United States District Court, E.D. Missouri, Eastern Division
D. NOCE UNITED STATES MAGISTRATE JUDGE.
action is before the court for judicial review of the final
decision of the Commissioner of Social Security finding that
plaintiff Gary Tayon is not disabled and, thus, not entitled
to Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act, 42 U.S.C. §§
1381-1385. The parties have consented to the exercise of
plenary authority by the undersigned United States Magistrate
judge pursuant to 28 U.S.C. § 636(c). For the reasons
set forth below, the decision of the Commissioner is
was born on June 23, 1970. (Tr. 1033). He has made six
applications for Social Security benefits since July 1999.
(Tr. 238, 612). In October 2006, one was granted, with an
onset date of August 10, 2004. (Tr. 238, 612). Plaintiff
received SSI benefits until April 2009, when his benefits
were terminated because of his incarceration. (Tr. 10, 143,
filed the application for SSI at issue in this case on
October 20, 2010, alleging an onset date of August 10, 2004.
(Tr. 187). Plaintiff claims that he is bi-polar,
schizophrenic, and borderline incompetent, and that these
conditions limit his ability to work. (Tr. 242).
Plaintiff's application was denied on December 21, 2010,
and he requested a hearing before an administrative law judge
(“ALJ”). (Tr. 104-112). A hearing was held in
August 2011, where plaintiff and a vocational expert
(“VE”) testified. (Tr. 58-77). A supplemental
hearing was held on May 20, 2013, with plaintiff and the same
VE testifying. (Tr. 35-57). By decision dated May 30, 2013,
the ALJ found that plaintiff was not disabled under the
Social Security Act. (Tr. 7-29). The ALJ determined that
plaintiff retained the residual functional capacity
(“RFC”) to perform jobs available in significant
numbers in the national economy. Id.
1, 2014, the Appeals Council of the Social Security
Administration denied plaintiff's request for review of
the ALJ's decision. (Tr. 1-4). Plaintiff sought judicial
review of this final decision on June 30, 2014, and the
reviewing court reversed and remanded on May 28, 2015, for
further development of the record regarding plaintiff's
mental impairments. (Tr. 678-86). See Tayon v.
Colvin, 4:14 CV 1180 RLW (Docs. 1, 30). On remand, an
additional hearing was held before a second ALJ, in January
2016. (Tr. 1012-1067). On February 25, 2016, this second ALJ
also determined that plaintiff is not disabled. (Tr. 608-37).
The Appeals Council declined to assume jurisdiction, making
the ALJ's decision after remand the final decision of the
Commissioner to be reviewed in this case. (Tr. 602-05).
argues that the second decision is not supported by
substantial evidence. Specifically, he asserts that the ALJ
erred in according “little” weight to the opinion
of plaintiff's treating mental health counselor,
according the opinion of plaintiff's treating
psychiatrist “limited” weight, and in failing to
consider plaintiff's need for a structured setting. (Doc.
17). Plaintiff asks that the ALJ's decision be reversed
and an award of benefits entered or that the case be remanded
for further evaluation.
Medical Record and Evidentiary Hearing
reportedly began experiencing psychiatric symptoms requiring
treatment in 1995, when he was engaged in drug abuse. (Tr.
360, 376, 468). He was hospitalized for suicidal ideation and
treated for polysubstance addiction in 1999. (Tr. 360).
Throughout 2005 and 2006, he received treatment for
depression, anxiety, and substance abuse. (Tr. 377, 542-45).
His treating psychiatrist at that time, M. Asif Qaisrani,
M.D., opined in June 2006 that plaintiff had a Global
Assessment of Functioning (“GAF”) score of
March 2009, plaintiff was arrested on a charge of purchasing
pseudoephedrine with the knowledge that it would be used to
manufacture a controlled substance, following which he
underwent four competency evaluations. (Tr. 358). First, in
May 2009, forensic psychologist Gordon M. Zilberman, Ph.D.,
performed a clinical interview. (Tr. 358-63). Dr. Zilberman
observed that plaintiff had poor grooming, barely coherent
thought processes, elevated mood, and difficulty expressing
himself. (Tr. 360). He noted that plaintiff was sleeping very
little, eating excessively, and not fully compliant with his
prescribed medications. (Tr. 361). Dr. Zilberman diagnosed
plaintiff with bipolar affective disorder and a prior history
of amphetamine, cocaine, and cannabis abuse. (Tr. 361).
Zilberman also administered objective tests to assess
plaintiff's intellectual functioning. (Tr. 359-64).
Plaintiff reported that he had learning problems in school,
repeated fourth grade, and dropped out of school after tenth
grade. (Tr. 359). Dr. Zilberman administered the Wechsler
Adult Intelligence Scale, Fourth Edition
(“WAIS-IV”), and plaintiff received an IQ score
of 78, with subtest scores ranging from 72 to 92. (Tr. 361).
