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Ripley v. Commissioner of Social Security

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

December 4, 2019



          Jonathan D. Greenberg United States Magistrate Judge.

         Plaintiff, Timothy Ripley (“Plaintiff or “Ripley”), challenges the final decision of Defendant, Andrew Saul, [1] Commissioner of Social Security (“Commissioner”), denying his application for a Period of Disability (“POD”) and Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is VACATED AND REMANDED for further consideration consistent with this opinion.


         In March 2016, Ripley filed an application for POD and DIB, alleging a disability onset date of April 3, 2013, and claiming he was disabled due to bipolar disorder, depression, and anxiety disorder. (Transcript (“Tr.”) at 58, 154.) The application was denied initially and upon reconsideration, and Ripley requested a hearing before an administrative law judge (“ALJ”). (Id. at 12.)

         On November 9, 2017, an ALJ held a hearing, during which Ripley, represented by counsel, and an impartial vocational expert (“VE”) testified. (Id.) On April 19, 2018, the ALJ issued a written decision finding Ripley was not disabled. (Id. at 12-22.) The ALJ's decision became final on October 30, 2018, when the Appeals Council declined further review. (Id. at 1-6.)

         On December 28, 2018, Ripley filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 12, 14, 15.) Ripley asserts two assignments of error:

(1) The ALJ's mental residual functional capacity evaluation is unsupported by substantial evidence as she failed to reconcile the opinion of Dr. Warren with the RFC determination.
(2) The case was adjudicated by an improper and unconstitutionally appointed ALJ, and should be remanded for a new hearing with a different and constitutionally appointed ALJ.

(Doc. No. 12).

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Ripley was born in July 1957 and was 60 years old at the time of his administrative hearing (Tr. 12, 20), making him a “person of advanced age” under Social Security regulations. See 20 C.F.R. § 404.1563(e). He has a college education and is able to communicate in English. (Tr. 20, 60.) He has past relevant work as a retail store manager. (Id. at 20.)

         B. Relevant Medical Evidence[2]

         In 2012, Ripley spent three days at the Mt. Pleasant Hospital for a forehead laceration, alcohol abuse, and acute kidney injury. (Id. at 531, 597, 657.)

         April and June 2013 therapy records reflect that Ripley was planning on moving to Ohio and was looking at businesses there, “including pizza places.” (Tr. 488-89).

         On August 4, 2013, Ripley's niece found him at home, and he was very confused and nonverbal. (Id. at 346, 376.) In the emergency room, Ripley remained nonverbal. (Id.) Robert L. Hill, M.D., who evaluated Ripley, noted Ripley has a history of depression and suicide attempts, and “there was concern that he gotten [sic] a prescription for baclofen recently and may have taken extra pills and overdosed.” (Id.) Dr. Hill admitted Ripley for further evaluation and treatment. (Id.) While Ripley exhibited some twitching when he was first seen at the ER, “no definite seizure activity was noted.” (Id.) A CT scan done that day revealed mild atrophy and chronic small vessel ischemic changes. (Id. at 376.) Ripley's urine screen was positive for opiates and benzodiazepines. (Id. at 350.) Eventually Ripley's mental status cleared, and he was discharged home three days later. (Id. at 346.) At the time of discharge, Ripley had no suicidal ideation and was instructed to follow-up with a local psychiatrist. (Id. at 347.)

         On November 20, 2013, Ripley went to the Firelands Regional Medical Center emergency room complaining of depression and stating he had been unable to find a psychiatrist who could see him in a timely manner. (Id. at 343.) He felt he was “on the way back into depression” and his medications were running low. (Id.) Ripley denied suicidal or homicidal ideation. (Id.) Robert Ford, III, D.O., gave Ripley short refills for two of his medications but refused to refill his Xanax. (Id. at 344.)

         On January 16, 2014, Ripley went to the emergency room at Firelands Regional Medical Center, reporting he had been having severe depression and suicidal intent for the past three to four weeks. (Id. at 335.) Ripley stated he had been going through a lot, including being unemployed and living with his brother. (Id.) He also reported he had run out of his medication, including Seroquel and Xanax, and became very depressed. (Id.) He described having feelings of hopelessness, worthlessness, and sadness, anhedonia, [3] suicidal thought but no plan, being very anxious and nervous, and unable to sleep at night. (Id.) Ripley stated he could not afford to buy his current medications, which were very expensive, because of his financial difficulties. (Id.) Abas Jama, M.D., Psy.D., admitted Ripley and placed him on suicide precaution level one. (Id. at 338.)

         An examination on January 17, 2014, revealed Ripley had average eye contact, clear speech, and a logical thought process. (Id. at 339, 341.) Ripley appeared very comfortable during the interview, he was cooperative, and his insight and memory seemed good. (Id. at 341.) Ripley denied suicidal and homicidal ideation, as well as hallucinations and delusions. (Id.) Ripley remained in the hospital until January 24, 2014. (Id. at 331.)

