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Rollins v. Berryhill

United States District Court, N.D. Florida, Gainesville Division

February 26, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         This is a Social Security case referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D). It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Acting Commissioner (Commissioner) of the Social Security Administration denying Plaintiff's Title II application for period of disability and Disability Insurance Benefits. After careful consideration of the entire record, it is respectfully recommended that the findings of fact and determinations of the Commissioner are not supported by substantial evidence; thus, the decision of the Commissioner should be reversed and remanded.

         I. Procedural History and Facts

         On December 6, 2013, Plaintiff Chad Anthony Rollins filed a Title II application for disability insurance benefits alleging disability beginning on January 30, 2013, due to bipolar disorder. Tr. 87, 96.[1] Plaintiff's application was denied initially on March 12, 2014, and upon reconsideration on April 22, 2014. Tr. 96, 110. Plaintiff requested a hearing, which was held on January 25, 2016, in Jacksonville, Florida, before Administrative Law Judge (ALJ) Gregory J. Froehlich. Tr. 37-82. Plaintiff, who appeared with counsel in Gainesville via teleconference, testified and Celena Earl, Vocational Expert, appeared by telephone and testified. Psychiatrist T. Carey Merritt, M.D., also testified by telephone. Five letters containing lay evidence were submitted. Tr. 311-17.

         The ALJ issued a decision on March 29, 2016, finding Plaintiff is not disabled and is not entitled to disability benefits. Tr. 18-31. The Appeals Council denied Plaintiff's request for review on March 10, 2017. Tr. 1-6. Thus, the decision of the ALJ became the final decision of the Commissioner and is ripe for review. Accordingly, Plaintiff, represented by counsel, filed a Complaint for judicial review pursuant to 42 U.S.C. §§ 1381, et seq., and 42 U.S.C. § 405(g). See ECF No. 1.

         A. Hearing Testimony

         Plaintiff's counsel first presented the testimony of psychiatrist T. Carey Merritt, M.D. Tr. 41-55. Dr. Merritt testified that he began treating Plaintiff in 2008 for what he described as a neuropsychiatric psychotic condition. Tr. 41-42. He testified that the neuropsychiatric condition began as a result of side effects of the drug Tamiflu, which created confusion, delirium, and psychotic features requiring hospitalization. Tr. 42-43. His initial diagnosis was schizoaffective disorder but the working diagnosis is now bipolar disorder type one. Tr. 52. When Dr. Merritt saw Plaintiff several months after the initial incident, Plaintiff was having persistent symptoms involving some confusion, residual delusional thinking, and a mix of depression and hypomania causing racing thoughts and susceptibility to metaphysical or highly spiritual issues. Tr. 43-44. He testified that Plaintiff has had a number of manic episodes, some brief and some requiring hospitalization. Tr. 45. He said most of Plaintiff's treatment has revolved around mood stabilizers and other medications intended to treat his bipolar disorder, including seizure medications and antipsychotic medications. Tr. 47. Plaintiff has been treated with Lithium and risperidone, Tegretol, Depakote, and Wellbutrin. Tr. 47-48. Dr. Merritt testified that between 2008 and 2011, Plaintiff's baseline was more depressed, with periods of depression sometimes lasting months. Tr. 49.

         Dr. Merritt testified that Plaintiff has tried to work since 2008 and did return to work several times, including as an associate pastor, but within a month that fell apart when he began to cycle upwards. Tr. 50-51. Plaintiff also worked as an assistant manager at a Chick-Fil-A but deteriorated and could not continue. He said Plaintiff had an episode the past December in which he had visual hallucinations and depression. Tr. 53. Dr. Merritt testified that Plaintiff tried to perform several different types of jobs but he was unable to maintain them. Dr. Merritt opined that Plaintiff was not currently expected to be capable of working part time or full time, but he hoped that with a long enough period of recovery with less pressure and with the assistance of existing treatment and medication, Plaintiff could eventually go back to a vocation. Tr. 54-55.