Plaintiff also took the Wide Range Achievement Test, Fourth
Edition, and received scores in the sixth to tenth
percentiles in the areas of word reading, sentence
comprehension, spelling, and math computation. (Tr. 361). Dr.
Zilberman stated that plaintiff's academic abilities
appear to be in the below average range and that his present
intellectual abilities appear to be in the borderline to low
average range of functioning. (Tr. 361). Dr. Zilberman opined
that it was highly likely that because of plaintiff's
noncompliance with his medication regime, his
poorly-controlled psychiatric symptoms impeded his
performance on the tests. (Tr. 361-64). Based on these
findings, Dr. Zilberman opined that plaintiff's present
ability to understand the nature and consequences of the
court proceedings brought against him, as well as his ability
to properly assist his attorney, were substantially impaired
by his mental illness, though it was highly likely that
plaintiff's psychiatric symptoms would be much better
controlled if he were compliant with his medications. (Tr.
December 2009, Bruce Berger, M.D., and Jill R. Grant, Psy.D.,
conducted a second forensic evaluation of plaintiff in
accordance with a second court order regarding
plaintiff's competency to stand trial in his criminal
case. (Tr. 364-74). They conducted several clinical
interviews and behavioral observations. (Tr. 365). Drs.
Berger and Grant noted plaintiff had been fully compliant
with his prescribed medications and his symptoms appeared to
be better controlled. (Tr. 367-69). They observed that
plaintiff occasionally exhibited restlessness, tangential
speech, and difficulty focusing. (Tr. 368-69, 372). However,
some symptoms were attributed to excessive caffeine
consumption. (Tr. 368, 372). They noted that plaintiff
responded well to redirection and observed that symptoms were
heightened in new environments but decreased as they became
more familiar. (Tr. 368-69, 371-72). They diagnosed plaintiff
with bipolar disorder and a history of amphetamine abuse and
assigned plaintiff a GAF score of 65, corresponding to mild
symptoms and limitations. (Tr. 372). Drs. Berger and Grant
concluded that so long as plaintiff remained compliant with
his medication regimen, he would be able to maintain
appropriate focus during the proceedings and was competent to
stand trial. (Tr. 372-74).
February 2010, forensic psychologist Richard G. Scott, Ph.D.,
examined plaintiff pursuant to his criminal defense
attorney's request for another evaluation of his
competency to stand trial. (Tr. 375-82). Dr. Scott reviewed
plaintiff's medical records and conducted an interview
with defendant in jail. (Tr. 375). Dr. Scott observed that
plaintiff had an unkempt appearance, distractibility,
impaired reasoning, tangential flow of thought, poor insight,
and fair judgment. (Tr. 378-80). He opined that
plaintiff's legal insight and judgment were impaired by
his thought disorder and plaintiff could not apply his
factual understanding of the legal proceedings in a rational
manner. (Tr. 382). Dr. Scott opined that plaintiff would not
be able to communicate effectively with his attorney, track
evidence in court, or understand the nature and consequences
of the legal proceedings against him. (Tr. 382).
August 2010, plaintiff underwent a fourth forensic
evaluation, again by Drs. Grant and Berger. (Tr. 457-63).
They observed that plaintiff had been largely compliant with
treatment and his symptoms had responded well to medication,
with no periods of mania, hypomania, or depression. (Tr. 459,
462). Drs. Grant and Berger found that plaintiff's
anxiety symptoms had improved and that he demonstrated good
comprehension skills, positive mood, and cooperative
behavior. (Tr. 460). He attended a weekly competency
restoration group and participated actively in the group and
tried to help other participants when they did not have
information. (Tr. 460). He completed a competency
questionnaire containing 25 items concerning legal
terminology, roles of courtroom personnel, and other legal
information, reading over the questionnaire quickly and
correctly answering all questions. (Tr. 460). Drs. Grant and
Berger assigned plaintiff a GAF score of 70 to 75,
representing mild to slight symptoms and limitations. (Tr.
461). They opined that plaintiff had a good factual and
rational understanding of his case and could assist his
attorney in the preparation of a defense. (Tr. 462-63). They
concluded that plaintiff was able to maintain appropriate
focus during legal proceedings if he remained compliant with
prescribed medications, and that he was competent to stand
trial. (Tr. 462-63).
his release from federal custody in October 2010, plaintiff
received regular treatment from psychiatrist Jhansi
Vasireddy, M.D., monthly for one to two years and then every
two to three months until 2015. (Tr. 468-71, 489-500, 520-41,
885-96, 903-08, 945, 966, 993-95, 998). Dr. Vasireddy
diagnosed plaintiff with major depressive disorder, mild;
generalized anxiety disorder; personality disorder, not
otherwise specified; and polysubstance dependence, in
remission. (Tr. 886, 966).
his five years of treatment with Dr. Vasireddy, plaintiff
occasionally reported symptoms of low mood and isolative
behavior, but often told Dr. Vasireddy that he was doing well
on medications with good sleep and appetite. (Tr. 492-98,
520, 523, 525, 526, 529, 533, 535, 537, 885-86, 892-95, 903,
906-07, 966, 970, 977, 989, 993-95, 998). Dr. Vasireddy
observed plaintiff to sometimes have a mildly anxious, flat,
or depressed affect, but she also noted that plaintiff
demonstrated appropriate mood and affect at many psychiatry
visits. (Tr. 468-71, 492-500, 520-41, 885-96, 903-08, 945,
966, 993-95, 998). Plaintiff consistently exhibited pleasant,
cooperative behavior and adequate grooming and hygiene. (Tr.
