United States District Court, N.D. Ohio, Eastern Division
C. NUGENT JUDGE
REPORT AND RECOMMENDATION
Kathleen B. Burke United States Magistrate Judge
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.
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.
March 21, 2014, Shields protectively filed 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.
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.
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.
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.
Personal, educational, and vocational evidence
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.
School record evidence and medical evidence
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).
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...