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Desiderio v. Commissioner of Social Security Administration

United States District Court, D. Arizona

February 12, 2019

Marcelle Desiderio, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          BRIDGET S. BADE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Marcelle Desiderio seeks judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying her application for 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 Rule 16.1 of the Local Rules of Civil Procedure. For the following reasons, the Court reverses the Commissioner's decision and remands for a determination of benefits.

         I. Procedural Background

         In September 2013, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Act. (Tr. 17.)[1] Plaintiff alleged disability beginning on June 30, 2011. (Id.) After denial on initial review and on reconsideration, Plaintiff requested a hearing before an administrative law judge (“ALJ”). (Tr 17-30.) After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Id.) The Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6.) Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

         II. Administrative Record

         The record before the Court establishes the following history of diagnoses and treatment related to Plaintiff's impairments of bipolar disorder, anxiety disorder, post-traumatic stress disorder (“PTSD”), and attention deficit disorder/attention deficit hyperactive disorder (“ADHD”). The record also includes several medical opinions.

         A. Medical Treatment Evidence

         1. Jewish Family and Children's Services

          On January 23, 2012, Plaintiff sought treatment at Jewish Family and Children's Services (“JFCS”) for her bipolar and anxiety disorders. (Tr. 403-05.) Plaintiff reported a long history of mental health issues and treatment. (Tr. 403.) Plaintiff reported crying spells, diminished ability to think and concentrate, feelings of hopelessness, social isolation, irritability, racing thoughts, compulsive shopping, and decreased need for sleep. (Id.) Plaintiff reported that she had recently moved from Alaska and had been off her medication for six months. (Id.) On examination Plaintiff had verbose and rapid speech, an irritable mood, and limited concentration. (Tr. 404.) She had good memory, insight, and judgment. (Id.) Plaintiff was diagnosed with bipolar disorder, anxiety disorder, and ADHD diagnoses. (Tr. 404-05.) In April 2012, JFCS discharged Plaintiff due to “lack of contact.” (Tr. 1393.)

         2. Marc Community Resources, Inc.

         On July 11, 2013, Plaintiff began treatment at Marc Community Resources, Inc. (“Marc”). (Tr. 945-53.) Plaintiff reported that a car accident and an attack on her dog had triggered her anxiety. (Tr. 945.) Plaintiff reported that she had extreme mood swings, was manic most of the time, and experienced depression once a month. (Id.) Plaintiff reported daily anxiety attacks that lasted from fifteen minutes to several hours. (Id.) On examination Plaintiff had rapid and loud speech, euthymic mood, and partial judgment and impulse control. (Tr. 951.) Plaintiff had good concentration, logical thought process, intact memory, and fair insight. (Id.) Plaintiff was diagnosed with a mood disorder not otherwise specified (“NOS”). (Tr. 953.)

         At an August 9, 2013 appointment, Plaintiff reported mania with an elevated mood, racing thoughts, decreased need for sleep, distractibility, and irritability. (Tr. 427.) Plaintiff was observed to be have loud, verbose, and pressured speech, hyperactivity, tangential thought processes, circumstantial stream of thought, manic mood, animated affect, limited insight and memory, and fair concentration. (Tr. 429.) Plaintiff was diagnosed with bipolar I disorder, “most recent mixed, severe, without psychosis, ” and PTSD. (Id.) During an August 2013 appointment, Plaintiff reported “marked” mood swings and difficulty sleeping. (Tr. 419.) Plaintiff had verbose speech, concrete stream of thought, labile mood, limited memory, and fair insight and concentration. (Tr. 420.) In October 2013, she reported racing thoughts and an “ok” mood. (Tr. 998.) On examination Plaintiff's speech was verbose with a pressured rate, her stream of thought and thought processes were tangential, her affect was labile, and her insight was limited and her concentration was fair. (Id.) In December 2013, Plaintiff reported racing thoughts, paranoid ideation, and an “up and down” mood. (Tr. 993.) On examination Plaintiff had verbose and rapid speech, tangential stream of thought, labile mood, animated affect, limited insight and memory, and fair concentration. (Tr. 994.) At a January 3, 2014 appointment, Plaintiff had verbose speech, elevated mood, an unremarkable stream of thought and thought processes, limited memory, and fair insight and concentration. (Tr. 991.)

