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Derrick Macon v. Michael J. Astrue

October 11, 2012

DERRICK MACON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER

Plaintiff Derrick Macon seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416, 423(d), 1381a. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a motion for summary judgment. After careful review of the record, the Court now grants Plaintiff's motion and remands the case for further proceedings.

PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI on October 31, 2008, alleging that he became disabled on October 24, 2007 due to a stroke, heart attack, and "depression[,] mental problems." (R. 140, 143, 160). The SSA denied the applications initially on April 16, 2008, and again upon reconsideration on July 11, 2008. (R. 87-95, 106-13). Plaintiff filed a timely request for hearing and appeared before Administrative Law Judge Jose Anglada (the "ALJ") on September 20, 2010. (R. 24). The ALJ heard testimony from Plaintiff, who was represented by counsel, as well as from Anita Lewis, program supervisor for the residential facility where Plaintiff was living at the time, and vocational expert Melissa Benjamin (the "VE"). Shortly thereafter, on November 29, 2010, the ALJ found that Plaintiff is not disabled because he can perform his past work as an assembler. (R. 9-17). The Appeals Council denied Plaintiff's request for review on September 13, 2011, (R. 1-3), and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.

In support of his request for remand, Plaintiff argues that the ALJ: (1) improperly weighed the opinions of his treating psychiatrist and the consultative examiners; (2) failed to provide adequate support for the residual functional capacity ("RFC") determination; and (3) made a flawed credibility assessment. As discussed below, the Court agrees that the ALJ's decision is not supported by substantial evidence and must be remanded.

FACTUAL BACKGROUND*fn1

Plaintiff was born on September 30, 1964, and was 46 years old at the time of the ALJ's decision. (R. 26, 155). He has a ninth grade education and past relevant work as a driver for a railroad "transporting service," and an assembler for an office supply company. (R. 28-29, 154, 161).

A. Medical History 1. 2008

On January 31, 2008, Henry Fine, M.D., conducted a Psychiatric Evaluation of Plaintiff for the Bureau of Disability Determination Services ("DDS"), presumably in connection with an earlier application for disability benefits. (R. 252-55). Plaintiff complained of depression and reported that he had been hospitalized in the past for substance abuse and attempted suicide. (R. 252). He told Dr. Fine that he heard his dead brother and sister talking to him, and described feeling sad with low motivation and energy. (Id.). Dr. Fine noted that Plaintiff had a difficult time with memory and recall exercises, could not do simple calculations or engage in abstract thinking, and exhibited poor judgment and insight. (R. 254-55). Plaintiff also showed impaired focus, attention span, and concentration, as well as disorientation, flat affect, and sleep disturbance. (R. 255). Dr. Fine diagnosed Plaintiff with "Major Depression, Recurrent, With Psychotic Features"; "Poly Substance Abuse, in Remission"; and "Rule out Organic Brain Syndrome, Secondary to Drug Abuse." (Id.).

Nearly nine months later, on October 22, 2008, Plaintiff underwent an assessment to determine whether he qualified to participate in the Metropolitan Family Services ("MFS") program for individuals with mental health problems.

(R. 266-75). Plaintiff told Rosa Frias, an MFS Case Manager, that he has "a long history of mental health issues" stemming from "a chain of traumatic life events."

(R. 267). His brother and sister both died from overdoses, and Plaintiff had to identify his brother's body at the morgue. (Id.). He then started experiencing nightmares, anxiety, depression, and weight loss, and he isolated himself from other people and activities. (Id.). Plaintiff relies on support from his sister and NA/AA sponsors, and expressed a willingness to "do whatever is needed to get better." (R. 274). Ms. Frias concluded that Plaintiff would benefit from individual and group therapy to help with his anxiety and depression. (Id.).

The following week, on October 31, 2008, Plaintiff filed the current application for disability benefits.

2. 2009

On January 5, 2009, Plaintiff started seeing Morris A. Blount, Jr., M.D., a psychiatrist affiliated with MFS, for depression and medication management. (R. 277-78). Plaintiff reported a "long history of depression," which began with the death of his mother when he was a teenager. He complained of nightmares and flashbacks relating to past gunshot wounds, *fn2 as well as hypervigilance and insomnia. (R. 277). On examination, Dr. Blount found Plaintiff to be alert, calm, cooperative and coherent, but his mood was "not too good" and he exhibited restricted affect. Dr. Blount diagnosed him with post traumatic stress disorder ("PTSD"), major depression, and chronic pain, and prescribed Seroquel and Cymbalta. (R. 278).

