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Ramo v. Colvin

United States District Court, D. Minnesota

February 18, 2014

Natheer Abdullah Ramo, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

Jeffrey R. Hannig, Esq., Hanning Law Office, P.A., counsel for Plaintiff.

Ana H. Voss, Esq., Assistant United States Attorney, counsel for Defendant.

REPORT AND RECOMMENDATION

JEFFREY J. KEYES, Magistrate Judge.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Natheer Abdullah Ramo seeks judicial review of the final decision of the Commissioner of Social Security ("the Commissioner"), who denied Plaintiff's applications for disability insurance benefits and supplemental security income. The parties have filed cross-motions for summary judgment. (Doc. Nos. 13, 15.) This matter has been referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636 and D. Minn. L.R. 72.1. For the reasons stated below, this Court recommends that Plaintiff's motion for summary judgment be granted for remand and Defendant's motion for summary judgment be denied.

BACKGROUND

I. Procedural History

Plaintiff protectively filed applications for disability insurance benefits and supplemental security income on May 7, 2010, alleging a disability onset date of August 1, 2009. (Tr. 173-76, 195-97.)[1] The Social Security Administration ("SSA") denied Plaintiff's claims initially and on reconsideration. (Tr. 92-98, 100-06.) Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"), and the hearing was held on November 23, 2011. (Tr. 109-10, 25-87.) On January 10, 2012, the ALJ issued an unfavorable decision on Plaintiff's applications. (Tr. 7-24.) Plaintiff sought review of the ALJ's decision, but the Appeals Council denied the request for review on April 15, 2013. (Tr. 1-4.) Denial by the Appeals Council made the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981; 416.1481.

II. Background

Plaintiff was born on November 11, 1965, and on his alleged onset date of disability, August 1, 2009, he was 43-years-old. (Tr. 173.) Plaintiff was born in Northern Iraq, where he graduated from teacher's school, and was conscripted into the army. (Tr. 382.) After deserting the army, he was caught and taken back. ( Id. ) Plaintiff then fled Iraq, becoming a refugee in Turkey. ( Id. ) He moved to the United States in 1993. (Tr. 459.) He has a wife and five children. (Tr. 382.) Plaintiff has worked in cleaning, packing, van driving, bus driving, and as a personal care assistant.[2] (Tr. 250, 265.) He initially alleged disability due to pain from a pinched nerve in his neck, and later added depression as a cause of disability. (Tr. 222, 277.)

Plaintiff completed a function report for the SSA (Tr. 266-73) on May 22, 2010, in which he reported the following information: He needed help from his wife to shower because pain in his left arm. (Tr. 266-67.) He took hydrocodone for pain relief, and drove using only his right arm. (Tr. 266.) He felt drowsy and dizzy, and went to bed between his morning and afternoon school bus routes. (Tr. 266, 273.) He could not cook or do any household chores, and he spent his time at home sleeping. (Tr. 267-68.) He could not handle finances because of his dizziness. (Tr. 269.) He was in too much pain to enjoy being with family or friends. (Tr. 271.) He does not handle stress well, and he becomes angry easily. ( See Tr. 272.) He was distracted, and his memory and concentration were poor. ( See Tr. 273.)

Plaintiff's motion for summary judgment is based primarily on his mental impairment claims, although he alleges that pain from his physical impairments contributes to his mental limitations. In his written argument Plaintiff's treatment and evaluation for physical complaints, primarily chronic pain syndrome, are briefly summarized. The focus of the disability claim is on the evidence relating to Plaintiff's mental impairments.

A. Medical Records

1. Physical Impairments

Plaintiff saw his primary care provider, Dr. Ross Kringlie, on November 5, 2009, with symptoms of left arm pain and tingling in the fingers, with onset one month earlier. (Tr. 361-62.) Plaintiff had not yet tried any medication. (Tr. 362.) Physical examination was essentially normal, and Dr. Kringlie recommended physical therapy, and to follow up with a cervical MRI, if there was no improvement. ( Id. ) Several weeks later, Plaintiff's cervical MRI showed bilateral neural foraminal narrowing at multiple levels secondary to degenerative spondylotic[3] change. (Tr. 350-51.) There was a moderate sized left lateral disc protrusion at C6-7, in position to contact the left C7 nerve root. (Tr. 350.)

