3:24-cv-03010•Hartin v. Social Security Administration Commissioner
Hartin v. Social Security Administration Commissioner
3:24-cv-03010Arwd20.12.2024
Gesamter Gesetzestext
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION JOHANNA MARIE HARTIN PLAINTIFF V. Civil No. 3:24-cv-03010-TLB-MEF CAROLYN COLVIN, Acting Commissioner, Social Security Administration DEFENDANT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Plaintiff, Johanna Hartin, brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of Social Security Administration (the “Commissioner”) denying her claim for supplemental security income (“SSI”) under Title XVI of the Social Security Act (hereinafter “the Act”), 42 U.S.C. § 1382. In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner’s decision. See 42 U.S.C. § 405(g). I. Procedural Background Plaintiff protectively filed her application for SSI on September 2, 2020, alleging an onset date (“AOD”) of September 30, 2019, due to carpal tunnel syndrome (“CTS”), ocular migraines, attention deficit disorder (“ADD”), bipolar I disorder, anxiety, and anger management issues. (ECF No. 9, pp. 75, 90, 193-202, 263, 274-275, 290). The Commissioner denied her applications initially and on reconsideration, and an administrative hearing was held before Administrative Law Judge (“ALJ”) Bill Jones on December 1, 2022. (Id. at 46-71). The Plaintiff was telephonically present for the hearing and represented by counsel. Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 1 of 17 PageID #: <pageID>
2 On her application date, Plaintiff was 37 years old and possessed a high school education. (ECF No. 9, pp. 28, 264). She had no past relevant work (“PRW”) experience. (Id. at 28). In an unfavorable decision dated February 22, 2023, ALJ Jones concluded that the Plaintiff’s migraine headaches, bipolar disorder, and attention deficit hyperactivity disorder (“ADHD”) were severe but did not meet or medically equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (ECF No. 9, p. 18). Despite her impairments, the ALJ determined Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels but with the following non-exertional limitations: the claimant must avoid driving automobiles or carrying firearms, avoid all exposure to hazards such as dangerous machinery and unprotected heights. The claimant can perform work where interpersonal contact is incidental to work performed, e.g. assembly work, the complexity of tasks is learned and performed by rote, with few variables, and little judgment and the supervision required is simple, direct, and concrete. The individual should not work around the general public. (Id. at 20-21). Based on the testimony of a vocational expert (“VE”), the ALJ determined Plaintiff could perform work as a hand packager, laundry worker, and garment bagger. (Id. at 29). On November 16, 2023, the Appeals Council denied Plaintiff’s request for review (ECF No. 9, pp. 6-12), and she subsequently filed a Complaint (ECF No. 2) to initiate this action. Both parties have filed appeal briefs (ECF Nos. 12, 14), and the matter is ripe for resolution. The case has been referred to the undersigned for Report and Recommendation. II. Applicable Law This Court’s role is to determine whether substantial evidence supports the Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial evidence is less than a preponderance but enough that a reasonable mind would find it adequate to support the Commissioner’s decision. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). We must Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 2 of 17 PageID #: <pageID>
3 affirm the ALJ’s decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). If there is substantial evidence in the record that supports the Commissioner’s decision, the Court may not reverse it simply because substantial evidence exists in the record that would have supported a contrary outcome, or because the Court would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other words, if after reviewing the record it is possible to draw two inconsistent positions from the evidence and one of those positions represents the findings of the ALJ, we must affirm the ALJ’s decision. Id. A claimant for Social Security disability benefits has the burden of proving her disability by establishing a physical or mental disability that has lasted at least one year and that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. § 1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 1382c(a)(3)(D). A Plaintiff must show her disability, not simply her impairment, has lasted for at least twelve consecutive months. The Commissioner’s regulations require her to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is able to perform other work in the national economy given her age, education, and experience. 20 C.F.R. § 416.920(a)(4). The fact finder only Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 3 of 17 PageID #: <pageID>