         Plaintiff Chad Anthony Rollins, age 28 at the time of the alleged onset date, testified that he has a Bachelor's degree in business management and is an ordained minister. Tr. 56-57. In the last fifteen years, he has worked in management for a fast food restaurant, in retail clothing as a department manager, as a utility meter reader for four years, in public relations, and as a youth pastor from 2011 to 2013. Tr. 57-59. His last job as pastor ended in 2013 and his attempt at working at Chick Fil-A in 2013 was not successful due to his illness.

         Plaintiff testified his illness began in 2008 when he had a severe neurological reaction to the medication Tamiflu, which caused him to exhibit symptoms of extreme mania, psychosis, and hallucinations. Tr. 59. He was on disability through his employer Clay Electric for about six months and then went back to work at Clay Electric until 2010 when he began to serve as a pastor at a Baptist church.[2] Id. He testified that while serving as a pastor, he went into a full-blown manic episode with psychosis and hallucinations. Tr. 60. He was “Baker Acted” and went to Meridian Behavioral Healthcare for treatment. Id.

         During his manic episodes, he said he has racing thoughts, extreme irritability, extreme hyperactivity, extreme insomnia for days at a time, and cognitive disfunction due to lack of sleep, memory loss, and irrational behavior physically and with money. Tr. 60-61. Plaintiff testified that he has had to be hospitalized on several occasions. Tr. 61. His last attempt to work at Chick-Fil-A was unsuccessful even though the employer, a friend, gave him time to try to “basically get it together.” Tr. 62. After he tried to work as a youth pastor part time for a couple of weeks at a church where his uncle was the pastor, he had a full-blown episode and had to be hospitalized.[3] Tr. 62-64. He tried to work helping a friend who was remodeling a house but that was unsuccessful because he could not complete tasks when needed.[4] Tr. 63. Plaintiff testified that he has worked for his father sporadically for a couple days a week since March or April of 2015 at a local camp that his father runs.[5] Tr. 64.

         Plaintiff testified that he sees Dr. Merritt in the office and sometimes confers on the telephone. Tr. 65-66. They discuss his therapy and medications. He said all his medications have caused side effects including severe weight gain, extreme thirst and dry mouth, extreme urination, changes to sleep cycle, shortness of breath, dizziness, and sleepiness. Tr. 66-67. Risperdal[6] is effective to combat his psychosis but deadens him mentally and affects his cognitive functions and his mood, often causing depression. Tr. 67. He said depression, sometimes lasting months, always comes on after a manic episode and has required him to be hospitalized on several occasions due to suicidal thoughts and two suicide attempts. Id. Plaintiff described the suicide attempts as coming in a manic phase after his depressive phase had cycled. Tr. 68.

         During those times that he is neither manic nor depressed, he can function somewhat normally, but not as he did prior to the Tamiflu incident in 2008. Tr. 69. He said he is no longer dependable and consistent in what he tries to do. Id. His wife has had to go back to work due to his illness and he watches his young children some when they come home from school, but he could not do it without help from other family members. Tr. 70. Plaintiff's father helps mow the lawn, pressure wash the house, and maintain the cars. His in-laws help with the children, as do his own parents and brothers. Tr. 73. When he has a manic episode, his wife cannot handle him and his brothers must come to take him somewhere away from his wife and children, or to be hospitalized.[7] Tr. 70-71. He does not use alcohol or drugs and does not smoke marijuana or cigarettes. Tr. 72.

         Celena Earl, an impartial vocational expert, testified that Plaintiff's past work could be classified as fast food worker, light, unskilled, SVP of 2; manager, fast food, light, skilled, SVP of 5; department manager, medium, skilled, SVP of 7; meter reader, light, semi-skilled, SVP of 3; customer service representative, sedentary, skilled, SVP of 5, and pastor, light skilled, SVP of 8. Tr. 76-77. The ALJ presented the vocational expert with a hypothetical describing a person of claimant's age, education and past work, who has no exertional limitations but has mental limitations to simple tasks with little variation taking a short period of time to learn up to and including 30 days, is limited to work settings that do not require production pace work, is limited socially to relating adequately with supervisors but with no general public contact, and has only occasional coworker contact. Tr. 77-78. The vocational expert testified that such an individual would not be able to perform the past work done by Plaintiff. Tr. 78.

