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Bendzik v. Colvin

United States District Court, Sixth Circuit

May 29, 2013

DENISE PETRINE BENDZIK, Plaintiff,
v.
CAROLYN W. COLVIN[1], ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION & ORDER

GEORGE J. LIMBERT, Magistrate Judge.

Denise Petrine Bendzik ("Plaintiff") seeks judicial review of the final decision of Carolyn W. Colvin ("Defendant"), Commissioner of the Social Security Administration ("SSA"), denying her application for Disability Insurance Benefits ("DIB"). ECF Dkt. #1. For the following reasons, the Court REVERSES the ALJ's decision and REMANDS the decision for reevaluation and further analysis and application in accordance with the treating physician rule. This in turn also requires reevaluation and analysis of the ALJ's credibility determination and his determination at Steps Four and Five of the sequential steps to evaluate Plaintiff's entitlement to DIB.

I. PROCEDURAL AND FACTUAL HISTORY

On November 4, 2008, Plaintiff applied for DIB alleging disability beginning on January 20, 2006, due to bipolar disorder and major depression. ECF Dkt. #12 ("Tr.") at 114-124, 134.[2] The SSA denied Plaintiff's application initially and on reconsideration. Tr. at 60-68. Plaintiff requested an administrative hearing, and on March 23, 2011, an ALJ conducted an administrative hearing and accepted the testimony of Plaintiff, who was represented by counsel, and a vocational expert ("VE"). Tr. at 36-53, 77. In a decision dated May 6, 2011, the ALJ found that Plaintiff was not disabled and therefore not entitled to DIB. Id. at 22-31. Plaintiff filed a request for review of the ALJ's decision, but the Appeals Council denied the request on January 24, 2012. Tr. at 4-7, 17.

On March 26, 2012, Plaintiff filed the instant suit appealing the ALJ's decision. ECF Dkt. #1. On August 20, 2012, Plaintiff filed a brief on the merits. ECF Dkt. #15. On October 4, 2012, Defendant filed a brief on the merits. ECF Dkt. #17. Plaintiff filed a reply brief on October 17, 2012. ECF Dkt. #18.

II. RELEVANT MEDICAL HISTORY

On May 2, 2006, a progress note from Dr. Deeb, Plaintiff's primary care physician, indicated that Plaintiff had a history of depression and anxiety and he noted that the Paxil he had prescribed was not working for her. ECF Dkt. #12 at 345. Plaintiff stated that she felt a little anxious and she was tearful at the appointment. Id. She reported decreased interest in activities and energy, and had feelings of guilt, agitation, irritability and anxiety. Id. Dr. Deeb diagnosed depression and prescribed Zoloft and advised her to continue researching to find a new psychiatrist. Id.

On November 21, 2006, Dr. Deeb indicated in his progress note that Plaintiff reported that the medications for anxiety and depression were not helping her. ECF Dkt. #12 at 208. Plaintiff indicated that she stopped taking Zoloft after two months because it was not helping. Id. at 209. She reported decreased energy, sleep, and concentration, and increased anger in the evening and extreme irritability. Id. She indicated that she could become suicidal if she continued the way she was feeling. Id. Dr. Deeb diagnosed depression, started Plaintiff on Cymbalta, gave her Xanax, and referred her to psychiatry. Id.

On February 1, 2007, Plaintiff presented to the emergency room complaining of depression and a fear of harming her children when getting angry. ECF Dkt. #12 at 225. She was admitted to the hospital and had asked to be released within twenty-four hours of her admission, but the doctor suggested that she remain hospitalized due to her score on the Beck Depression Inventory test. Id. She stayed and was discharged on February 5, 2007 after receiving medication, attending group therapy and retaking the Beck Depression Inventory test. Id. at 226.

On March 16, 2007, Plaintiff was referred to the Cleveland Clinic for a chemical dependency assessment. ECF Dkt. #12 at 278. She was diagnosed with alcohol and cocaine abuse and while it was recommended that she seek intense outpatient treatment, Plaintiff advised that she would attend AA. Id. at 284.

An April 16, 2007 progress note from Dr. Deeb indicated that Plaintiff was seen for follow up of her depression. ECF Dkt. #12 at 208. Dr. Deeb reported that Plaintiff was anxious, but denied suicidal thoughts, and he refilled her medications and gave her a prescription for Xanax until she had her follow-up with psychiatry. Id.

