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Buckwalter v. Saul

United States District Court, S.D. Florida

September 9, 2019

ANDREW SAUL, Commissioner, Social Security Administration, Defendant.



         THIS CAUSE comes before this Court upon the above Motions. Having reviewed the Motions, Responses, and Administrative Record (DE 12), and having held a hearing thereon on September 5, 2019, this Court finds as follows:


         1. The Plaintiff applied for disability insurance benefits under Title II of the Social Security Act in February 2016. The application was denied initially and after reconsideration. On December 15, 2017, after holding a hearing, an Administrative Law Judge ("ALJ") rendered a decision finding the Plaintiff not disabled under the terms of the Act. The Appeals Council denied the Request for Review on July 17, 2018, thereby leaving the ALJ's decision final and subject to judicial review.

         2. The Plaintiff has a high school education, and she completed a vocational program in cosmetology. Her employment history consists mainly of cutting hair and working in the food service industry. Earnings records show consistent, albeit low, earnings from 2002 to 2013.

         3. The Plaintiff has a criminal history involving mainly domestic violence, alcohol, and drug-related offenses. She has been in jail twice. She was released from the second incarceration in October 2014.

         4. In early November 2014, a month after her release from jail, the Plaintiff was involved in a domestic dispute. She became frustrated with her ex-boyfriend who was refusing to leave the house. She began to feel violent towards him, and she began to feel suicidal, as well. On November 6, 2014 the Sheriffs Office brought her to the Peace River Center for inpatient mental health care under the Baker Act. The Plaintiff complained of anxiety, feeling overwhelmed, drinking too much, and crack cocaine use. She reported a history of manic episodes with adverse consequences. She wanted to resume taking psychotropic medications; she had stopped taking them seven months earlier. Mood disorder and daily crack and alcohol use were diagnosed. A GAF score[1] of 35 was given.

         5. That next day, despite initially conceding the need for both mental health and substance abuse treatment and despite initially being receptive to such help, the Plaintiff asked to be discharged. She now was minimizing the stressors that initially had caused her to seek care. For example she minimized her substance abuse history as just isolated binges.

         6. The Peace River Center discharged her from its care on November 7th. Treatment did not end, however. She now was in the court's Triad program and under court order to go for an alcohol evaluation and to resume psychotropic medications. In compliance therewith she began going to the Tri-County Health Human Services clinic on December 17th. At that initial evaluation the Plaintiff complained of poor sleep and paranoia (that her former boyfriend was stalking her). Bipolar Disorder I and alcohol abuse were diagnosed. Her GAF score had increased to 62. That increase from the prior GAF score of 35 reflected the substantial overall improvement that the Plaintiff already experienced after a month of resumed treatment. She would return to the Tri-County clinic on a regular basis thereafter, for the remainder of the record.

         7. The Plaintiffs next appointment at the Tri-County clinic was on January 7, 2015. The Plaintiff sought help reducing her mental health symptoms of insomnia and mania. She also sought help reestablishing sobriety after relapsing over the holiday season. She was to begin group counseling and substance abuse counseling.

         8. The Plaintiff alleges a disability onset date of January 9, 2015. That also is the day when she stopped working. Up until that time she had been working cutting hair. However depression-related problems kept her from staying employed, she reports. She was having difficulty getting out of bed and difficulty with memory and anxiety. She reached the point where she no longer could remember how to cut hair anymore, she alleges.

         9. At the next Tri-County clinic appointment on February 4, 2015, the Plaintiff reported that psychotropic medication was helping and that only lingering depression symptoms remained. She was sleeping well. Upon examination the attendant observed the Plaintiff to have a somewhat depressed mood and a saddened affect. Her speech was slow, and her insight was limited. Her memory, focus, and concentration were described as sub-optimal.

         10. The Tri-County treatment note from the March 26, 2015 appointment shows continued overall improvement. The Tri-County clinic's treatment notes show that a variety of support programs now were in place to help the Plaintiff maintain sobriety and to help ease other life issues. Vocational Rehabilitation services also had begun.

         11. The Department of Vocational Rehabilitation sent the Plaintiff to Dr. Sassatelli, a psychologist, for a general intellectual and personality evaluation. (His report begins at page 315 of the Administrative Record.) The Plaintiff was 53 years old at the time and had been unemployed for six months due to the emotional disturbances and mood swings of her bipolar disorder, she reported. At the time of the evaluation she reported the depression-related symptoms of helplessness and hopelessness, poor attention and concentration, anhedonia, social withdrawal, and low motivation. Dr. Sassatelli observed the Plaintiff to be mildly anxious, but otherwise her presentation and cognition were normal. Testing suggested a personality type that generally is prone to symptom exaggeration as a cry for help, to personality and mood disorders as well as to substance abuse; and to impulsivity and poor judgment. IQ testing sub-scores fell within the borderline to average range, with a Full Scale IQ score of 79 that fell within the borderline range of 76-83. Dr. Sassatelli diagnosed Bipolar Disorder I, alcohol and cocaine use in sustained remission, personality disorder, and borderline intellectual functioning. Dr. Sassatelli saw need for mental health and substance abuse treatment and the need to stabilize the Plaintiffs mental health condition before she returns to work. "Based on [her] history of emotional disturbances," Dr. Sassatelli encouraged the Plaintiff "to apply for Social Security Disability benefits."

