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Jones v. Colvin

United States District Court, D. Rhode Island

January 29, 2015

LESTER JONES, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, Magistrate Judge.

Since his release from prison after his second felony conviction, Plaintiff Lester Jones has isolated himself in his room to avoid the auditory hallucinations and debilitating panic attacks that plague his attempts to engage even in the benign activities urged by his medical providers. Based on clinical observations made during a treating relationship in 2011 and 2012, his psychiatrist diagnosed personality disorder with borderline features, in addition to a long-standing diagnosis of major depressive disorder with psychotic features. Focusing on the functional impact of these impairments, Plaintiff comes to this Court seeking reversal of the decision of the Commissioner of Social Security (the "Commissioner"), denying Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under §§ 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (the "Act"). He contends that the Administrative Law Judge ("ALJ") violated 20 C.F.R. § 404.1527[1] in failing to set forth good reasons for rejecting his treating psychiatrist's opinion, in failing even to consider the diagnosis of personality disorder, and in failing to obtain medical expert testimony regarding whether his mental impairments equal the severity of a listed impairment. Defendant Carolyn W. Colvin has filed a motion for an order affirming the Commissioner's decision.

The matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B). I find that the ALJ's decision is marred by multiple errors. Accordingly, I recommend that Plaintiff's Motion to Reverse Without or, Alternatively, With a Remand for a Rehearing of the Commissioner's Final Decision (ECF No. 7) be GRANTED, that the Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 10) be DENIED, that final judgment enter in favor of Plaintiff and that the case be remanded for further proceedings consistent with this opinion.

I. Background Facts

Plaintiff Lester Jones was born in 1977. Tr. 182. He attended school through eighth grade, but dropped out during ninth because he was "kicked out" of school and because the work was "[t]oo hard." Tr. 43-44. At twenty-one, he was convicted of robbery and served almost three years in prison. Tr. 45. After he was released in February 2001, he worked seasonally as a laborer in an industrial marine shop and as a night club bouncer. Tr. 49-50. In June 2008, he was arrested again, this time for sexual assault of a minor he met on the internet. Tr. 51, 392. The commencement of the incarceration for sexual assault - June 2008 - also marks the onset of his alleged disability. He completed the sentence in December 2010; since his release, he has lived in a bedroom in his mother's apartment rarely leaving except for legal obligations, medical appointments and occasionally to go to church. Tr. 41, 44-45, 57, 225. He is on probation through 2028 and required to register as a level III sex offender. Tr. 290, 346.

A. Plaintiff's Physical Health

For a "younger" person, Tr. 27, Plaintiff's medical health is poor: he has struggled with hypertension and high cholesterol with mixed results from medication. See, e.g., Tr. 327 ("persistently elevated BP despite being on HCTZ therapy"). In December 2011, at the age of thirty-four, he suffered a mild stroke. Tr. 426. While he seems to have made a complete recovery neurologically, his psychiatrist opined that the stroke "might have further worsened his mood regulation, insight." Tr. 507. He is overweight though the record does not reveal whether he is obese, which would trigger the inquiry required by Social Security Ruling, SSR 00-3p, Evaluation of Obesity, 65 Fed. Reg. 31039-01 (May 15, 2000). Plaintiff has not challenged the ALJ's finding that none of these conditions is severe or renders him disabled. Tr. 21. They will not be further discussed in this report and recommendation, except to the extent that the December 2011 stroke represents a change adversely affecting Plaintiff's mood disorder.

