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Rainsford v. Commissioner of Social Security Administration

United States District Court, D. Arizona

December 11, 2018

Remo Romulo Rainsford, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Eric J. Markovich United States Magistrate Judge

         Plaintiff Remo Romulo Rainsford brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Plaintiff raises three issues on appeal: 1) the Administrative Law Judge (“ALJ”) erred by failing to include all of Plaintiff's mental limitations in the residual functional capacity (“RFC”) assessment; 2) the ALJ failed to fully develop the record; and 3) the ALJ failed to provide clear and convincing reasons to discount Plaintiff's statements about his bipolar disorder. (Doc. 16).

         Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 16, 17, & 18). The United States Magistrate Judge has received the written consent of both parties and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. For the reasons stated below, the Court finds that the Commissioner's decision should be affirmed. . . . . . .

         I. Procedural History

         Plaintiff filed an application for Supplemental Security Income on July 15, 2013.[1](Administrative Record (“AR”) 86). Plaintiff alleged disability beginning on July 15, 2013[2]based on back problems, bipolar disorder, and mental illness. (AR 86, 99, 217). Plaintiff's application was denied upon initial review (AR 85) and on reconsideration (AR 98). A hearing was held on February 29, 2016 (AR 43), after which ALJ Charles Davis found, at Step Four, that Plaintiff was not disabled because he could perform his PRW as a dump truck driver. (AR 22). On August 28, 2017 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 1).

         II. Factual History[3]

         Plaintiff was born on January 13, 1968, making him 45 at the AOD of his disability. (AR 99). He has an 11th grade education and has past relevant work as a horse caretaker, ranch hand, landscape laborer, vet assistant, water truck driver, and in maintenance. (AR 83, 239).

         A. Treating Physicians

         On August 7, 2012 Plaintiff was seen at COPE Community Services for a psychiatric diagnostic interview. (AR 281). He had poor insight, judgment, and concentration, and was angry and agitated. Plaintiff was possibly under the influence, was not directable, and was only able to express wanting help for his elbow and stated he was only at COPE because he was court-ordered to be there.

         On February 5, 2013 Plaintiff was seen for medication refills for Fluoxetine for depression and Quetiapine for mood instability. (AR 282). He was friendly with good eye contact, memory appropriate, thought processes logical and coherent, and had good concentration, judgment, and insight. Diagnoses were bipolar II disorder and cannabis abuse.

         On March 5, 2013 Plaintiff was friendly with good eye contact, mood and concentration good, thought processes logical and coherent, and judgment fair due to illicit cannabis use. (AR 288). He was medication compliant and his bipolar disorder was stable or improved. (AR 289).

         On April 25, 2013 Plaintiff was talkative with an even mood, thought processes were logical and coherent, concentration, insight, and judgment good, and memory appropriate. (AR 286). He was medication compliant and bipolar disorder stable or improved. (AR 287).

         On June 3, 2013 Plaintiff asked for a seriously mentally ill (“SMI”) designation to help him with a disorderly conduct charge. (AR 284). His memory was appropriate, judgment and concentration were good, insight fair, and thought processes tangential. Plaintiff was medication compliant and bipolar disorder was stable or improved. (AR 285).

         On September 18, 2013 Plaintiff reported he stopped Seroquel because it made him twitch and that cannabis controlled his anxiety and mood instability. (AR 290). He was depressed because his hip hurt and frustrated. Plaintiff had good judgment, insight, and concentration, anxious mood, and logical and coherent thought processes. A review summary that same date notes that Plaintiff reported stopping his medications because they were causing twitches, dry mouth, and disturbed sleep. (AR 294).

         At various other non-mental health appointments, Plaintiff was described as tangential, talkative, and animated (AR 390, 483, 486, 502, 508), alert and oriented x3 (AR 392, 420, 478, 481, 484, 505, 527, 532, 535), normal/appropriate affect (AR 420, 478, 519, 527, 535), pleasant and cooperative (AR 390, 478, 519), and anxious (AR 443, 484, 505, 510, 513). Plaintiff denied depression, bipolar disorder, and anxiety on multiple occasions (AR 397, 426, 530, 534) and reported using medical marijuana to relieve stress (AR 398, 426). At an ER visit for back pain, Plaintiff had pressured speech and tangential thought processes and the physician believed Plaintiff had a mental health issue with mania and was exhibiting drug seeking behavior. (AR 480-81). At an ER visit for eye redness, the physician noted Plaintiff had an obvious psychiatric disturbance and required a lot of redirection. (AR 502). At an ER visit for elbow pain, Plaintiff was loud, yelling, inappropriate, and said he wanted to hit someone with a hammer. (AR 510). When security arrived, Plaintiff calmed down and said he wanted to go home.

