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Anthony P. Lane v. Michael J. Astrue

May 8, 2012

ANTHONY P. LANE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Anthony Lane brings this action under 42 U.S.C. § 405(g) seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of the Social Security Administration, denying Plaintiff's disability claim. Plaintiff claims that he was disabled for the closed period from April 15, 1998, through January 1, 2000, due to major depressive disorder, posttraumatic stress disorder ("PTSD"), and panic disorder with agoraphobia. The Commissioner also denied Plaintiff's claim predicated on physical disabilities, including carpal tunnel syndrome, a pelvic fracture, a jaw fracture, hernia repair, and nerve damage in his neck; Plaintiff does not challenge that determination.

Plaintiff challenges the adverse disability determination for his mental impairments on three grounds. First, Plaintiff argues that the ALJ failed to follow the "special technique" for evaluating Plaintiff's mental impairments set forth in 20 C.F.R. §§ 404.1520a, 416.920a. Second, Plaintiff argues that the record, taken as a whole, does not contain substantial evidence to support findings that the Plaintiff was not disabled. Specifically, Plaintiff claims that the Administrative Law Judge ("ALJ") gave insufficient attention to certain medical records and personal testimony related to Plaintiff's psychological condition, and that the ALJ did not properly assess Plaintiff's credibility. Finally, Plaintiff claims that the ALJ erred in concluding that Plaintiff's mental impairment did not meet or equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Appendix 1").

The court concludes that remand is necessary due to the ALJ's failure to evaluate Plaintiff's mental impairment according to the "special technique." This failure is particularly disappointing in light of the fact that a federal judge who reviewed an earlier decision in this case specifically directed that the technique be employed on remand. Still, because Plaintiff himself raised this matter for the first time in his reply brief, the court will stay the remand order briefly in order to give Defendant an opportunity to respond, should he choose to do so.

BACKGROUND*fn1

Plaintiff was thirty-seven years old when his disability period allegedly began on April 15, 1998.*fn2 Plaintiff had completed the eleventh grade, and served in the national guard from 1984 to 1992. (R. 38-39.) Since his discharge from the military, Plaintiff lived in Chicago, Illinois, until 1997 (R. 541); Cleveland, Ohio, from 1998 to 2000 (id.) (during his alleged period of disability); and Little Rock, Arkansas, from 2000 until his return to Chicago in 2009. (May 28, 2009 Order [59].) Prior to the onset date of his alleged disability, he had held a number of jobs, including general laborer, mechanical inspector, garage attendant, punch press operator, and shoe salesman. (R. 84, 105-09.) Immediately prior to the period in which he claims disability, Plaintiff worked as a "skilled general laborer" at Lake Land Temporaries, an employment service in Cleveland-a position he had held since October 1997. (R. 78, 96.)

Plaintiff experienced a series of unrelated violent events in the years prior to, and during, his alleged period of disability. First, on August 14, 1994, while Plaintiff was completing a security inspection in the parking lot of the condominium building where he worked, a co-worker struck him with a car suddenly and without warning, causing injury to Plaintiff's neck, back, and legs. (R. 345.) Plaintiff believed that his co-worker had acted intentionally. (Id.) Then, on July 26, 1995, Plaintiff was physically attacked by a different co-worker, causing injury to Plaintiff's jaw, neck, back and arms. (R. 311-12.) Plaintiff also testified that sometime in 1996, he discovered the dead body of a friend and was considered a suspect in the death. (R. 238, 536, 544.) Plaintiff did not elaborate on the details of the incident, and neither Plaintiff's therapist nor his treating psychiatrist made any reference to this incident in Plaintiff's medical records. Finally, on August 20, 1998, Plaintiff sought treatment at Meridia Huron Hospital in Cleveland, Ohio for injuries, mostly bruises and abrasions, to his ribs, pelvis, legs, and hands. (R. 115, 405-06.) Plaintiff claims that muggers with shotguns had broken into his home and assaulted him the previous day. (R. 115.)

I. Medical History

Plaintiff filed his initial disability claim in Ohio on Febrary 23, 1998. On September 1, 1998, Dr. Kenneth R. Felker completed a psychological examination of Plaintiff at the request of the Commissioner concerning that claim. (R. 139, 237, 239.) Dr. Felker noted that when asked about his disability, Plaintiff "listed a host of physical and medical conditions," including carpal tunnel syndrome, nerve damage resulting from the 1994 automobile accident, a chronic stomach condition, and back and neck problems from the assault in 1995. (R. 140.) Plaintiff also told Dr. Falker that he suffered from mild depression but did not require medication; he denied any past psychiatric hospitalizations or individual counseling. (Id.) Plaintiff identified his physical pain as the reason he "ha[d] difficulty concentrating and being around people." (Id.) Plaintiff also mentioned that he had "problematic" sleep patterns and experienced weekly crying spells. (Id.)

