Longale v. Saul

          ORDER

          BRUCE G. MaCDONALD, UNITED STATES MAGISTRATE JUDGE

         Currently pending before the Court is Plaintiff Daniel Longale's Opening Brief (Doc. 13). Defendant filed his Brief (“Response”) (Doc. 14), and Plaintiff filed his Reply Brief (“Reply”) (Doc. 15). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g).

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, ^[2] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. Based upon the pleadings of the parties and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court grant Plaintiff's Opening Brief (Doc. 13) and remand this matter to the Administrative Law Judge (“ALJ”) for further proceedings.

         I. BACKGROUND

         A. Procedural History

         On January 9, 2014, Plaintiff filed a Title XVI application for Supplemental Security Income (“SSI”) alleging disability as of October 15, 2012 due to depression, anxiety, antisocial disorder, Attention-Deficit/Hyperactivity Disorder (“ADHD”), learning disability in reading and writing, fractured lower arm, fractured shoulder, fractured hand-surgically repaired, alcohol use, and Methicillin-resistant Staphylococcus aureus (“MRSA”). See Administrative Record (“AR”) at 53, 121-22, 135-38, 248-53, 261, 304, 329. The Social Security Administration (“SSA”) denied this application on June 9, 2014.^[3] Id. at 53, 121-35, 151-54. On August 13, 2014, Plaintiff filed a request for reconsideration, and on December 17, 2014, SSA denied Plaintiff's application upon reconsideration. Id. at 53, 136-50, 160-63. On March 4, 2015, Plaintiff filed his request for hearing. Id. at 53, 164. On December 1, 2016, a hearing was held before Administrative Law Judge (“ALJ”) George W. Reyes. Id. at 53, 70-120. On May 24, 2017, the ALJ issued an unfavorable decision. AR at 50-65. On May 30, 2017, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on December 21, 2017, review was denied. Id. at 2-7, 37-49, 247, 363-73. On January 17, 2018, Plaintiff filed this cause of action. Compl. (Doc. 1).

         B. Factual History

         Plaintiff was thirty-two (32) years old at the time of the administrative hearing, and twenty-eight (28) at the time of the alleged onset of his disability. AR at 53, 63, 70, 75, 121-22, 135-38, 248, 261, 304, 329. Plaintiff finished his freshman year, and part of his sophomore year, of high school but did not obtain a degree. Id. at 75, 135-36, 266. Prior to his alleged disability, Plaintiff worked in plumbing; heating and air conditioning; and fast food. Id. at 76-77, 257-59, 267. Plaintiff also worked as a delivery driver and dishwasher. Id. at 257-59, 267.

         1. Plaintiff's Testimony

         a. Administrative Hearing

         At the administrative hearing, Plaintiff testified that he completed the ninth grade, but was kicked out for fighting during 10th grade. AR at 75. Plaintiff further testified that he had previously worked in heating and cooling and plumbing, but neither job lasted for more than three (3) months. Id. at 76-77. Plaintiff confirmed that he claims disability as of October 15, 2012, and has not worked since that date. Id. at 78-79.

         Plaintiff testified that he walks his dog approximately ten (10) minutes, a couple of times per week. Id. at 79. Plaintiff further testified that he used to walk his dog for hours approximately two (2) years prior; however, he does not enjoy doing it any more. Id. at 79-80. Plaintiff also testified that he does woodworking, making items such as jewelry boxes or little pots for plants, approximately once per week. AR at 81. Plaintiff noted that he uses the woodworking supplies and equipment that his grandfather had and does not make any money from it, but does it for a hobby. Id. at 95-96. Plaintiff also indicated that he occasionally rides a skateboard, just for something to do. Id. at 98-99.

         Plaintiff testified that he was in Las Vegas, approximately eight (8) months prior to the administrative hearing, working for his uncle, moving kitchen equipment. Id. at 82-83. Plaintiff further testified that he left the job, because he got angry with some of his coworkers. Id. at 82. Plaintiff's subsequent testimony indicated that perhaps he had a falling out with his uncle during the job and won't be able to work for him in the future. AR at 90, 95.