         On June 23, 2015, Ripley saw Dr. Jama for a follow up appointment. (Id. at 391.) He reported he was doing a little bit better and was still working as a driver at a car dealership. (Id.) Ripley described his mood as better and less anxious, but somewhat sad. (Id.) Dr. Jama found Ripley had a full and appropriate range of affect and “very good” insight and judgment. (Id.) Ripley exhibited a goal-directed thought process and denied suicidal and homicidal ideation, as well as auditory and visual hallucinations. (Id.) Dr. Jama recommended Ripley continue his current medications, go back to AA meetings and counseling, never mix alcohol and Xanax, and follow up in three to four months. (Id.)

         On July 10, 2015, Ripley went to the Firelands Regional Medical Center emergency room, reporting suicidal ideation without any plan. (Id. at 307.) He stated he had been drinking daily for the past 30 days and drinking around the clock for the past seven days. (Id.) He reported sleeping for two hours in the past fourteen days. (Id.) Upon examination, Mark Schmiedl, M.D., found Ripley was intoxicated. (Id. at 309.)

         Dr. Jama also examined Ripley that day. (Id. at 313.) Dr. Jama found Ripley was cooperative and appropriate, he had mild to moderate psychomotor retardation, and had a depressed, anxious mood. (Id. at 314.) Ripley exhibited a blunted affect, and his speech was low in tone and volume. (Id.) While Ripley's thought process was goal directed, he had current suicidal ideation that was becoming very persistent and worsening, although he divulged no plan or intent. (Id.) Dr. Jama found Ripley's insight and judgment were impaired. (Id.) Dr. Jama admitted Ripley and placed him on level one suicide watch. (Id. at 309, 315.) Upon further examination, Ripley's treating providers found he was moderately depressed, somewhat tearful, and moderately anxious, and his insight, judgment, and behavior control were decreased. (Id. at 318.) Ripley also complained of periodic auditory hallucinations. (Id.)

         On July 12, 2015, Sara Peck, LISW, MSW, examined Ripley at the hospital. (Id. at 320.) She found his appearance disheveled, his mood depressed, his affect normal, his behavior cooperative, his thoughts racing, his insight limited, and his memory intact. (Id. at 322.) Ripley reported suicidal ideation but no plan. (Id.)

         On August 4, 2015, after being discharged from the hospital, Ripley saw Dr. Jama for a follow up appointment. (Id. at 397.) Ripley reported he was doing much better and described his mood as much better overall and stable. (Id.) Ripley denied feelings of hopelessness or worthlessness, as well as suicidal ideation. (Id.) Dr. Jama found Ripley had appropriate affect, goal-directed thought process, intact recent and remote memory, and intact concentration and focusing. (Id.) Dr. Jama noted a well-groomed and appropriate appearance and no abnormal or involuntary movements. (Id.)

         On September 4, 2015, Ripley saw Lynne Gilbert, LISW, for a follow up appointment. (Id. at 401.) He told her his depression was better, although he continued to have issues with his anxiety, and he thought he “may be ready for a job.” (Id.) Ripley reported he had been socializing with new friends and was worried about the stock market. (Id.) Gilbert found Ripley had a full, anxious affect and his behavior was appropriate. (Id.)

         On September 28, 2015, Ripley again saw Gilbert for follow up. (Id. at 404.) He told her he was not depressed, but he would wake up anxious and not know why. (Id.) He reported being uncomfortable in crowds and grocery stores. (Id.) He continued to work part time for a car dealership and had some friends with whom he socialized. (Id.) Ripley felt his medications were working well and he was waiting for vocational rehab. (Id.)

         On October 20, 2015, Ripley saw Dr. Jama and reported he was a little bit anxious but coping very well and described his mood as “better and improved.” (Id. at 406.) He stated he had visited his daughter in California, and it had gone well. (Id.) Ripley told Dr. Jama that he could not afford Abilify and asked for a different medication that was less expensive. (Id.) Dr. Jama found Ripley exhibited appropriate affect and a goal-directed thought process. (Id.) Ripley denied suicidal or homicidal ideation, as well as auditory or visual hallucinations. (Id.) Dr. Jama adjusted Ripley's medication and encouraged him to stay sober. (Id.)

         On November 17, 2015, Ripley saw John McDonough, R.N., to discuss Seroquel refills and for an assessment for medication compliance, side effects, and bipolar disorder symptoms. (Id. at 416.) Ripley reported Seroquel was working and he had no side effects, but he would be out of the medication before his next appointment with Dr. Jama in January. (Id.) Ripley told Nurse McDonough his mood had been stable, he had been getting adequate rest, and his appetite was good. (Id.) Nurse McDonough found Ripley's speech coherent, his thought process intact, and his behavior cooperative and pleasant. (Id.) Ripley exhibited a bright and full range of affect. (Id.)

