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Betts v. Colvin

United States District Court, D. Minnesota

May 6, 2015

Joseph Robert Paul Betts, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Defendant.

Karl E. Osterhout, Esq., Osterhout Disability Law, L.L.C.; and Edward C. Olson, Esq., Disability Attorneys of Minnesota, counsel for Plaintiff.

Pamela Marentette, Esq., Assistant United States Attorney, counsel for Defendant.


JEFFREY J. KEYES, Magistrate Judge.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Joseph Betts 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. This matter is before the Court on the parties' cross-motions for summary judgment. (Doc. Nos. 14, 16.) The parties have consented to the Court's exercise of jurisdiction over all proceedings in this case pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. (Doc. Nos. 12, 13.) For the reasons stated below, the Court denies Plaintiff's motion for summary judgment and grants Defendant's motion for summary judgment.


I. Procedural History

On July 22, 2011, Plaintiff Joseph Betts filed a claim for Child Disability Benefits and Supplemental Security Income with the Social Security Administration, alleging a disability onset date of January 1, 2005. (Tr. 143.) Plaintiff's claims were denied initially on October 3, 2011, and again on reconsideration on November 22, 2011. (Tr. 86, 91.) Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"), and received a hearing on January 16, 2013. (Tr. 99, 9.) At the hearing, Plaintiff amended his alleged onset of disability date to July 22, 2011. (Tr. 13-14.) The ALJ issued a decision unfavorable to Plaintiff on February 26, 2013, denying him benefits on both claims. (Tr. 34.) Plaintiff appealed to the Social Security Administration Appeals Council on April 2, 2013. (Tr. 63.) The Appeals Council declined to review the adverse ALJ decision on April 29, 2014. (Tr. 1.) The Appeals Council's denial entered the ALJ's ruling as the final act of the Commissioner of Social Security. See 20 C.F.R. § 404.981. Plaintiff now seeks judicial review. 42 U.S.C. § 405(g).

II. Factual Background

Plaintiff, born November 16, 1990, was twenty years old on the amended alleged onset of disability, July 22, 2011. (Tr. 13, 53.) Plaintiff has been diagnosed with Generalized Anxiety Disorder, Obsessive Compulsive Disorder, Attention Deficit Hyperactive Disorder, Schizoaffective Disorder, depression with psychotic features, and learning problems, NOS. (Tr. 290.) In addition to his mental conditions, Plaintiff has sought treatment for stomach pain, back pain, and throat and vocal strain. (Tr. 325; 339; 335-38; 353; 473; 483; 540; 549.) Plaintiff's first treatment for depression was at the age of sixteen, although the records for this treatment are not contained within the administrative record. (Tr. 230, 273.) Prior to the alleged onset of disability, Plaintiff graduated from high school, and completed a year and a half of community college. (Tr. 18-19.) Plaintiff has not held substantial employment either before or after the alleged onset of disability. (Tr. 14-15.) Plaintiff previously moved out of his parent's home to live with friends, but he returned. (Tr. 410.)

Plaintiff completed a function report for the Social Security Administration ("SSA") on September 4, 2011. He described difficulty leaving his home, socializing, driving, sleeping, and reading. (Tr. 176-83.) Plaintiff reported that his daily activities included singing, exercising when he had the energy, meditating every other day to reduce anxiety, and reading. (Id. ) Plaintiff also stated that he stays in bed for eleven to twelve hours every day. (Id. ) He noted that he was able to handle his personal care, prepare his own meals on a daily basis, and was able to take care of laundry as well as mowing the grass every week or two. (Id. ) Plaintiff reported no impairment in his ability to handle his finances or shop, although he did state that driving causes severe anxiety which leads him to almost never drive. (Tr. 25-27; 176-77.)

