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Scott C. P. v. Berryhill

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

February 26, 2019

SCOTT C. P., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMEZ, UNITED STATES MAGISTRATE JUDGE

         By Special Order No. 3-251, this social security appeal was automatically referred for full case management. Based on the relevant filings, evidence, and applicable law, the Commissioner's decision should be AFFIRMED.

         I. BACKGROUND

         Scott C. P. (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner) denying his claim for a period of disability and disability insurance benefits (DIB) under Title II of the Social Security Act (Act). (doc. 13.)

         A. Procedural History

         On January 26, 2015, Plaintiff filed an application for a period of disability and DIB alleging disability beginning on January 31, 2015. (doc. 10-1 at 83.)[1] His claim was denied initially on July 22, 2015, and upon reconsideration on November 3, 2015. (Id. at 83, 94.) On November 17, 2015, he requested a hearing before an Administrative Law Judge (ALJ). (Id. at 107.) He appeared and testified at a hearing on July 7, 2016. (Id. at 40-72.) On January 12, 2017, the ALJ issued a decision finding that he was not disabled and denying his claim for benefits. (Id. at 18-36.)

         Plaintiff timely appealed the ALJ's decision to the Appeals Council on February 9, 2017. (Id. at 155.) The Appeals Council denied his request for review on December 3, 2017, making the ALJ's decision the final decision of the Commissioner. (Id. at 5.) Plaintiff timely appealed the Commissioner's decision under 42 U.S.C. § 405(g). (See docs. 1; 13.)

         B. Factual History

         1. Age, Education, and Work Experience

         Plaintiff was born on March 13, 1964, and was 50 years old on the alleged onset date. (doc. 10-1 at 35.) He had at least a high school education and could communicate in English. (Id.) He had past relevant work as a landscape specialist, automobile repair service estimator, tire salesperson, store laborer, and emergency medical technician. (Id. at 34.)

         2. Medical Evidence

         On September 17, 2013, Plaintiff saw Kenneth LeCroy, M.D., for a refill of medication. (Id. at 337.) He reported that he was doing well, but he had worsening symptoms. (Id.) Dr. LeCroy noted that Plaintiff suffered a gunshot wound to his head “many years ago” resulting in blindness in his right eye. (Id.) He had light vertigo that was occasionally getting worse and vision fades. (Id.) He also had shakes that felt like internal tremors, and he was worried that he could have Parkinson's disease. (Id.) His behavior, mood, and affect were appropriate, and he was in no distress, well-developed, well-nourished, alert, and oriented to person, place, and time. (Id.) He was diagnosed with stable depression, allergic rhinitis, and essential and other specified forms of tremors. (Id. at 338.) Dr. LeCroy suspected a traumatic brain injury from multiple concussions and a gunshot wound, and he recommended that Plaintiff see a neurologist because an MRI would not be in his best interest due to pellets remaining inside his skull and outside his skull under the skin. (Id.) It was also recommended that he increase his physical activity and try to exercise 30 minutes a day at least 3-5 times per week. (Id. at 339.)

         On February 9, 2015, Plaintiff saw Dr. LeCroy again, who diagnosed Plaintiff with organic brain syndrome with poor prognosis. (Id. at 332.) He stated that Plaintiff was unable to work and would require accommodations for his difficulty in social interaction, direct supervision, memory loss, trouble following directions, and having 3 or more sick days per month. (Id.) He noted that Plaintiff would get lost while driving, and that he forgot how to do procedures in his job. (Id.) He expected Plaintiff's impairments to last at least 12 months. (Id.)

         On February 17, 2015, Plaintiff presented to Dr. LeCroy complaining of chronic headaches. (Id. at 335.) Plaintiff had resigned from his job in the prior month because he could not see well enough at night to work as an emergency medical technician (EMT), and he suffered vertigo. (Id.) Strobe lights made his symptoms worse, he would get lost driving, he had mood shifts resulting in outbursts, and his current memory was bad although his distant memory was intact. (Id.) It was noted that Plaintiff had worked 37 jobs since he was 18 years old. (Id.) He had a flat affect and tight mood, almost as if he was angry. (Id.) He was diagnosed with worsening other non-psychotic mental disease after organic brain damage, worsening memory loss, worsening mild cognitive impairment, and stable blindness in one eye. (Id. at 336.)

