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Shields v. Commissioner of Social Security Administration

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

June 22, 2018

BRIAN SHIELDS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          DONALD C. NUGENT JUDGE

          REPORT AND RECOMMENDATION

          Kathleen B. Burke United States Magistrate Judge

         Plaintiff Brian Shields (“Plaintiff” or “Shields”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying his application for child insurance benefits. Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2.

         For the reasons set forth below, the undersigned recommends that the Court REVERSE and REMAND the Commissioner's decision. On remand, the Commissioner should provide further analysis with respect to the Step Two determination because the ALJ did not build a logical bridge connecting the evidence, including the opinions of the state agency reviewing psychologists that Shields did have medically determinable impairments, with his Step Two finding that Shields failed to demonstrate the existence of such an impairment.

         I. Procedural History

         On March 21, 2014, Shields protectively filed[1] an application for child insurance benefits based on his deceased father's earnings records. Tr. 19, 58, 151-152. Shields had filed an earlier application for supplemental security income on July 18, 2012. Tr. 19. That application was granted and Shields was receiving disability payments based on that application. Tr. 19, 47.

         In his child insurance benefits application, Shields alleged a disability onset date of September 2, 1979. Tr. 151. As explained by the Administrative Law Judge, “Under the authority of the Social Security Act, the Social Security Administration has promulgated regulations that provide for the payment of disabled child's insurance benefits if the claimant is 18 years or older and has a disability that began before attaining age 22 (20 CFR 404.350(a)(5)).” Tr. 19. Shields turned 22 years of age on September 2, 1988. Tr. 151. Thus, he is required to demonstrate that his disability began prior to that date. Tr. 20.

         Shields alleged he was disabled due to affective and mood disorders and anxiety disorders. Tr. 58, 65, 75, 83. After initial denial by the state agency (Tr. 75-81) and denial upon reconsideration (Tr. 83-89), Shields requested a hearing (Tr. 90-91). A hearing was held before Administrative Law Judge Jonathan Eliot (“ALJ”) on March 9, 2016. Tr. 28-57.

         In his March 22, 2016, decision (Tr. 16-27), the ALJ determined that Shields had not been under a disability within the meaning of the Social Security Act from September 2, 1979, through September 1, 1988 (Tr. 19, 23). Shields requested review of the ALJ's decision by the Appeals Council. Tr. 9, 147-150. On June 19, 2017, the Appeals Council denied Shields' request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6.

         II. Evidence

         A. Personal, educational, and vocational evidence

         Shields was born in 1966. Tr. 36, 151. At the time of the hearing, Shields was living with his brother. Tr. 36-37. Shields did not complete high school but he obtained a GED in 1986. Tr. 37-38, 48-49. From September 1984 through September 1988, Shields worked for only two weeks. Tr. 38-39. Shields worked at a marina as a laborer at the end of the boating season so his tasks included covering electrical plates. Tr. 39. Shields' neighbor, who knew of Shields' conditions, hired him to work at the marina. Tr. 39. Shields was not fired from the position. Tr. 39. His work at the marina stopped because it was the end of the season. Tr. 39.

         B. School record evidence and medical evidence

         In a disability report submitted by Shields as part of his child insurance benefits application, Shields relayed that it was difficult to obtain records dated prior to 1988 but he had obtained some school records, which included a report completed by his childhood psychiatrist. Tr. 172. Shields relayed that his childhood psychiatrist had retired and had not retained records for his patients. Tr. 172; see also Tr. 60 (noting that Dr. Madsen had been contacted and he indicated his records were destroyed when he retired).

         On January 13, 1982, Dr. Carl Madsen, Jr., M.D., completed a “Physician's Report on Homebound Physically Handicapped Child” for the Painesville Township Local School District. Tr. 200. In that report, it was indicated that Shields had last attended school on January 5, 1982, and was in the tenth grade. Tr. 200. Dr. Madsen was asked to provide an explanation of Shields' handicapping condition. Tr. 200. In response, Dr. Madsen indicated that Shields had an “emotional disorder with somatic component” that would preclude regular school attendance. Tr. 200. Dr. Madsen indicated that Shields would likely be unable to attend school through June 1982. Tr. 200. The school superintendent signed the form, indicating his approval (Tr. 200) and, on January 20, 1982, Shields was approved for home tutoring (Tr. 191).