B. Plaintiff's Mental Health

Based on what has been collected for this record, Plaintiff's mental health history begins in November 2009, during his second incarceration, when a psychiatrist performed an initial evaluation and diagnosed post-traumatic stress disorder ("PTSD") and depression, with severe stressors relating to the "legal system/crime." Tr. 419. The evaluation states that "[p]ertinent negatives include compulsive thoughts or behaviors, diminished interest or pleasure, feelings of guilt or worthlessness, hallucinations, manic episodes, panic attacks, restlessness or sluggishness or thoughts of death or suicide." Tr. 417. He was assigned a Global Assessment of Functioning ("GAF")[2] score of 50. Tr. 418. In July 2010, a prison psychologist saw him for intermittent panic attacks, performed a mental status examination and prescribed medication. Tr. 268-69. The prison record reflects observations of flat affect, withdrawn behavior, panic attacks and anxiety, as well as a history of suicidality, with two overdoses and a 1996 psychiatric hospitalization at Butler Hospital. Tr. 265-66. In December 2010, he was released and moved into a bedroom in his mother's apartment. Tr. 41, 45.

In March 2011, Plaintiff ran out of the psychiatric medications he had been provided on release from prison. Tr. 303. He ended up at the Rhode Island Hospital emergency room and was hospitalized at SSTAR of RI for three days (March 18-21, 2011) due to suicidal ideation, hearing voices and increased depression and anxiety; his symptoms included panic attacks, crying for no reason, self-isolation (leaving his home only when necessary) and feelings of uselessness and unworthiness. Tr. 303, 305, 315. At intake, his GAF was assessed at 35. Tr. 306. At discharge, his GAF increased to 50 and he was referred to the Providence Center to continue mental health treatment. Tr. 315-17. In addition to psychiatric symptoms, Plaintiff had abdominal pain and nausea that "seems to get worse when he knows he has to leave house;" the examining physician opined that the cause is "more psychiatric in nature." Tr. 335-36.

In April 2011, Plaintiff was seen at the Providence Center for an initial assessment. Tr. 403. The intake notes prepared by a licensed social worker indicate that he continued to have nightmares, low motivation, panic symptoms and anxiety (causing severe nausea); his diagnoses included "r/o[3] Antisocial PD (personality disorder), " in addition to "Depressive Dis., NOS, r/o Mood Dis. NOS, Anxiety Dis. NOS, " with a GAF of 52. Tr. 403-04, 408. On April 26, 2011, Plaintiff had his first appointment with Providence Center psychiatrist Dr. Omer Cermik and, on May 24, 2011, he started counseling with Providence Center therapist Paul Deffely, LMFT.[4] Tr. 395, 398-99. On May 25, 2011, another Providence Center psychiatrist repeated the baseline mental status examination - he diagnosed depression, anxiety and panic episodes, chronic sleeping problems, voices and chronic suicidal ideation and assessed a GAF of 49. Tr. 392-93.

By the end of June 2011, Plaintiff was having regular appointments with Dr. Cermik, who performed a mental status examination at each encounter. See, e.g., Tr. 346-47, 378-79. Over the course of 2011, Dr. Cermik saw him five times. His notes reflect that Plaintiff did not leave his room and that, although Plaintiff was compliant, medication was "only partially helpful;" despite medication changes, "[n]othing has changed for the better." Tr. 346. Based on a mental status examination performed on December 30, 2011, Dr. Cermik noted that Plaintiff's dysphoric and irritable mood continued and, although overt psychosis was absent and the voices had subsided, suicidal ideation persisted; he recorded a GAF of 45 and diagnosed recurrent major depressive disorder, rule out panic disorder, rule out borderline intellectual functioning and rule out personality disorder. Tr. 347. On December 6, 2011, Plaintiff had a mild stroke. Tr. 426. Preceded by a headache, it occurred at Rhode Island Hospital; the discharge notes link it to Plaintiff's under-controlled hypertension and dyslipidemia. Tr. 426-27. By the morning after the stroke, he was neurologically back to baseline. Tr. 427-28. However, Dr. Cermik opined that the stroke "might have further worsened his mood regulation." Tr. 507.

