Kullman v. Berryhill, (M.D. Fla. Aug. 12, 2018) (Magistrate Judge Anthony E. Porcelli)

Included: Plaintiff’s Memorandum in Support of Motion for Summary Judgment, Plaintiff’s Reply Brief, Report and Recommendation, and Order

Issues Briefed:

1. 1)  The Appeals Council committed reversible error in failing to remand this matter to the ALJ for consideration of the newly submitted evidence.

2. 2)  The ALJ’s reasons for according “very little weight” to the opinion of Dr. Stern, Ms. Gottlieb’s treating psychiatrist, are not supported by substantial evidence.

3. 3)  The ALJ’s credibility finding is not supported by substantial evidence.

4. 4)  The Commissioner failed to sustain her burden of establishing that there is other work in the national economy that Ms. Gottlieb could perform.

The court remanded, finding that the “ALJ’s decision to accord Dr. Stern’s opinion, “very little weight,” and to discredit Plaintiff’s opinion was not supported by substantial evidence.” R&R at 15. While the court found no error in the Appeals Council’s failure to remand, the court agreed that the ALJ erred in failing to afford proper weight to Plaintiff’s treating physician, Dr. Stern. As the court elaborated:

In this case, although the ALJ acknowledged that Dr. Stern had been Plaintiff’s primary treating physician for two years, she determined that his opinion should be accorded “very little weight” because “the majority of his assessments were unsupported by objective mental status exams” (R. 30). Specifically, the ALJ concluded that Dr. Stern’s treating notes were deficient for failing “to contain objective mental status exams on visits subsequent to the initial evaluation or other testing, [or] data” (R. 30). This was error. Neither the Social Security Administration nor the federal courts require that impairment be proven through objective laboratory tests or clinical findings.

Id. (citing Ortega v. Chater, 933 F. Supp. 1071, 1075-76 (S.D. Fla. 1996); Thompson v. Barnhart, 493 F. Supp. 2d 1206, 1215 (S.D. Ala. 2007)).

The court noted that Dr. Stern’s records “certainly set forth medical signs and symptoms sufficient to justify his diagnoses and treatment of Plaintiff,” including impaired judgment, difficulty sleeping, severe memory lapses, bizarre and inappropriate behavior, medicine noncompliance, full- blown hypomania with pressured speech, disorganized thought process, forgetful and routinely late, confused, disoriented, agitated, totally impulsive depressed, short-tempered, very scattered, and totally disconnected. Id. “Many of these symptoms are, in fact, recognized by the Social Security Regulations as medical signs associated with Bipolar Disorder.” Id. (citing 20 C.F.R. § 404, Subpt. P., App. 1, § 12.04; Mace v. Comm’r, Soc. Sec. Admin., 605 F. App’x 837, 844 (11th Cir. 2015) (stating that when in a manic phase, a bipolar individual may experience hyperactivity, flight of ideas, and easy distractibility). The court futher observed that “as with many psychiatric and psychological impairments, often medical signs and symptoms are the only means available to prove the existence and severity of these impairments.” Id. (citing Ortega, 933 F. Supp. at 1075).

The court also cited to the definition of psychiatric signs which are “‘medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception,’ that can be shown by observable facts that can be medically described and evaluated.” Id. (quoting 20 C.F.R. § 404.1502). Despite the fact that “in almost every medical record and at almost every medical appointment, Dr. Stern noted the signs of Plaintiff’s pronounced psychological impairments and the deterioration of Plaintiff’s condition” and the “vast majority of Dr. Stern’s medical records document abnormalities in Plaintiff’s behavior, mood, thought, memory, and perception over a two year period of time,” the ALJ failed to acknowledge this “abundant documentation of Plaintiff’s Bipolar Disorder and ADD symptoms and signs” as “objective evidence which supports Dr. Stern’s opinion” Id. The court also noted that Dr. Stern conducted mental status examinations on “at least two occasions” which included detailed findings.