         Plaintiff testified that the longest he was able to take the medications prescribed for his mental health issues was approximately five (5) days. Id. at 83-84. Plaintiff also reported that his providers would then change his medication the following visit. Id. at 84-85. When asked about his latest diagnosis, Plaintiff was dismissive, and he complained that prescriptions have yet to be effective for him. Id. at 86, 102-03. Plaintiff testified that he smokes cigarettes and estimated that he smokes a little more than one (1) pack per day. Id. at 77. Plaintiff further testified that he smokes marijuana approximately twice per week, when he cannot sleep. AR at 77-78. Plaintiff also testified that he drinks alcohol; however, this is not on a consistent basis. Id. at 85-86. Plaintiff testified that he had been a binge drinker from high school until approximately five (5) years previously. Id. at 87. Plaintiff also noted that when he was younger, he had received a citation for driving under the influence (“DUI”). Id. Plaintiff testified that as a result, he has not driven a car since then. Id. Plaintiff also testified that he has previously used cocaine and methamphetamines; however, he had not used either substance in over a year. AR at 90-92. Plaintiff testified that he does not have a regular social life, but occasionally sees friends. Id. at 98.

         Plaintiff indicated that he was hostile to the idea of group therapy. Id. at 86-87. Plaintiff testified that he has racing thoughts, but does not share them with anyone. Id. at 97. Plaintiff further testified that he had been paranoid during the previous six (6) months and that his energy swings between excessive to depressed. Id. at 97-98.

         Plaintiff also testified that although he is open to the possibility of job training, he does not know when he is going to have a good day or bad day with his mental health. AR at 88-89. Plaintiff testified that in an ideal world he would be able to live alone, outside the city limits, and not have to interact with people. Id. at 88. When the ALJ asked Plaintiff about the difference between the times he could function and his current situation, Plaintiff responded that he had “more stuff, ” including money and a car, but was now stuck, pointing to his paranoia as the main issue health-wise. Id. at 99-100.

         b. Administrative Forms

         On April 24, 2014 and October 27, 2014, Plaintiff completed a Function Report- Adult in this matter. AR 279-87, 306-14. Plaintiff reported that he lived in a house with family. Id. at 279, 306. Plaintiff described his medical conditions as follows:

I can't be around more than one or two people at a time without anxiety and if I don't know people I get very frustrated and need to move around. I don't read well and can follow something if it is shown to me but I can't handle people talking to me when I am doing something. I like to do physical labor but my head and shoulder injuries limit my ability to lift or hold things for long or with regularity.

Id. at 279. Plaintiff also indicated that his anxiety and aggression keep him from sustaining employment. Id. at 306. Plaintiff reported that his typical day involves interacting with his dog, showering, eating something, looking on Facebook, walking in the neighborhood, and listening to music. Id. at 280, 307. Plaintiff indicated that he is also able to go to the store to buy food for himself and his dog, visit with his friend and their children, and occasionally have a beer at a local bar. AR at 280.

         Plaintiff reported that he cares for his dog including feeding, walking, playing, and occasionally bathing him. Id. at 280, 307. Plaintiff also reported that his grandmother helps him care for his dog by feeding the dog and letting him out into the yard. Id. Plaintiff indicated that prior to his illness he was able to work, drive, see friends, go to family gatherings, date, and cook. Id. Plaintiff reported that his illness cause him to have trouble falling and staying asleep. Id. Plaintiff does not report any problems with performing personal care tasks; however, he indicates that he has to shave his head because hair bothers him and that he has no interest in personal hygiene when he is depressed or anxious. AR at 281, 308. Plaintiff reported that his grandmother reminds him to keep a schedule for his medication, but he finds it difficult and later reported that he was no longer taking medication. Id. Plaintiff makes simple meals approximately twice per week. Id. Plaintiff further reports that he does not have an interest in food since his conditions began. Id.