After the stroke, Plaintiff continued treatment with Dr. Cermik. During 2012, he saw Dr. Cermik regularly at least through October.[5] Tr. 507. As during 2011, at every appointment, Dr. Cermik performed a mental status examination; each records that Plaintiff's GAF persisted at 45. Tr. 462, 475, 494. At the April and June appointments, Dr. Cermik noted that Plaintiff had started the "in-shape" program at the Providence Center and was considering classes at a community college; however, he also observed unhappiness, no smiles, no change in life situation and no conversation or elaboration. Tr. 462, 475. By the August appointment, Plaintiff was "very sad" and crying; both the "in-shape" program and the plan to take courses had failed, although medication appeared to control Plaintiff's most severe symptoms (suicidal ideation and voices). Tr. 494. His isolation in his room continued; once his mother took him to see a relative but he was very anxious. Id . Significantly, in August 2012, Dr. Cermik's treating notes reflect that his prior diagnosis of "R/O [rule out] Personality Disorder" ripened to "Personality Disorder NOS with borderline features." Id.

Throughout the same period, Plaintiff also treated regularly with Mr. Paul Deffely, a mental health therapist at the Providence Center who worked closely with Dr. Cermik. Mr. Deffely's notes are detailed; they reflect Plaintiff's persistent fear of leaving home and the loud voices that make him believe he is going to be attacked so that just riding the bus brings on anxiety and panic attacks that are frequent and severe. Tr. 352. Even during therapy appointments, Mr. Deffely observed that imagined distractions (for example, an imagined phone call) caused confusion. Tr. 362, 364, 391. "[A]uditory hallucinations... afflict him with noise, volume and non-stop harassment. He tried to shut them up, but can not." Tr. 368. Mr. Deffely repeatedly recorded his observation of Plaintiff's mind "skipping about, " resulting in extreme difficulty in sustaining attention during appointments: "[h]e repeatedly dissociates and misses what I am saying." Tr. 364-66, 374, 449, 458. When another client was loud enough to be audible, Plaintiff became so upset and distracted that Mr. Deffely had to end the meeting. Tr. 380. While Plaintiff derived pleasure from seeing his daughter and taking her to church, the visits also triggered memories of "horrors" from his own childhood, resulting in suicidal ideation during her visits and while at church. Tr. 445, 448, 486, 488. When Plaintiff experienced two panic attacks, the second "quite debilitating, " at the Providence Center's "in-shape" program, Mr. Deffely became involved and alerted Dr. Cermik. Tr. 468. In August 2012, Plaintiff's cousin visited, but Plaintiff was too fearful to see him. Tr. 492. His cousin's death soon after triggered frightening hallucinations of objects and shadows in his peripheral vision. Tr. 497.

C. Opinion Evidence

1. Agency Opinions

Shortly after Plaintiff was released from prison, he applied for DIB and SSI on January 6, 2011. Tr. 80, 90. In connection with his applications, in February 2011, Plaintiff underwent a consultative psychological evaluation conducted by state agency psychologist, Dr. John Parsons, who diagnosed PTSD, major depressive disorder, physical and sexual abuse of a child as a victim, sexual abuse of a child and mood disorder. Tr. 288-96. During the mental status examination, Dr. Parsons observed lethargy, profound and severely escalating depression, anxiety and difficulty focusing, impaired attention and concentration, persistent suicidal ideation, blunt affect and low average range of general intelligence. Tr. 293-95. Plaintiff displayed no sense of humor and appeared sad and withdrawn, but was cooperative with testing. Tr. 289. Dr. Parsons recommended a psychiatric evaluation, opined that Plaintiff's prognosis with treatment was at best fair and assigned a GAF score of 45. Tr. 296.

