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Gina Clifton v. Michael J. Astrue

June 18, 2012

GINA CLIFTON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

Gina M. Clifton seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Title II and Title XVI of the Social Security Act ("Act"). 42 U.S.C. §§ 423(d)(2); 1314(a)(3) (A), 216(I) and 223(d)(2). Ms. Clifton asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

Ms. Clifton applied for DIB and SSI on April 30, 2007, alleging she had been disabled since December 31, 1996. (Administrative Record ("R.") 12). The claim was initially denied on August 24, 2007, and upon reconsideration on December 13, 2007. Ms. Clifton filed a timely request for rehearing on March 6, 2008. (R. 125). An administrative law judge ("ALJ") convened a hearing on December 1, 2008 (R. 12), at which Ms. Clifton, represented by council, appeared and testified, along with her mother Patricia Castaldo. (R. 12). Julie L. Bose testified as a vocational expert ("VE"). (R. 12). Ellen Rozenfeld, Psy.D., testified as a medical expert ("ME"). (R. 12). On April 29, 2009, the ALJ issued a decision denying Ms. Clifton's applications because she found that while Ms. Clifton may have some behavioral issues, the functional capacity assessment reflects that she is able to perform simple routine work as long as no more than one-third of her time is spent in contact with supervisors, co-workers, or the public. (R. 22-27). This became the final decision of the Commissioner when the Appeals Council denied Ms. Clifton's request for a review of the decision on January 5, 2011. (R. 1-3); see 20 C.F.R. §§ 404.955, 404.981. Ms. Clifton has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and on May 4, 2011, the parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

I

THE EVIDENCE

A.

The Vocational Evidence Ms. Clifton was born on June 3, 1986, making her twenty-two years old at the time of the ALJ's decision. (R. 175). She did not graduate from high school and has had few jobs. (R. 38-41). She was a greeter at an International House of Pancakes ("IHOP") restaurant for three days (R. 39), worked at a relative's roller skating rink (R. 39), worked at a child day care center, and worked for the Rainbow Push Coalition (R. 40). These jobs all ended either because Ms. Clifton was let go or because she quit after a short period of time (R. 38-41). Ms. Clifton says she cannot hold a job because she "can't get along with people" and "it takes [her] a while to finish a task . . . ." (R. 41). According to Ms. Clifton, she is unable to work because of psychological problems including depression and personality disorder. (R. 41-43).

B.

The Medical Evidence

The medical record begins on February 28, 2007, and therefore is silent on the patient's mental state or abilities prior to that date. At that time, Ms. Clifton was referred by her caseworker to Dr. Morris Blount at the Community Mental Health Council in Chicago, IL. Dr. Blount filled out the Adult Community Health Assessment showing Ms. Clifton came in with the following symptoms: crying, feelings of isolation and hopelessness, being worried all the time, and the inability to complete daily tasks due to low energy. (R. 285). Additionally, Dr. Blount checked the boxes for anxiety, agitation, and irritation, all with a frequency of occurrence five to seven days a week. (R. 285). Dr. Blount indicated she did not complain of having auditory or visual hallucinations and he listed her current level of functionality as performing household chores, cooking, and cleaning. (R. 285).

On March 27, 2007, Dr. Blount performed a psychiatric evaluation on Ms. Clifton in which he noted that she was "awake, alert and oriented x 3. She is calm, cooperative with coherent speech."

(R. 284). He also noted that she denied having audio or visual hallucinations and that her mood was "Okay Affect slightly restricted." (R. 284). Dr. Blount diagnosed her with "major depression," noted a Global Assessment of Functioning ("GAF") score of 60, and prescribed Lexapro and Trazodon to deal with the depression. (R. 284). Subsequent visits on April 24, May 22, June 19, and July 17, 2007, resulted in various adjustments to her medications. (R. 280-83). For example, adjustments were made during the April 24, 2007, appointment where Dr. Blount wrote that Ms. Clifton "could not tolerate the Lexapro, for she had severe GI [gastrointestinal] side effects" but also stated "her mood is improving a little." (R. 283). At each of these sessions Dr. Blount's assessment stated, "The patient is awake, alert, and oriented x 3. She is calm, cooperative with coherent speech. Mood 'Okay' Affect is congruent with mood . . . ." (R. 280-83).

