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Rivera-Servera v. Berryhill

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

March 9, 2018

DENNIS RIVERA-SERVERA, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE.

         Pursuant to Special Order 3 and 28 U.S.C. § 636(b)(1)(B), this case has been referred to the undersigned for pretrial management. The Court now considers the parties' cross-motions for summary judgment. For the reasons that follow, Plaintiff's Motion for Summary Judgment, Doc. 12, should be GRANTED, Defendant's Motion for Summary Judgment, Doc. 14, should be DENIED, the Commissioner's decision should be REVERSED, and this case should be REMANDED for further proceedings.

         I. BACKGROUND

         A. Procedural History

         Plaintiff seeks judicial review of a final decision by the Commissioner denying his claim for disability insurance benefits and supplemental security income under the Social Security Act (“the Act”). Plaintiff originally filed for benefits in August 2013, claiming that he became disabled in December 2007. Doc. 7-7 at 2-8. Plaintiff's application was denied at all administrative levels, and he now appeals to this Court pursuant to 42 U.S.C. § 405(g). Doc. 7-3 at 2-4; Doc. 7-3 at 16-32; Doc. 7-4 at 22-34; Doc. 7-5 at 4-6, 11-13, 16-18.

         B. Factual Background

         Plaintiff was born in 1976 and was 31 years old on his alleged date of disability onset. Doc. 7-7 at 2, 4. He had a high school education, some college, attended the police academy, and past relevant work as a systems administrator and cashier. Doc. 7-3 at 43, 72-74. Plaintiff served in the Gulf War as a paratrooper for more than three years and, in 1998, was determined to be disabled due to combat-related injury. Doc. 7-12 at 30-37; Doc. 7-18 at 8. Specifically, in 1997, he injured his lower back when his parachute failed to deploy, and he fractured his left femur and knee along with other service-related injuries. Doc. 7-18 at 6-7.

         As relevant here, Plaintiff was hospitalized for four days in October 2006 for suicidal ideation, depression, and severe chronic pain lasting over ten years. Doc. 7-17 at 3, 6. He was diagnosed with major depressive disorder, moderate, without psychotic features. Doc. 7-17 at 7. In December 2007, Plaintiff reported that he was taking his prescribed anti-depressant, but his anxiety had increased to the point that he rarely left home. Doc. 7-16 at 68. Additionally, he reported suicidal ideation with no plan, pain, and depression. Doc. 7-16 at 69. In May 2008, Plaintiff reported that he always felt tired, an increase in his anti-depressant dosage did not help, and he struggled with concentration, focus, and motivation. Doc. 7-16 at 65.

         In July 2010, Plaintiff reported anhedonia (inability to experience pleasure from activities usually found enjoyable), lack of motivation, depression, difficulty sleeping, and an inability to get out of bed. Doc. 7-18 at 17. In October 2011, Dr. Victoria Menold, M.D., noted that Plaintiff had an abnormal gait, motor weakness on one of his left-hand fingers, a positive straight leg raise test on the left, left side abnormal weakness, left thigh atrophy, paraspinal tenderness, and muscle tightness. Doc. 7-17 at 59-60. Dr. Menold diagnosed Plaintiff with chronic pain secondary to cervical spine degenerative disc disease with radiculopathy on the left and degenerative joint disease of the knees that was worsening. Doc. 7-17 at 60.

         In November 2011, Plaintiff again reported lack of motivation and anhedonia and became tearful during his medical examination. Doc. 7-16 at 54-55. The treating nurse practitioner determined that Plaintiff's status was worsening and added an additional anti-depressant to his regimen. Doc. 7-16 at 55-56. By April 2012, Plaintiff's appearance had changed, he could not remember the last time he shaved, he was gaining weight, and he was disheveled. Doc. 7-16 at 51-52. From March to July 2013, Plaintiff underwent six pain-coping skills sessions, during which the clinical psychologist, Dr. Stacey Sandusky, Ph.D., noted that Plaintiff's mood and affect were dysphoric, he was tearful when discussing his quality of life and pain, and he had “no desire to do anything.” Doc. 7-9 at 47, 64-65; Doc. 7-10 at 13-14.

         In May 2013, Dr. Nazimuddin Qazi, M.D., noted that Plaintiff's “mental health issues” had to take precedence because they were not conducive to a more active lifestyle and participation in pain management plans. Doc. 7-9 at 50. In July 2013, Dr. Qazi noted that Plaintiff was non-compliant with treatment for his neck and back pain. Doc. 7-14 at 39. That same month, Plaintiff's cognitive status was assessed, and he demonstrated poor eye contact and positioned his head on a cane, sometimes nodding off. Doc. 7-14 at 37. He stated that he was not engaging in physical activity as recommended, did not bring his exercise logs to the treatment session, was minimally motivated, and did not see any benefit to pain management or outpatient treatment. Doc. 7-14 at 37. The following month, he complained of anhedonia and low motivation despite taking his antidepressants, and he admitted to less frequent personal hygiene as evidenced by his beard and long hair. Doc. 7-9 at 33. Plaintiff made only intermittent eye contact, his insight was fair, and his status was worsening. Doc. 7-9 at 33-34.

         In October 2013, a non-examining psychiatrist from Disability Services concluded that Plaintiff's mental impairments were non-severe, he had only mild difficulties in social functioning and in maintaining concentration, persistence, or pace, and he had the capacity to perform light work. Doc. 7-4 at 32-33, 37. In January 2014, a non-examining psychologist concurred with this assessment. Doc. 7-4 at 67-68.

         In December 2013, Plaintiff reported that his depressed mood continued, and he was anxious, not sleeping well, and had chronic pain. Doc. 7-11 at 48-49. The following month, Dr. Qazi reported that Plaintiff lacked the motivation to attempt to cope with his pain, and that his depression and mental health issues possibly worsened his pain perception. Doc. 7-11 at 40. The doctor noted that Plaintiff was able to perform his activities of daily living without assistance. Doc. 7-11 at 41. It was also documented in the record that Plaintiff had either cancelled or not shown up for numerous doctors' appointments in late 2013. Doc. 7-11 at 40.

         In November 2014, Plaintiff was examined by clinical psychologist Dr. Eric Mariano, Ph.D., who noted that Plaintiff reported feeling restless, had low energy and motivation, had anxiety, would barely leave his apartment, and was having sudden panic attacks that Plaintiff thought were heart attacks. Doc. 7-12 at 63. Dr. Mariano diagnosed Plaintiff with “unspecified depression vs. due to [general medical condition] pain vs. [major depressive disorder], ...


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