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Lillard v. Berryhill

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

March 25, 2019

OCEAN M. LILLARD, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Operations for Social Security, [1] Defendant.



         Plaintiff Ocean M. Lillard seeks judicial review of the Commissioner's adverse decision denying his application for supplemental security income.[2]For the reasons that follow, the decision is reversed and this case is remanded to the Commissioner with instructions to award benefits.

         Procedural History

         On December 15, 2010, Dusty Black filed an application for supplemental security income (SSI) on behalf of her then-minor child, Ocean M. Lillard, alleging that Lillard became disabled on November 17, 2010, because of attention deficit hyperactivity disorder (ADHD), post-traumatic stress disorder (PTSD), depression, anxiety, and emotional disturbance. (Tr. 88-85, 114.) The Social Security Administration denied the claim for benefits on February 4, 2011. (Tr. 32-35.) Upon Black's request, a hearing was held before an administrative law judge (ALJ) on June 13, 2013, at which Black and Lillard testified. (Tr. 596-663.) On August 29, 2013, the ALJ issued a decision finding Lillard not disabled. (Tr. 10-27.) After the Appeals Council denied Black's request for review of the ALJ's decision (Tr. 5-8), Black filed a civil action in this Court seeking judicial review. Black o/b/o O.L. v. Colvin, No. 2:14CV95 DDN (E.D. Mo. 2014). On August 24, 2015, United States Magistrate Judge David D. Noce remanded the matter to the Commissioner for further proceedings, finding that the Commissioner's final decision was not supported by substantial evidence on the record as a whole and was not consistent with the Regulations and applicable law. (See Tr. 692-712.)

         Upon receipt of Judge Noce's Order, the Appeals Council vacated the Commissioner's earlier decision and remanded the case to an ALJ for further proceedings consistent with the Order.[3] The ALJ held supplemental hearings on February 7 and February 10, 2017, at which Black, Lillard, and vocational and medical experts testified. (Tr. 1399-1452, 1453-1510.) On August 3, 2017, the ALJ issued a decision finding that Lillard was not disabled. (Tr. 667-90.) Appeals Council review of the decision was not sought, and the record contains no notice that the Appeals Council conducted its own review. Accordingly, the ALJ's decision of August 3, 2017, became the Commissioner's final decision sixty-one days after its issuance. (See Tr. 665.)

         On June 22, 2016, while the case was pending before the Commissioner on remand, and before the ALJ entered her decision, Lillard turned eighteen. Under 20 C.F.R. § 416.924(f) (2017), [4] therefore, the ALJ applied the child standard for determining disability for the period before Lillard turned eighteen, and the adult standard for the period from Lillard's eighteenth birthday up to the date of the decision. For both periods, the ALJ found that Lillard was not disabled. (Tr. 667-90.) Lillard now seeks judicial review of that final adverse decision. 42 U.S.C. § 405(g).

         With respect to the ALJ's child-disability decision, Lillard claims that the ALJ ignored Judge Noce's directive and continued to improperly accord great weight to the opinion of a non-examining state-agency psychologist in finding that Lillard did not functionally equal the Listings. Lillard also claims that the ALJ ignored other evidence of record and failed to consider his environment when determining his ability to function, as required by the Regulations. As to the ALJ's adult-disability decision, Lillard claims that the ALJ erred in assessing Lillard's residual functional capacity (RFC) and erred by relying on the testimony of a medical expert whose opinion was based on an incomplete review of the record. Lillard asks that I reverse the ALJ's decision and award benefits. Such relief is warranted in this case.


         This is a complicated case.

         Lillard has had significant mental issues since a very young age, with the record showing that he was diagnosed in 2008 with major depressive disorder, ADHD, PTSD, and learning disabilities. He was ten years old. (Tr. 364-65.) He had been sexually abused by his father, and he witnessed his mother suffer severe physical and verbal abuse from his father and from another man with whom she later had a relationship. (Tr. 280-88.)

         At the time of his diagnoses in 2008, Lillard was taking Adderall, Lexapro, and Clonidine (Tr. 364-65), and the record shows that he continued with these medications through 2009 and 2010 (e.g., Tr. 291, 365).[6] Abilify was added to his medication regimen in 2010. (See Tr. 366, 370.) Lillard engaged in unusual behaviors during this period, including acting like a cat, eating inedible items, and making obscene gestures. He also heard voices at night and experienced dizzy spells which sometimes caused him to pass out. (Tr. 335, 369-70.)[7] In August 2010, at twelve years of age, Lillard was charged in circuit court with misdemeanor assault and stealing. (Tr. 90-91.)

