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Blackman v. Berryhill

United States District Court, N.D. Texas, Dallas Division

March 6, 2017




         Pursuant to Special Order No. 3-251, this case was automatically referred for issuance of findings, conclusions, and recommendation. Before the Court is Claimant Steven T. Blackman's Brief in Support of His Claim for Disability Benefits, filed May 29, 2016 (doc. 17); Defendant's Brief, filed June 21, 2016 (doc. 18); and Claimant Steven T. Blackman's Reply in Support of His Claim for Disability Benefits, filed July 11, 2016 (doc. 19). Based on the relevant findings, evidence, and applicable law, the Commissioner's decision should be REVERSED, and the case should be REMANDED for further administrative proceedings.

         I. BACKGROUND[1]

         A. Procedural History

         Steven T. Blackman (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner)[2] denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act (Act). (doc. 17 at 11.) On August 18, 2009, he applied for DIB, alleging disability beginning May 1, 2008. (R. at 428-434.) His claim was initially denied on December 16, 2009, and upon reconsideration on November 12, 2010. (R. at 159, 173, 196, 200.) On July 6, 2011, he requested a hearing before an administrative law judge (ALJ). (R. at 206-07.) He appeared without representation at a hearing on December 23, 2011, but the ALJ reset the hearing because Plaintiff had brought a large amount of new medical documents. (R. at 131-58.) He appeared and testified without representation at a hearing on January 20, 2012. (R. at 95-130.) The ALJ denied Plaintiff's applications on March 27, 2012, finding him not disabled. (R. at 174-88.)

         Plaintiff timely appealed the ALJ's decision to the Appeals Council, and it granted review of the ALJ's decision. (See R. at 374.) On February 8, 2013, the Appeals Council vacated the decision of the ALJ and remanded the case. (R. at 189-92.)

         On February 26, 2014, Plaintiff appeared with an attorney and testified at a hearing before the ALJ. (R. at 43-94.) The ALJ again denied Plaintiff's application on June 23, 2014, finding him not disabled. (R. at 16-42.) Plaintiff timely appealed the ALJ's decision to the Appeals Council, and the Appeals Council adopted the ALJ's decision on December 14, 2015. (R. at 1-7, 15.) Plaintiff timely appealed the Appeals Council's decision under 42 U.S.C. § 405(g).

         B. Factual History

         1. Age, Education, and Work Experience

         Plaintiff was 36 years old at the time of the hearing on February 26, 2014. (R. at 26.) He graduated from high school and had some college. (Id.) Plaintiff previously worked as a mill wright, security guard, cavalry scout, and cashier. (R. at 32.)

         2. Medical, Psychological, and Psychiatric Evidence

         On May 10, 2008, while on active duty in the army, Plaintiff fell from the back of a stationary vehicle and hit his head and back. (R. at 2902, 2904.) He was transported to an emergency room, where he reported neck and back pain and nausea. (R. at 2904.) On May 19, 2008, Plaintiff had an MRI, which appeared normal. (R. at 773.)

         Plaintiff was evaluated by Clark L. Jennings, M.D., on May 28, 2008, for purposes of obtaining ADHD medication. (R. at 758.) Dr. Jennings noted attention problems, limited short-term memory, chronic self-esteem issues, chronic dysthymic, social anxiety with some obsessiveness, and traumatic experiences during his repeated deployments. (Id.)

         On August 13, 2008, Plaintiff met with Kimberly Duncan, CCC-SLP, after being referred by Ann Craig, M.D. (R. at 773.) Ms. Duncan noted that Plaintiff had been diagnosed with traumatic brain injury (TBI). (R. at 773-74.)

         On September 12, 2008, Sherri L. Beaver, OTR, evaluated Plaintiff and found fine motor disturbance secondary to a constant tremor, impaired ocular pursuits, decreased visual motor speed of response, and impaired convergence. (R. at 767-68.) She diagnosed him with post-concussion syndrome. (R. at 767.)

         On November 3, 2008, Plaintiff had an MRI of his brain, which showed no evidence of intracranial pathology. (R. at 2702-03.) He reported impaired cognitive functions, tremors in his right upper extremity, back and knee pain, and migraine headaches. (R. at 3814.)

         On January 13, 2009, Plaintiff was examined by Victor Neufeld, Ph.D., to assist with a disability determination. (R. at 530-34.) Dr. Neufeld also reviewed Plaintiff's records from Fort Carson, which reflected a history of post-traumatic stress disorder (PTSD) and brain injury with “conversion features.” (R. at 530.) Plaintiff reported photophobia, daily migraines treated with Imitrex injections, and decreased memory. (Id.) Dr. Neufeld noted cognitive slowing, a history of adolescent anger management problems, and adolescent therapy, but that Plaintiff's brain CT and MRI were “unremarkable.” (Id.) He concluded that Plaintiff's “primary obstacles to working and general function lie in the realm of emotional distress rather than cognitive impairment.” (R. at 534.) Dr. Neufeld opined that Plaintiff was likely to be at least moderately impaired socially and with respect to persistence and pace, and he recommended continued psychiatric care, including psychotherapy. (Id.)

