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Perkins v. Colvin

United States District Court, D. Arizona

September 9, 2014

Justin Perkins, Plaintiff,
Carolyn W. Colvin, Defendant

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For Justin Perkins, Plaintiff: Alan M Schiffman, LEAD ATTORNEY, Anna Tucker Schiffman, Schiffman Law Office PC, Phoenix, AZ.

For Social Security Administration Commissioner, named as: Commissioner, Social Security Administration, Defendant: Allan D Berger, LEAD ATTORNEY, Social Security Administration - Denver, CO Office of the General Counsel Region VIII, Denver, CO; Michael A Johns, LEAD ATTORNEY, U.S. Attorney's Office, Phoenix, AZ.

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Bridget S. Bade, United States Magistrate Judge.

Justin Perkins (Plaintiff) seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying his application for disability insurance benefits under the Social Security Act (the Act). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in accordance with Local Rule of Civil Procedure 16.1. For the following reasons, the Court reverses the Commissioner's decision and remands for further proceedings.

I. Procedural Background

On November 22, 2010, Plaintiff filed applications for disability insurance benefits, child's disability insurance benefits, and supplement security income under Titles II and XVI of the Act. (Tr. 19, 160-79, 209.)[1] Plaintiff alleged that he had been disabled since August 22, 2010 due to major depressive disorder, attention deficit hyperactivity disorder (ADHD), and a learning disorder. (Tr. 160, 168.) Plaintiff later amended the alleged disability onset date to October 23, 2006. (Tr. 195.) After the Social Security Administration (SSA) denied Plaintiff's initial applications and his request for reconsideration, he requested a hearing before an administrative law judge (ALJ). After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 19-30.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council.) Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

II. Medical Record

The record before the Court establishes the following history of diagnosis and treatment related to Plaintiff's health. The record also includes opinions from lay witnesses and State Agency Physicians who examined Plaintiff or reviewed the records related to his health, but who did not provide treatment.

A. Medical Treatment

1. David Biegen, Ph.D.

On February 15, 2008, Plaintiff began treatment with psychologist Dr. David Biegen for his complaints of depression and anger. (Tr. 599.) Dr. Biegen noted that Plaintiff was angry during the appointment. ( Id.) During an appointment the next week, Plaintiff reported having trouble sleeping. (Tr. 599-600.) During a

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February 29, 2008 appointment, Plaintiff reported that he was not eating very well, " wanted to sleep," and considered his life hopeless. (Tr. 601.)

Plaintiff next saw Dr. Biegen on March 7, 2008 and reported that a cruise to the Bahamas had made him happy. (Tr. 602.) During a visit the following week, Plaintiff reported that his parents did not let him have his own opinions and that he felt isolated and lonely. (Tr. 603.) During a March 21, 2008 visit, Plaintiff told Dr. Biegen that his mother died the previous day. (Tr. 604.) At his next appointment, Dr. Biegen noted that Plaintiff was disoriented and tearful. (Tr. 605.) At an April 4, 2008 appointment, Plaintiff reported that he was tired of being angry. (Tr. 605, 608.) During subsequent appointments in April 2008, Plaintiff continued reporting that he was tired of getting angry " at every little thing." (Tr. 606.) He stated that his family expected things of him and then acted disappointed with him. (Tr. 607.) Plaintiff reported that he was unhappy and Dr. Biegen thought that Plaintiff was adopting tension from his family. ( Id.)

On June 13, 2008, Plaintiff reported that he was sleeping better, had a good appetite, and a calm mood. (Tr. 612.) He also reported that he felt like his family treated his sister like a first-class citizen, but treated him like a second-class citizen. (Tr. 612.) During a June 25, 2008 appointment, Plaintiff expressed frustration and anger at his sister. (Tr. 615.) At an August 8, 2008 appointment, Plaintiff stated that he was taking classes at Arizona State University (ASU) and felt like he was doing better. (Tr. 617.) At his next appointment on August 22, 2008, Plaintiff was tired and lethargic, and on September 5, 2008 he reported being distressed without knowing why. (Tr. 616, 618.)

In a November 1, 2010 summary of his " work" with Plaintiff, Dr. Biegen stated that he spent a lot of his time with Plaintiff " putting out fires" between Plaintiff and his family. (Tr. 596-97.) He reported that he did not see Plaintiff consistently enough " to work on more basic issues." ( Id.) Dr. Biegen noted that when Plaintiff became " angry and depressed he believ[ed] that he hated the world and people." ( Id.) He also noted that because Plaintiff had not learned how to get satisfaction from others, " he trie[d] to go it alone." ( Id.)

2. Richard Rosengard, D.O.

On referral from Dr. Biegen, on March 5, 2008, Plaintiff saw Dr. Richard Rosengard. (Tr. 683.) Dr. Rosengard noted that Plaintiff's symptoms were consistent with recurrent depression that stemmed from his childhood and that he had a " great deal of comorbid anger and irritability." ( Id.) Dr. Rosengard prescribed medication to help Plaintiff sleep and to reduce his depression, anger, and irritability. ( Id.) He recommended that Plaintiff continue individual therapy with Dr. Biegen. ( Id.)

During a May 28, 2008 appointment, Dr. Rosengard noted that Plaintiff's sleep had improved, but he continued to get agitated. (Tr. 680.) At a July 30, 2008 appointment, Plaintiff reported feeling " great." (Tr. 674.) Dr. Rosengard noted that Plaintiff's affect was blunted and diagnosed him with major depressive disorder. (Tr. 679.)