4 considers the Plaintiff’s age, education, and work experience in the light of her RFC if the final stage of the analysis is reached. 20 C.F.R. § 416.920(a)(4)(v). III. Discussion The Plaintiff raises five issues on appeal: (1) whether the hypothetical question posed to the vocational expert (“VE”) was proper; (2) whether the ALJ properly evaluated the medical opinion evidence; (3) whether the RFC assessment accounts for all the Plaintiff’s impairments; (4) whether the ALJ properly evaluated her subjective complaints; and (5) whether her CTS was a severe impairment. Upon a thorough review of the record, the undersigned RECOMMENDS that the case be REVERSED and REMANDED to allow the ALJ to reconsider the Plaintiff’s mental restrictions. We note that the evaluation of a mental impairment is often more complicated than the evaluation of a claimed physical impairment. Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996). Evidence of symptom-free periods, which may negate the finding of a physical disability, do not compel a finding that disability based on a mental disorder has ceased. Id. Mental illness can be extremely difficult to predict, and remissions are often of uncertain duration and marked by the impending possibility of relapse. Id. See American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders-5-TR (“DSM-5-TR), Bipolar I Disorder, at https://psychiatryonline.org/doi/full/10.1176/appi.books.9780890425787.x03_Bipolar_and_Relat ed_Disorders. Individuals suffering from mental disorders often have their lives structured to minimize stress and help control their symptoms, indicating that they may be more impaired than their symptoms indicate. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001); 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 12.00(E) (1999). This limited tolerance for stress is particularly relevant because a claimant’s RFC is based on their ability to perform the requisite physical acts day in and Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 4 of 17 PageID #: <pageID>
5 day out, in the sometimes competitive and stressful conditions in which real people work in the real world. McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (abrogated on other grounds). And, in making that determination, the ALJ must consider all the relevant evidence of record, including medical records, observations of treating physicians and others, and the claimant’s own descriptions of her limitations. Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010); Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009). The Plaintiff suffers from several mental impairments, including bipolar I disorder, generalized anxiety disorder, possible ADD/ADHD 1 , and substance abuse disorder. Throughout the relevant period, she sought out professional mental health services, including both therapy and medication management. As noted by the ALJ, the record contains little medical evidence dated prior to the summer of 2020, when the Plaintiff established care at Ozark Guidance Center (“OGC”) with Licensed Master Social Worker (“LCSW”) Madelyn Spence and Advanced Practice Nurse (“APN”) Debra Wade. (ECF No. 9, pp. 394-400, 407-412). She complained of anxiety, disrupted sleep, mood instability, irritability, difficulty controlling her thoughts, anger issues, and memory and attention problems. Plaintiff also reported a history of violence against others, including her current boyfriend. (Id. at 430-438). APN Wade prescribed Lamotrigine (aka Lamictal) and Hydroxyzine, but due to side effects, Plaintiff discontinued the Lamotrigine. (Id. at 413-415, 422-426). Although she found the Hydroxyzine to be beneficial, she had to decrease the dosage due to excessive drowsiness. 1 It is important to note that many symptoms of bipolar mania, such as rapid speech, racing thoughts, and distractibility can be misdiagnosed as ADHD. See DSM-5-TR, Bipolar I Disorder, at https://psychiatryonline.org/doi/full/10.1176/appi.books.9780890425787.x03_Bipolar_and_Relat ed_Disorders. Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 5 of 17 PageID #: <pageID>