Plaintiff underwent a neurosurgery consultation with Dr. Chad Justesen on December 14, 2009. (Tr. 352-54.) At that time, Plaintiff was an unemployed bus driver, recently laid off. (Tr. 353.) He complained of constant neck and arm symptoms, not relieved with physical therapy, traction, chiropractic treatment, or pain medication. (Tr. 352.) When Dr. Justesen considered Plaintiff's overall health in a review of systems, Plaintiff also complained of increased urination, weight gain, hearing loss, back pain, depression, mood swings and anxiety. (Tr. 353.) Dr. Justesen diagnosed chronic C7 radiculopathy and recommended surgery or epidural steroid injection. ( Id. )

When Plaintiff saw Dr. Kringlie on January 15, 2010, his weight was 218 pounds, and he rated his left arm pain at ten, on a scale of one to ten. (Tr. 355.) Plaintiff wanted to avoid surgery and would instead have an epidural steroid injection. (Tr. 356.) He was depressed, and asked Dr. Kringlie to prescribe an antidepressant. ( Id. ) Plaintiff's review of systems was positive for recent weight change, change in energy level, frequent heart burn, neck pain, joint pain, muscle pain, muscle weakness, excessive thirst and urination, and depressed mood.[4] (Tr. 356-67.) ( Id. ) Dr. Kringlie diagnosed cervical disk disease, gastroesophogeal reflex disease (GERD), and depression; and he prescribed Nexium, Celexa, and hydrocodone with acetaminophen.[5] (Tr. 358.) He also referred Plaintiff to a pain clinic for steroid injection. ( Id. )

Plaintiff went to a pain clinic on February 8, 2010, and saw Dr. Majid Ghazi. (Tr. 342-44.) Plaintiff reported a history of left arm pain, with moderate to severe aching, some numbness and paresthesia, and left hand weakness. ( Id. ) He rated his pain level eight out of ten. ( Id. ) Plaintiff also had a history of depression, and he had lost his job five months prior. ( Id. ) On examination, Plaintiff's range of motion was within normal limits. (Tr. 343.) Dr. Ghazi diagnosed C7 radiculopathy, and he scheduled a selective nerve root block for the next day. (Tr. 343, 339) Plaintiff rated his pre-injection pain level six or seven out of ten, and after the injection, his pain level reduced to a level of one out of ten. (Tr. 339-41.) His subsequent injection at the end of April reduced his pain from five out of ten to one out of ten. (Tr. 328-31.) A few months later, his pain level was back to nine out of ten. (Tr. 484-87.) His next injection was in October 2010, and he did not get relief from severe pain. (Tr. 471-74.) His last injection was in January 2011, and his pain reduced from a level of nine out of ten to three. (Tr. 449-51.)

Plaintiff also took tramadol for pain.[6] (Tr. 47-48, 358, 575.) Pain medication provided some relief but made him sleepy during the day. (Tr. 48-49, 467.) Beginning in June 2011, Plaintiff was also evaluated and treated with medication for leg pain, but the cause was undetermined. (Tr. 559-60, 572.)

Plaintiff underwent a sleep study with Dr. Kevin Faber on June 2, 2011. (Tr. 575-79.) Plaintiff gave the following list of complaints: (1) he was too anxious to go to bed before 3:00 or 4:00 a.m.; (2) he awoke often; (3) he had trouble getting to sleep; (4) he slept about 4 hours in a 24-hour period; (5) he felt sleepy during the day; (6) he could only nap ten minutes at a time during the day;

(7) he frequently had headaches in the morning; (8) he took tramadol every six hours as needed for leg pain; (9) he endorsed several parasomnia[7] symptoms, including sleeptalking, confusional arousals, and kicking or jerking of his legs; (10) and he endorsed loud snoring. (Tr. 575.) Plaintiff did not show evidence of sleep-disordered breathing, but his sleep efficiency was only 45%. (Tr. 547-48.) Plaintiff stated that he could not work because he was too tired during the day. (Tr. 547.) Dr. Faber diagnosed insomnia related to anxiety disorder, and prescribed zolpidem.[8] (Tr. 548.)

