United States District Court, M.D. Florida, Jacksonville Division
ORDER REVERSING COMMISSIONER'S DECISION
PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.
a case under 42 U.S.C. § 405(g) and 1383(c)(3) to review
a final decision of the Commissioner of Social Security
denying Keith Hartley's claim for disability insurance
benefits and supplemental security income. He seeks
reversal, Doc. 11; the Commissioner, affirmance, Doc. 13.
was born in 1962 and last worked in 2011. Tr. 202, 210, 229.
He has a high-school education and experience as a
local-delivery driver and a long-haul truck driver. Tr. 230.
He alleged he had become disabled in September 2011 from
asthma, lung problems, heart problems, left eye problems, leg
problems, high blood pressure, sleep apnea, sinusitis, and
gout. Tr. 224, 229. Later, he added that in October or
December 2012, he was diagnosed as bipolar and schizophrenic,
could not focus, hallucinated, and started hearing voices.
Tr. 256, 264. He is insured through 2016. Tr. 217. He
proceeded through the administrative process, failing at each
level. Tr. 1-7, 18-39, 133-43, 149-58. This case followed.
presents one issue: whether the Appeals Council erred by
denying his request for review of the Administrative Law
Judge's (“ALJ's”) decision in light of
newly submitted evidence.
Before the ALJ
August 2012 questionnaire, Hartley reported the following.
His condition began bothering him in 2003. Tr. 253. He lost
his job as a truck driver because he had an asthma attack,
blacked out, and ran off the road into the bushes. Tr. 253.
When asked to mark or list his conditions, he indicated he
suffers severe fatigue, shortness of breath, chest pain, leg
pain, digestion problems, and lung problems. Tr. 253. He
sleeps four to eight hours a night but sometimes stays up all
night and naps five to six hours during the day. Tr. 253. He
can care for his personal needs as long as he does not stand
too long. Tr. 254. He lives with his sister and sometimes
helps with chores but stops when he gets short of breath and
his chest and legs start to hurt. Tr. 254. He “do[es]
good” in church but can no longer sing in the choir and
likes to bowl but no longer can. Tr. 254.
medical records from Hartley's treatment for breathing
problems contain notations of normal psychological status.
See, e.g. Tr. 355 (no anxiety, depression, and sleep
disturbances), 398 (oriented to time, person, and place;
normal speech and content; appropriate mood and affect;
interactive and responsive; intact memory, judgment, and
insight), 436 (normal mood and affect), 442 (no confusion),
445 (normal mood, affect, behavior, judgment, and thought
content), 529 (normal mood, affect, behavior, judgment, and
thought content), 687 (normal mood, affect, speech, behavior,
judgment, thought content, cognition, and memory), 693 (no
signs of anxiety, depression, or suicidal intention), 695 (no
signs of anxiety, depression, or suicidal intention), 723
(normal mood, affect, behavior, judgment, and thought
content), 729 (no psychosis; good judgment, memory, and
behavior), 731 (no psychosis; good judgment, memory, and
October 2012, Hartley was admitted to the hospital for
shortness of breath, wheezing, and coughing. Tr. 630. William
Hunt, III, M.D., performed a psychiatry consultation to
evaluate Hartley's depression and suicidal ideation. Tr.
637. Dr. Hunt noted Hartley's mental status was within
normal limits except for a moderately depressed mood, and he
displayed a broad range of affect and fair to good judgment
and insight. Tr. 637. Hartley reported no current perceptual
distortions but a history of hearing voices, symptoms of
depression, and post-traumatic stress disorder
(“PTSD”). Tr. 637. Dr. Hunt opined Hartley had
experienced a single episode of major depression, was not
actively suicidal, and had chronic PTSD. Tr. 637. He
recommended psychoeducational psychotherapy and involvement
in church and prescribed medication for the depression and
PTSD. Tr. 637.
December 2012, Hartley was admitted to the hospital for
exacerbation of his asthma. Tr. 600. Eduardo Sanchez, M.D.,
performed a psychiatry consultation. Tr. 600-01. Dr. Sanchez
noted Hartley had experienced persistent auditory
hallucinations telling him to hurt himself and others,
including telling him to run over a person in front of him
while he was driving a truck. Tr. 600. He observed Hartley
was “agreeable and apparently in control of
himself” but required antipsychotic medication. Tr.
600. A mental status exam showed Hartley was alert,
well-oriented, had no cognitive deficits or memory defects,
and displayed no evidence of a formal thinking disorder but
was depressed and had suicidal command hallucinations. Tr.