In his function report, Plaintiff indicated that his ability to focus, interact with others, and remember and follow instructions was impaired by his disability. (Tr. 176-83.) Plaintiff also stated that he was only taking medication for stomach pain at the time of the report. (Id. )

A. Medical Records

Plaintiff has received treatment for physical and mental symptoms in the years preceding and following the alleged onset of his disability. On his function report, submitted in connection with his application for benefits, Plaintiff indicated that his ability to work was impacted by his mental and physical conditions. (Tr. 176.) Plaintiff's medical records for each are summarized below.

i. Mental Impairments

Plaintiff's records show that he received regular mental health treatment from three different physicians. From March 31, 2009 to June 10, 2010, Plaintiff saw Dr. Fatma Reda, MD, and from April 27, 2011 to, at least, January 2, 2013, Plaintiff has been under the care of Dr. Victoria Buoen, MD, and Mr. Michael Hitzelberger, MA, LP. (Tr. 241-74; 287; 364; 555.) Plaintiff also received mental health treatment from physicians with the Fairview Clinics and Mercy Hospital on an infrequent basis. (Tr. 313; 318; 333; 409-19; 535-38.) In addition to treatment, Plaintiff was also given three mental health evaluations. The first, administered in August 2009 by Susan Storti, PhD, and Amy Hilburger, PsyD, was a neuropsychological evaluation measuring Plaintiff's ability to transition to a college-level learning environment. (Tr. 228.) The second assessment, administered on May 27, 2011, was the Minnesota Multiphasic Personality Inventory-2 test, which is a diagnostic tool. (Tr. 501.) The last examination, administered in January 2012 by Nina Syverson, MA, MSE, was a neuropsychological evaluation undertaken on a referral from Plaintiff's treating therapist, Mr. Hitzelberger, who was concerned that Plaintiff could have a thought disorder. (Tr. 522.) Plaintiff's mental health records are examined in turn.

1. Treating Physicians

a. Dr. Fatma Reda, MD

Plaintiff was referred to treatment with Dr. Fatma Reda by his therapist, Nicole Grages. (Tr. 273-74.) In that initial referral, Ms. Grages indicated that Plaintiff had previous been taking Celexa for his symptoms, but that it made him feel worse, and that he had started cutting. (Tr. 274.) She gave him a GAF score of 52 at the time of referral. (Id. )

Over the course of his treatment under Dr. Fatma Reda at Affiliated Counseling Center, spanning from March 31, 2009 to June 3, 2010, Plaintiff's condition improved dramatically. (Tr. 241-74.) In the first few months of treatment, Plaintiff reported depression, anxiety, difficulty sleeping, and obsessive compulsive disorder. (Tr. 257-74.) Plaintiff also reported a reluctance to take medication for his ailments. (Tr. 255.) During his last treatment session with Dr. Reda, Plaintiff indicated that his mood and motivation levels had greatly improved, and that he was able to sleep through the night without difficulty. (Tr. 241.) During the period he was being seen by Dr. Reda, Plaintiff graduated from high school, completed two semesters of community college, and planned to return for a second year. (Id. ) After Plaintiff's final appointment with Dr. Reda, there is no record of Plaintiff's mental issues until March 19, 2011, when Plaintiff made an appointment with the Fridley Clinic to discuss his issues with anxiety and depression. (Tr. 318.) Five weeks later, on April 27, 2011, Plaintiff began seeing Michael Hitzelberger, MA, LP with the North Suburban Counseling Center. (Tr. 287.)

b. Mr. Michael Hitzelberger, MA, LP

In his initial appointment with Mr. Hitzelberger, Plaintiff was found to have symptoms of schizoaffective disorder, major depression with psychotic features, and ADD/ADHD NOS. (Tr. 288-90.) He assessed Plaintiff to have a GAF score of 50.[1] (Tr. 290) Plaintiff entered a treatment relationship with Mr. Hitzelberger the next day, April 28, 2011. (Tr. 291.) As part of his intake as a client, Plaintiff and Mr. Hitzelberger created an individual treatment plan. (Id. ) In that Plan, Plaintiff identified his goal for treatment as increased motivation and optimism, as well as less anxiety. (Id. ) He identified eating breakfast in the morning and singing on his own as outcome criteria. (Id. ) As part of initial treatment, Mr. Hitzelberger recommended that Plaintiff undergo MMPI testing. (Id. )