         12. In May 2015 the Plaintiff completed the court-ordered substance abuse program. By time of the July 2015 appointment at the Tri-County clinic, she had been sober for seven months. She looked well, and her mood was stable. The mental status evaluation was overall normal. She was participating in Vocational Rehabilitation. Her health care provider at the Tri-County clinic disagreed with the low IQ rating that Dr. Sassatelli had given. It was inconsistent with the Plaintiffs presentation, vocabulary, and conversation skills that the provider had observed over the course of treatment to-date.

         13. On September 13, 2015 Clint Delong conducted a vocational evaluation to determine what kinds of jobs best fit the Plaintiffs education, work history, interests, aptitude, and personality. Various tests were given as part of that evaluation. The Plaintiff was observed to have poor task completion, and she was quick to abandon tests that she found challenging. The Plaintiff had not yet eaten that day. Mr. Delong observed the Plaintiff to have a tense affect, to be anxious and apprehensive, and to be tenuous and hesitant. Mr. Delong therefore suspected anxiety-related poor focus. Mr. Delong relied on Dr. Sassatelli's prior finding of borderline processing speed. Eye-hand coordination also was below average. The Plaintiff was a poor historian of her employment history. Educational testing was overall normal (that is, consistent with a 12th grade education) except for math skills which were at the 6th grade level. Testing showed her to have the "journalist" type of vocational personality. She no longer could remember how to cut hair, she claimed, but she showed personal interest in food preparation type work.

         14. Mr. Delong concluded that the Plaintiff is employable given reasonable accommodation and support. One such accommodation would be relatively low stress demands. That is, jobs with a manageable work load, pace, deadlines, and personal control. He suggested that she begin with part-time work first to harden her job skills before progressing to full-time work. Other jobs amenable to the Plaintiffs vocational profile that Mr. Delong identified were sales clerk-type jobs as well as the jobs of stock clerk, courier/messenger, and janitor/cleaner.

         15. The Plaintiffs next appointment at the Tri-County clinic took place two days after the vocational evaluation. The Plaintiff complained of a depressed mood and generalized, passive suicidal ideation. She had found the vocational tests difficult. Despite the Vocational Rehabilitation support services that she was receiving, she did not want to return to work. She preferred to apply for disability benefits. To help with that process, the clinic referred her to Carol Tuck, a "peer specialist".

         16. The Plaintiff was doing much better at the next Tri-County clinic appointment in October 2015. She was doing well on her psychotropic medications. She was not going to therapy, however, because she could not afford it. She had more energy, and she was back in touch with her adult children. She was applying for jobs. The mental status evaluation was normal, and her GAF score was a 64. At her December appointment, the Plaintiff reported continued active participation in vocational rehabilitation including food service training. Her GAF score now was a 69.

         17. At the February 2016 appointment at the Tri-County clinic, the Plaintiff reported medication compliance as well as continued sobriety. Against medical advice, she was maintaining her sobriety on her own without attending AA meetings or seeking equivalent support. She was receiving food service job coaching. The Plaintiff reported cognitive and memory problems that were hindering complex instruction execution. That prompted a diagnosis of a mild neurocognitive disorder from long-term alcohol consumption. Her GAF score remained high at 64.

         18. The Plaintiff applied for disability benefits on February 9, 2016. She was 54 years old at the time. She claimed disability primarily due to Bipolar Disorder and the impairments of poor stress tolerance, memory, and concentration. She also claimed a personality disorder and borderline intellectual functioning.

         19. This is not her first application. She had applied for Social Security disability benefits in September 2008. The basis of that application is unknown. It was denied in January 2009, before the start of the instant record.

         20. Treatment notes from the Tri-County clinic showed that the Plaintiff continued to do well through 2016. She was doing well on her psychotropic medications. She had stopped taking trazodone because she now was sleeping well on her own. She remained sober. She was participating actively in Vocational Rehabilitation job-coaching services. Her GAF scores ranged from 60 to 65. The one medical issue that did arise during this time was the onset of a slight involuntary movement in the perioral area. Congentin medication successfully resolved that condition.

         21. At the February 2017 appointment, the Plaintiff reported that she had stopped taking her psychotropic medications except for Wellbutrin. A program that was paying for those medications had ended, and the Plaintiff did not realize that a particular pharmacy could continue to fill her prescriptions for a modest fee. Up to this point the Plaintiffs memory and cognition had been described as sub-optimal, and at this appointment, the Plaintiffs memory and cognitive issues appeared worse. Her treating provider noted how her medications are of the kind that impair cognitive functions as a side-effect. Therefore the provider switched the Plaintiff to Trintellix which has less of that impairing effect.

         22. Follow-up appointments after the medication change show substantial overall improvement. She now was more active and sociable. Her mood was brighter and still stable with no mania. Her memory, focus, and concentration had improved somewhat although cognitive ...

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