plaintiff off the citalopram and began a trial of Paxil, with clonazepam as needed for panic attacks. She started plaintiff on risperidone for mood swings and psychotic symptoms. On mental status examination, plaintiff was distractible, anxious and tearful, with coherent thought processes and no psychomotor symptoms.

         In June 2013, plaintiff reported little improvement. (Tr. 281-83). Her mood swings had increased and she had been manic for the last 48 hours, with reduced sleep and racing thoughts. She was engaged in cleaning and doing extensive yard work without taking breaks to eat or rest. She continued to feel suspicious and anxious when she was out in public.[10] She had poor impulse control and was uninhibited in what she said, to the extent that her friends told her she being was annoying. On examination, plaintiff was mildly irritable, but was interactive and cooperative. Dr. Krause noted that plaintiff had worsening depression, severe anxiety, panic attacks, occasional paranoia, racing thoughts, and impulsive behavior. Dr. Krause arranged for affordable blood tests, started plaintiff on lithium carbonate, and discontinued the risperidone because it caused jaw clenching and restless leg syndrome.

         In July 2013, plaintiff appeared with her neighbor Mary. (Tr. 278-80). She reported that her manic symptoms had resolved but she now was very depressed. She felt tired despite sleeping 18 hours a day. She was also eating poorly and had an increase in auditory hallucinations. She was still living in her mother's house, which was scheduled for auction in less than a week and she did not know where she would live. Her attorney was working on strategies to assist her with the situation and had suggested she apply for Social Security disability benefits. Mary was helping plaintiff clean her house and apply for benefits. Dr. Krause added loxapine to target mood symptoms and hallucinations, continued the lithium and Paxil, and decreased the clonazepam. She instructed plaintiff to call the office with a progress report in two weeks, and to remain up during daytime hours and eat more consistently. Dr. Krause again assessed plaintiff with worsening depression, severe anxiety, panic attacks, and occasional paranoia. On examination, plaintiff was alert, oriented, interactive, and cooperative with occasional smiles. Her GAF was 51.

         When plaintiff returned in September 2013, she was accompanied by another cousin. (Tr. 363-65). Shortly before the appointment, she called to complain of increased manic symptoms; this followed a two-week period of feeling very depressed. Dr. Krause raised plaintiff's lithium dosage at that time. With the exception of sleeping well for two nights, plaintiff had not experienced an improvement in her symptoms and complained that she was quite sedated during the day. She continued to experience auditory hallucinations. She was under great stress due to her finances, conflict with her brother, the impending foreclosure, and acting as executor for her mother's estate. She had severe panic attacks, with shortness of breath, heart palpitations, and feeling scared. Dr. Krause prescribed a slight increase in clonazepam to address the panic attacks and increased the loxapine for the mood swings and psychotic symptoms; the lithium and Paxil remained unchanged. Dr. Krause directed her to go to an emergency room if she felt suicidal ...

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