         On October 11, 1982, Nancy H. Reynolds, a school psychologist with the Lake County School District, Psychological Services, tested/evaluated Shields. Tr. 199, 201-202. Ms. Reynolds noted that, due to Shields' problems with being in the school environment, the testing was conducted at the board of education offices rather than at the high school. Tr. 201. Ms. Reynolds observed that Shields was verbally spontaneous, cooperative and friendly; he worked very quickly, making many careless errors; and he tended to answer questions with the first thing that came to his mind instead of thinking through his answers. Tr. 201. Ms. Reynolds also noted that Shields' mother brought him to the testing session and she was overly protective. Tr. 201. Ms. Reynolds indicated that Shields appeared to be “exceptionally quiet when in the presence of his mother.” Tr. 201.

         Shields explained that he had a serious problem and did not want to return to Riverside High School because of many bad memories. Tr. 202. He was not really afraid of school or learning or crowds but there was one individual in particular that made him very afraid. Tr. 202. Shields was unable to really talk about the cause of this problem but noted that it constantly ran through his mind. Tr. 202. He did have a willingness to work on this problem. Tr. 202.

         Ms. Reynolds completed a severe behavior program descriptor checklist, noting that Shields experienced severe and frequent problems with having constant physical “ailments, ” both real and imagined, being school-phobic, being withdrawn, having unfounded fears of others, and having fear of crowds. Tr. 199. Also, Ms. Reynolds noted that Shields had severe but sporadic instances of trembles, chills, and cold hands. Tr. 199.

         Ms. Reynolds concluded that Shields was of average ability but was “unable” to attend school and learn more skills. Tr. 202. She noted that Shields was working with Dr. Madsen. Tr. 202. Other than noting that Shields had many problems for which Shields required help and that Shields was aware of, Ms. Reynolds indicated she was unable to comment further since she had not spent sufficient time with him. Tr. 202. She recommended a referral to the East Shore Center for possible placement in a regional program. Tr. 202.

         On November 2, 1982, Shields was tested by school psychologist Carolyn Shimskey at the East Shore Center to determine whether he was eligible for the Regional Severe Handicapped Program due to being “school phobic.” Tr. 186-190. As part of the evaluation, Ms. Shimskey interviewed Mrs. Crellin, the school guidance counselor. Tr. 187. Mrs. Crellin described Shields problems as a phobia of school, explaining that Shields would develop illnesses so he could go home; he felt that other kids were out to get him; and he was withdrawn and unresponsive with his peers. Tr. 187. Mrs. Crellin indicated that Shields' communication with adults was fine. Tr. 187. Mrs. Crellin indicated that Shields did not have behavioral problems at school - he did not get angry even when told he could not go home. Tr. 187. Mrs. Crellin noted that Shields' mother was cooperative but enabled Shields to continue with his school phobic behavior. Tr. 187.

         During Ms. Shimskey's evaluation, she observed that Shields joked with her and appeared to be at ease. Tr. 187. Ms. Shimskey reviewed Shields' past testing data. Tr. 187, 188. Ms. Shimskey observed no articulation errors or difficulties with speech. Tr. 188. Shields' gross motor skills were noted as a strength since he had participated in sports (football, track and basketball) and his fine motor skills were adequate. Tr. 188. With the exception of Shields' obesity, his physical examination was within normal limits. Tr. 188. Shields reported liking motor cross and watching sports of television. Tr. 188. Shields indicated he worked with his father running a motorcycle accessory shop from their home. Tr. 188. Shields hoped to take over the business one day and relayed that his father was in agreement. Tr. 188. Shields reported that his problems at school were his nerves not his behavior. Tr. 188. He also indicated that visitors at home made him nervous. Tr. 188. Shields indicated that, if he had a choice, he would choose home instruction. Tr. 189. He reported getting upset when other students acted up and were not at school to learn. Tr. 189. Also, he did not like the large building or large class size. Tr. 189.

         Ms. Shimskey concluded that Shields' “behavior of school avoidance has had an adverse [e]ffect on his academic performance as it prevents him from attending and therefore, is also to a marked degree.” Tr. 189. She indicated that the problem had been getting worse over time with the problem becoming acute during the prior school year and found that Shields was eligible for the Severe Behavior Handicapped Program. Tr. 189.

         On November 30, 1982, as part of Shields' IEP it was recommended that Shields be placed in a severe behavior handicap transition class. Tr. 192-195, 197.