A month later, right after intake at the Providence Center but before Plaintiff had begun regular appointments with Dr. Cermik and Mr. Deffely, on May 4, 2011, state agency psychologist, Dr. J. Stephen Clifford, reviewed Plaintiff's medical records and opined regarding his residual functional capacity ("RFC").[6] Tr. 85-88. In forming his opinion, Dr. Clifford considered only the prison records and Dr. Parsons's consultative examination report prepared shortly after Plaintiff was released. Tr. 84. He apparently was unaware of Plaintiff's psychiatric hospitalization in March 2011 due to auditory hallucinations, suicidal ideation, panic attacks and self-isolation, among other symptoms, when his GAF was assessed as 35. See Tr. 305-06. Although Dr. Clifford noted Plaintiff's diagnoses of anxiety and affective disorder, he concluded that Plaintiff has no restriction of activities of daily living, only mild difficulty with social functioning and only moderate difficulty with concentration, persistence or pace. In his RFC opinion, he opined that Plaintiff can sustain attention and concentration for simple tasks, can accept direction from supervisors, can cooperate with co-workers and tolerate the general public; he found no significant limitations on Plaintiff's ability to work in coordination with or in proximity to others without being distracted. Tr. 86-88. Dr. Clifford did another file review on July 8, 2011; apparently unaware of Plaintiff's recently initiated treatment at the Providence Center and still unaware of the March 2011 hospitalization, he noted that the only new record was the function report completed by Plaintiff and affirmed his opinion from May 4, 2011. Tr. 84. The next day - July 9, 2011 - Plaintiff's application was denied initially. Tr. 80.

The rest of the state agency mental health opinion evidence appears to rely heavily on these opinions from Dr. Clifford. See Tr. 323-26 (Dr. Rucker's opinion of July 21, 2011, agrees with Dr. Clifford). Notably, agency psychologist Dr. Clifford Gordon, who prepared his opinion on November 8, 2011, made no reference to the March 2011 hospitalization or the by-then extensive treatment records from the Providence Center; rather he copied - verbatim - Dr. Clifford's "PRT - Additional Explanation" from May 2011. Compare Tr. 107-08, with Tr. 86. The only difference between Dr. Clifford's opinion and that of Dr. Gordon is the latter's conclusion that Plaintiff is moderately restricted in activities of daily living and social functioning. Tr. 109-10. Shortly after Dr. Gordon's assessment, on November 10, 2011, Plaintiff's application was denied on reconsideration. Tr. 135.

2. Treating Opinions

Between September 2011 and October 2012, both Dr. Cermik and Mr. Deffely completed opinion forms in connection with Plaintiff's application, Dr. Cermik a total of three and Mr. Deffely a total of two.

In October 2011, after a six-month treating relationship, Dr. Cermik opined that Plaintiff's prognosis is fair, as long as he continues compliance with treatment, and that his diagnoses include major depressive disorder, panic disorder and personality disorder NOS.[7] Tr. 342-43. He noted that Plaintiff is moderately limited in his ability even to do simple work or make simple decisions, but that he is markedly limited in his ability to sustain attention and concentration, to interact with others, to work at a consistent pace and to respond to work-place changes. Tr. 342-44. Dr. Cermik's January 2012 opinion is similar: he opined to severe limits affecting Plaintiff's ability to relate to others or respond to supervision, his daily living activities and his interests, as well as moderately severe limits on his ability to respond to work pressures and coworkers. Tr. 409-10. Dr. Cermik's final opinion, rendered on October 1, 2012, after a year and a half of continuous treatment, is essentially the same - it records marked or severe limits in the ability to understand detailed instructions, to sustain attention and concentration, to engage in any social interaction (including working in proximity to others or interacting with the general public), to respond to customary work pressures, to complete a normal workday/week without psychologically based interruptions, to respond to work-place changes, or to engage in daily activities. Tr. 505-06, 508-09. Dr. Cermik summarized his conclusions: "[we've] never seen him doing well." Tr. 509.

Mr. Deffely's first opinion was prepared on September 13, 2011, after almost four months of continuous treatment. He opined to severe limitations in Plaintiff's ability to relate to others or respond to supervision or co-workers, to understand, remember or carry out instructions, or to respond to customary work pressures. Tr. 340-41. Formed a year later, on September 14, 2012, his second opinion is consistent, noting marked and moderately severe limitations in Plaintiff's ability to understand and remember, to sustain concentration and persistence, to engage in social interaction and to respond to customary work pressures. Tr. 498-502. ...


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