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Henley v. Colvin

United States District Court, D. Rhode Island

July 22, 2015

MICHAEL HENLEY, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, Magistrate Judge.

With the achievement of sobriety after years of substance abuse, regular treatment with a psychiatrist and relatively better compliance with his psychiatric medication regime, Plaintiff Michael Henley's mental health has stabilized; nevertheless, he remains isolated in his home, burdened by chronic depression, nightmares, paranoia, occasional suicidality, poor coping skills and flares of anger triggered by what he perceives as frustration or disappointment. This matter is before the Court on his motion for 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"). Plaintiff contends that the Administrative Law Judge ("ALJ") committed reversible error by giving inadequate weight to the opinion his longtime treating psychiatrist, Dr. Ruth Stemp. Defendant Carolyn W. Colvin ("Defendant") has filed a motion for an order affirming the Commissioner's decision.

This matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the record, I find that the ALJ's decision is tainted by error and that her findings are not supported by substantial evidence. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 9) be GRANTED and Defendant's Motion for Order Affirming the Decision of the Commissioner (ECF No. 12) be DENIED. I further recommend that the matter be REMANDED to the Commissioner for further proceedings consistent with this report and recommendation pursuant to Sentence Four of 42 U.S.C. § 405(g), and final judgment should enter in favor of Plaintiff.

I. Background Facts

These applications for DIB and SSI are Plaintiff's second set; on January 5, 2009, he applied alleging disability based on depression and right knee and shoulder problems. Tr. 74. On May 18, 2011, an ALJ found that, although his mental impairments met the criteria for two Listings, he was not disabled under the Act based on the materiality of substance abuse. Tr. 84. The current applications were filed on May 31, 2011, alleging disability beginning the day following the first denial based on depression, glaucoma and problems with his right knee and right shoulder. Tr. 237, 241. By contrast with the first applications, the medical record for the second set establishes that Plaintiff had achieved sobriety prior to the alleged disability onset date (May 19, 2011) so that substance abuse is no longer a material contributor. Tr. 115, 131.

A high school graduate who completed one year of college, Tr. 241, Plaintiff was forty-four years old on the date of onset of the current period of disability. Tr. 208. Prior to 2007, he had worked for telemarketing firms and as an order picker; he was promoted to manager in the last years that he worked, with responsibility for hiring and firing. Tr. 49, 241-42. Until her death in late 2004, he lived with his wife and cared for his children from a prior marriage. His wife's death from cancer had a devastating emotional impact on Plaintiff; "when my wife died, my whole foundation broke down. I lost everything in that." Tr. 56. Within less than two years, he had stopped working, placed his children in the care of his own mother, lived alone and was engaged in serious substance abuse, although the prior record also suggests that the drug abuse was longstanding and that Plaintiff may have stopped work because of an on-the-job charge of embezzlement. Tr. 55, 78, 81. By 2011, he had stopped using illegal substances, relying instead on prescribed medication to control his symptoms of hearing voices, suicidal ideation, depressed mood, anxiety and anger, but still living an isolated life with persistent depression and anxiety, punctuated by feelings of anger towards other people and occasional suicidality. Tr. 314, 319. The record reflects that his mental status fluctuated; when he was feeling better, he enjoyed interacting with his children and saw his mother, but he also experienced periods of anger and seriously depressed mood when faced with disappointment. Tr. 314. For example, after he learned of the denial of his SSI/DIB applications in May 2011, he was consumed with disappointment and anger. At a therapy appointment a month later, he admitted to suicidal thoughts, bolted from the Providence Center where he had gone for treatment and required several days of active monitoring before his therapist opined that he was beginning to feel better and would contract not to harm himself. Tr. 318-22.

Throughout the period of alleged disability, Plaintiff regularly received mental health treatment from his psychiatrist, Dr. Ruth Stemp, at the Providence Center, as well as counseling (until he became angry with her and stopped coming) from a Providence Center therapist, Courtney Bedard. In his own words, he explained why he cannot work

Because I get a little - I get really antsy. I get upset when things don't go my way... I get really worked up sometimes. I mean, before I was manager and would just get, like, really worked up with the coworkers and I'd probably get into a frenzy state and, like, need to calm down.