6 In August, Plaintiff discontinued all her medications due to a possible pregnancy. (ECF No. 9, pp. 416-426). Her boyfriend was also arrested on drug charges but released on bond. APN Wade noted the Plaintiff was hyperactive, restless, and fidgety with rapid and pressured speech, an expansive and hypomanic mood, questionable judgment, and poor insight. When Plaintiff determined she was not pregnant, APN Wade switched her to Oxcarbazepine and continued the decreased dosage of Hydroxyzine. In September 2020, Plaintiff was physical with her boyfriend after discovering he had been unfaithful. (ECF No. 9, pp. 430-438). The following month, due to continued difficulty controlling her emotions; impulsivity; hyperactivity; restlessness; rapid and pressured speech; an expansive/hypomanic mood; a labile and tearful affect; poor judgment; and questionable insight, APN Wade increased her Oxcarbazepine dosage and prescribed Abilify. (ECF No. 9, pp. 439- 443). The Hydroxyzine was also continued as needed basis. Then Plaintiff injured her sister during a physical altercation in November. (ECF No. 9, pp. 444-448). APN Wade again increased her Oxcarbazepine dosage, discontinued the Abilify due to weight gain, and prescribed Latuda. That same month, Plaintiff also established care with Dr. Kevin Richter for lab testing and medication monitoring. (ECF No. 9, pp. 379-381). And from November 20, 2020, through July 2021, she attended counseling sessions with Licensed Professional Counselor (“|LPC”) Robert Parke at OGC. (ECF No. 9, pp. 449-451). Her mood was typically anxious and depressed or euthymic with a full affect. During these sessions, Plaintiff discussed her history of substance abuse and recent sobriety; estranged relationship with her daughters; history as an exotic dancer and escort; anxiety; financial stressors to include eviction from the home she shared with her Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 6 of 17 PageID #: <pageID>
7 boyfriend; tumultuous relationship with her boyfriend; and her boyfriend’s legal troubles and ultimate three-year incarceration. (Id. at 452-458, 475-480). In December 2020, APN Wade prescribed Venlafaxine (Effexor). (ECF No. 9, pp. 457- 458). Uncertainty regarding her boyfriend’s legal future and financial stressors loomed heavy in January 2021. (ECF No. 9, pp. 459-461). By February 4, Plaintiff was no longer taking the Effexor because it caused excessive drowsiness. (ECF No. 9, pp. 462-466). Her panic attacks had increased in frequency, reportedly experiencing four in the past two weeks. Because it was a Telemed appointment, exam findings were limited to a euthymic mood, rapid and pressured speech, normal abstracting, intact memory, questionable judgment, and poor insight. APN Wade advised her to continue the Hydroxyzine, discontinue the Venlafaxine, and increased her Latuda dosage. Dr. Jon Etienne Mourot reviewed Plaintiff’s medical records on March 2, 2021, and concluded the Plaintiff would be moderately limited in her ability to maintain attention and concentration for extended periods; work in coordination with or in proximity to others without being distracted by them; complete a normal workday or workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; accept instructions and respond appropriately to criticism from supervisors; maintain socially appropriate behavior, and adhere to basic standards of neatness and cleanliness. (ECF No. 9, pp. 81-85). In April 2021, Plaintiff began receiving unemployment and reported some job prospects. (ECF No. 9, pp. 467-469). During her medication management appointment, however, she reported accidentally taking the wrong dose of Latuda for approximately two weeks. (ECF No. 9, Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 7 of 17 PageID #: <pageID>
8 pp. 470-474). Although it made her feel sick, her mood had improved. Nurse Wade advised her to continue the Hydroxyzine, Oxcarbazepine, and Latuda. LPC Parke completed a medical source statement in July 2021 indicating he had been treating the Plaintiff for bipolar disorder, ADHD, and mood instability and impaired focus. (ECF No. 9, pp. 540-544). She was engaged in treatment and maintained therapy and medication compliance but had limited progress and a guarded prognosis. Her medication side effects included nausea, struggles to stay asleep despite experiencing excessive drowsiness, and occasional dizziness. LPC Parke opined that Plaintiff had no useful ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, complete a normal workday and work week without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. Further, he indicated she had substantial loss of the ability to maintain attention and concentration, work in coordination with or proximity to others without being unduly distracted by them, and to respond appropriately to changes in work setting. He also stated she could not understand, remember, or carry out simple instructions; respond appropriately to supervision, coworkers, and usual work