         Results from an autism diagnostic examination in August 2010 showed that Lillard was impaired in socialization and adaptive behavior with clinically significant problems with social communication, child behavior, and teacher-observed behavior; clinically significant depression with negative mood, interpersonal problems, and anhedonia; and clinically significant multidimensional anxiety with physical symptoms and harm avoidance. While the examiner felt that Lillard did not qualify for an autism diagnosis, she noted that Lillard clearly had symptoms of ADHD and social deficits with anxiety and depressive symptoms. (Tr. 934-35.)

         In September 2010, upon an increase in Lexapro, Lillard experienced an increase in mood swings, depression, and frustration. Lillard's psychiatrist, Dr. Derlukiewicz, nevertheless instructed Lillard to take the Lexapro as prescribed. Dr. Derlukiewicz also increased the Adderall dosage because of increased ADHD symptoms. (Tr. 340-41.) Lillard's primary physician, Dr. Thornton, questioned whether the increased medication caused Lillard's recent dizziness. (Tr. 369.)

         In December 2010, Lillard's mother applied for child's disability benefits on behalf of Lillard, with an onset date of November 17, 2010.

         Despite Lillard's medication regimen, Dr. Derlukiewicz noted that Lillard continued to not do well, with continued depression, fatigue, lack of motivation, abusive behavior, short attention span, insomnia, and isolation. Throughout 2011, Dr. Derlukiewicz increased the dosages of all of Lillard's psychotropic medications. Although Lillard experienced intermittent periods of improvement with depressive and anxiety-related symptoms, he continued to have a short attention span. In November 2011, after months of increased dosages of medication, Lillard began feeling suicidal and was having suicidal thoughts. Concerned that Abilify caused these thoughts of self-harm, Lillard's mother stopped giving the medication to Lillard. Within days of stopping Abilify, Lillard's thoughts of suicide subsided, but his mood changes continued. (Tr. 526.)

         In 2012, Lillard experienced several episodes of headaches, dizziness, feeling faint, and visual changes. In June 2012, Lillard's mother stopped all medications because she thought they caused these disturbances. Physical examinations by Dr. Thornton revealed nothing specific to cause the phenomena, which made him think that Lillard's psychosocial issues and a possible eating disorder were the source of the problem.

         In October 2012, Lillard's school reported that Lillard was experiencing auditory hallucinations, was looking and behaving oddly, and was making suicidal statements. Lillard's mother continued to be concerned regarding the suspected effects of Lillard's medication on his physical and mental state and determined to change psychiatrists. Lillard's mother testified before the ALJ that she felt that Dr. Derlukiewicz was just trying to push medications onto her child. In December 2012, Dr. Yager, Lillard's new psychiatrist, restarted Lillard on Lexapro.

         In the meanwhile, Lillard continued to experience dizziness and fainting, and Dr. Thornton continued to suggest psychosocial emotional screening given that he could not identify a specific physical cause for the episodes. In February 2013, Lillard's mother discontinued all of Lillard's medications again, believing that they were the cause of the increased dizziness.

         On May 28, 2013, Lillard was admitted to Blessing Hospital for cutting and suicidal ideation. He was fourteen years old. It was noted on admission that Lillard was taking Zoloft and that the dosage had recently been increased. (Tr. 559.)[8] During his hospitalization, Lillard began transitioning from Zoloft to Effexor and he was given both medications upon discharge on May 31. (Tr. 562-63.) On June 7, Lillard reported to Dr. Yager that he stopped taking Effexor because of increased dizzy spells. While he nevertheless continued to experience dizziness, he reported that it was not as severe as when he took Effexor. Dr. Yager diagnosed Lillard with major depressive disorder, moderate to severe, with history of psychotic features; PTSD; social anxiety; and ADHD. She instructed Lillard to continue with Zoloft and to take Effexor as prescribed by Blessing Hospital. (Tr. 568.)

         In August 2013, Dr. Yager noted that Lillard was taking both Zoloft and Effexor and complained of increased dizziness since restarting Effexor. (Tr. 589-90.) Upon Dr. Yager's suggestion that the Zoloft dosage be increased, Lillard complained that the last increase caused him to feel that things were not real. Noting that the several medications Lillard had taken before were either not helpful or caused side effects, Dr. Yager determined to maintain the current dosage of Zoloft. She instructed Lillard to discontinue Effexor. (Tr. 591.)