Tr. 47-48. Despite these struggles, the record also establishes that Plaintiff is able to use public transportation, make simple meals, shop for food and had never been fired because of his inability to get along with other people. Tr. 50-51, 262-65. Moreover, while Plaintiff testified to repeated altercations with other tenants in his building during the period of alleged disability and with coworkers while he was employed, Tr. 61 ("The people - I hate them"), the record has no reference to any legal difficulties resulting from these episodes.

The current applications allege disability based on depression, as well as right knee and shoulder pain and glaucoma. For this appeal, Plaintiff has abandoned his somatic impairments, alleging only that the ALJ erred in rejecting his claim based on his mental health impairments.

A. Relevant Medical History

Plaintiff's treating relationship with his psychiatrist, Dr. Stemp, and her team at the Providence Center began well before the alleged date of onset with respect to these applications. In connection with this treatment, Dr. Stemp, together with the other providers on the team, regularly (as reflected in the record, approximately every six months) updated Plaintiff's treatment plan; the earliest post-onset plan, dated July 2011, reflects diagnoses of bipolar disorder NOS, major depressive disorder, recurrent episode moderate, post-traumatic stress disorder ("PTSD") and cocaine abuse. Dr. Stemp consistently assessed Plaintiff's GAF score as 50, [1]Tr. 327, 356, 365, and noted that barriers to recovery include his inconsistency in attending appointments and difficulty in controlling anger, but that strengths include intelligence, independence and sense of humor when he is feeling better. Tr. 327. The plan recommends continued counselling at least monthly and more often if needed, continued treatment with Dr. Stemp (as reflected in the record, every other month and as needed), and continued treatment with an array of prescribed medications. See Tr. 328. Although psychiatric hospitalization was actively considered during the period of disability, Tr. 319, 325, Plaintiff was never hospitalized.

The relevant treating history begins on March 21, 2011, two months prior to onset, when Plaintiff saw his therapist, Ms. Bedard, and told her that he had missed his last appointment due to depression and feelings of "going downhill, " after running out of medication and getting it from friends; she noted, "[c]lient seems to go through periods where he isolates, does not reach out for help with meds, etc. does not attend appointments and is noncompliant with meds." Tr. 344-45. Plaintiff saw Dr. Stemp the next day; she found him anxious, depressed, slightly irritable and guarded, though there were no delusions or suicidal or homicidal ideation. Tr. 312. At the April appointment with Dr. Stemp, Plaintiff was taking his medication as directed; while he remained isolated and his hygiene was only fair, his mood was improved, "more stable, fewer and less intense up and down, " and he was visiting family "a lot." Tr. 314. Plaintiff denied suicidal ideation and hallucinations. Id.

On June 24, 2011, Plaintiff appeared for an appointment with Ms. Bedard, still reacting to learning of the denial of SSI benefits over a month before. Tr. 318. He refused to talk except to express disappointment, anger and hopelessness "he feels so bad, at least he felt better when he was using [drugs]." Tr. 318. More importantly, he reported recent suicidal ideation and refused to contract for safety - in speaking of his suicidal thoughts, he told the therapist that, "with his luck, he would end up jumping off a bridge and becoming a paraplegic and stuck in a wheel chair." Tr. 318-19. Ms. Bedard walked him to Dr. Stemp's office, but when Plaintiff heard them speaking of sending him to the hospital, he ran. Tr. 319. Concerned about his safety, Ms. Bedard repeatedly called him, as well as the manager of his apartment building to arrange for a police wellness check, to no avail. According to Dr. Stemp, for several days, the Providence Center was concerned that he "[m]ay pose a suicide risk as he would not contract for safety." Tr. 320. After three days of calling, resulting in brief conversations, Ms. Bedard noted that Plaintiff had stayed with an aunt and was then with his mother; by the end of the weekend, Ms. Bedard observed that his mood had become more stable. Tr. 322-24.