situations; and deal with changes in a routine work setting on a sustained basis. During an appointment with Advance Practice Registered Nurse (“APRN”) Laura Williams at OGC on July 12, Plaintiff reported severe anxiety. (Id. at 481-485). Noting a favorable response to the higher dose of Latuda, the nurse increased her Hydroxyzine dosage. On August 16, 2021, Plaintiff established with Dr. Keith Berner for complaints of ADHD symptoms. (ECF No. 9, pp. 650-653). Dr. Berner initially prescribed Prazosin, Trazodone, and Gabapentin. Unfortunately, the Plaintiff was unable to take the Trazadone. (Id. at 649). The following month, Plaintiff had not increased her Latuda dosage as recommended by APRN Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 8 of 17 PageID #: <pageID>
9 Williams, so Dr. Berner advised her increase said dosage. (Id. at 648-649). Further, given that the Prazosin had improved her sleep and decreased her nightmare frequency, Dr. Berner increased her dosage. He also discontinued the Gabapentin and prescribed a trial of Buspar for her anxiety. Plaintiff established care with LPC Ginny Herman on October 19, 2021. (ECF No. 9, pp. 526, 654, 658). She wished to address her mental health as well as her grief concerning her boyfriend’s incarceration and her estranged relationship with her daughters. According to the treatment notes, Plaintiff was alert and oriented with a euthymic mood and an appropriate affect; however, she exhibited at least three symptoms of mania (pressured speech, flight of ideas, distractibility, psychomotor agitation, high-risk behavior). The Plaintiff ultimately advised the counselor that her stepfather had sexually abused her between the ages of 6 and 10, as had her stepmother’s brother. (ECF No. 9, pp. 527, 659). She reported additional traumatic life events to include rape, losing custody of her children, and years of prostitution. Because the Buspar caused headaches, Dr. Berner switched her to Propranolol in November. (ECF No. 9, pp. 645-647). Things appeared to go well for her until November 9, at which time she reported a second physical altercation with her sister. (ECF No. 9, pp. 644-645). This time, her sister was admitted to the hospital. Dr. Berner reached out to her therapist for coordination of care and increased Plaintiff’s Oxcarbazepine dosage. In early December, Plaintiff reported that the Prazosin caused nausea. (ECF No. 9, pp. 642-643). When she stopped taking it, however, her nightmares returned. Therefore, she resumed the medication, taking it later in the evening, which seemed to be beneficial. In January 2022, LPC Herman noted Plaintiff had difficulty maintaining concentration. (ECF No. 9, pp. 532-533, 662-663). She moved from subject to subject regarding her family and boyfriend and exhibited a dysphoric mood and disorganized cognitive functioning. Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 9 of 17 PageID #: <pageID>
10 On February 9, 2022, LPC Herman wrote a letter to the Commissioner opining that the Plaintiff exhibited excellent understanding, remembering, and pace and no limitations carrying out instructions. (ECF No. 9, p. 525). She did, however, have trouble maintaining concentration in session and reported difficulty responding appropriately to work pressures. Later that month, Dr. Berner increased her Latuda dosage and continued her other medications. (Id. at 640-641). Dr. Suzanne McKenna conducted a mental diagnostic evaluation of the Plaintiff on February 17, 2022. (ECF No. 9, pp. 535-539). On exam, she was adequately groomed, appropriately dressed, and cooperative with an anxious and appropriate range of affect. Her thoughts were logical, her speech within normal limits, she was fully oriented, and she denied experiencing hallucinations or delusions. Dr. McKenna diagnosed bipolar II disorder with anxious disorder and ADHD. She concluded the Plaintiff had difficulty motivating herself to do anything; tended to socially isolate; interacted effectively with customers but was quick to anger with co- workers; struggled to remember things; had little drive to complete tasks; had no difficulty communicating effectively; exhibited difficulty coping with the typical mental/cognitive demands of basic school and work-like tasks; was easily distracted; struggled with attention and concentration; had moderate difficulty sustaining persistence in completing tasks; and became somewhat anxious when given a time demand or limit. Five days later, Dr. Margaret Podkova conducted an independent review of the record and concluded the Plaintiff had moderate difficulty carrying out detailed instructions; maintaining attention and concentration for extended periods; performing activities within a schedule, maintaining regular attendance, and being punctual within customary tolerances; completing a normal workday or workweek without interruptions from psychologically based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 10 of 17 PageID #: <pageID>