Dr. Felker acknowledged that Plaintiff exhibited "evidence of mild depression," but the doctor saw no signs of "undue anxiety"; no evidence of delusional, paranoid, or grandiose thinking; and no history of hallucinations. (Id.) Plaintiff's recall ability was reportedly "below average" and his insight and judgment were "marginal." (Id.) Based on Plaintiff's description of his living description (at the time, Plaintiff lived with his aunt, who assisted Plaintiff in the maintenance of his daily needs) and history of erratic work, Dr. Felker doubted Plaintiff's assertion that he could manage his affairs independently, but noted that Plaintiff's daily activities included showering, getting dressed and drinking coffee, reading the paper or watching TV, "'tr[ying] to find something to occupy [his] mind,'" making important phone calls or seeking employment opportunities, and performing "light household duties." (Id.) Dr. Felker also administered a series of intelligence, memory, and reading comprehension tests, and determined that Plaintiff had average intellectual functioning, average memory function, and reading comprehension ability at the twelfth-grade level. (R. 141.) Dr. Felker concluded that Plaintiff suffered from (i) "mild restriction in his ability to concentrate and attend to tasks"; (ii) no significant restriction in his ability to follow routine instructions; (iii) mild impairment in his "ability to relate to others and deal with the general public . . . due to his somatic preoccupation and tendency to socially isolate"; and (iv) moderate impairment in his "ability to relate to work peers, supervisors[,] and deal with stressors in the workplace . . . due to his somatic preoccupation." (R. 142.)*fn3

Dr. Vicki Casterline, a non-treating and non-examining state-agency psychologist, reviewed the record evidence in Plaintiff's case on September 24, 1998, and completed a Psychiatric Review Technique Form ("PRTF"). (R. 153.) She noted that Plaintiff was "preoccupied with his physical complaints" and that his "[a]ctivities [were] minimally reduced," but concluded that Plaintiff's impairments were not severe. (R. 154.) Specifically, in comparing Plaintiff's impairments to those listed in Appendix 1,*fn4 Dr. Casterline looked to Listing 12.07 for Somatoform Disorders. (R. 158.)

Under category A of this listing, Dr. Casterline indicated that Plaintiff had "physical symptoms for which there are no demonstrable organic findings or known physiological mechanisms, as evidenced by . . . psychological factors affecting [his] physical condition." (R. 158.) Under category B, she marked that Plaintiff had a slight restriction in activities of daily living; slight difficulties in maintaining social functioning; deficiencies in concentration, persistence, or pace that seldom resulted in failure to complete tasks in a timely manner; and no episodes of deterioration or decompensation in work or work-like setting that caused him to withdraw from that situation or to experience exacerbation or signs and symptoms. (R. 160.) Dr. Casterline did not indicate that any of these functional limitations were manifested at the requisite degree to satisfy Listing 12.07. (R. 160.)

Throughout 1999, Plaintiff received treatment from Leann Gardner, a therapist at Meridia Huran Hospital's behavioral medicine department in Cleveland, Ohio. On January 18, 1999, Gardner completed an Integrated Assessment of Plaintiff as part of the "pre-admission screening" process at the hospital. (R. 465-74.) Plaintiff reported that he hoped to gain from treatment a reduction in his anxiety and "something to help [him] relax," and to have information sent to his lawyer, presumably in support of his disability claim. (R. 465.) Plaintiff described having severe anxiety and depression accompanied by chest pains, headaches, and sleep disruption. (Id.) Gardner's report noted that Plaintiff's mother had been diagnosed with paranoid schizophrenia and his father with manic depression. (R. 467.) Plaintiff told Gardner that he was living with his cousins, had served in the military, and occasionally attended church. (R. 468.) Plaintiff's leisure activities included writing and watching TV, but he reportedly spent most of his time "working" on his disability claim. (R. 469.) Plaintiff was reportedly able to care independently for his grooming and hygiene, prepare basic meals, perform household tasks, make appointments, and take medications. (R. 471.) Gardner recorded the 1998 break-in as a traumatic events in Plaintiff's life.