At his next appointment, on July 12, 2011, Ms. Bedard found Plaintiff's affect constricted, his mood depressed and irritable, and his speech pressured; although he denied current suicidal ideation, she noted that, "he continues to struggle with this." Tr. 325. She reviewed his pre-crisis plan, including how to reach out to staff or to the hospital if he needed help. Id . She found his anger reduced and he is "always up and down' but feels more up right now than down." Tr. 326. Two weeks later, Ms. Bedard made essentially the same findings on examination, except that by this appointment, Plaintiff's speech had become appropriate. Tr. 329. Her notes reflect that he described nightmares about the three times that he was stabbed, his ongoing anger, sadness, frustration and constant struggle with "up and down moods." Id.

At the August 5, 2011, appointment with Dr. Stemp, Plaintiff reported that he was taking his medication as directed with a minor exception; he denied side effects. Tr. 331. He told her that he "mostly stays inside his apartment... does his housework and talks to his Mom sometimes, otherwise is isolative." Tr. 331. On examination, Dr. Stemp observed that he was guarded and minimally talkative, his mood was depressed and anxious, though his thoughts were organized, and he denied delusions, hallucinations and suicidal ideation. Id . As "Assessment Additional Information, " she wrote, "chronic anxiety, depression, erratic sleep, poor coping skills." Id . Two weeks later, Ms. Bedard's encounter was a "good day;" he was chatty, reminisced about working, agreed that he needs structure and expressed the desire to look at educational opportunities. Tr. 332.

In September 2011, Plaintiff told Dr. Stemp that he was taking his medications as directed, but that bed bugs in his building were causing him "a lot of stress, " that he does not like his building and the people there and that stress is adversely affecting his sleep. Tr. 351. On examination, Dr. Stemp observed that Plaintiff was feeling a "global sense of paranoia about others, " and was very anxious with dysphoric and slightly irritable mood, although his thoughts were organized, he denied hearing voices, suicidal ideation and hallucinations and said he felt good on his current medication. Id . Dr. Stemp opined that his increased blood pressure was linked to anxiety and stress. Id . However, in October, Dr. Stemp received test results indicating that Plaintiff's Depakote levels were not detectable; concerned, she tried several times to reach him by phone to ask whether he was taking that medication. Tr. 352. When he appeared for an appointment with Ms. Bedard in November 2011, he talked to her about housing and she suggested he might need a case manager to help him. Tr. 354. She noted, "client is stable right now, very frustrated but seems to be managing his emotions. However, staff is always concerned that client will become overwhelmed by stress as he has a history of [suicidal ideation] and severe depression." Tr. 355. Also in November, Plaintiff's treatment plan was updated; his diagnoses were listed as bipolar disorder NOS, PTSD and cocaine abuse with a GAF score of 50. Tr. 356. The plan noted that no family members are involved in his treatment and that his problems included difficulties with both his primary support group and with his social environment and ongoing issues with anger and grief. Tr. 355-56.

As reflected in the record, Plaintiff's last appointment with Ms. Bedard was on December 1, 2011. Tr. 360-61. When she tried to check on his mood, he did not talk too much. Tr. 361. She noted, "[b]aseline depressed and frustrated, " but also that he wanted to find out about courses he could take for part-time work. Tr. 361. Not reflected in these notes, but described by Plaintiff at the hearing, Tr. 51-53, was an incident during which he became "really frustrated and... mad" with Ms. Bedard because he perceived she was not doing things he wanted her to do; he refused to continue to see her. As a result, in the next treatment plan, Plaintiff was shifted to "MD only status." Tr. 365-66.

At his February 2012, appointment with Dr. Stemp, Plaintiff reported that he had been largely compliant in taking medication, though he also described "chronic long standing moodiness and discomfort around others... he does not like people, " as well as "chronic distrust and fear of others." Tr. 362. He said that he spent his time going for walks and visiting with his mother or son. Id . On examination, Dr. Stemp observed that his hygiene was fair and his baseline was anxious, dysphoric and irritable; she observed that his thoughts were organized, his speech was not rapid or pressured and he was not experiencing any delusions, suicidal ideation or ...


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