11 interacting appropriately with the general public; accepting instructions and responding appropriately to criticism from supervisors; responding appropriately to changes in work setting; making realistic goals or making plans independently of others. (ECF No. 9, pp. 92-93, 95-97). Plaintiff’s concentration deficits persisted. (ECF No. 9, p. 665). In May, her psychiatrist missed an appointment with her, causing her to run out of Prazosin. As a result, she experienced significant dysregulation. (ECF No. 9, p. 669-670). Later that month, LPC Herman noted she was “escalated” and continued to struggle with regulating her emotions. (ECF No. 9, p. 671). Her mood was angry and her cognitive functioning preoccupied. Due to alleged difficulty getting an appointment with her psychiatrist, Plaintiff conferred with Dr. Richter on May 23 regarding her medication. (ECF No. 9, pp. 615-618). After experiencing side effects and noting no improvement in her anxiety, she had decreased her Latuda dosage, discontinued the Propranolol, and resumed an old prescription of Gabapentin. Dr. Richter refilled the Latuda and advised her to continue the Gabapentin and Oxcarbazepine and follow-up with psychiatry. By mid-June, without the Prazosin, Plaintiff’s nightmares had returned. (ECF No. 9, p. 637-639). She was working part-time at a deli inside a supermarket but was being moved to the meat department. Plaintiff indicated work was stressful and “they were either going to keep her or were afraid of a discrimination claim.” Her short-term memory also remained problematic, causing her to place a corkboard above her bed to help with reminders. On exam, her mood was good, but her judgment and insight remained limited. Dr. Berner prescribed a trial of Guanfacine. In late June, LPC Herman helped her process her “racing thoughts about dying alone.” (ECF No. 9, p. 677). When she returned on July 5, she discussed a variety of topics but had trouble maintaining concentration on any one topic. (ECF No. 9, p. 678). Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 11 of 17 PageID #: <pageID>
12 On July 19, 2022, Plaintiff reported no significant improvement with Guanfacine, although she did admit to experiencing fewer nightmares. (ECF No. 9, p. 636). She also complained of chronic nausea and vomiting in the evenings, prompting Dr. Berner to decrease her Latuda dosage and prescribed a trial of Topamax for her mood instability. Two days later, Plaintiff voiced her belief that taking the Latuda and Oxcarbazepine together was the cause of her nocturnal nausea and vomiting. (Id. at 621-623). However, she was adamant that she benefitted the most from the Latuda. Dr. Richter recommended she take one Oxcarbazepine per day, instead of two, until she could confer with her psychiatrist. Due to persistent nausea, Plaintiff did discontinue the Latuda in August, after which she reported feeling better. (ECF No. 9, p. 634). Because the Topamax helped her sleep, Dr. Berner increased her Topamax dosage and advised her to increase her Guanfacine dosage once she adjusted to the new dose of Topamax. Plaintiff reported difficulty controlling her anger with her mother and others in late August and early September 2022, indicating she did not realize how angry she was until it was too late. (ECF No. 9, pp. 684-685). She cried throughout the session with LPC Herman, finding it difficult to put her pain into words. Secondary to symptoms of facial numbness and tingling, Plaintiff was advised to discontinue the Topiramate. (Id. at 633). In late September, Plaintiff considered inpatient treatment for her depression. (ECF No. 9, p. 688). She struggled with daily tasks and was dissociating for hours at a time. LPC Herman completed a medical source statement on October 3, 2022, indicating she had treated Plaintiff weekly since October 2021 for PTSD and bipolar disorder in partial remission. (ECF No. 9, pp. 599-603). Although she was motivated to work on her issues, she faced multiple challenges. LPC Herman concluded the Plaintiff had no useful ability to maintain attention and concentration for extended periods; interact appropriately with the public; or respond appropriately Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 12 of 17 PageID #: <pageID>