         Between September 2013 and February 2014, Lillard continued to visit Dr. Yager, who continued him on his low-dose Zoloft. Lillard continued to complain of dizziness but reported that it was not as severe. During this period, Lillard had no suicidal ideations and his social anxiety had improved markedly. He felt stable, had no worries, and was socializing more. Mental status examinations were essentially normal during this period, and Dr. Yager kept Lillard on the same treatment regimen. (Tr. 1062-73.)

         On April 15, 2014, however, Lillard reported to Dr. Yager that he had been cutting again. He reported that he had had the urge to hurt other people but cut on himself instead. Lillard reported that he felt stressed and tense but was not sad. He had dizzy spells every week or two. With these reports, Dr. Yager considered Lillard to be a suicide risk. She increased Lillard's dosage of Zoloft and instructed him to immediately seek treatment through therapy. (Tr. 1074-78.)

         Lillard was admitted to the Hannibal Medical Clinic on April 24 after having self-inflicted a deep cut on his leg, requiring stitches. He reported having suicidal ideation and was transferred to Blessing Hospital for psychiatric care. (Tr. 994.) Upon admission at Blessing, Lillard reported that his recent increase in medication made his psychological problems worse. He felt helpless and hopeless and did not want to take any more medication because of its effects on him. His insight and judgment were noted to be fair to poor, and his prognosis was poor. He was discharged from Blessing on April 28 and was prescribed bupropion (Wellbutrin) upon discharge. (Tr. 950-54.) His diagnoses included major depression-recurrent-severe, PTSD, and social phobia. (Tr. 1013.)

         During a follow up visit with therapist Veronica Perkins on April 29, Lillard reported having issues with his gender identity, feeling like a man trapped in a girl's body. (Tr. 1079.)

         Lillard returned to the Hannibal Clinic on May 12 and reported that since starting Wellbutrin, he was experiencing chest pain, shortness of breath, racing heart, and stomach pains. He was referred back to Dr. Yager for treatment of anxiety. (Tr. 1017.)

         In May and June 2014, both Dr. Yager and therapist Perkins noted that Lillard was showing improvement with self-esteem and positive mood. Although Dr. Yager instructed Lillard to continue with Wellbutrin, Lillard's mother discontinued the medication in June because of increased dizziness and racing heart. Dr. Yager suggested that Lillard visit Dr. Thornton regarding these physical symptoms but opined that Lillard may be experiencing panic attacks. Lillard indicated that he wanted to be off of all medications. (Tr. 1087-98.)

         In September 2014, Lillard visited a neurologist at Cardinal Glennon Children's Hospital regarding his worsening dizziness. He reported that the episodes were sometimes accompanied by a racing heart, distorted vision, and chest pressure. He also reported that he had been experiencing headaches for about two years and that they were now occurring on a near-daily basis. With respect to his mood, he reported that he generally was doing well and was not overly anxious since he stopped his medications. Dr. Goretzke opined that Lillard's physical sensations may be caused by his lifestyle, that is, lack of hydration, excess caffeine, and no physical activity. Dr. Goretzke recommended that Lillard change these habits and return if there was no improvement. (Tr. 1145-47.)

         There was no improvement. Lillard went to the emergency room on October 24 with worsening dizziness and headaches and complaints of forgetfulness. (Tr. 1152-78.)[9] He was noted to have an unstable gait, with near loss of balance. (Tr. 1161.) A brain CT scan showed hypoattenuation in the white matter of the right frontal lobe, described as a chronic lesion representing demyelination, infection, infarction, evidence of prior injury, or tumor. (Tr. 1170.) Florinef was prescribed for possible tactile tachycardia. (Tr. 1169.) An MRI performed November 10 showed irregular encephalomalacia[10] in the right frontal lobe with small cystic change, most likely the effect of a previous brain injury. (Tr. 1180-81.)

         During a follow up visit on December 9, Lillard's mother informed Dr. Goretzke that she discontinued Florinef because it did not improve Lillard's symptoms. Lillard reported that his symptoms improved after discontinuing the medication. He continued to experience lightheadedness, however, and reported being unsteady when he had his most severe headaches. Dr. Goretzke opined that Lillard's condition was caused by a previous brain injury rather than a tumor. He acknowledged the difficulty in determining the extent to which Lillard's mental health issues, psychotropic medications, and neurologic issues interacted with each other over the years and encouraged Lillard to seek psychotherapy. Topamax was prescribed for headaches. (Tr. 1194-96.)

