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Brewer v. Commissioner of Social Security

United States District Court, N.D. Ohio, Eastern Division

December 12, 2016

KELLY S. BREWER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JUDGE, PATRICIA A. GAUGHAN

          REPORT AND RECOMMENDATION

          THOMAS M. PARKER, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff, Kelly S. Brewer (“Brewer”), seeks judicial review of the final decision of the Commissioner of Social Security denying her application for supplemental security income benefits and disability insurance benefits under Title XVI of the Social Security Act (“Act”). This matter is before the court pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3) and Local Rule 72.2(b).

         For the reasons set forth below, it is recommended that the final decision of the Commissioner be VACATED and the case be REMANDED for further proceedings consistent with this Report and Recommendation.

         II. Procedural History

         Plaintiff applied for supplemental security income and disability insurance benefits in April 2013. (Tr. 22) Ms. Brewer alleged that her disability began on January 1, 2005. (Tr. 24) Ms. Brewer's application was denied initially on August 1, 2013 (Tr.81) and after reconsideration on September 23, 2013. (Tr. 91) On November 18, 2013, Ms. Brewer requested an administrative hearing. (Tr.111)

         A hearing was held before Administrative Law Judge (“ALJ”) Jeffrey Raeber on January 12, 2015. (Tr. 37) The ALJ issued a decision on March 17, 2015 finding that Brewer was not disabled through March 31, 2007, the date she was last insured. (Tr. 19-32) Ms. Brewer requested a review of the hearing decision on April 10, 2015. (Tr. 17) On December 21, 2015, the Appeals Council denied review, rendering the ALJ's decision final. (Tr. 1-4)

         On January 20, 2016, Ms. Brewer filed an appeal of the ALJ's final decision in this court. (Doc. 1) Defendant answered and filed the transcript of the administrative proceedings on May 9, 2016. (Docs. 15 and 16) Ms. Brewer filed a brief on the merits on June 23, 2016 (Doc. 17) and Defendant filed her brief on the merits on August 8, 2016 (Doc. 18), making the matter ripe for review.

         III. Evidence

         A. Personal, Educational and Vocational Evidence

         Kelly S. Brewer was born on April 11, 1978 and was 28 years old on the date she was last insured. (Tr. 230) Ms. Brewer is married and lives with her husband and two children. (Tr. 47.) She has a high school education and no past relevant work. (Tr. 30) The date she was last insured was March 31, 2007. (Tr. 24) Ms. Brewer has a history of childhood trauma and abuse. (Tr. 250) She has severe mental and physical impairments. (Tr. 24)

         B. Medical Evidence

         1. Relevant Medical Records

         Plaintiff's medical conditions include post-traumatic stress disorder, bipolar disorder, anorexia, bulimia, lupus, scleroderma, anxiety, and depression. (Tr. 72) Plaintiff treated with Dr. Steven Richman from August 4, 2005 to June 18, 2006. (Tr. 211-222) Plaintiff's weight fluctuated between 105 and 110 pounds during that time period. (Tr. 211-222) In August 2005, plaintiff went to the doctor complaining of nausea and vomiting. (Tr. 218) She also reported having a hypoglycemic seizure. (Tr. 218) In September 2005, she told Dr. Richman she was an “emotional wreck.” (Tr. 216)

         In November 2005, plaintiff complained of fatigue and multiple stressors. (Tr. 213) Dr. Richman wrote her prescriptions to “[d]o something on purpose to treat yourself well every day, ” and “1) [e]very evening write down 3 things going well and 2) exercise.” (Tr. 212)

         In December 2005, plaintiff continued to complain of fatigue and other symptoms. (Tr. 211) Dr. Richman's notes indicate that plaintiff presented as tearful and anxious during treatment appointments, but that Lexapro was helping with her mental symptoms. (Tr. 211) His treatment notes also document normal findings in plaintiff's respiratory and cardiovascular systems. (Tr. 211)

         In early February 2006, plaintiff complained of insomnia and dealing with public places. (Tr. 222) In late February 2006, she complained of insomnia and depression. (Tr. 221)