13 to changes in work setting. Additionally, she documented substantial loss in Plaintiff’s ability to remember locations and work-like procedures; understand and remember detailed instructions; carry out detailed instructions; perform activities within a schedule; maintain regular attendance and be punctual within customary tolerances; complete a normal workday and work week without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; accept instructions; and respond appropriately to criticism from supervisors. Further, the counselor opined that Plaintiff did not have the capacity to respond appropriately to supervision, coworkers, and usual work settings or deal with changes in a routine work setting on a sustained basis. She was also likely to be off task for 20 percent or more of an 8-hour workday. By early October, Plaintiff was experiencing increased depression and finding it difficult to maintain daily functions. (ECF No. 9, p. 689). She reported showering only three times per week and she exhibited a depressed mood and disorganized cognitive functioning. (Id. at 631- 632). An exam revealed easy distractibility with limited judgment and insight. Dr. Berner prescribed a trial of Mirtazapine for her irritability and low mood. One week later, Plaintiff returned to LPC Herman tearful and disorganized. (ECF No. 9, p. 691). She was upset because she could not sleep at the right times and could not find a job. By October 25, there was some slight improvement in her depressive symptoms. (ECF No. 9, p. 654). Although she reported feeling better and a desire to focus on addressing her treatment, LPC Herman documented continued disorganization, with the Plaintiff speaking about a variety of subjects throughout the session. In addition to the direct medical evidence, Plaintiff completed several adult function reports, consistently reporting the inability to get along with authority figures and handle stress Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 13 of 17 PageID #: <pageID>
14 and changes in routine. (ECF No. 9, pp. 276-283, 305-312). She did work part-time (24 hours per week) in a grocery store for approximately 13 months beginning in August 2021. (Id. at 50-51). She began as a stocker, was moved to the deli in November 2021, and then assigned to the meat department in June 2022. However, Plaintiff reported numerous conflicts at work, difficulty maintaining consistency, problems controlling her anger, and feeling that her boss expected too much from her. (Id. at 637-638, 640-641, 650-653, 671). And in September 2022, she was fired. (Id. at 633). Plaintiff’s former supervisor, Michelle Loveland, submitted a statement indicating Plaintiff tended to be hyperactive and preferred to work independently so that she could maintain her focus. (ECF No. 9, pp. 346, 353). Michelle was aware of Plaintiff’s mental problems and medications, her inability to work more than part-time, her inability to work past a certain time of day due to concentration issues, and her struggles with performing the assigned tasks. She recounted one instance where the Plaintiff became very upset and hateful because the owner of the store asked that she be called into work. Although Michelle had not made the call, the Plaintiff left her a rude message. In Michelle’s opinion, the Plaintiff was unable to control both her words and actions. Statements from the Plaintiff’s mother and sister also speak to her verbal and physical aggression, violent nature, distorted view of reality, memory deficits, and mood instability. (Id. at 344-345). In his analysis, the ALJ discredits the Plaintiff for discontinuing and failing to take her medication as prescribed. We note, however, that individuals suffering from bipolar disorder often do not perceive that they are ill. See DSM-5-TR, Bipolar I Disorder, at https://psychiatryonline.org/doi/full/10.1176/appi.books.9780890425787.x03_Bipolar_and_Relat ed_Disorders. As a result, they become resistant to treatment attempts. This is a symptom of the disorder and, therefore, it should have been considered as such by the ALJ. Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 14 of 17 PageID #: <pageID>