         On February 19, 2015, Dr. LeCroy completed a residual functional capacity (RFC) form. (Id. at 326-31.) He noted that he was Plaintiff's primary care physician and saw him about 2-3 times per year. (Id. at 326.) Plaintiff had troubles in his chosen occupation, severe memory lapses, including trouble remembering how to do specific procedures in his usual line of work, and trouble remembering directions, which caused him to get lost while driving. (Id.) His long-term memory was extremely intact, but his short-term memory was very inconsistent and sometimes wrong. (Id.) He had been calling people by the wrong names and had trouble remembering his address. (Id.) D r . LeCroy diagnosed Plaintiff with organic brain syndrome that had been managed for many years, depression on an ongoing basis, and “probably some amount of anger and irritability.” (Id.) Plaintiff's symptoms were getting worse, with mild cognitive impairment being a more worrisome and progressively developing symptom. (Id.) He noted that these diagnoses and steadily declining function were common with organic brain damage. (Id.) Plaintiff had only received Fluoxetine to treat his depression and anxiety. (Id. at 327.) Dr. LeCroy did not expect any significant improvement and suspected that Plaintiff would have ongoing mild decline. (Id.) He opined that Plaintiff's disability did not prevent him from standing for 6-8 hours or sitting upright for 6-8 hours, and it did not require him to lie down during the day. (Id. at 327-28.) Plaintiff's disability did not prevent him from performing certain motions such as lifting, pulling, or holding objects, and that Plaintiff did not have any limitations in bending, squatting, kneeling, or turning any parts of his body. (Id. at 329.) He did not think that Plaintiff's disability would prevent him from traveling alone because new technology for directions could give him years of independent driving. (Id.) H e noted that Plaintiff had not had a true lost driving episode. (Id.) He suspected that there were more anger and interpersonal issues than Plaintiff discussed with him. (Id.) Dr. LeCroy opined that Plaintiff would not be able to continue or resume work at his current or previous employment because his symptoms would not get better, and he was a danger to the public in his condition. (Id. at 330.) He also could not identify any other work Plaintiff could do, and opined that his disability was not likely to change. (Id.)

         On March 16, 2015, in his Function Report-Adult, Plaintiff reported that he lived at home with his wife. (Id. at 245.) He believed his ability to work was limited because some days he had extreme headaches and vertigo, and some days he could not remember people, numbers, how to use equipment, or how to get around without GPS. (Id.) From the time he woke up until he went to bed, he would make his bed, brush his teeth and groom himself, and read his checklist for things to do for the day, including chores such as laundry, feeding the dog, and watering the flowers. (Id. at 246.) He did not take care of anyone else, but he did take care of a dog with help from his wife. (Id.) Before his condition, he could see clearly, remember things, and go out shopping. (Id.) Since his condition, he had some days with very bad headaches that affected his sleep. (Id.) He sometimes left the shower or sink on after using them, he would often leave the restroom without flushing the toilet, and he could not go shopping without someone with him because he would have to call someone to go get him due to his memory issues. (Id.) His wife prepped meals for him or he ate precooked meals, but he needed reminders for what to eat and how to heat up food, and he needed reminders for taking medications. (Id. at 246-47.) He could not use the stove, oven, or grill because he would leave them on, but he did do household chores and yard work based on a checklist. (Id. at 247-48.) He went outside daily and traveled by walking, driving a car, riding in a car, or riding a bicycle. (Id. at 248.) He could go out alone, but not to shopping malls or large places, and he did not go out shopping. (Id.) He could not pay bills, but he could count change, handle a savings account, and use a checkbook or money order. (Id.) His hobbies included working in the yard, restoring antiques, working on old cars, and helping at the fire station, and he performed these hobbies daily and weekly. (Id. at 249.) Headaches, blurred vision, and vertigo prevented him from doing activities on some days. (Id.) He volunteered at the fire station and as an EMT on Mondays and sometimes Thursdays, and he went to the mailbox, fire station, and sometimes to a part time job on a regular basis. (Id.) He had problems getting along with others due to outbursts and anger issues. (Id. at 250.) He believed his conditions affected his abilities to reach, climb stairs, see, remember, complete tasks, concentrate, understand, follow instructions, and get along with others. (Id.) He followed written instructions well if he had a checklist or note. (Id.) He estimated that he had 37 jobs and had been fired from 20 of them due to outbursts, his temper, and assault. (Id. at 251.) He did not handle changes in routine well, and he could not be in large crowds due to his anxiety. (Id.)