         On September 16, 2013, Dr. Madsen authored a letter, stating “The medical disorder from which [Shields] has suffered continues to incapacitate him for fruitful participation in studies in the school classroom setting, in my opinion. For this reason, tutoring for him is preferred and is what I advise.” Tr. 198. On September 27, 1983, home tutoring was approved for Shields. Tr. 195.

         On June 14, 2010, when Shields was age 43, he saw Dr. Thomas Svete, M.D., at Signature Health, for a psychiatric evaluation due to increased agitation and increased auditory and visual hallucinations. Tr. 215-217. Also, Shields had become more aggressive towards his girlfriend. Tr. 215. And it was reported that Shields may have attempted suicide by an overdose and with his automobile. Tr. 215. Shields reported having problems with intrusive images since he was eight or nine years old. Tr. 215. The images were very upsetting and became more severe during his high school years and he was unable to concentrate, focus or attend school. Tr. 215. He was very agitated, suspicious and thought that people were talking about him or against him. Tr. 215. As a result, he ended up getting into many fights. Tr. 215. Shields was able to obtain a GED. Tr. 215. He indicated that he experienced disturbing images every two to four minutes, all day long, and experienced severe nausea in connection with the images. Tr. 215. He reported that the described symptoms had been occurring for 20 years. Tr. 215. Shields indicated he received treatment from Dr. Madsen when he was 13 years old but he did not get any other treatment because he did not have health insurance after turning age 18. Tr. 215. When he treated with Dr. Madsen, Shields had tried Adipen and Valium. Tr. 215. The Valium sedated him but did not stop the intrusive images. Tr. 215. Shields relayed that he had a prior concussion from riding his bicycle but indicated that the intrusive images predated that accident. Tr. 216. Shields indicated he had not been able to maintain a job, in part, because of his symptoms. Tr. 216. On mental status examination, Dr. Svete observed no psychomotor agitation or retardation; he was cooperative and a good historian; his mood was somewhat irritable but mildly so and frustrated; his affect was reactive and appropriate; his speech was of a normal rate and tone; his thought process was coherent; and his cognition was grossly intact. Tr. 216. Dr. Svete also observed that Shields had “an unusual level of ability to be self observant.” Tr. 216. Dr. Svete's diagnoses included psychosis, NOS provisional; rule out OCD; rule out atypical mood disorder; rule out temporal lobe epilepsy v. porphyria; and antisocial personality traits. Tr. 216-217. Dr. Svete recommended Risperdal, case management and individual counseling. Tr. 217.

         On March 17, 2014, Shields saw Erika Nathan, M.D., (Tr. 209-213), complaining of a history of psychological problems for 30 years (Tr. 209). Shields indicated that his problems started after his head injury which occurred when he was in a bicycle accident. Tr. 209. Shields reported cutting/gouging himself with a fork since 1996 and he reported being paranoid and having disturbing hallucinations since he was 13 years old. Tr. 209. Shields reported that he was home schooled in the 10th and 11th grades and then obtained his GED. Tr. 210. He indicated he saw a psychiatrist when he was 13 years old. Tr. 210. Shields was living with his brother. Tr. 210. On mental status examination, Dr. Nathan observed that Shields' affect was anxious; his mood was depressed; his motor activity was a bit tense; he reported visual hallucinations; and his thought content was paranoid. Tr. 211-212. Otherwise, the mental status findings were normal. Tr. 211-212. Dr. Nathan diagnosed unspecified schizophrenia spectrum/psychotic disorder and rule out PTSD, bipolar disorder and OCD. Tr. 213. Dr. Nathan noted that Shields was at risk for harm to others because of his thoughts and images but the risk was lessened because they were “incongruent to him” and he had had the images and thoughts since he was a teenager and had not acted on them. Tr. 213. Dr. Nathan noted that Shields' brother has guns but locked them up. Tr. 213. Dr. Nathan intended to verify this information with Shields' brother. Tr. 213. Dr. Nathan recommended therapy and she prescribed Abilify and Depakote. Tr. 213.

         Shields returned to see Dr. Nathan for medication management in April and May of 2014. Tr. 205-207. Shields reported that that Depakote caused his hallucinations to worsen. Tr. 206. Shields was tolerating the Abilify with no worsening of his mood or psychosis. Tr. 206. During his May 21, 2014, medication management session, Shields reported that he was continuing to have all day, daily hallucinations. Tr. 205. Dr. Nathan increased the dosage of Shields' Abilify. Tr. 205. During that ...


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