(R. 472.) She also noted his sleep disturbances and insomnia, social isolation ("pretty much in house"), twice-weekly panic attacks, forgetfulness, and frequent agitation. (R. 476.) Gardner anticipated that Plaintiff would need six to eight therapy sessions. (R. 470.)

Plaintiff did not comply well with this therapy, however. Throughout the course of his therapy, Plaintiff repeatedly cancelled, missed, or arrived late to appointments. (R. 174, 218, 220-21, 372, 377-78, 382, 385-86, 514.) On February 3, 1999, Gardner spoke with Plaintiff about his frequent missed appointments and perceived Plaintiff to be "very defensive" during this conversation. (R. 200.) Plaintiff told Gardner that she "[did not] know what he has been going through." (Id.) Plaintiff told her, further, that he became irritated when the therapy sessions were not "hands on," and asked Gardner how many more times he needed to see her before he could meet with the psychiatrist for "diagnosis and treatment" (services he perhaps believed Gardner could not provide). (Id.) As Plaintiff seemed to have "a difficult time comprehending" the concept of therapy, Gardner explained the importance of investment in the therapy process and warned Plaintiff that she could not continue to see him if he missed another appointment. (R. 201.) Plaintiff explained that he had transportation problems, a problem he had not mentioned to Gardner before.

(R. 200.) In Gardner's view, Plaintiff had "little investment in therapy"; she noted her "concern[ ] that his motivation [was] court-related only," particularly because of their conversations about sending paperwork to Plaintiff's lawyer and his demand for "diagnosis and treatment." (R. 200-01.)

At Plaintiff's next therapy session, on March 1, 1999,*fn5 Plaintiff reported that he continued to experience symptoms of decreased socialization, increased startle response, sleep disturbance, nightmares, anxiety, and mood depression. (R. 382.) He acknowledged, however, that he was able to go places independently without panic attacks or agoraphibia. (Id.) Gardner noted that Plaintiff continued to focus on his disability claim, and that he was "putting other goals 'on hold' until results." (Id.) Gardner discussed treatment for PTSD, and Plaintiff told her that "he [was] now committed to treatment." (Id.)

On April 1, 1999, Plaintiff saw a psychiatrist, Dr. Mark Zedar. In his report, Dr. Zedar noted that Plaintiff was "difficult during the interview process" because he "was quite circumstantial in his description of his complaints." (R. 175.) Dr. Zedar reported that Plaintiff described a "history of years of panic" accompanied by "palpitation of the heart, shortness of breath, and chest pain." (Id.) Dr. Zedar recorded that Plaintiff had "two to three episodes [of panic] per week and has agoraphobia"; that he had been depressed since 1994 or 1995 with symptoms of "hopelessness, helplessness, worthlessness," and interrupted sleep; and that Plaintiff's father had been diagnosed with bipolar disorder. (Id.) Plaintiff also reported "a history of PTSD symptoms, includ[ing] flashbacks, nightmares, [and] always looking over his shoulders," and told Dr. Zedar about the "violent" traumas he had experienced in the past. (Id.) Dr. Zedar nevertheless described Plaintiff as "pleasant and cooperative," with full affect; he noted Plaintiff's spontaneous speech, lack of looseness or hallucinations, and intact insight and judgment. (R. 176.) Dr. Zedar concluded that Plaintiff suffered from mild to moderate major depressive disorder, PTSD, and panic disorder with agoraphobia. (Id.) Dr. Zedar prescribed Remeron, an anti-depressant, and Zyprexa, an anti-psychotic. (R. 176, 191.)

Plaintiff reported satisfaction with the medication on a number of occasions, and both Gardner and Dr. Zedar continued to see overall improvement in Plaintiff's condition. On May 7, 1999, Dr. Zedar observed that Plaintiff was "more calm" though he occasionally felt "hopeless, helpless, and worthless." (R. 190.) Plaintiff continued to have panic attacks once per week, but noted that these attacks were more in control. (Id.) On May 20, 1999, Plaintiff stated, "the medication is working well" and denied any side effects. (R. 188.) As of June 17, 1999, Plaintiff reported that he was "very happy" with Zyprexa and "satisfied" with Remeron, and described his mood as good. (R. 183.) Plaintiff identified dry mouth as the only uncomfortable side effect of the drugs. (Id.) The nurse also reported that the Lilly Cares Foundation, a patient assistance program sponsored by Eli Lilly & Co., approved Plaintiff's application for assistance for Zyprexa. (Id.)*fn6