         On April 12, 2015, Dr. LeCroy completed a mental status report for Plaintiff. (Id. at 385-87.) He noted that Plaintiff had a history of organic brain syndrome that caused depression, anxiety, and impulse control disorder, as well as advancing mild cognitive disorder showing early dementia symptoms. (Id. at 385.) He had intact orientation, sharp and edgy mood, mildly obsessive but intact thought content, mildly impaired memory, impaired attention and concentration, and intact judgment. (Id. at 385-86.) Dr. LeCroy diagnosed Plaintiff with organic brain syndrome with no hope of improvement. (Id. at 386-87.) He added that Plaintiff's work involved focus, which he could not do, and that his condition would increasingly impair his ability to respond to workplace changes and stress. (Id. at 387.) He opined that Plaintiff could manage benefit payments in his own interest. (Id.)

         On June 19, 2015, Pennissi Taylor, Ph.D., P.C., performed a psychological evaluation of Plaintiff. (Id. at 388-94.) Plaintiff complained of organic brain damage, memory issues, anxiety, depression, complete blindness in his right eye, severe headaches, and vertigo. (Id. at 388-89.) He stated he had worsening memory loss and worsening organic brain damage that had been going on for 33 years and had accelerated in the prior 6 years. (Id. at 389.) He reported multiple closed head injuries before the age of 16, as well as a gunshot wound to the head when he was 17 that resulted in the loss of his right eye and brain swelling. (Id.) He felt depressed, and “every little thing [made him] teary eyed.” (Id.) He had crying spells 3-4 times per week but denied experiencing suicidal or homicidal ideation. (Id.) He started having panic attacks when he was 19 years old and had two in the previous year due to being in large crowds. (Id.) He also reported chronic, constant anxiety, and stated that he worried about how to get home, needing to do yard work, and how his children were. (Id.) He began having anger outbursts when he was 18 or 19 years old, and he would yell, scream, and throw things once or twice a month, but he was always appropriate with family members. (Id.) He had been aggressive with another person on one occasion in the previous year, but never with family, and he only became aggressive when provoked. (Id.) He denied ever intentionally harming himself, and endorsed memory problems such as giving a wrong address. (Id.).

         At home, Plaintiff had post-it notes to remind him of things he would forget to do, such as turning off the oven. (Id.) He reported initial insomnia and experienced intermittent waking 2-3 times per week, as well as headaches and nightmares. (Id.) He described his energy as “crazy good” and stated that he had a hard time sitting still. (Id.) He exercised by walking 4.6 miles daily, and lifting weights twice per week. (Id.) He had been taking Prozac since 1995 for depression and anxiety, and had been prescribed something for sleep in the past which he no longer took. (Id.) At the time of the appointment, he was prescribed Fluoxetine, Advil, and aspirin. (Id.) He indicated that his interaction with the general public was strained and had become worse over the prior 6 years. (Id. at 390.) He did not meet people easily and felt suspicious and distrustful of strangers. (Id.) He had two close friends and had been a member of a volunteer fire department and ambulance service for 5 years. (Id.) He enjoyed working on cars, mowing the lawn, and cleaning. (Id.) He did chores around the house but would forget and leave things undone. (Id.) He cooked in the microwave because he would forget to turn the oven off, and he could take care of his own hygiene needs independently. (Id.) He could manage finances with his wife's assistance, but he had to keep a written record of expenses. (Id.) He also did not go shopping due to crowds, and he could not recall what he was supposed to get, so he would get “random things.” (Id.) Dr. Taylor noted that Plaintiff had been fired from the majority of his jobs due to “outbursts, assault, missing work due to headaches, [and] medical.” (Id. at 391.)