         In April 2006, plaintiff presented to Anil M. Parikh, M.D., with symptoms of depression, anxiety and an eating disorder. (Tr. 235) Plaintiff reported taking Lexapro for her symptoms. (Tr. 235) She also reported that she had thoughts of suicide in November 2005 when she had stopped taking Lexapro and “went into a deeper depression.” (Tr. 235) On mental status examination, Dr. Parikh noted that plaintiff's mood was depressed and anxious but her cognition was intact and her insight and judgment were fair. (Tr. 236) He diagnosed major depressive disorder, anorexia nervosa and panic disorder and assigned a GAF score of 55, with a high of 65 within the past year. (Tr. 236)

         Plaintiff started attending psychotherapy sessions with Kristine Jordan, LISW, in April 2006. (Tr. 233) At her first session, plaintiff discussed her relationship with her mother and her anxiety about going to a family function for Easter where she would encounter the cousin who molested her as a child. (Tr. 233) She also reported that she was involved with a prison ministry and felt “very compelled by it.” (Tr. 233) On April 28, 2006, plaintiff reported that her husband had cheated on her last Fall and she believed that his infidelity “encouraged” her eating disorder. (Tr. 233)

         On May 4, 2006, plaintiff continued to struggle with family stressors but felt that the medication and treatment were helping. (Tr. 233) She also continued to struggle with her eating disorder but had not lost any more weight. (Tr. 233) Later in May 2006, plaintiff reported that she felt her husband was more devoted and committed to her. (Tr. 232)

         In June 2006, the therapist noted that plaintiff was continuing to have difficulty with lack of energy and motivation. (Tr. 234) However, she also noted that plaintiff was maintaining her weight at around 106 pounds and her target weight was 110. (Tr. 234)

         In August 2006, the therapist reviewed counseling techniques to identify and manage anger and control issues. (Tr. 231) Notes from August 4, 2006 state that plaintiff was continuing to do well on medication. (Tr. 231) At the end of August, plaintiff had gained two pounds and reported that she was starting to sell products for Avon, which she was excited about. (Tr. 231)

         In September 2006, plaintiff experienced some regression of her symptoms which was mostly attributed to the fact that her mother was staying with her for a week, but she was doing well with the goals she set for herself. (Tr. 231) Plaintiff expressed concerns regarding gaining and losing weight throughout her psychotherapy in 2006. (Tr. 233-234)

         In March 2007, plaintiff reported that she was doing well. (Tr. 230) She had gained six pounds and was planning on attending a women's retreat that Friday. (Tr. 230) She also reported that she was continuing to babysit for extra money. (Tr. 230) Plaintiff reported that her involvement with church and a small women's group continued to be supportive. (Tr. 230)

         In April 2007, plaintiff felt a significant increase in depression and she was not eating. (Tr. 230) The regression was attributed to her mother writing a letter to the cousin that molested plaintiff, which made plaintiff feel betrayed, hurt and angry. (Tr. 230)

         In May 2007, plaintiff was continuing to do “fair” on the medication. (Tr. 230) She felt better on an increased dose of Lexapro. (Tr. 230) She was becoming easily agitated at times, but was doing fair in regards to eating. (Tr. 230) Plaintiff weighed 120 pounds, the most she ever weighed while treating with Ms. Jordan. (Tr. 229)

         In June 2007, plaintiff reported that she had gotten into a fight with her husband. (Tr. 229) Plaintiff reported that she had only felt safe in her closet. (Tr. 229) She admitted that she had not taken her medication that day. (Tr. 229) She reported that she was doing better with her anorexia. She had maintained a healthy weight, was gaining weight, and felt comfortable with this. (Tr. 229)

         Also in June 2007, plaintiff reported to Dr. Richman that for the last year she had been experiencing weakness, tiredness, significant lethargy including having a difficult time getting out of bed and tingling in her legs. (Tr. 219)

         In July 2007, plaintiff reported that she was doing fair and was renewing relationships with family members. (Tr. 228) She weighed 132 pounds, which was her goal weight. (Tr. 228)

         Ms. Brewer continued to have significant mental health issues following the date last insured over the years 2007-2009. She was diagnosed with bipolar, manic thoughts, intense anxiety and fearfulness. (Tr. 222-230, 238-243)

         In 2010, during a therapy session with Dr. A.C. Ciancone, plaintiff reported an attempt to kill herself five years earlier. (Tr. 250) In 2010-2012, she was diagnosed with PTSD, bipolar, panic attacks, agoraphobia, and borderline personality disorder. (Tr. 244-249)