Three days later, on January 8, 2009, Dennis R. Karamitis, S.J., Psy.D., conducted a Formal Mental Status Evaluation of Plaintiff for DDS. (R. 284-87). Plaintiff told Dr. Karamitis that he spends his days watching the news or "a friend comes by and takes me for a ride." (R. 285). He is able to dress, bathe, shave and perform "other activities of daily living," including shopping with his daughter, but his daughter and a friend take care of household chores. He goes to an alcohol and drug rehabilitation program twice a week, and denied needing reminders to shower or take medication. (Id.).

Dr. Karamitis described Plaintiff as cooperative and "somewhat pleasant" with no evidence of delusions, paranoia or hallucinations. (R. 286). His mood and affect were "depressed and restricted in range" and his speech was slow, but his cognitive processes were "clear and goal directed," and he was fully oriented. (Id.). Compared with the January 2008 exam by Dr. Fine, Plaintiff exhibited good memory and recall, could quickly perform calculations, demonstrated an ability to engage in abstract thinking, and showed reasonable judgment. (R. 286-87). Dr. Karamitis diagnosed him with depressive disorder, NOS (not otherwise specified), and polysubstance abuse in remission, and concluded that he "could usefully participate in the management of his own funds." (R. 287).

A couple weeks later, on January 22, 2009, Carl Hermsmeyer, Ph.D., completed a Psychiatric Review Technique of Plaintiff for DDS. (R. 298-310). Dr. Hermsmeyer found that Plaintiff has a depressive disorder, NOS, that does not meet Listing 12.04. (R. 301). He is mildly restricted in his activities of daily living, but has moderate difficulties in maintaining social functioning, concentration, persistence or pace. (R. 308). The same day, Dr. Hermsmeyer also completed a Mental Residual Functional Capacity Assessment of Plaintiff.

(R. 312-14). He determined that Plaintiff is moderately limited in his ability to understand, remember and carry out detailed instructions, and to maintain attention and concentration for extended periods. (R. 312). Nevertheless, he "retains the mental capacity to perform simple one and two-step tasks at a consistent pace." (R. 314).

When Plaintiff returned to Dr. Blount on February 9, 2009, he was well groomed, coherent and pleasant, with a linear thought process and no hallucinations. He was responding well to the Cymbalta and Seroquel at that time, and reported that he was sleeping well at night, was not having as many nightmares and flashbacks, and had a good appetite. Dr. Blount described Plaintiff's mood as "okay" and his affect as euthymic (normal), and noted that he was alert, oriented, calm and cooperative. (R. 358). At his next appointment on March 9, 2009, Plaintiff told Dr. Blount that he was feeling more stressed because his brother-in-law had been found unconscious with some medical problems. Plaintiff remained well groomed, coherent, pleasant, calm and cooperative, however, with an "okay" mood and affect, linear thought process, and no hallucinations. (R. 356).

On May 11, 2009, Plaintiff told Dr. Blount that he was feeling "a little down," but he was "coping," sleeping well, and "not feeling as depressed." He reported spending his days "doing various things." (R. 355, 382). Dr. Blount observed that Plaintiff was well groomed, coherent, pleasant, calm and cooperative, with good judgment, an "okay" mood and affect, linear thought process, and no hallucinations. (Id.). At his next therapy session with Dr. Blount on June 22, 2009, Plaintiff reported sleeping well with no mood swings. He also denied experiencing any side effects from the medication. Dr. Blount noted that Plaintiff was awake, alert, oriented, calm, cooperative and coherent. His thought process was linear, his mood and affect were "okay," and he was still responding well to the medications. (R. 354).

The following month, on July 1, 2009, Plaintiff's services at MFS were terminated "due to lack of funding." (R. 346). His symptoms increased because he no longer had access to medication, and he was arrested and placed on probation for drug possession. (R. 346). Plaintiff subsequently was readmitted to MFS on November 5, 2009. (R. 346-51). He told Ms. Frias at that time that he went out to parties and other social activities, and spent time with friends on a regular basis. (R. 346). He also reported going to church and family gatherings, and traveling "a lot" because he had obtained a part-time job with a "sound company."*fn3 (Id.). Ms. Frias indicated that Plaintiff needed help with decreased energy, grief and sleep disturbance, as well as coping skills and behavior norms (due to his recent arrest). (R. 348-49).

On November 16, 2009, Dr. Blount completed a Mental Residual Functional Capacity Assessment of Plaintiff for DDS. He indicated that Plaintiff is markedly limited in all areas of: understanding and memory; sustaining concentration and persistence; social interaction; and adaptation; except that he is only moderately limited in his ability to: understand, remember and carry out very short and simple instructions; interact appropriately with the general public; and ask simple questions or request assistance. (R. 341, 343). Dr. Blount opined that Plaintiff "continues to have poor concentration, including poor ...


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