         On February 10, 2009, Plaintiff was admitted to the emergency room with back pain and weakness in his legs. (R. at 789.) He reported continued pain after his fall, but was “doing well” with a chiropractor until a few weeks before his admission. (Id.) “After a chiropractic session, he had increased pain and felt like his legs were weak.” (Id.) An MRI and CT scan of Plaintiff showed small tears in the annulus, but neither cord nor nerve root compressions. (Id.) Plaintiff experienced increased pain and weakness and difficulty with urinary retention and constipation, and a second MRI exam was conducted. (Id.) Plaintiff was discharged on February 12, 2009, with a diagnosis of acute low back strain with lumbar disk disease, history of chronic low back pain, history of anxiety, history of depression and prior suicidal ideation, history of PTSD, history of cognitive disorder with adjustment difficulties and conduct disturbance in the past, cervical degenerative disk disease, chronic migraines, and insomnia and post-concussive syndrome. (R. at 789-90.)

         Plaintiff was admitted to an inpatient treatment facility July 15, 2009, with major depression and recurrent PTSD. (R. at 802.) He cooperated with the treatment program, quickly stabilized, and was discharged on July 17, 2009. (R. at 807-08.) Plaintiff attended counseling intermittently after his discharge. (See R. at 828-33, 1583-86.)

         Benjamin Loveridge, M.D., conducted a physical medical consultation on December 5, 2009. (R. at 1594-1600.) He found that Plaintiff's TBI resulted in impaired cognitive ability, tremors, memory problems, and back problems, and he recommended continued cognitive rehabilitation. (R. at 1599.)

         On December 11, 2009, R. Terry Jones, M.D., conducted a medical consultation. (R. at 1797-1802.) He found mild to moderate PTSD, which he characterized as “some hypervigilance, exaggerated startle response, occasional difficulty with irritability and increased anger outbursts and some avoidance of situations that are crowded with people.” (R. at 1800.) He also found Plaintiff's memory was slow, that he had “difficulty” recalling three words after five minutes, ” and had a GAF in the 55-60 range. (R. at 1800-02.)

         After his discharge from the army on July 26, 2010, (R. at 3814), Plaintiff was seen by Samuel Mathai, M.D. (R. at 3102-10, 3948-49, 4375-78.) Dr. Mathai met with and evaluated Plaintiff at least once every two to three months to treat his symptoms and adjust his medication as needed. (R. at 3102-10, 3287-88, 3333-34, 3358-59, 3455-56, 3948-49, 3990-91, 3994-95, 4027, 4048.) During his sessions with Plaintiff, he recorded persistent symptoms, including anger, irritability, avoidance of crowds, noise, and people as well as “daily or more” trauma-related memories or nightmare. (R. at 3359, 3948, 3988.)

         On October 13, 2010, Plaintiff had a consultative examination with Kirsi Waller, Ph.D. (R. at 3010-18.) Dr. Waller noted that he drove himself to the evaluation and was properly dressed with good hygiene and grooming. (R. at 3010.) Dr. Waller found that Plaintiff had significant impairment in function due to TBI, chronic pain, and associated physical limitations as well as emotional dysfunction. (R. at 3018.) He also found Plaintiff continued to have marked symptoms of PTSD, significant memory impairment and other cognitive deficits secondary to his head injury, and that his declined cognition caused problems in his everyday life due to forgetfulness and disorientation. (Id.) Dr. Waller opined that Plaintiff was “not employable at the present time due to functional impairment as well as marked emotional dysfunction.” (Id.)

         On November 10, 2010, State Agency Medical Consultant (SAMC) Henry Hanna, Ph.D., completed a Psychiatric Review Technique for Plaintiff, and found mild restriction of activities of daily living and moderate difficulties in maintaining social functioning and maintaining concentration, persistence, or pace. (R. at 3020-32). In considering Plaintiff's anxiety-related disorders, he noted that Plaintiff self-report could not be considered reliable because some consultative findings were “at odds with all other objective findings.” (R. at 3025.)

         That same day, Dr. Hanna also completed a Mental RFC Assessment for Plaintiff. (R. at 3034-36.) He found that Plaintiff was markedly limited in his ability to understand and remember detailed instructions and to carry out detailed instructions. (R. at 3034-35.) He also found that Plaintiff was moderately limited in his ability to: maintain attention and concentration for extended periods; complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; and get along with coworkers or peers without distracting them or exhibiting behavior extremes. (Id.) He opined that Plaintiff could understand, remember, and carry out only simple instructions, make simple decisions, attend and concentrate for extended periods, interact adequately with coworkers and supervisors, and respond appropriately to changes in a routine work setting. (R. at 3036.)