         Plaintiff was oriented times 4 and described his mood as depressed, but his mood was good on the day of the evaluation. (Id.) His affect and mood were congruent, and overall he appeared relaxed and in a good mood. (Id.) Plaintiff underwent standardized testing, including the Wechsler Adult Intelligence Scale (WAIS), Wide Range Achievement Test (WRAT), and Wechsler Memory Scale (WMS).[2] (Id.) His results generally fell in the high average, average, or low average range of intelligence and academic functioning. (Id. at 391-94.) He demonstrated a significant weakness in his ability to perform mental math, however. (Id. at 392-93.) Dr. Taylor diagnosed him with mild cognitive disorder that was not otherwise specified, and a Global Assessment of Functioning (GAF) score of 61. (Id. at 394.) His prognosis was guarded for any significant cognitive or memory improvement, and Dr. Taylor noted that Plaintiff had the most difficulty with immediate and short-term memory. (Id.)

         On August 12, 2015, Plaintiff saw Dr. LeCroy complaining of migraines and a lump on his breast. (Id. at 397.) He was continuing to have headaches and wanted to know what to do about it. (Id.) He was diagnosed with other non-psychotic mental disorder after organic brain damage, depression, mild cognitive impairment, blindness in one eye, hypertrophy of breast, and vertigo of central origin. (Id. at 398.) Dr. LeCroy thought that Plaintiff should see a neurologist due to his headache issues and vertigo, which almost made him fall a few times. (Id.) A trial of Topamax was initiated for headaches, and Plaintiff was referred for a psychological evaluation. (Id.)

         On September 28, 2015, Plaintiff underwent a neurological examination with Mark Adams, M.D. (Id. at 401-02, 424-25.) Dr. Adams noted Plaintiff had a remote history of a gunshot wound to his head and a series of concussive injuries that gave rise to a traumatic brain injury and disturbing behavior, along with complaints of vertigo and headaches. (Id. at 401, 424.) Plaintiff complained of fluctuating memory and concentration, vertigo, headaches, and psychiatric issues, including anger outbursts and depression. (Id.) His vertigo was not clearly positional and occurred at rest, in motion, or with no activity, such as rolling to the right or left side or bending over. (Id.) Regarding his memory, Plaintiff reported that some days he functioned well, and other days he had trouble remembering simple things. (Id.) He would leave the water running in the sink, and he did not cook or work in the kitchen out of concern for leaving the stove unattended and on. (Id.) Plaintiff reported that his headaches lasted anywhere from 6-24 hours and caused sensitivity to light and sound, but they headaches responded to a combination of Advil and baby aspirin. (Id. at 402, 425.) Dr. Adams recommended intense vestibular rehabilitation for Plaintiff's vertigo, psychiatric care, and cognitive therapy. (Id. at 424.) Dr. Adams also provided samples of medications to stop migraines and noted that if the medications did not provide relief, it would confirm that Plaintiff did not have migraines. (Id.)

         On October 14, 2015, Plaintiff saw Dr. LeCroy for a follow-up appointment. (Id. at 407.) He did not report any problems and stated that the migraine medications were not dramatically helpful. (Id. at 407-08.) Dr. LeCroy was concerned about Plaintiff's worsening cognitive abilities because they were becoming much worse in challenging situations or social situations, but there was a random component to it that he did not understand. (Id. at 408.) Plaintiff reported that he had good days and some very bad days, and sometimes he had trouble remembering what he was doing or why he was doing it. (Id.) He attended EMT classes to help keep his knowledge fresh but had not been able to work as an EMT since January, when he was finding himself unable to remember how to do certain procedures and almost got lost driving. (Id.) Topamax worsened his condition, so Dr. LeCroy stopped that medication and prescribed Namenda to see if it could help with his cognition. (Id.) He was diagnosed with blindness in his right eye, chronic post-traumatic headache, being overweight, single episode major depressive disorder, and mild cognitive impairment. (Id.).