         On December 17, 2015, Ripley went to the Firelands Regional Medical Center emergency room complaining that he was going through alcohol withdrawal. (Id. at 299.) He reported that he quit drinking the previous night but had drank eight to nine beers a day for the past month. (Id.) Ripley stated over the past eight hours he had become very jittery, shaky, and nervous. (Id.) He felt very depressed and hopeless. (Id.) He had thoughts of suicide but no real plan, and just wanted to quit drinking. (Id.) Timothy Amidon, D.O., found Ripley had a flat affect. (Id.) The hospital's mental health services evaluated Ripley and determined it was safe to send Ripley home. (Id. at 300.)

         On January 4, 2016, Ripley saw Lynne Gilbert, LISW. (Id. at 422.) Ripley told Gilbert he had not been doing well, and he had had three bad days with increased insomnia, negative thinking, and suicidal thoughts. (Id.) Ripley said he had considered going to the hospital but declined voluntary hospitalization at this visit. (Id.) His symptoms included insomnia, negative thinking, increased anxiety, panic attacks, poor hygiene, poor appetite, and poor motivation. (Id.) Ripley reported he had visited his daughter over the holiday season the prior month and enjoyed himself, but that he did not do well this time of year. (Id.) Gilbert found Ripley's affect anxious and depressed and his behavior appropriate. (Id.)

         On January 19, 2016, Anupam Jha, M.D., at Firelands Regional Medical Center admitted Ripley with active suicidal intent. (Id. at 282.) Ripley reported increased anxiety and racing thoughts, and he had barely gotten any sleep over the prior two weeks. (Id. at 284.) Ripley stated he had been feeling low and down, and his mood was sad and hopeless. (Id.) Upon examination, Dr. Jha found Ripley's attention and concentration restricted, his mood sad, his affect blunt, his insight and judgment poor, and his impulse control fair. (Id. at 285.) Active suicidal ideation was present. (Id.) Dr. Jha placed Ripley on level one suicide watch and started him on Trileptal, Buspirone, and Zoloft. (Id. at 286.)

         On January 20, 2016, Laura Conley, MSW, LSW, examined Ripley while he was in the hospital. (Id. at 287-89.) Conley found Ripley's mood anxious but appropriate, his affect normal, his behavior cooperative, his thought process concrete and logical, his insight good, and his memory intact. (Id. at 289.) Ripley exhibited average eye contact and denied suicidal and homicidal ideation, as well as hallucinations. (Id.)

         On January 25, 2016, Dr. Jha discharged Ripley from Firelands. (Id. at 282.) Dr. Jha noted Ripley responded well to treatment measures as well as individual and group therapy, he had gotten along well with peers and staff, and he had not complained of medication side effects. (Id.) Upon examination, Dr. Jha found Ripley alert and oriented, and he had attention and concentration within normal limits, a relaxed affect, and good insight, judgment, and impulse control. (Id.) Ripley was in a good mood and exhibited a linear, future-oriented thought process. (Id.) Ripley denied suicidal and homicidal ideation, as well as auditory or visual hallucinations. (Id.)

         On February 9, 2016, Ripley saw Dianna Gonzales, R.N., for not having enough medication before being seen by Dr. Jama. (Id. at 446.) Ripley requested being put back on Xanax, and Nurse Gonzalez encouraged him to discuss his concerns with Dr. Jama. (Id.) Ripley denied anxiety, paranoia, hallucinations, and suicidal and homicidal ideation. (Id.) Nurse Gonzalez found Ripley well-groomed, alert, and oriented. (Id.) While Ripley exhibited a blunted affect, he made good eye contact and answered questions appropriately. (Id.)

         On March 8, 2016, Ripley again saw Nurse Gonzales for medication refills and rescheduling his appointment with Dr. Jama. (Id. at 451.) Nurse Gonzalez noted Ripley was “irritable” during medication education, even though he admitted forgetting the doses, times, and names of his medications. (Id.) Nurse Gonzalez found Ripley's affect irritable at times but otherwise congruent. (Id.) He appeared well-groomed, made good eye contact, and answered questions appropriately. (Id.)

         On March 29, 2016, Ripley saw Lynne Gilbert, LISW, and reported his anxiety was worse. (Id. at 454.) Dr. Jama had reduced his Xanax, which frustrated Ripley as he felt Xanax helped him. (Id.) Ripley was still working part time and was anxious because he was looking into buying a condominium. (Id.) Gilbert found Ripley's affect anxious and his behavior appropriate. (Id.)

         On April 29, 2016, Ripley went to the Firelands Regional Medical Center emergency room complaining of anxiety triggered by financial problems. (Id. at 463.) He reported being unable to think clearly because of his anxiety. (Id. at 468.) Ripley had attempted to get ahold of his psychiatrist with no success. (Id. at 463.) He denied suicidal or homicidal ideation but felt like he was “going to snap” and needed “something to get some relief.” (Id.) On examination. Amir ...

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