         3. Counseling

         Plaintiff received counseling from Diane Clodi, Licensed Professional Counselor (“LPC”) from July 2013 through January 2014. (Tr. 415-36, 958-85.) During her initial appointment with LPC Clodi, Plaintiff reported anxiety, crying spells, fatigue, irritability, loss of motivation, mood swings, and reduced ability to carry out work. (Tr. 435.) At a July 16, 2013 appointment, Plaintiff reported she typically experienced manic episodes. (Tr. 433.) During her appointments with Plaintiff LPC Clodi observed that Plaintiff presented with anxious, elevated, hypomanic, agitated, or depressed moods, and animated or depressed affect. (Tr. 415, 423, 425, 428, 431, 433, 958, 960, 962, 964, 968, 970.)

         Ellen McDow, LPC, assumed Plaintiff's counseling from March 2014 through March 2016. (Tr. 956, 1073.) LPC McDow observed that Plaintiff's mood ranged from agitated, angry, anxious, euthymic, depressed, and expansive to hypomanic. Her affect ranged from animated to labile. (Tr. 954-55, 1006, 1009, 1011, 1013, 1016-17, 1019, 1021-23, 1025, 1027-31, 1033, 1036, 1074, 1076-77, 1080, 1082-83, 1430, 1432, 1442, 1453, 1455, 1462, 1464, 1466, 1472, 1476, 1486, 1500, 1506, 1514, 1518.)

         4. Francisco A. Neufeld, M.D.

         On December 31, 2013, Francisco A. Neufeld, M.D., performed a psychiatric assessment of Plaintiff. (Tr. 927-32.) Plaintiff reported experiencing “mania most of the time, with isolated and infrequent episodes of depression.” (Tr. 927.) Her symptoms of mania included elevated mood, irritability, impulsivity, racing thoughts, flights of ideas, loose associations, and loud speech. (Tr. 931.) Plaintiff also reported daily anxiety. (Tr. 927.) On examination, Plaintiff had hyperactive motor activity, intense affect, an elevated mood, loud and spontaneous speech, good concentration, good insight, good judgment, and intact memory. (Tr. 929-30.) Dr. Neufeld diagnosed bipolar disorder diagnosis and prescribed Lithium. (Tr. 931.)

         At a January 31, 2014 appointment, Plaintiff reported that she had been taking Lithium for three weeks and had not noticed any changes in her mood. (Tr. 933.) Plaintiff continued to feel hyperactive and irritable, she had disruptive sleep but still had high energy during the day. (Id.) Dr. Neufeld observed Plaintiff had a euthymic/anxious/irritable mood, labile affect, and rapid speech. (Tr 934.) Plaintiff's memory, insight, and judgment were good, and she had an intact memory. (Id.) Dr. Neufeld increased Plaintiff's Lithium dose, discontinued Lorazepam, and prescribed Ambien. (Id.) At a June 11, 2014 appointment, Plaintiff reported “feeling much better” with decreased irritability and impulsivity following the adjustment of her medication. (Tr. 936.) Plaintiff reported being able to finish projects without feeling overwhelmed, but she continued to experience anxiety due to PTSD. (Id.) On examination Plaintiff had an animated affect and “occasionally loose” thought associations. (Tr. 937.) Plaintiff had good memory, insight, judgment, and concentration. (Id.) Dr. Neufeld diagnosed bipolar disorder, unspecified; ADHD, “predominately hyperactive impulsive, ” and PTSD. (Tr. 938.) Dr. Neufeld prescribed Oxcarbazepine, Temazepam, and Adderall XR. (Tr. 937-38.) In August 2014, Plaintiff reported that Adderall helped her overall mood, and she was “feeling much better” and experiencing less anxiety and irritability. (Tr. 939.) Plaintiff continued to report frequent, mild anxiety, which was helped by Alprazolam. (Id.) On examination Plaintiff had an irritable mood, an animated affect, verbose and rapid speech, and circumstantial stream of thought. (Tr. 940.) She had good memory, judgment, concentration, and insight. (Id.)