         On February 15, 2016, Dr. Adams sent a letter regarding Plaintiff to Dr . LeCroy. (Id. at 419-20.) He noted that Plaintiff complained of intermittent difficulty with focus and concentration and intermittent problems with anger, depression, and outbursts, as well as complaints of headaches that did not respond to migraine medications. (Id. at 419.) He further noted that the intermittent nature of Plaintiff's complaints somewhat argued against a neuro-degenerative disorder such as frontotemporal dementia or Alzheimer's. (Id.) Dr. Adams suggested that Plaintiff undergo a CT scan of the brain to look for any significant interval changes over time. (Id. at 420.) Plaintiff was also strongly advised to consider undergoing an evaluation at a rehabilitation center for his cognitive and mood/behavioral issues. (Id.)

         On June 20, 2016, Plaintiff was seen again by Dr. LeCroy because he was experiencing forgetfulness. (Id. at 411-13.) Dr. LeCroy noted that he previously diagnosed Plaintiff with organic brain syndrome or frontotemporal dementia because of a gunshot wound he sustained earlier in life. (Id. at 410.) Plaintiff had become lost a few times while driving, although he still drove 7 miles to his mail box, and he was having more and more forgetfulness as well as severe pain with headaches. (Id. at 411.) Plaintiff's medications were altered, and Dr. LeCroy noted that Plaintiff underwent formal psychological testing in which “he did very poorly with a 14/30, which [was] a terrible number.” (See id. at 411, 415-18.) He found that Plaintiff's syndrome was in a rapidly advancing state with profound dementia. (Id. at 410.) He did not anticipate Plaintiff ever regaining meaningful employment due to his condition. (Id.) Plaintiff was no longer able to drive because he would become lost while driving, and he had wandering episodes, as well as significant problems with interpersonal relationships because of anger and inappropriate behavior. (Id.) Dr. LeCroy noted that these were symptoms of late stage dementia. (Id.) He stated that Plaintiff was disabled, and there was little that could be done from a medical perspective to improve his condition. (Id.) Plaintiff was diagnosed with worsening other frontotemporal dementia, worsening chronic post-traumatic headache, and blindness in his right eye. (Id. at 412.)

         On July 5, 2016, John W. Beaty, Ph.D., P.C., completed a psychological evaluation for Plaintiff. (Id. at 426-31.) Plaintiff reported that he suffered a gunshot wound when he was 17 years old, which caused him to experience impulsivity and temper outbursts and lose many jobs over his lifetime. (Id. at 426.) He stated that he had 47 jobs with various companies since he was 18 years old, and he had either been fired or resigned due to conflicts with others. (Id.) His condition had worsened as he grew older. (Id.) He worked with Texas Parks and Wildlife for about 3 years before leaving due to altercations with individuals and then worked as an EMT. (Id.) While working as an EMT, he did fairly well some days but had other days where he could not remember what he was doing or where he was going. (Id.) He had frequent headaches that were not migraines, but doctors could not find a solution for him. (Id. at 427.) He also experienced chronic vertigo, which was incapacitating some days. (Id.) He was forgetful and had problems with other people in public. (Id.) If someone touched him unexpectedly, he could have temper outbursts, and although he had assaulted a number of people, he had not had any legal charges filed against him. (Id.) He lived with his daughter and his wife, and his daughter looked after him to ensure that he would not do anything dangerous. (Id.) He did not cook because he might forget to turn off the burners of the stove or leave the water running, and he had wandered outside at night before and been found sleeping outside the next day. (Id.) Dr. Beaty noted that Plaintiff's doctors had previously diagnosed him with organic brain syndrome and chronic traumatic encephalopathy, which were getting worse. (Id.)