         Mental health treatment continued for long term PTSD, depression, anxiety and mood swings from 2010 to early 2013. Her issues with weight, outbursts of anger, mood swings, and difficulties in processing stress continued. (Tr. 317-347) In June 2012, she reported constant, worsening pain and stated that her “bones hurt all the time.” (Tr. 297)

         In 2012, she reported to Dr. May Zem that she had been having trouble with pain for many years and that her pain had been worsening over the past ten years. (Tr. 264)

         Progress notes from January 2013 indicate that plaintiff had seen a rheumatologist and had been diagnosed with lupus and scleroderma. (Tr. 295) In June 2013, plaintiff reported speech and memory recall issues. (Tr. 368)

         C. Opinion Evidence

         1. Kristine Jordan - May 2013

         Plaintiff's treating therapist, Kristine Jordan, LISW, completed a medical source assessment of plaintiff's mental abilities in May 2013. (Tr. 382-383) Ms. Jordan opined that plaintiff would be unable to remember short and simple instructions, detailed instructions, locations, and work-like procedures on any sustained or regular basis. (Tr. 382) She would further be unable to maintain attention for extended periods of time, complete a normal workday, travel to unfamiliar places, and would be unable to set realistic goals. (Tr. 383) She opined that plaintiff's mental limitations would cause noticeable difficulty in her ability to interact socially and her ability to adapt to changes in a work setting. (Tr. 383) Ms. Jordan assessed that plaintiff's impairments would cause her to miss more than four days of work per month. (Tr. 383)

         2. William Kedia, M.D. - July 2013

         On July 2, 2013, Dr. A. William Kedia completed two questionnaires assessing the limiting effects of scleroderma and lupus. (Tr. 373-376) Dr. Kedia opined that the diagnosis of scleroderma and lupus would preclude any work related physical activity and would result in the “complete incapacitation of a patient's life activities.” (Tr. 374) He also opined that these diseases would manifest in the symptoms of “fatigue, anxiety, depression, insomnia, memory issues…” amongst other symptoms. (Tr. 373) Dr. Kedia opined that plaintiff could lift less than five pounds, stand/walk for 30 minutes at a time, for two hours total; sit one hour at a time, for two hours total; could not engage in postural activities; would be off task at least 25% of the time; and would miss more than four days of work per month. (Tr. 373-376)

         3. Reviewing Physicians/Psychiatrists

         William Bolz, M.D. was asked to review plaintiff's medical records on behalf of the agency in July 2013. Dr. Bolz stated that there was insufficient evidence to fully assess plaintiff's claim. (Tr. 76, 78-79)

         Also in July 2013, Kristen Haskins, Psy.D., a state psychological consultant, reviewed plaintiff's records related to her mental impairments. (Tr. 77) Dr. Haskins also indicated that there was insufficient evidence during the period from the alleged onset date to the last insured date. (Tr. 77)

         Similarly, Teresita Cruz, M.D., was unable to provide a medical opinion regarding plaintiff's impairments in September 2013 due to insufficient evidence. (Tr. 87) She reported that there was insufficient evidence to fully assess the claim. (Tr. 87)

         D. Testimonial Evidence

         1. Testimony of Kelly Brewer

         A hearing took place in this matter on January 12, 2015 before ALJ Raeber. (Tr. 37-71) Ms. Brewer's first attorney withdrew as attorney of record on November 18, 2013. (Tr. 111) Despite not being represented by counsel, Ms. Brewer appeared for the administrative hearing on January 12, 2015 and elected to go forward without counsel. (Tr. 40) Ms. Brewer's spouse, David Brewer, also attended and testified at the hearing. (Tr. 39)

         At the outset of the hearing, the ALJ advised Ms. Brewer of her rights regarding representation. Specifically, the ALJ entered into the following dialogue with Ms. Brewer:

ALJ: * * * I note that you're not represented by an attorney, so I need to ensure that you understand your rights to representation. Before the hearing, we sent you a notice of hearing which indicated you have a right to be represented by an attorney or other qualified person of your choice. The letter also informed you that there are agencies that will represent you free of charge if you qualify. Did you receive this letter?
CLMT: Yes.
ALJ: Okay. A representative can help you obtain information about your claim, submit evidence, or explain medical terms, and some may not - - well, they may not charge a fee or receive a fee unless the Social Security Administration approves it. If you appoint a representative, you may be responsible for ...

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