         Plaintiff reported that because he cannot do things correctly around the house, according to his grandmother, he has stopped doing them. Id. at 282, 309. Plaintiff further reported that his shoulder and arm hurt “for days” because he is too aggressive with housework. AR at 282. Plaintiff noted that he goes outside daily unless he is depressed, in which case he will stay in his room for several days at a time without coming out. Id. at 282, 309. Plaintiff reported that when he goes out he either walks or rides in a car, although the later makes him anxious. Id. Plaintiff further reported that he cannot ride the bus, because there are too many people and he gets into fights, although he later indicated that he uses public transportation. Id. Plaintiff does not drive, because he does not have a license or a car. Id.

         Plaintiff reported that he shops for food and snacks, but he cannot stay in the store long and lines at the checkout cause anxiety. AR at 282, 309. Plaintiff further reported that although he can count change, he is unable to pay bills, handle a savings account, or use a checkbook/money orders. Id. at 283, 310. Plaintiff noted that he finds money management frustrating because he cannot concentrate sufficiently, and as a result Plaintiff uses cash until it is gone. Id. Plaintiff described his hobbies and interests as including watching movies on television or video and making wooden boxes out of salvaged wood. Id. Plaintiff further noted that he is anxious and has to move around a lot. Id. at 283. Plaintiff reported that he posts on Facebook, but does not have many friends. AR at 283. Plaintiff further reported that he does not like to visit or talk in person for long periods of time. Id. Plaintiff also stated that goes out regularly with his dog or to the store, and sometimes to visit a friend. Id. Plaintiff noted that he has difficulty getting along with people because he is anxious and uncomfortable around everyone. Id. at 284. Plaintiff reported that he cannot socialize with more than one or two people at a time. Id.

         Plaintiff indicated that his condition affects his ability to lift, squat, bend, reach, kneel, talk, climb stairs, remember, complete tasks, concentrate, understand, follow instructions, use hands, and get along with others. AR at 284, 311. Plaintiff reported that physical activity for more than a short time causes him to hurt for days. Id. Plaintiff further reported that he can walk a long way before requiring a rest, but his ability to pay attention varies from minutes to approximately one (1) hour. Id. Plaintiff also reported that he does not follow written instructions well, needs to be shown how to do things, and can only remember uncomplicated instructions. Id. Plaintiff indicated that he does not do well with authority figures, and he cannot get a job because he is too intense and cannot deal with people, noting that they always pick fights with him. Id. at 285, 312. Plaintiff further reported that he does not handle stress or changes in routine well. AR at 285, 312.

         Plaintiff reported that he no longer takes any medications, because after two years of trying to find the right medication he just gave up. Id. at 286, 313. Plaintiff reiterated his anger issues and inability to be around people. Id. at 286.

         Plaintiff completed a Disability Report-Appeal indicating that his depression had gotten worse and increased his isolation. Id. at 324. Plaintiff reported vacillating between aimlessness and volatility. Id. Plaintiff also noted that he was no longer able to ride the bus due to intense anxiety. Id. at 326. Plaintiff indicated that he was hoping to be evaluated by a psychiatrist and is vehemently opposed to medication. Id. at 327.

         2. Plaintiff's Medical Records

         a. Treatment records

         On January 6, 2012, Plaintiff established care COPE Community Services (“COPE”). AR at 374-79. Plaintiff reported his medical history as including a persistent cough due to smoking, back pain, headaches, hand surgery approximately one (1) year prior, and problems with sleeping. Id. at 374-78. Plaintiff further reported smoking approximately one (1) pack of cigarettes per day. Id. at 378. Plaintiff also indicated that he had a psychiatric evaluation when he was approximately nine (9) years of age and that the prescribed ADHD medication was not helpful. Id.

