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Tayon v. Berryhill

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

February 8, 2018

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



         This 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 affirmed.

         I. BACKGROUND

         Plaintiff 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, 612).

         Plaintiff 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.

         On May 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).

         Plaintiff 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.

         A. Medical Record and Evidentiary Hearing

         Plaintiff 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 51.[2] (Tr. 542-45).

         In 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).

         Dr. 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. 361-64).

         In 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).

         In 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).

         In 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).

         Following 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).

         Throughout 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).

         As part 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. 501-04).

         In 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).

         Plaintiff 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. 553).

         From 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 ...

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