         Under that same hypothetical, the vocational expert testified that the person would be able to perform work as an industrial cleaner, DOT #381.687-018, medium strength level, SVP of 2, with an estimated 1, 077, 500 jobs in the national economy; laundry worker, DOT #361.685-018, medium strength level, SVP of 2, with an estimated 377, 400 jobs in the national economy; mail clerk, DOT #209.687-026, light, SVP of 2, with an estimated 70, 900 jobs in the national economy.[8] Tr. 78.

         The vocational expert was then presented with the same hypothetical facts, but with the additional limitation that the individual would be off task for approximately 20% of the work day at infrequent intervals, outside normally permitted breaks. Tr. 78-78. The vocational expert testified that with these additional limitations, all work would be eliminated. The vocational expert testified employers would tolerate absences of no more than one day a month. Tr. 79. When asked if her testimony conflicts with the Dictionary of Occupational Titles, the vocational expert testified that the DOT does not address off-task time or absences per month, but that her testimony on these issues was based on her training, education, and knowledge of how jobs are performed in the labor market. Id.

         At the conclusion of the hearing, Plaintiff's counsel argued that Plaintiff's mental impairment meets listing 12.04 but, at a minimum, would qualify him for disability due to medical records documenting suicidal thoughts, extreme paranoid thinking, rapid cycling with auditory hallucinations, inability to sleep, deep depression, visual hallucinations, strong side effects to Risperdal, overly abstract thinking, loose thoughts, and racing thoughts. Tr. 80-81.

         II. Findings of the ALJ

         In the decision issued March 29, 2016, the ALJ made the following pertinent findings:

1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2016. Tr. 20.
2. The claimant has not engaged in substantial gainful activity since January 30, 2013, the alleged onset date. Id.
The ALJ noted that although Plaintiff did attempt to work from February 2013 to March 2013, these were unsuccessful work attempts. Id.
3. The claimant has the following severe impairment: bipolar disorder. Id.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. Tr. 21.
The ALJ found that Plaintiff's severe impairment does not meet or medically equal the criteria of listing 12.04. He found that at least two of the three criteria of “paragraph B” were not met in that Plaintiff had only mild restriction in the activities of daily living rather than marked restriction, citing Plaintiff's activities at home caring for children, performing household chores, working a few days a week at his father's campground, driving, handling finances, and tending to personal hygiene. Id.
The ALJ further found that Plaintiff had moderate difficulties in social functioning rather than marked difficulties. Id. The ALJ found that Plaintiff had symptoms of irritability, agitation, and anxiety and felt his ability to interact with others was different than in his past. Id.
With regard to concentration, persistence, or pace, the ALJ found Plaintiff had moderate difficulties rather than marked difficulties as required by “paragraph B.” Id. The ALJ noted treatment records documenting confusion and decreased cognition, distractibility and word finding problems, but other treatment notes show good, but a bit slower, thought flow, and fair attention and concentration. Id.
As to the required repeated episodes of decompensation under “paragraph B, ” the ALJ found the record reflected one to two episodes of decompensation, each of extended duration, rather than the required repeated episodes, meaning three episodes within one year. Id.
The ALJ also concluded that the criteria of “paragraph C” were not met, finding that the medical evidence does not show a history of chronic affective disorder of at least two years duration that has caused more than minimal limitation in ability to perform basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following: (1) repeated episodes of decompensation, each of extended duration; or (2) a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change of environment would be predicted to cause the individual to decompensate; or (3) a current history of one or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. Tr. 21-22.
The ALJ noted that the limitations identified in the “paragraph B” analysis are not a residual function capacity assessment but are used to rate the severity of the impairment at steps 2 and 3 of the sequential evaluation process. Th ALJ further noted that the residual functional capacity assessment at steps 4 and 5 requires a more detailed assessment by itemizing the functions contained in the broad categories found in ...

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