         Plaintiff sought help From COPE for his anxiety and insomnia, and noted that he had trouble falling and staying asleep. Id. at 381. Plaintiff indicated that he lacks motivation and is uncomfortable without a routine. AR at 381. Plaintiff's mother reported that when Plaintiff's anxiety is high, he becomes short-tempered and aggressive. Id. Plaintiff reported that he drinks beer to help him socialize with others. Id. Plaintiff responded that he will know if things are improving if he can go out and try to get a job. Id. Plaintiff's mother indicated that she thought Plaintiff would benefit from skills building, self-esteem improvement, and possibly anxiety medication. Id. at 382. Plaintiff reported that he had been involved with the legal system as a juvenile and was cited for driving under the influence (“DUI”) when he was twenty-one (21). AR at 382. Plaintiff reported that her he drinks to excess a few times per week, uses marijuana, and his medication history suggested abusing prescription drugs. Id. at 382-83, 387.

         Regarding Plaintiff's drinking and marijuana use, COPE staff assessed that Plaintiff needed encouragement not to use, but had fair self-management and relapse coping skills. Id. at 385. The assessment also noted that Plaintiff's environment contained triggers that exposed him to continued use. Id. Plaintiff's risk assessment noted that he had thoughts of hurting others and was known to fight when angry. Id. at 387-89. COPE notes indicated that Plaintiff suffered some isolation. AR at 388. Plaintiff exhibited a calm and appropriate demeanor, was polite, and answered questions openly. Id. at 390. COPE notes further indicated Plaintiff had poor judgment and impulse control and fair insight. Id. at 392. Plaintiff Axis I diagnosis included anxiety disorder not otherwise specified and alcohol abuse. Id. at 393. Plaintiff's Axis II diagnosis included antisocial personality disorder. Id. Plaintiff's Global Assessment of Functioning (“GAF”) score was 62, indicating moderate symptoms. AR at 395.

         Plaintiff reported to COPE that he lived with his grandmother, but did not have friends and felt disconnected from his family. Id. at 399-400. Plaintiff also indicated that he felt working would take away his negative feelings. Id. at 400. Plaintiff further reported his negative school experience and dropping out of high school in the tenth grade. Id. at 401. Plaintiff noted he had not work for six (6) years and his previous employment included electronics, carpentry, and plumbing. Id. at 402. Plaintiff also indicated a history of arrests, primarily do to fighting, plus a DUI. AR at 405-06.

         On January 13, 2012, Plaintiff was seen by Dale Hawkins, N.P. at COPE. Id. at 426-28. Plaintiff complained of difficulty sleeping. Id. at 426. Treatment records indicate that Plaintiff's appearance, affect, and mood were appropriate; concentration, insight, and judgment were fair; speech was normal; and he denied hallucinations, homicidal ideation/target/plan, and suicidal ideation/intent/plan. Id. NP Hawkins prescribed Trazadone. Id.

         On February 6, 2012, Plaintiff was seen by Dale Hawkins, N.P. at COPE. Id. at 425-26. Plaintiff reported that he was taking medication as prescribed. Id. at 425. NP Hawkins had prescribed trazadone and added Zoloft. Treatment records indicated that Plaintiff's appearance, affect, and mood were appropriate. Id. Treatment records further indicated that Plaintiff's concentration, insight, and judgment were fair; his speech normal; and Plaintiff denied hallucinations, homicidal ideation/target/plan, and suicidal ideation/intent/plan. Id. Plaintiff's continuing diagnoses included anxiety disorder not otherwise specified, alcohol abuse, and antisocial personality disorder. AR at 425.

         On April 13, 2012, Plaintiff was seen by Dale Hawkins, N.P. at COPE. Id. at 423-24. NP Hawkins noted that Plaintiff reported Zoloft made him feel like a “zombie” and was not effective. Id. at 423. As a result NP Hawkins discontinued Zoloft and prescribed Wellbutrin. Id. Treatment records indicated that Plaintiff's appearance, affect, and mood were appropriate; concentration, insight, and judgment were fair; speech was normal; ...