On February 21, 2010, Plaintiff presented to Dr. Rosengard as hopeless, with feelings of worthlessness, depression, and anhendonia. (Tr. 678.) Dr. Rosengard described Plaintiff's condition as " worsening." ( Id.) On March 19, 2010, Dr. Rosengard diagnosed Plaintiff as depressed with anhendonia and noted that Plaintiff had decreased energy and hypersomnia. (Tr. 677.) Plaintiff reported insomnia during June 2010. (Tr. 676.) During an October

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5, 2010 appointment, Dr. Rosengard noted that Plaintiff's mood was " fine." (Tr. 667-74.)

3. Treatment at Southwest Behavioral Health Services

On October 21, 2010, Plaintiff began psychiatric treatment at Southwest Behavioral Health Services (SBHS) and underwent an initial assessment. (Tr. 626-47.) During that assessment, Plaintiff stated that he was angry, hated people, and preferred to be alone. (Tr. 633.) Plaintiff reported that he was unable to attend school because of his depression. (Tr. 640.) Plaintiff's affect was noted to be very flat and his " self-concept" was low. (Tr. 639-40.) Plaintiff got defensive with his father, who attended the appointment, when he thought his father was suggesting that certain activities, such as securing and maintaining a job, would be challenging for Plaintiff. ( Id.)

On November 16, 2010, Stephen Brockway, M.D., a psychiatrist at SBHS, evaluated Plaintiff. (Tr. 622-25.) Plaintiff reported that his medications were working well and helping his depression, anxiety, and insomnia (Tr. 622), but his sleep was still poor. ( Id.) Dr. Brockway noted that " [t]alking therapy had been helpful." (Tr. 622.)

On February 4, 2011, Plaintiff reported to medical providers at SBHS that he continued to experience low energy and insomnia. (Tr. 655.) A February 4, 2011 treatment note described Plaintiff's affect as blunt and his mood as neutral. ( Id.) On April 5, 2011, Plaintiff reported that he had not improved, that he was sleeping too much, and that he wanted to reduce his medication. (Tr. 656.) On June 1, 2011, Plaintiff reported that Risperdal that he was taking for insomnia was giving him nightmares, and he was taken off that medication. (Tr. 689.) During that same visit, Plaintiff reported that his mood was improving, he was " socially more interested," and " overall better." (Tr. 689.)

In February 2012, Plaintiff reported that he wanted to study his computer programming books but had been unable to open them due to his low energy and lack of motivation. (Tr. 707.) On February 17, 2012, Dr. Houshang Semino at SBHS completed a mental status examination and noted that Plaintiff denied delusions and hallucinations, that he had good concentration, appropriate affect, good insight, and good judgment. (Tr. 719.) Dr. Semino also noted that Plaintiff had an anxious mood. ( Id.) Dr. Semino's " clinical impression" described Plaintiff as " stable." ( Id.)

B. Medical Opinion evidence

1. Dr. Biegen

On June 4, 2010, Dr. Biegen wrote a letter to the Maricopa County Superior Court recommending that the court excuse Plaintiff from jury duty due to his " major depression," which produced symptoms of sadness, feelings of emptiness, and a " loss of concentrate and attention." (Tr. 495.)

On July 23, 2011, Dr. Biegen completed a Mental Residual Functional Capacity assessment (MRFC). (Tr. 661-63.) He opined that Plaintiff was moderately limited[2] in his ability to understand, remember, and carry out detailed instructions, maintain attention for extended periods, perform activities within a schedule, complete a normal workday and perform at a consistent pace, accept instructions and criticism from supervisors, and to travel in

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unfamiliar places or use public transit. ( Id.) He found that Plaintiff had no or mild limitations in several other areas of mental functioning. ( Id.)

In an April 20, 2012 letter to Plaintiff's attorney, Dr. Biegen stated that because he did not treat Plaintiff before February 15, 2008, he could not attest to any of Plaintiff's limitations before that date. (Tr. 723.) He also stated that he had reviewed a report, MRFC assessment, and an addendum that Gregory Novie, Ph.D. prepared, and he believed these reports described Plaintiff well. Dr. Biegen also suggested that Plaintiff's performance might have deteriorated since his last visit. ( Id.)

2. Gregory Novie, Ph.D.

At the request of Plaintiff's lawyer, on December 6, 2011, Dr. Novie conducted a psychological examination of Plaintiff that included psychometric testing, review of the medical record, a clinical interview of Plaintiff, and interviews of Plaintiff's father and stepmother. (Tr. 692-702.) Dr. Novie opined that Plaintiff suffered from a significant depressive condition and that he had periods of frustration, anger, social withdrawal and reclusiveness. (Tr. 696.) He opined that Plaintiff was " fragile psychologically before his mother's death with limited capacity for interpersonal relationships as well as overall adaptive functioning." ( Id.)

Dr. Novie noted that Plaintiff's depression " appear[ed] to affect a wide range of aspects of functioning." (Tr. 696.) Testing that Dr. Novie conducted indicated that Plaintiff had significant limitations in fluid problem solving and speed processing. ( Id.) Dr. Novie diagnosed Plaintiff with major depressive disorder that was recurrent and severe without psychotic features, and with ADHD, combined type. (Tr. 697.) Dr. Novie opined that Plaintiff would " have trouble meeting the demands of work pace and pressure" and that he was moderately-severely to severely limited in those abilities. ( Id.) He found that Plaintiff was " severely ...

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