         At an October 2014 appointment, Plaintiff reported that she had stopped taking Oxcarbazepine because of “gastric discomfort.” (Tr. 1038.) Dr. Neufeld recommended that Plaintiff take Oxcarbazepine at bedtime to avoid side effects. (Tr. 1038-39.) On examination Plaintiff' had a circumstantial stream of thought. (Id.) Plaintiff had a fair mood, labile affect, and good memory, concentration, and judgment. (Tr. 1039.) In January 2015, Plaintiff reported inability to swallow the Oxcarbazepine because of the large pill size. (Tr. 1186.) On examination Plaintiff had an irritable mood, animated affect, verbose speech, a circumstantial thought processes and stream of thought, good memory, good insight and judgment, and good concentration. (Tr. 1187.) Dr. Neufeld discontinued Oxcarbazepine and added Lamotrigine. (Id.)

         On February 26, 2015, Plaintiff reported that since she had started taking Lamotrigine, her psychiatric symptoms had improved, but she had pain in her middle back. (Tr. 1183.) In March 2015, Plaintiff reported “feeling better” on her current medication regimen, but she still had occasional episodes of irritability and impulsivity. (Tr. 1180.) Plaintiff reported good sleep and appetite, a busy home routine, and an “improved ability to talk to her daughter without becoming angry.” (Id.) On examination Plaintiff had a euthymic mood, labile affect, and circumstantial stream of thought, good memory, good insight and judgment, and good concentration. (Tr. 1811.) Dr. Neufeld continued Plaintiff's prescribed medications of Lamotrigine, Alprazolam, and Adderall XR. (Id.)

         At a June 18, 2015 appointment, Plaintiff reported “feeling well for the most part” but she had experienced difficulty sleeping for the previous two months, and two incidents “where she got upset and her anger escalated to the point where she was not able to maintain control.” (Tr. 1176.) Plaintiff stated that she was able to “return to normal once the issues were resolved.” (Id.) On examination Plaintiff had an irritable mood, labile affect, circumstantial stream of thought, good memory, and good insight and concentration. (Tr. 1177.) In August 2015, Plaintiff reported “feeling well” and that her irritability and impulsivity had decreased with medication. (Tr. 1418.) On examination Plaintiff had a euthymic mood, a labile affect, a circumstantial stream of thought, good memory, and good insight and judgment. (Tr. 1419.) Dr. Neufeld continued Plaintiff's medications. (Id.)

         In October 2015, Dr. Neufeld noted that Plaintiff's “target symptoms” were unstable mood manifested by “irritability and angry outbursts, impulsivity, difficulty concentrating, and frequent episodes of nightmares and flashbacks.” (Tr. 1554.) Plaintiff continued to have “road rage, ” but to a lesser extent than before. (Id.) Plaintiff reported improved concentration with Adderall. (Id.) Dr. Neufeld noted that Plaintiff had consistently taken her medication since 2013, reported that it made a “big difference, ” and that she experienced no negative side effects. (Id.) In December 2015, Plaintiff reported difficulty multitasking and maintaining concentration for extended periods of time, but improvement in her mood-related symptoms. (Tr. 1550.) At a March 23, 2016 appointment, Plaintiff reported several episodes of crying following a car accident that had triggered flashbacks. (Tr. 1530.) Plaintiff reported experiencing less frequent mood “ups and downs.” (Id.) On examination Plaintiff had a labile affect, verbose speech, and good memory and insight. (Tr. 1532.) Dr. Neufeld continued Plaintiff's medications. (Id.)

         B. Medical Opinion Evidence

         1. Non-Examining Physicians

         As part of the initial Agency determination, in May 2014, Joan Holloway, Ph.D., reviewed the medical records and completed a mental residual functional capacity (“RFC”) assessment. (Tr. 85-86.) Dr. Holloway opined that Plaintiff could “perform simple work and some complex tasks with routine supervision. She [could] interact superficially with others for work purposes. She [could] adapt to a work situation.” (Id.) As part of the reconsideration determination, in October 2014, Stephen Bailey, Ed.D., reviewed the medical record and assessed the same non-exertional abilities. (Tr. 109-11.)

         2. ...


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