600. Dr. Sanchez diagnosed Hartley with psychotic depression,
opined Hartley was a danger to himself, and stated he would
initiate a Baker Act to admit Hartley to an inpatient
psychiatric facility. Tr. 600; accord Tr. 606.
received inpatient psychiatric care for three days for
depression and suicidal thoughts. Tr. 654-63. Mohammad
Farooque, M.D., Ph.D., documented that Hartley had been
hearing voices since 1993 but had received only outpatient
care. Tr. 659. A mental status examination showed the
following. He had good eye contact, poor grooming and
hygiene, flat affect, apathetic mood, and limited insight and
judgment; was alert and oriented to person, place, time, and
situation; reported auditory hallucinations and paranoia; had
alogia (inability to speak due to mental deficiency or
confusion),  and appeared to have bradyphrenia
(slowness of thought). Tr. 660. Dr. Farooque diagnosed him
with “psychosis, not otherwise specified, rule out
schizophrenia, paranoid type, ” assigned a Global
Assessment of Functioning (“GAF”) scale rating of
around 40,  and prescribed antipsychotic medication.
Tr. 660. In a discharge summary, Dr. Farooque repeated that
diagnosis and GAF scale rating and stated Hartley had
improved with treatment, was alert and oriented, and denied
suicidal or homicidal ideation. Tr. 654.
April 2013, Hartley underwent an initial psychiatric
assessment with Julie Ozan, PA-C (a physician's
assistant). Tr. 755-58. His chief complaint was hearing
voices, and he reported auditory and visual hallucinations
“as far back as he can recall, ” cutting his
fingertips when pressured by negative voices, sad mood, low
energy, crying spells, decreased appetite, worries and
anxieties, passive suicidal thoughts, passive thoughts of
harming others, a tendency to self-isolate because of
hallucinations, and sedation from his medications. Tr. 755.
He denied episodes of violence, prolonged periods of
sleeplessness, spending sprees, or impulsive risk-taking
behaviors. Tr. 755. Ozan noted he had had two psychiatric
inpatient hospitalizations, a poor response to Abilify, fair
response to Risperidone and Trazadone, and good response to
Citalopram. Tr. 755.
mental status exam showed he was appropriately dressed and
groomed, had a cooperative but initially guarded attitude,
and maintained eye contact. Tr. 757. Ozan made the following
Mr. Hartley's speech was initially guarded, but more
spontaneous as exam progressed. He was alert and oriented to
person, place, month[, ] and year. His stated mood was mildly
depressed, and he had a blunted affect, with occasional
Thought content was linear and goal directed. He showed no
flight of ideas or disorganized thinking. There were some
mild paranoid versus overly suspicious thoughts expressed.
Mr. Hartley denied any current [suicidal ideation] or
[homicidal ideation], but endorsed past thoughts of harming
himself[, ] his family[, ] and strangers, with no intention
of doing so. He endorsed current auditory hallucinations of
commands and negative commentary, with several voices. He
endorsed occasional visions as if daydreaming, sometimes
ominous, but mostly random. He was not observed responding to
internal stimuli during the interview.
There were no abnormal involuntary movements noted on exam.
He had an overweight frame, with decreased muscle tone, but a
steady gait. He had no pronator drift with gait and station
testing. His psychomotor activity was calm.
He was able to perform serial 7s without error, but was
unable to read or spell. He was able to name the current
president of the United States and who was president before
him. Recent and remote memory were grossly intact, and he was
able to register and recall 3/3 items at 0 and 5 minutes.
He was partially able to comprehend the current situation
correctly, and demonstrated the ability to orient his
behavior appropriately. He was partially able to understand
and appreciate the risks, benefits, and alternatives for
treatment, the impact of his psychiatric condition, and need
for treatment. He had adequate capacity to comply with
treatment recommendations. Insight and judgment were present
and adequate. Fund of knowledge was average, with some
learning challenges of illiteracy.
He was not suicidal or acutely agitated or homicidal and did
not require admission to a psychiatric hospital.
diagnosed Hartley with schizoaffective disorder, depressed
type, with “[p]sychotic symptoms consistent with other
psychotic disorders but with many years of function
inconsistent with typical schizophrenia, ” assigned a
GAF scale rating of 41 to 50,  adjusted his medication, and
opined his prognosis was fair to guarded. Tr. 757-58.
October 2013, Hartley attended a psychiatric medication
management appointment with Phyliss Taylor, M.D. Tr.
762-63. Dr. Taylor noted he had been hospitalized
in January 2013 for psychosis, suicidal ideation, and
homicidal ideation toward his family and had been
hospitalized again shortly after his appointment with Ozan
but had not followed up with treatment. Tr. 762. He reported
auditory hallucinations, depression, suicidal ideation,
trouble sleeping, two to three panic attacks each month, and
PTSD flashbacks and nightmares despite taking medication. Tr.