         At the evaluation, Plaintiff appeared disoriented and was not very communicative at first. (Id. at 428.) Initially, his daughter did most of the talking, but then Plaintiff began talking more. (Id.) He became more goal directed and coherent as he talked, and his mood continued to be anxious and tense. (Id.) He underwent testing; he tried to complete some of it as quickly as he could but would quickly give up on other parts when he could not persevere or problem solve. (Id.) On days he was not doing well, he would go to Walmart and forget why he was there or which car he drove, and he mostly did not go out and do things. (Id.) He did drive to the nearby fire station, where he could attend an EMT class or help out, and he usually helped out on Tuesdays and Thursdays. (Id.) He had vertigo which kept him from being active, and his medication for it made him sick. (Id.) On a typical day, he would walk and feed the dogs, make coffee, and read the news, and he could also do laundry, wash dishes, mow the lawn, and work on little things in the garage. (Id.) On days he did not feel well, he would only use the computer, watch television, and sleep. (Id.) His headaches could be as severe as an 8-9 on the pain scale, and sometimes he would have a sharp pain in his head that only lasted for a second. (Id.) He drank a couple of times a week, usually when he was feeling bad or depressed, but he did not pose problems and or get angry when he did. (Id.)

         Plaintiff completed a Brief Symptom Inventory with the help of his daughter and rated 37 of 53 symptoms as positive, and most of them extreme. (Id.) Dr. Beaty found that this could reflect that Plaintiff experienced his symptoms in an extreme manner much of the time. (Id.) Compared to a non-patient normative population, Plaintiff had 4 of the clinical scales at an extreme level, and 7 of the scales at a clinically significant level. (Id.) His physical complaints scale was not significant, but it was in the upper average range. (Id.) His most extreme clinical scales were for obsessive-compulsive, interpersonal sensitivity, anxiety, hostility, phobias, and psychoticism. (Id.) All of his stress scales were significant, which indicated that he experienced a great deal of chronic stress, and his depression and paranoia scales were barely clinically significant. (Id. at 428-29.) In summary, Plaintiff experienced chronic levels of stress, anxiety, avoidance of certain situations, and feeling alienated and socially isolated. (Id. at 429.)

         Dr. Beaty also administered the Shipley Institute of Living Scale test.[3] (Id.) Plaintiff finished both portions very quickly and was quick to say that he could not complete some of the items. (Id.) His score on the vocabulary portion was in the bottom 1 percent of the normal results, and his abstract reasoning score was in the 18th percentile. (Id.) His scores indicated a more global deficit, with an estimated IQ of 73, or in the borderline mentally challenged range. (Id.) Plaintiff also underwent a Neurobehavioral Cognitive Status Examination (COGNISTAT).[4] (Id.) The test results showed that Plaintiff demonstrated some average cognitive abilities on 5 scales, and mild to moderate impairment on 5 others. (Id. at 429-30.) He had moderate impairment in attention and recalled 3 digits immediately, and for memory, he recalled 1 of 4 objects after a 10 minute delay. (Id. at 429.) Dr. Beaty determined that the results would be consistent with a condition that was showing some decline as time moved forward. (Id. at 430.)

         Dr. Beaty also administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2).[5](Id.) The findings were consistent with anxiety, depression, obsessive thoughts, compulsive behaviors, somatic symptoms, and indecisiveness. (Id.) Dr. Beaty's diagnostic impressions included major neurocognitive disorder due to traumatic brain injury with behavioral disturbance, intermittent explosive disorder, social anxiety disorder, and major depression. (Id. at 431.) He opined that a large part of Plaintiff's difficulty stemmed from his low frustration tolerance and impulsivity, which prevented him from persevering and attempting to work through difficulties in cognitive processing. (Id.) Plaintiff also had memory deficits primarily in delayed and recent memory, and some days he did better than others. (Id.) His medications included Cymbalta for depression and anxiety, Topiramate for headaches, and Memantine to slow the progression of dementia. (Id.) Dr. Beaty ultimately opined that Plaintiff would not be able to hold a job consistently from one day to the next, and that his impulsiveness and explosive anger would only lead to conflict and job loss. (Id.)

         3. Hearing Testimony

         On July 7, 2016, Plaintiff, his daughter (Daughter), and a vocational expert (VE) testified at a hearing before the ALJ. (Id. at 4-72.) Plaintiff ...


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