During the August 14, 2007 session, Ms. Clifton began to show signs of improvement. Dr. Blount stated, "She does not have as many mood swings, is able to control her anger." (R. 279). On September 11, 2007, he wrote, "She is not having the mood swings, is not feeling as depressed." (R. 278). On November 13, 2007, Dr. Blount wrote, "[Ms. Clifton] is relatively stable." (R. 277). At a visit on January 22, 2008, Dr. Blount reported that Ms. Clifton believed she was pregnant and stopped taking her meds. (R. 276). He reported that, "She is a bit agitated at this time." (R. 276). At a February 1, 2008 follow up session Ms. Clifton reported that relatives had told her she was "mean" but he wrote that she had "recently resumed her meds." (R. 275). The final three reports in the medical record show that her mental state began to improve again. For example, on March 28, 2008, Dr. Blount reported that, "She is sleeping well at night, is not feeling depressed." (R. 274). Notes on her May 2, 2008 session indicated, "She is not having the mood swings." (R. 273). The final documented visit on May 30, 2008, reported that Ms. Clifton "is not feeling depressed, is not having mood swings" and that she "wants to go back to school . . . ." (R. 298). At each session Dr. Blount reported that, "The patient is awake, alert and oriented x 3. She is calm, cooperative with coherent speech. Mood 'Okay' Affect is congruent with mood . . . ." Ms. Clifton denied audio or visual hallucinations. (R. 273-79, 298). The May 30, 2008 report also included a handwritten note dated July 25, 2008 (the date of last visit) indicating that Ms. Clifton had decided to terminate the session and she would not be returning for treatment. (R. 298). The note also stated that she did not receive a refill of her medications. (R. 298).

On July 25, 2008, Dr. Blount completed a Mental Residual Functional Capacity ("MRFC") assessment in connection with the disability claim. On page three, where Dr. Blount was asked to identify signs and symptoms associated with the diagnosis, he checked the following boxes: Appetite disturbance with weight change, Sleep disturbance, Mood disturbance, Delusions or hallucinations, Anhedonia or pervasive loss of interests, Difficulty thinking or concentrating, Suicidal ideation or attempts, and Blunt, flat, or inappropriate affect. (R. 290). He also noted that her GAF score was 50 and that was the highest level recorded in the previous year.

On page two, Dr. Blount checked a box indicating that as a result of Ms. Clifton's impairment she would be expected to be absent about three days a month from work. (R. 291). On page three, Dr. Blount was asked to rate Ms. Clifton's mental abilities and aptitude to perform unskilled work. (R. 292). For each of sixteen categories including the ability to understand and remember very short and simple instructions and the ability to get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes, Dr. Blount rated her ability as "fair." (R. 292). On the form, "Fair" is defined as "Ability to function in this area is not precluded but seriously limited." (R. 292). On page four, when Dr. Blount was asked to indicate the degree of functional limitations as a result of mental impairments, he noted: moderate limitations in activities of daily living, marked limitations in difficulties maintaining social functioning, frequent deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere), and three or more episodes of deterioration or decompensation in work or work-like settings. (R. 293).

On October 21, 2008, Ms. Clifton began seeing Dr. Piyush C. Buch. The medical evidence in the record from her new doctor includes the following forms all dated October 21, 2008: a medical history form, a self-reported mood disorders rating form, and an initial assessment. (R. 312- 14). On the medical history form, Ms. Clifton indicates her reason for the visit to be depression and bipolar disorder. (R. 314). There is one additional self-reported form dated November 18, 2008, in which Dr. Buch notes she does not have suicidal ideation. (R. 311).

On July 13, 2007, Dr. Ana A. Gil performed a Mental Status Evaluation in connection to the disability claim. Ms. Clifton told Dr. Gil that she was being treated by Dr. Blount for major depression and had been seeing him about once a week for the past four months. (R. 238). Ms. Clifton reported that the medication she received from Dr. Blount was helping her but that when she becomes very anxious she starts "cutting herself." (R. 238). She claimed this behavior was consistent throughout her lifetime. (R. 238). Ms. Clifton also reported that she last worked about a year prior for three days at IHOP but was fired when she got into a fight with a co-worker. (R. 238).

After completing the evaluation, Dr. Gil reported that she had mild psychomotor agitation, a sad and tearful affect and a moderately depressed mood. (R. 241). After performing several tests, Dr. Gil noted that Ms. Clifton's memory was good, she was able to perform mathematical calculations, her judgment was fine, and she was able to distinguish similarities and differences in a series of hypothetical situations. (R. 240-41). She thus believed that Ms. Clifton's mental state was intact. (R. 240-41). Ms. Clifton expressed feelings of helplessness, hopelessness, low self-esteem, and passive suicidal ideation. (R. 241). The diagnosis was: 1. Major depression single episode without psychotic features -- moderate in severity. 2. Personality disorder, NOS with borderline and antisocial personality traits. 3. Childhood history of reading and arithmetic learning disability. 4. Childhood history of a conduct disorder and being in special education classes for children with emotional and behavioral disorders. (R. 241). Finally, Dr. Gil noted that there was no evidence of psychosis or thought process disorder during the Mental Status examination. (R. 241).

On August 20, 2008, in connection with Ms. Clifton's disability claim, State Agency medical consultant, Dr. Donald Henson, Ph.D., reviewed the record. Dr. Henson based his medical disposition on an analysis of the following categories: 12.02 Organic Mental Disorders, 12.04 Affective Disorders, and 12.08 Personality Disorders. (R. 252). Dr. Henson performed his own "B criteria" rating and concluded that Ms. Clifton had moderate limitations in restriction of activities of daily living, moderate difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence, or pace and did not comment on episodes of decompensation. (R. 262).