Taylor made the following observations. Hartley was
appropriately dressed and groomed, cooperative, alert, and
oriented to person, place, and time. Tr. 763. He had normal
speech, blunted affect, depressed mood, negative mental
attitude, non-future-oriented thinking, logical and coherent
thought processes, and limited insight and judgment. Tr. 763.
He reported auditory and visual hallucinations but no
apparent delusions, suicidal or homicidal ideation, or
abnormal involuntary movements. Tr. 763. He had retarded
psychomotor activity but normal muscle strength and tone and
a steady gait. Tr. 763. Dr. Taylor diagnosed him with
schizoaffective disorder, depressed type, and PTSD; assigned
a GAF scale rating of 41 to 50; adjusted his medications; and
opined he was severely ill. Tr. 763.
March 2014 impairments questionnaire, a doctor marked that
Hartley has depression, anxiety, schizophrenia, and other
psychological factors affecting his physical condition and
cannot work in even low-stress jobs. Tr. 773.
April 2014, Hartley attended a medication management
appointment with Dr. Taylor. Tr. 825-26. His chief complaint
was that he was shaking and talking to himself. Tr. 825. He
reported depression, fleeting suicidal ideation, nightmares,
and sleeping only a couple hours a night. Tr. 825. Dr. Taylor
observed he was appropriately dressed and groomed,
cooperative, alert, and oriented to person, place, and time.
Tr. 825. He had normal speech, blunted affect, depressed
mood, logical and coherent thought process, limited insight
and judgment, normal muscle strength and tone, steady gait,
retarded psychomotor activity, non-future-oriented thinking,
and negative mental attitude. Tr. 825. He had no apparent
delusions and denied suicidal or homicidal ideation but
endorsed auditory and visual hallucinations. Tr. 825.
Taylor diagnosed him with schizoaffective disorder, depressed
type, and PTSD; assigned a GAF scale rating of 41 to 50;
opined he was severely ill, and adjusted his medication. Tr.
2014, Hartley attended a medication management appointment
with Dr. Taylor. Tr. 823-24. He denied depression, mania,
panic attacks, hallucinations, delusions, nightmares,
flashbacks, and sleep problems. Tr. 823. Dr. Taylor noted the
following. Hartley was appropriately dressed and groomed,
cooperative, alert, and oriented to person, place, and time.
Tr. 823. He had normal speech, calm affect, stable mood,
logical and coherent thought process, limited insight and
judgment, normal muscle strength and tone, steady gait,
non-future-oriented thinking, and negative mental attitude.
Tr. 823. He had no apparent delusion, no abnormal or
involuntary movement, no suicide risk, and no violence risk.
Tr. 823. He denied suicidal ideation, homicidal ideation, and
auditory and visual hallucinations. Tr. 823.
Taylor diagnosed Hartley with schizoaffective disorder,
depressed type, and PTSD; assigned a GAF scale rating of 51
to 60; opined he was moderately ill; and
continued his medications. Tr. 823-24.
July 2014 hearing, Hartley testified as follows.
lives with his wife and 20-year-old son. Tr. 58. His wife
does most of the cooking and cleaning. Tr. 61. Sometimes he
tries to help, but when he moves around too much he gets sick
and has to use a nebulizer machine. Tr. 61. In a good week,
he uses the nebulizer two or three times; in a bad week, he
uses it every day. Tr. 61.
ten grandchildren, two of whom (ages 11 and 4) he watches
during the day while his daughter is at work. Tr. 58-59. He
takes care of them but cannot get up and walk around much
because he gets out of breath. Tr. 59-60.
to drive trucks, but his asthma doctor told him he should
stop because he “can't do [anything] without
Prednisone.” Tr. 53-54. In 2011, he had an asthma
attack while driving a truck. Tr. 57-58. He became short of
breath and, because he was taking too much Prednisone and was
alone, he panicked, passed out at the wheel, and hit a
telephone pole. Tr. 63-64. He no longer has his commercial
driver's license. Tr. 64. In 2012, he was in the hospital
for a week or two every month because of breathing problems.
to see Ozan for his mental conditions but now sees Dr.
Taylor. Tr. 56. It is “hard to say” if his
schizophrenia has improved. Tr. 56. He hears voices, talks to
himself, and wants to hurt himself, even when he takes his
medication. Tr. 56-57. When he told Dr. Taylor he was
depressed and hearing voices, she increased his medication.
Tr. 57. Sometimes the medications work, and sometimes they do
not. Tr. 57.
asked a vocational expert to consider a hypothetical claimant
the same age as ...