15 Ultimately, the ALJ concluded the Plaintiff could perform work where the interpersonal contact is incidental to work performed; the complexity of the tasks performed is learned and performed by rote, with few variables and little judgment; and the necessary supervision is simple, direct, and concrete. (ECF No. 9, pp. 20-21). Further, he determined she should not work around the public. While this RFC captures some of the Plaintiff’s limitations, it fails to account for many of those echoed by her treating medical providers. LPC Herman concluded the Plaintiff had no useful ability to maintain attention and concentration for extended periods; interact appropriately with the public; or respond appropriately to changes in work setting. Dr. McKenna indicated that she exhibited difficulty coping with the typical mental/cognitive demands of basic work-like tasks; was easily distracted; struggled with attention and concentration; had moderate difficulty sustaining persistence in completing tasks; and became somewhat anxious when given a time demand or limit. And LPC Parke determined the Plaintiff had no useful ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, complete a normal workday and work week without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. The DSM-5-TR states that approximately 30 percent of individuals suffering from bipolar I disorder have severe impairment in their ability to work, although many are fully functional between episodes. See DSM-5-TR, Bipolar I Disorder, at https://psychiatryonline.org/doi/full/10. 1176/appi.books.9780890425787.x03_Bipolar_and_Related_Disorders. Further, “[f]unctional recovery lags substantially behind recovery from symptoms, especially with respect to occupational recovery . . ..” Id. Thus, given her diagnosis and treatment records, it seems clear to Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 15 of 17 PageID #: <pageID>
16 the undersigned that the Plaintiff’s limitations are greater than those captured in the RFC, necessitating remand to allow the ALJ to reconsider the Plaintiff’s work limitations. We are also troubled by evidence that the Plaintiff suffered from a substance abuse disorder. In the fall of 2021, Plaintiff began a Suboxone program. (ECF No. 9, pp.644-645). She admitted using marijuana daily, opioids and benzodiazepines occasionally, and methamphetamine once or twice per month. (Id. at 394-400, 407-412). In November 2021, Plaintiff indicated that her drug of choice was Methamphetamine, but she had not used it in six months. Because she still had “the monkey on [her]back,” Plaintiff had resorted to pills. At its peak, she was taking approximately five “Hydrocodone 5s plus 10+ Tramadol tabs” per day. Believing an inpatient treatment program was not right for her, she enrolled in the Suboxone program. (Id. at 644-645). Records from Dr. Susan Rogerson and APRN Matthew Burrous dated between January and April 2022 show the Plaintiff to be stable on a regimen of Suboxone. (ECF No. 9, pp. 693- 694, 699-722). Initially, she denied cravings, relapse, and adverse side effects but did experience a drug relapse in April 2022. (ECF No. 9, p. 667). In June, Dr. Dalton Gray prescribed Buprenorphine to be taken at night and continued her Suboxone dosage unchanged. (ECF No. 9, pp. 723-726). Records dated between July and October 2022 indicate her condition remained stable. (ECF No. 9, pp. 727-734, 747-750). According to the DSM-5-TR, co-occurring mental disorders are common in patients suffering from bipolar I disorder, with one of the most common comorbid disorders being substance use disorder. See DSM-5-TR, Bipolar I Disorder, at https://psychiatryonline.org/doi/ full/10.1176/appi.books.9780890425787.x03_Bipolar_and_Related_Disorders. Although the ALJ did not find Plaintiff’s substance use disorder to be a contributing factor, he did use it against her. Accordingly, the undersigned finds that the link between the Plaintiff’s bipolar disorder and Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 16 of 17 PageID #: <pageID>
17 substance abuse requires further consideration by the ALJ. On remand, we recommend directing the ALJ to recontact the Plaintiff’s treating physicians and mental health professional to opine regarding any possible connection between the Plaintiff’s substance abuse and her mental impairments. Additionally, as Plaintiff has presented a statement from VE Julie Bose taking issue with the prior VE’s testimony that the Plaintiff could perform unskilled work with the ability to have only incidental contact with supervisors, it is recommended that this issue be addressed on remand. (ECF No. 9, p. 42). IV. Conclusion Based on the foregoing, it is RECOMMENDED that the Commissioner’s decision be REVERSED, and the case REMANDED back to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g). The parties have fourteen (14) days from receipt of our report and recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. We remind the parties that objections must be both timely and specific to trigger de novo review by the district court. DATED this 20th day of December 2024. /s/ Mark E. Ford HON. MARK E. FORD CHIEF UNITED STATES MAGISTRATE JUDGE Case 3:24-cv-03010-TLB Document 16 Filed 12/20/24 Page 17 of 17 PageID #: <pageID>
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