From June 21, 2007 through July 5, 2007, Plaintiff participated in an inpatient detoxification program at the Cleveland Clinic for alcohol dependence, cocaine abuse and major depressive disorder. ECF Dkt. #12 at 265. Upon discharge, Plaintiff attended psychotherapy with Ms. Stowe and Dr. Collins for her alcohol dependence and cocaine abuse. Id. at 261, 263.

Dr. Deeb's September 30, 2008 progress note indicated that Plaintiff had severe anxiety while taking 800 mg of Seroquel and she was not sleeping well. ECF Dkt. #12 at 206. He noted that Plaintiff wanted him to send her lawyer a letter as she was applying for social security benefits. Id. Dr. Deeb noted that Plaintiff was hospitalized in the past at the psychiatric floor of the hospital, she was known to have bipolar disorder and while she was not suicidal, she was severely depressed. Id. On October 3, 2008, Dr. Deeb wrote a letter indicating that Plaintiff suffered from bipolar disorder with severe depression and she was admitted to the psychiatric floor of the hospital. ECF Dkt. #12 at 213. He further noted that Plaintiff also had severe anxiety and he concluded that Plaintiff was not able to engage in any work. Id.

Plaintiff presented to the emergency room on October 14, 2008 complaining of worsening depression over the last several weeks. ECF Dkt. #12 at 239. She reported having passive suicidal thoughts and then a plan to overdose. Id. Plaintiff was admitted to the hospital and received increased dosages of medication and therapy. Id. She was discharged on October 20, 2008 with the diagnoses of bipolar disorder type 1 and a history of alcohol and cocaine dependence. Id. at 240.

On October 21, 2008, Plaintiff self-reported to the Cleveland Clinic for an assessment. ECF Dkt. #12 at 254. Ms. Judith Stowe and Dr. Collins assessed Plaintiff. Id. It was noted that Plaintiff had prior chemical dependency treatment in July of 2007 at the Cleveland Clinic for two weeks for inpatient detoxification. Id. She was supposed to continue outpatient treatment but moved to New Mexico and had returned three to four months ago. Id. Plaintiff admitted that after one year of sobriety, she had relapsed upon her return to Cleveland and began drinking alcohol once a month and using cocaine. Id. She indicated that she had recently been admitted to the hospital for increased depression and anxiety, as well as for suicidal ideation, so she came to the Cleveland Clinic because she knew that drinking alcohol and using drugs were not good for her. Id. Dr. Collins diagnosed Plaintiff with alcohol and cocaine dependence and atypical depression, modified her medications, and recommended outpatient treatment. Id. at 258-259.. On October 29, 2008, Plaintiff reported to Dr. Collins that she was doing poorly on Ambilify and he described her as irritable with manic traits. ECF Dkt. #12 at 252. He also noted that she reported using cocaine one week prior to the appointment. Id. He adjusted her medications. Id.

On January 27, 2009, Dr. Collins' progress note indicated that Plaintiff did not complete her treatment program because she was caring for her husband who had back surgery. ECF Dkt. #12 at 430. She reported that she was not working and indicated that she did not know why she was not working. Id. She thereafter stated that she had a hard time getting up and going to work since she had her daughter because she had post-partum depression that had not gone away. Id. She stated that she had not been the same since she had her daughter. Id. She reported moodiness, crying, sleeping, and mood swings. Id. She also indicated that she was happier when she was working as she felt needed and important. Id. Dr. Collins diagnosed mixed chemical dependence in remission, dysthmic disorder, and atypical bipolar disorder. Id.

On February 26, 2009, Dr. Collins indicated in a progress note that Plaintiff reported her old boss had called her regarding returning to work and Dr. Collins recommended exploring the possibility. ECF Dkt. #12 at 434-435. Dr. Collins found Plaintiff's insight and judgment poor and he noted that she needed to free herself from the swamp of negativity surrounding her. Id. He diagnosed her as having bipolar disorder that was most recently manic moderate, combination drug dependence and dysthymic disorder. Id. at 435. He also noted that Plaintiff reported that she had applied for social security disability benefits because she felt that she could not handle a job emotionally. Id. at 438.