2. Mental Impairments

For evaluation of his Social Security disability application, Plaintiff underwent a consultative psychological evaluation on July 26, 2010, with Dr. Carol Follingstad. (Tr. 382-88.) Plaintiff reported symptoms of memory loss, pain, isolation, and crying episodes. (Tr. 382.) He was working reduced hours due to pain. ( Id. )

Plaintiff was born and raised in Kurdistan and forced to serve in the Iraq army after graduating teacher's school. ( Id. ) He deserted the army after one month, was returned to service for two years, and deserted again. ( Id. ) He then fled to Turkey, where he lived in a refugee camp for three years before coming to the United States. ( Id. ) He was presently married and had five children. ( Id. ) In the United States, Plaintiff drove a city bus, and later a school bus. ( Id. ) He then started having back problems. ( Id. ) Plaintiff had not been able to work since June due to pain. (Tr. 382-83.) He had never seen a mental health worker, because his culture would not allow it. (Tr. 383.)

Plaintiff described his daily activities as follows: ( Id. ) He watched television one hour per night, read for one hour per week, exercised two hours per week, walked one hour per week, and socialized one hour per week. ( Id. ) His activities were limited by pain and depression. ( Id. ) He could complete most tasks without assistance, but he believed household chores were women's work. ( Id. ) He did outdoor chores and handled the finances. ( Id. ) He felt that his current living situation was less stressful than most of his past life circumstances. ( Id. ) His symptoms were chronic pain, poor mood and anxiety. ( Id. ) He spent most of the day sleeping, because he always felt tired, but he tried to spend time with friends, so he would not be ostracized in his community. ( Id. )

On examination, his posture was poor, and he moved, stood and sat slowly, with his activity level remaining lethargic throughout the assessment (Tr. 384.) He became tearful frequently and did not smile. ( Id. ) On the other hand, his speech was normal, his hygiene was good, he was cooperative, attentive, and easy to interview. ( Id. ) He was oriented, and his thought processes were normal, but his mood was poor due to worry over his finances, unemployment, and family concerns. ( Id. )

Plaintiff was given the WAIS-IV intelligence test, and his scores fell within the extremely low range of functioning, suggesting he may need extra reminders, extra time, and constant guidance during mental processing. (Tr. 384-87.) Dr. Follingstad was not sure whether the test results reflected Plaintiff's true ability or if they were the result of cultural barriers. (Tr. 387.) Plaintiff had declined use of an interpreter for testing because he did not want people in his community to know that he was seen for mental health issues. (Tr. 385.) He did not appear to understand all of the test instructions. ( Id. ) But Dr. Follingstad noted Plaintiff appeared to be truthful in his presentation. (Tr. 383.)

Dr. Follingstad diagnosed PTSD, severe and recurrent major depressive disorder, generalized anxiety disorder with panic attacks, cognitive disorder NOS, [9] chronic pain under Axis III, [10] and she assessed a GAF score of 45.[11] (Tr. 388.) She opined that Plaintiff would need a job coach to help him understand work situations. ( Id. ) He could understand simple instructions, but he may need visual cues to help him stay on track. ( Id. )

On August 30, 2010, A. Johnson, a state agency consultant, reviewed Plaintiff's Social Security disability file on initial review of his disability claim. (Tr. 389-406.) Johnson opined that Plaintiff had only moderate mental limitations, and that Plaintiff had the mental residual functional capacity:

to understand, remember and follow simple instructions. Clt is restricted to work that involved brief, superficial interactions w/ supervisors and the public. Within these parameters and in the context of performing simple, routine, repetitive, concrete and tangible tasks, clt is able to sustain attention and ...

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