The court next cited the ALJ’s finding that “Dr. Stern’s assessments were undeserving of sustained credibility” because his “notes were highly conclusory, alarmingly descriptive of restrictions/limitations without support, at times speculative, at times nonsensical and at times rambling.” As the court noted:

[t]his fails to properly credit Dr. Stern’s notes, over a two-year period, consistently describing the myriad of challenges that Plaintiff faced in light of her mental health issues. His notes describe patterns of instability, memory loss, disorganization, and sporadic behavior. While the finding of disability is ultimately reserved to the Commissioner, Dr. Stern’s comments regarding Plaintiff’s disability and her ability, or lack thereof, to find gainful employment must be contextualized in the record as a whole. The medical record demonstrates that Dr. Stern believed Plaintiff’s dysfunctionality resulted in her repeated loss of employment and would likely prevent her from obtaining, and keeping, a job in the future. Accordingly, Dr. Stern’s statements, especially in light of their consistency throughout a two-year period, “are not the kind of conclusory standard recognized as non-persuasive” in the Eleventh Circuit. Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984). . . .

[T]he vast majority of Dr. Stern notes are straightforward, easy to follow and remarkable mostly for their consistency in diagnosing Plaintiff’s symptoms. While Dr. Stern’s notes are, at times, strikingly informal, that is insufficient cause to find Dr. Stern minimally credible.

Thus, the court held that substantial evidence did not support according “little weight” to Dr. Stern’s opinion, “especially since he has been Plaintiff’s sole treating physician for two years, saw her on approximately 25 occasions, and confirmed the existence and severity of Plaintiff’s impairments.” As “Dr. Stern’s opinion was bolstered by the medical evidence and consistent with the doctor’s own medical records, there was no good cause to accord Dr. Stern’s opinion less than substantial weight.” Id. (citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987)).

The court next held that the ALJ erred in finding Plaintiff’s statements minimally credible astheALJ’sreasonswere“insufficient.” First,thecourtdiscussedherdailyactivities,findingthat “rather than undermine Plaintiff’s testimony, these activities and Plaintiff’s difficulties in engaging with them are consistent with Plaintiff’s testimony regarding her inability to concentrate, her forgetfulness, and her extreme apathy.”

Second, the the ALJ “repeatedly noted that Plaintiff was noncompliant with her treatment i

recommendations, and indeed relied on this finding when discounting Plaintiff’s credibility. However, the court found that the “ALJ failed to inquire whether Plaintiff’s failure to take her medication was justified in light of her disability.” Id. (citing Grier v. Colvin, 117 F. Supp. 3d 1335, 1348 (N.D. Ala. 2015); Sparks v. Barnhart, 434 F. Supp. 2d 1128, 1135 (N.D. Ala. 2006)). As the court stated:

Federal courts have long “recognized [that] a mentally ill person’s noncompliance with psychiatrist medications can be, and usually is, the result of the mental impairment itself and, therefore, neither willful nor without a justifiable excuse.” Kidd v. Comm'r of Soc. Sec., No. 6:15-CV-535-ORL-DAB, 2016 WL 3090401, at *5 (M.D. Fla. June 2, 2016) (internal citations and quotations omitted); Brashears v. Apfel, 73 F. Supp. 2d 648, 652 (W.D. La. 1999) (remanding for consideration of whether plaintiff’s noncompliance with prescribed treatment was excusable due to a mental impairment). Here, Dr. Stern’s records frequently noted Plaintiff’s difficulty understanding her medicine regime, and in fact in one instance documented that her noncompliance was “mostly because of her ADD, not because of issues of noncompliance” (R. 309, 315, 344, 347). To discount Plaintiff’s credibility because she exhibited precisely the kind of symptoms that her mental illnesses would be expected to cause is improper. Accordingly, there is no substantial evidence to find Plaintiff’s testimony is undeserving of credibility on this basis.

Finally, the court found that the fact that the claimant had not required crisis stabilization or psychiatric hospitalization was not “substantial evidence to discredit Plaintiff’s testimony. “The medical records in this case document a long treatment history for mental illness dating back years” and “[t]o the extent Plaintiff was not hospitalized, that fact does little to undermine the degree of Plaintiff’s mental health issues.” Id.