Hartin v. Social Security Administration Commissioner

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.
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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
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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
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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
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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.
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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
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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,
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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
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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.
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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;
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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).
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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
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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
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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.
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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
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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
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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
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