468-71, 489-500, 520-41, 885-96, 903-08, 945, 966, 993-95,
998). He occasionally demonstrated poor focus in his thought
processes, but on many other occasions manifested
goal-directed or unremarkable thought processes. (Tr. 468-71,
489-500, 520-41, 885-96, 903-08, 945, 966, 993-95, 998). Dr.
Vasireddy repeatedly observed plaintiff exhibit normal
thought content. (Tr. 468-71, 489-500, 520-41, 885-96,
903-08, 945, 966, 993-95, 998). She generally observed him to
exhibit fair insight and judgment, normal psychomotor
activity, clear speech, and good eye contact, with the
absence of mood swings, anxiety, or irritability at
appointments. (Tr. 468-71, 489-500, 520-41, 885-96, 903-08,
945, 966, 993-95, 998). Plaintiff reported some recurrent
symptoms of depressed mood, anxiety, amotivation, social
withdrawal, and poor memory, but denied depressive symptoms
at other times. (Tr. 468-71, 489-500, 520-41, 885-96, 903-08,
945, 966, 993-95, 998). While under Dr. Vasireddy's care,
plaintiff remained on largely the same medications, with only
a few medication increases or adjustments. (Tr. 468-71,
489-500, 520-41, 885-96, 903-08, 945, 966, 993-95, 998).
Throughout this period, Dr. Vasireddy frequently assigned a
GAF score between 60 and 70, assigning GAF scores in the 50
to 60 range on only two occasions. (Tr. 470, 492-98, 520,
523, 525, 528, 529, 531-33, 886, 892-95, 903-07, 966, 970,
977, 989, 993-95, 998).
of plaintiff's treatment with Dr. Vasireddy, plaintiff
also met with a counselor, Gina Insalaco, M.A., L.P.C. (Tr.
471). At her first appointment with plaintiff in October
2010, she observed that he had normal thought processes and
orientation, but that he had a flat affect, was unable to
stay focused and on task, and had poor memory and judgment.
(Tr. 475). In November 2010, his mother reported that since
his return from prison, he had become much more social: he
“now wants to go to stores and get out of the house,
where last year he would not leave his bedroom.” (Tr.
504). Ms. Insalaco's treatment notes primarily discuss
plaintiff's eating habits and social choices. (Tr.
December 2011, Ms. Insalaco opined that plaintiff had
experienced social decompensation over the past year, has
great social anxiety, cannot communicate effectively in a
public environment, and has below average intellectual
function. (Tr. 516). She opined that in a public setting,
plaintiff would feel highly anxious and may get easily
frustrated or have difficulty comprehending instructions,
conversing, and staying on topic. (Tr. 516). Ms. Insalaco
also opined that plaintiff needs assistance with remembering
to take his medications in appropriate dosages. (Tr. 516).
She noted that plaintiff purposely avoided family members and
isolated himself and she assigned plaintiff GAF scores of
45-55. (Tr. 516).
continued to see Ms. Insalaco through the year 2013. (Tr.
548-66). In June 2012, Ms. Insalaco noted that plaintiff was
depressed and staying at home more. (Tr. 560). In November
2012, she noted that plaintiff had fragmented conversation
and switched topics quickly. (Tr. 554). In January 2013, she
observed that plaintiff had a flat, depressed mood,
fragmented ideas, a poor self-concept, and a poor memory,
though he also had a normal appearance; had normal thought
content; and was oriented to time, place, and person. (Tr.
552). Ms. Insalaco opined that plaintiff has ongoing
depression and anxiety and isolates himself socially. (Tr.
January to December 2014, plaintiff saw counselor Norinee
Thomas, M.A., P.L.P.C. (Tr. 960-1009). In January 2014, she
observed that plaintiff had normal appearance, orientation,
and psychomotor activity, but plaintiff reported that he felt
“terrible” and “suicidal, ” he could
not remember things, and he had trouble getting along with
others. (Tr. 1004). In March 2014, Ms. Thomas noted that
plaintiff was talking to his neighbor about his thoughts.
(Tr. 996). From June to December 2014, Ms. Thomas recorded no
significant changes in plaintiff's mental health. (Tr.
961, 968, 975, 982, 987). In December 2014, Ms. Thomas
performed a behavioral health assessment of plaintiff and
opined that he had appropriate mood, hypersomnia, no
hallucinations or delusions, no phobias, appropriate thought
process and content, appropriate grooming and dress,
appropriate psychomotor ...