He also conducted his own MRFC assessment based on the medical evidence and concluded that Ms. Clifton was not markedly limited in any categories, but was moderately limited in the following: the ability to carry out detailed instructions; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and the ability to interact appropriately with the general public. (R. 266-67). On page three he gave his opinion in the functional capacity assessment where he reported "[S]he possesses sufficient cognitive, attentional, and functional abilities to perform simple routine activities which have few social demands." (R. 268).

C.

The Administrative Hearing Testimony

1.

Ms. Clifton's Testimony At the hearing, Ms. Clifton testified that she currently lives with her mother and five-year-old daughter. (R. 33). Regarding daily activities other than work, Ms. Clifton testified that she does not know how to drive, but is independent enough to take the bus by herself with "a little bit of help."

(R. 33-34). She is able to go to the grocery store with her mother and also can cook for her mother and daughter. (R. 35-36). Additionally, she is capable of doing work around the house (vacuuming, doing the dishes, and hanging up clothes). (R. 36-37). She testified that she does have friends whom she visits with both at her home and outside her home a few times per month. (R. 37-38).

Ms. Clifton testified that her psychological problems began in the sixth grade where she was in special education classes because of a learning disability and Emotional Behavior Disorder. (R. 49-50). It was because of these issues that she stopped attending high school in the ninth grade. (R. 38). Ms. Clifton testified that she was "kicked out" of high school because she stopped attending, saying, "it was hard and I didn't like the people there." (R. 38). Ms. Clifton stated that these recurring issues prevented her from holding down employment. She worked briefly at her aunt's roller-skating rink, but stopped because she "get[s] into altercations with people." (R. 39). She also worked as a greeter at an IHOP restaurant for three days before being fired for having a "confrontation with the boss." (R. 40). Next, she worked at a childcare center but quit because "[she] wasn't going to change somebody else's kid's diaper." (R. 40). This was followed by a job working at Rainbow Push where she quit after she "got into it" with her boss. (R. 41).

When asked why she no longer sees Dr. Blount, Ms. Clifton stated that they had an altercation when she brought him the MRFC to fill out at their last appointment on July 25, 2008.

(R. 55). Ms. Clifton stated that he filled out the MRFC and then began to discuss her employment situation. (R. 57-58). According to Ms. Clifton, she took offense to a line of questioning from Dr. Blount about taking care of her daughter financially. (R. 55). Ms. Clifton also stated "some of the stuff [Dr. Blount] wrote in that report is not true." (R. 98). For example, Dr. Blount stated that Ms. Clifton told him "that the medication wasn't working" and in his report he stated that she said it was working. (R. 98). When asked why he would write that in the report if it wasn't true, Ms. Clifton stated, "he told me point blank . . . he didn't think that I should get SSI . . . ." (R. 98). See discussion infra at 19.

2.

Patricia Castaldo's Testimony Patricia Castaldo (Ms. Clifton's mother) testified that Ms. Clifton has had psychological problems since she was young. (R. 64). When asked why Ms. Clifton cannot work outside the home, Ms. Castaldo said that her daughter "doesn't get along with people" and she has outbursts. For example, Ms. Castaldo testified that her daughter used to attend church with her until she had an argument with another person and "[Ms. Clifton] blew off the handle . . . she started cussing the person out[.]" (R. 65). Ms. Castaldo testified that in addition to profanity her outbursts often result in threats, but Ms. Clifton is never violent with others; however, she does engage in cutting behavior. (R. 65). Ms. Castaldo said that when Ms. Clifton is taking her medication it helps her but makes her sleep (R. 65, 76). When asked about her daughter's relationship with Dr. Blount, Ms. Castaldo indicated that she did not believe he was very helpful to her daughter and stated that all he did was give her drugs. (R. 85). She also indicated that Dr. Blount did not recommend that her daughter seek out counseling. (R. 84).

With respect to daily activities, Ms. Castaldo testified that Ms. Clifton helps with chores around the house, but only after being asked to do so. (R. 68). She indicated that Ms. Clifton takes care of her daughter by herself and is solely responsible for her welfare while she is at work from approximately 2:45 PM to 12:30 AM. (R. 69-72). Ms. Castaldo further testified that Ms. Clifton rarely leaves the house and that she also cuts her arms (R. 75). Ms. Clifton only has one friend her mother can recall whom she sees every two or three months. (R. 72-73). She has been living with her mother for about two years and prior to that was homeless for a short time. (R. 80). Ms. Castaldo also indicated that her daughter briefly lived on her own with an ex-boyfriend (R. 78-79), but because of constant fighting she came back to live with her. (R. 80). She further testified that Ms. Clifton dropped out of school and quit her job at the roller skating rink ...


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