On March 10, 2009, Dr. Zerba, an agency examining psychologist, examined Plaintiff for the agency. ECF Dkt. #12 at 309. Plaintiff related to Dr. Zerba that she spent one year in prison because she used to live with a drug dealer. Id. at 310. She also reported that she worked as a bartender before, but she quit because her drinking became excessive. Id. She also worked in data entry but was fired because she always arrived late to work. Id. She further stated that her husband had to remind her to take her medications and she forgets her appointments with her therapist and psychiatrist. Id. Dr. Zerba noted that Plaintiff was cooperative but she sobbed nonstop throughout the interview. Id. She found Plaintiff to be depressed, with a flat affect, no suicidal or homicidal thoughts, no hallucinations or delusions, and no evidence of psychosis. Id. at 310-312. Dr. Zerba found Plaintiff to be within the average range of intelligence, but with limited to absent insight and fair to poor judgment. Id. at 312. Plaintiff related that she had no hobbies, no social life, and she had relapsed from sobriety from alcohol in 2008 after two years and had a history of cocaine use until the Fall of 2008. Id. at 313. Plaintiff reported having nightmares, an inability to sleep, being depressed, and having anxiety and panic attacks. Id. at 311.

Dr. Zerba diagnosed Plaintiff with major depressive disorder, panic disorder without agoraphobia, alcohol dependence in early partial remission and cocaine abuse in early partial remission. ECF Dkt. #12 at 313. She found Plaintiff to be unimpaired in her abilities to understand and follow directions and to pay attention to perform simple, repetitive tasks. Id. She opined that Plaintiff had moderate impairments in her ability to relate to others in the work environment and to withstand stress and pressures of daily work activity. Id.

On March 16, 2009, Dr. Benninger, a state agency reviewing psychologist, completed a mental RFC assessment and found that Plaintiff was moderately limited in the areas of: understanding, remembering and executing detailed instructions; maintaining attention and concentration for extended periods; sustaining an ordinary routine without special supervision; working with others without being distracted by them; completing a normal workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; interacting appropriately with the general public; getting along with coworkers without distracting them or exhibiting behavioral extremes; and responding appropriately to changes in the work setting. ECF Dkt. #12 at 315-316. Dr. Benninger reviewed the evidence in the file and unfortunately, the last page of his assessment is missing from the record. Id. at 318 (indicating that assessment is continued on page 4 but page 4 does not follow).

In his psychiatric review technique form which followed the mental RFC assessment, Dr. Benninger indicated that he based his assessment on Listing 12.04 for affective disorders, 12.06 for anxiety-related disorders, and 12.09 for substance addiction disorders. ECF Dkt. #12 at 319. He found that Plaintiff's mental disorders moderately limited her activities of daily living, caused moderate difficulties in maintaining social functioning and in maintaining concentration, persistence or pace, and caused three episodes of decompensation each of extended duration. Id. at 329.

On March 17, 2009, Dr. Deeb indicated in a progress note that Plaintiff presented as anxious and depressed. ECF Dkt. #12 at 334. She stated that she was not suicidal but was very anxious. Id. On April 28, 2009, Plaintiff presented to the emergency room for worsening depression over the past few weeks. ECF Dkt. #12 at 351. She reported problems with her medications and noted significant decreases in her mood, sleep, interest, energy, concentration, appetite and increased feelings of helplessness and hopelessness. Id. Plaintiff was calm and cooperative, logical in thought, with a severely depressed mood and fair judgment and insight. Id. at 354. She was admitted to the hospital and medications were restarted and changed, she participated in group therapy and was discharged on May 1, 2009 with a diagnosis of bipolar disorder and depression and was seen as a low risk to herself and others. Id. at 351-352.

On June 1, 2009, Dr. Steiger, an agency reviewing psychologist, affirmed the prior findings by the state agency reviewing psychologists. ECF Dkt. #12 at 371. She noted that some of Plaintiff's past inpatient hospital stays were for detox. Id.

Also on June 1, 2009, Dr. Collins indicated in a follow-up progress note that Plaintiff had met with her former boss about cleaning the nightclub where she had once worked. ECF Dkt. #12 at 439. He noted that Plaintiff's counselor had stated that one month ago that Plaintiff was not doing well in that while Plaintiff remained sober, she was hospitalized for psychological problems. Id. Dr. Collins noted that Plaintiff's insight and judgment had improved and she was visibly less depressed. Id. at 440.

On August 17, 2009, Dr. Collins noted that Plaintiff had been looking for work and her husband was eager to return to work. ECF Dkt. #12 at 444. Plaintiff reported having panic attacks. Id. Dr. Collins found that Plaintiff's insight and judgment were ...


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