         On March 5, 2012, the VA found Plaintiff to be 100 percent disabled. (R. at 3666-72.) The VA noted that 70 percent of the disability rating was due to PTSD, which reflected an “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.” (R. at 3667-68.)

         On October 29, 2013, Dr. Mathai completed a Mental RFC Assessment for Plaintiff for July 28, 2010 through October 2013. (R. at 4046-49.) He found that Plaintiff was markedly limited in all areas, except that he was only moderately limited in his ability to remember locations and worklike procedures, understand and remember very short and simple instructions, and carry out very short and simple instructions. (R. at 4046-47.) He opined that Plaintiff was limited in multiple function categories and was “unemployable.” (R. at 4048.)

         On November 6, 2013, Plaintiff had a clinical interview with Linda Cameron, Ph.D., who conducted various tests.[3] (R. at 4050-79.) She noted that “[i]n spite of taking [various] drugs to control his mental and emotional problems, his objective psychological testing still reveals significant psychological, mental, and emotional problems that compromise his ability to obtain and maintain employment. Therefore, it is concluded that [Plaintiff] cannot successful[ly] perform work in a competitive employment environment.” (R. at 4070.)

         3. January 20, 2012 Hearing Testimony

         On January 20, 2012, Plaintiff, a vocational expert (VE), and Plaintiff's fiancée testified at a hearing before the ALJ. (R. at 95-130.) Plaintiff was not represented by an attorney. (R. at 97.)

         a. Plaintiff

         Plaintiff testified that he was married but separated from his second wife and engaged to another woman, and he had two children. (R. at 105-06, 111.) He shared custody of the children “as much as possible” and saw them on weekends. (R. at 105-06.) Plaintiff lived in a first floor apartment with his fiancée. (R. at 111.) He had a valid driver's license, but drove only when he had no choice, such as to attend classes. (R. at 106.)

         Plaintiff took classes at Tarrant County Community College (TCCC), including Theater Practicum, Scenic and Set Design, and English Comp II. (R. at 102.) He did not build sets, but worked on ticket sales, lighting, and stage management. (R. at 102-03.) He had taken fourteen credit hours the prior semester, and twelve credit hours per semester the year before. (R. at 104.) He had previously failed several classes, including science, science lab, English, speech, and math. (R. at 105.) He retook some of the classes later, but did not say how he did. (See id.) He had to stop attending class mid-semester because he was unable to get out of bed. (Id.)

         Plaintiff did not want to be around people, and over the prior six months, he had become “more and more of a recluse.” (R. at 109.) He did not like to leave his apartment alone because he would become “extremely agitated very quickly” and had a hard time retaining control. (Id.) He attributed his agitation to anxiety and being around people. (R. at 115.) Additionally, Plaintiff could only sit or stand for between 25 and 45 minutes before he needed to change positions. (R. at 113.) He attributed this limitation to torn and herniated discs, which caused pain down his left leg and the need for an assisted walking device. (Id.) Plaintiff also experienced migraine headaches, which lasted eight to 10 hours, three to four times a week. (R. at 114.) To treat the migraines, Plaintiff used Imitrex injections. (Id.) The treatment caused him to feel “foggy” the following day, however. (Id.) He also claimed to suffer from memory loss. (R. at 119.)

         Plaintiff wore prescription tinted indoor glasses as well as tinted sunglasses for outdoor use. (R. at 106-07.) He used a cane around his apartment and for “short” distances, but also had a rolling walker with a seat, which he used at the hearing. (R. at 107.) Plaintiff previously attended physical therapy, but they only showed him how to use his walker. (See R. at 108.) He also received medication and EMDR therapy for his PTSD. (R. at 108-09.) Plaintiff took Wellbutrin, Paxil, Klonopin, and a fatty liver pill. (R. at 112-13.) He used neither prescription nor over-the-counter pain medication at the time of the hearing. (R. at 111-12.)

         In response to questions regarding sporting events and live concerts that Plaintiff attended, he attributed his ability to attend those events to being in a private boxes with other veterans or with his fiancée and on medication. (See R. at 115-19.) Plaintiff testified that he could go through areas with crowds of people as long as he did not have to stay with the crowd. (R. at 116.)

         b. VE

         The ALJ asked the VE to consider a hypothetical person who was of the same age and vocational profile as Plaintiff. (R. at 98.) The hypothetical person possessed the ability to lift and carry 50 pounds occasionally and 25 pounds frequently, push and pull the weights given, stand and walk for six of eight hours, sit for six of eight hours, and finger occasionally. (R. at 98-99.) The ALJ then asked the VE whether the hypothetical person could perform any of Plaintiff's past work. (R. at 99.) The VE ...

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