         On April 14, 2015, Dr. Goretzke noted there to be marked improvement with Lillard's headaches and dizziness. Lillard reported that he had some intermittent tingling in his feet as a side effect of Topamax, which Dr. Goretzke indicated as normal and nothing to be concerned about. With respect to memory problems associated with Topamax, Lillard's mother reported that Lillard always had memory issues and that they were not “clearly worse” with the medication. Lillard reported that he was more active and feeling better. He reported that stress affected his ability to relax, but he expressed reluctance regarding psychotropic medications or treatment. Dr. Goretzke continued to recommend psychotherapy but opined that medication was likely not needed for depression or anxiety. (Tr. 1208-09.)

         Lillard visited therapist Perkins on July 14, 2015. He was seventeen years old. Perkins noted that it had been over a year since she had seen Lillard. Lillard's mother explained that they had spent the past year dealing with Lillard's neurologic issues and that it was now time to address Lillard's mood and anxiety. Lillard expressed confusion as to why he was at therapy, reporting that most of his issues involved not wanting to be around people. He talked about his depression and PTSD, however, from which Perkins suspected that his past sexual abuse was underreported. Another appointment was scheduled in two weeks, but Perkins noted that Lillard was reluctant about continuing with therapy. (Tr. 1099-1100.)[11]

         Lillard returned to Dr. Goretzke on October 13, 2015, and reported continued dizziness and headaches but that they did not affect his functioning. Lillard complained that his memory loss had worsened since his last visit, but it was noted that he had always had memory issues. Noting Lillard's significant mental health history, Dr. Goretzke stated that it would be “impossible to know” if any of Lillard's mental health symptoms were related to his neurologic condition. He continued to encourage Lillard to seek psychological help, but it was noted that past negative experiences with psychotropic medications made him hesitant. Dr. Goretzke continued Lillard on Topamax. (Tr. 1214-15.)

         Lillard graduated from high school in December 2015 with about twenty other students. Testimony before the ALJ showed that he worked to graduate a semester early so that he would not have to participate in the May graduation ceremony with large groups of people. (Tr. 1433.) Lillard had been in special education/contained classrooms since 2008. He was initially placed and remained in this environment for several reasons, including emotional disturbance, social behavioral problems, impaired interactions with peers, lack of social relationships, difficulty with instruction in large groups, and the need for highly-structured individualized instruction. The time Lillard spent in the special-ed/contained classroom eventually increased to 87 percent. He received A's, B's, and C's in his special-ed classes and D's and F's in classes where he was placed in a regular classroom. He ate his lunch in a separate “recovery” room with a counselor and was permitted to walk to class five minutes before the bell rang so that he could avoid students and other people in the hall. (Tr. 1409.) With accommodations, Lillard took standardized tests in high school and scored Proficient in English-2, Basic in Biology and English-1, and Below Basic in Algebra and Government. (Tr. 900.)

         On May 16, 2016, Lillard's high school special-ed teacher, Melinda Prenger, completed a checklist teacher questionnaire wherein she reported that she had worked with Lillard for four years and observed the following with respect to his functioning when compared to same-age children with no impairments:

• That Lillard had no or slight problems in acquiring and using information, with the only exception being that Lillard had an obvious problem understanding and participating in class discussions;
• That Lillard had no problems with attending and completing tasks;
• That with respect to interacting and relating with others, Lillard had a serious problem making and keeping friends and an obvious problem expressing anger appropriately, but otherwise primarily had no problems;
• That Lillard had no problems with moving about and manipulating objects; and
• That with respect to caring for oneself, Lillard had obvious problems with cooperating in or being responsible for taking needed medication, and using good judgment regarding personal safety and dangerous circumstances; serious problems with handling frustration appropriately and using appropriate coping skills to meet daily demands of the school environment; and very serious problems with identifying and appropriately asserting emotional needs, responding appropriately to changes in his own mood, and knowing when to ask for help.

(Tr. 875-882.) In response to narrative questions, Ms. Prenger explained:

• That anxiety with unfamiliar social situations limited Lillard's interaction with the public, affecting his daily life;
• That Lillard's social limitations prevented him from being involved or around large groups of people;
• That Lillard required smaller class sizes and behavior supports;
• That medication lessened the intensity of the social concerns but did not eliminate them;
• That when on medication, Lillard suffered side effects of being tired and withdrawn;
• That Lillard spent full days in resource and self-contained classrooms;
• That Lillard experienced difficulty following through with new tasks, especially in social situations;
• That Lillard experienced difficulty with new concepts but retention was achieved with repetition;
• That any connection with unfamiliar adults was strained and caused anxiety; and
• That Lillard's emotional pain was apparent through his facial and body cues, his shutting down, retreating into himself, ...

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