On July 8, 1999, Plaintiff reported that he "fe[lt] depressed at times." (R. 179.) On July 30, 1999, Gardner described Plaintiff's mood as depressed, and Plaintiff expressed feelings of shame and guilt. (R. 173.) Gardner also wrote, "Concerned about shame . . . paranoia . . . [and] flashbacks." (Id.) There were hopeful signs as well, however: On August 9, 1999, Dr. Zedar noted that Plaintiff described himself as "OK I guess," and reported fewer worries and flashbacks, as well as improved sleep. (R. 172.) Plaintiff described his mood as "good, hopeful" and his sleep as "good"; he "believed treatment to be effective," though he expressed concern about his SSD application. (R. 170.) On August 25, 1999, Gardner noted that Plaintiff's sleep, appetite, and affect/mood were "improved" and Plaintiff felt "hopeful." (R. 169.) Though Plaintiff was still focused on his disability claim, he informed Gardner that he was thinking about going back to school or work. (Id.) On September 2, 2009, Plaintiff reported that he was "very happy" with the "effect of [the] medication," and felt that he had "started getting [his] life together." (R. 167.)

The records continue in this vein, reflecting that Plaintiff's treatment was effective, but did not eliminate his symptoms. On September 27, 2009, Gardner observed that Plaintiff's mood and appetite were improved, but that he continued to have nightmares and weekly panic attacks, and that he had stayed in his home two days without leaving the previous week. (R. 518.) That same day, Plaintiff told Dr. Zedar that he felt "pretty good." (R. 517.) He reported having a panic attack when leaving his house that day and, although the panic attacks were now mild, he continued to experience agoraphobia and flashbacks. (Id.) Three weeks later, on October 18, 1999, Dr. Zedar noted that Plaintiff had been sleeping and felt hopeful about the future, though he continued to feel depressed, uncomfortable with relationships, and had occasional flashbacks. (R. 515.)

On November 10, 1999, Gardner noted that Plaintiff continued to be isolated and felt a lack of confidence in social situations, but also observed that Plaintiff's speech, posture, and depression were improving, and that he planned to spend Christmas with family in Arkansas. (R. 514.) She discussed with Plaintiff the termination of his treatment with her, but noted a plan to refer Plaintiff to another therapist if needed. (Id.) Gardner's assessment on that day recorded that Plaintiff suffered from the following symptoms: moderate anxiety (where "moderate" severity fell at level 3 on a scale ranging from 0 for "not present" to 5 for "severe"); moderate emotional withdrawal; mild tension; moderate depressive mood; severe suspiciousness (including "mistrust, belief that others harbor malicious or discriminatory intent"); and mild blunted affect. (R. 477.) Symptoms that Plaintiff did not display included somatic concern, grandiosity, hostility, hallucinatory behavior, motor retardation, and disorientation. (Id.)

On November 29, 1999, Dr. Zedar noted that Plaintiff felt "OK," that his sleep was good, and that his energy was "so/so--moderate." (R. 511.) Dr. Zedar also reported that Plaintiff "doesn't do anything during the days," except occasionally go to the store up to once a day. (Id.) Plaintiff told Dr. Zedar that he had gone out with his family the previous weekend to a sports bar and continued doing his own cooking and cleaning. (Id.) Dr. Zedar noted, however, that Plaintiff continued to have nightmares and flashbacks concerning the home intrusion. (Id.) He also reported having panic attacks once or twice per week, lasting ten to fifteen minutes, with symptoms including fear, heart palpitations, and withdrawal. (R. 513.)

At his final appointment with Gardner, on December 13, 1999, Plaintiff came with his Social Security denial notice in hand. (R. 510.) He questioned Gardner's assessment, as reported in the letter, that he had not complied with treatment, and challenged her credentials. (Id.) Gardner reminded him of the multiple occasions on which they had discussed his "lack of commitment to treatment as evidenced by multiple missed appointments and recurrent initial focus on what his diagnosis was or when his evaluation would be finished." (Id.) Gardner provided Plaintiff with the names of several therapists who specialized in treating PTSD and offered to make an appointment for Plaintiff, but Plaintiff declined, stating that he would make the appointment for himself. (Id.) Plaintiff also announced that he was planning to return to work because "financially he [could not] afford not to." (Id.) In the last record from Dr. Zedar, dated January 3, 2000, Zedar noted that Plaintiff ...


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