         B. Examining Physicians

         At a physical medicine consultation with Dr. Hassman on November 1, 2013, Plaintiff denied depression but reported anxiety. (AR 344). Plaintiff was described as awake and alert, oriented times three, pleasant and cooperative, and extremely verbose.

         Plaintiff had cognitive testing with Dr. Plevell on February 23, 2016. (AR 358). Plaintiff was described as alert and oriented with elevated affect and rapid speech, and his thought processes were circumstantial, tangential, and loose in association. Dr. Plevell's conclusion was:

The client's condition appeared to be most consistent with the diagnoses of: Bipolar Disorder; R/O Unspecified Neurocognitive Disorder. Testing suggested highly significant difficulty with processing speed and possibly with abstraction. Behaviorally, he demonstrated rapid speech and significantly disorganized thought. It is unclear if these issues are due to a primary condition or secondary to his Bipolar Disorder.

(AR 359).

         C. State Agency Physicians

         On initial review, state agency physician Dr. JES found that Plaintiff had mild restriction in activities of daily living, moderate difficulties in social functioning and in maintaining concentration, persistence, or pace, and one or two episodes of decompensation. (AR 90). Dr. JES noted that Plaintiff had a history of tangential thought processes and poor judgment that had gotten him into legal trouble, and was not compliant with his meds, which was a common problem with affective disorders and thus was regarded as a consequence of his mental impairment rather than a contributing factor. (AR 91). Dr. JES assessed the following limitations: marked limitation in ability to understand and remember detailed instructions, carry out detailed instructions, and interact with the general public; moderate limitation in ability to maintain attention and concentration, perform activities within a schedule, maintain regular attendance, and be punctual, complete a normal workday and workweek without interruption from psychologically based symptoms and perform at a consistent pace, accept instruction and respond appropriately to criticism from supervisors, and get along with coworkers and peers. (AR 93-94). Dr. JES opined that Plaintiff could perform simple tasks on a sustained basis, interact with peers and supervisors on a superficial, work basis, and could adapt to a work situation with simple tasks and no public contact. (AR 95). These findings were affirmed on reconsideration. (AR 103-104, 107-108).

         D. Plaintiff's Testimony

         On a Disability Report dated July 19, 2013 Plaintiff stated that he stopped working in 2008 due to personal reasons. (AR 217). On a Function Report dated October 3, 2013 Plaintiff reported that he could not work because of pain and arthritis in his right elbow and pain in his right hip. (AR 231). He takes care of his pets, has no problems with personal care, prepares his own meals, and does chores like vacuuming, watering the plants, and taking out the trash. (AR 232-233). On the section about his abilities, Plaintiff did not note any mental-related impairments. (AR 236). For how long he can pay attention, he wrote “I so broke I can't afford to pay” but checked the box indicating he can finish what he starts. (AR 236). For how well he can follow written instructions, Plaintiff stated he had problems writing because of his elbow pain, and for how well he can follow spoken instructions, Plaintiff wrote “what does that have to do with my hip.” (AR 236).

         At the hearing before the ALJ, Plaintiff testified he lives with his 78-year-old mother and that he tries to help her with yard work, watering flowers, vacuuming, and cleaning. (AR 51). He stated that it was frustrating because he hadn't been able to get a full-time job but also that he had not applied for any; he used to do seasonal work on ranches because he traveled around playing polo but has not played since 2002. (AR 52). His back and elbow pain prevent him from working now. (AR 52, 53).

         Plaintiff's current medications are Flucytosine for his nose and fish oil. (AR 53). At times he takes pain medication but mainly uses medical marijuana. (AR 55, 69). His mother gives him money when he helps with chores to purchase the marijuana. (AR 70). Plaintiff was previously court-ordered to take Prozac and Seroquel. (AR 71-72). He did not take Prozac; the jail gave him Risperdal but it gave him headaches so it was changed to Seroquel, but that also gave him bad headaches and put him in a fog. (AR 72). Plaintiff reported that COPE staff told him to follow up with the doctors but that they were happy he was using marijuana right now. (AR 72).

         On questioning by his attorney, Plaintiff stated that he had problems processing new information and staying focused. (AR 62). He had problems bouncing around and changing the subject ever since someone gave him LSD at 4 years old; he loses track and then comes back to things but gets overwhelmed, confused, and anxious. (AR 62). Plaintiff stated that he tries to get along with everyone, but then also admitted that he had called his counsel's office multiple times in a row upset and yelling because he gets agitated about things. (AR 63). He does not like being around a lot of people and had never gotten in a fight with anyone, but there were ...

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