On September 12, 2011, Mr. Hitzelberger submitted an opinion letter and Mental Residual Functional Capacity Questionnaire discussing his treatment of Plaintiff, and impressions of Plaintiff's mental health. (Tr. 373-76.) In the letter, Mr. Hitzelberger indicated that Plaintiff had been diagnosed with Schizoaffective Disorder, Generalized Anxiety Disorder, and ADD/ADHD, NOS. (Tr. 373.) Mr. Hitzelberger explained that, "For the most part, people with these disorders can have great difficulty sustaining employment without significant support, " but that he "did not make statements regarding [Plaintiff's] specific ability to sustain competitive employment." (Id. ) He recommended Plaintiff find an alternative treatment source to receive a work assessment. (Id. )

On the Mental Residual Functional Capacity Questionnaire, Mr. Hitzelberger noted that he had been in weekly contact with Plaintiff since April, 27, 2011, though the record does not contain records from those meetings. (Tr. 374.) He indicated his belief that Plaintiff's mental health was not impacted by any physical impairment or medical condition, and that Plaintiff's mental health impairments had lasted over twelve months. (Id. ) In response to a question asking for Plaintiff's highest GAF score over the past year, he answered 44. (Id. )

Mr. Hitzelberger assessed Plaintiff as having marked limitation in his ability to: maintain attention and concentration for more than two hour segments; work in coordination with or proximity to others without being distracted; make simple work-related decisions, complete a normal work-day and work-week without interruption from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods; accept instructions and respond appropriately to criticism from supervisors; and tolerate normal levels of stress. (Id. ) He also provided his opinion that Plaintiff had moderate limitation in his ability to ask simple questions or request assistance, and respond appropriately to changes in the work setting. (Id. ) He found only mild limitation in Plaintiff's ability to travel in unfamiliar places, use public transit, get along with coworkers, and maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness (Id. )

Mr. Hitzelberger noted that Plaintiff's neuropsychological assessment from 2009 "may need to be redone", that Plaintiff should receive a work assessment, and that he could not determine whether Plaintiff would need unscheduled breaks or absences from work. (Tr. 375-76.) Mr. Hitzelberger did indicate that Plaintiff had a medically documented history of mental illness for more than two years, and that a minimal increase in mental demands or change in environment would be predicted to cause decompensation. (Id. )

c. Dr. Victoria Buoen, MD

On September 1, 2011, after filing for SSDI benefits, Plaintiff began seeing Victoria Buoen, MD. (Tr. 364.) In the Psychiatric Diagnostic Assessment Dr. Buoen completed on Plaintiff's initial visit, she indicated that Plaintiff had previously been on a number of medications, including Luvox, BuSpar, Celexa, and Adderall. (Tr. 366-67.) Plaintiff reported that he thinks about suicide "most days, " but denied any intent to act on his thoughts. (Tr. 366.) Dr. Buoen diagnosed plaintiff with Schizoaffective disorder, anxiety disorder, and attention deficit hyperactivity disorder. (Tr. 367.) Dr. Buoen also noted that Plaintiff was suffering from moderate to severe psychosocial stressors, and she gave Plaintiff a GAF score of 44. (Id. ) Dr. Buoen gave Plaintiff a prescription for Ativan, an antianxiety medication, which Plaintiff was instructed to take as needed. (Tr. 368.) Dr. Buoen indicated her hope that Plaintiff become more willing to try other medications to address his non-anxiety symptoms. (Id. )

Over the course of his next two meetings with Dr. Buoen, Plaintiff's condition declined precipitously. (Tr. 369-70.) On October 5, 2011, Plaintiff stated that he found the Ativan helpful. (Tr. 369.) He also reported avoiding people and connecting with them, and denied seeing things. (Id. ) He denied any suicidal thoughts or intentions. (Id. ) Just over two weeks later, however, on October 20, 2011, Plaintiff expressed to Dr. Buoen that he did not trust himself to refrain from self-harm, and that he felt an underlying anger and desire to harm others. (Tr. 370.) Because of Plaintiff's statements, Dr. Buoen referred him to Mercy Hospital for possible hospitalization. (Id.; 409-23.)

Plaintiff returned to treatment with Dr. Buoen on November 3, 2011. (Tr. 430.) He told Dr. Buoen in that meeting that he felt less suicidal and less stressed than he did before, and slightly more hopeful. (Id. ) He related that he had begun taking singing lessons over Skype from a singer in New York. (Id. ) Plaintiff indicated that it was still difficult for him to focus. (Id. ) Over the course of his next two meetings with Dr. Buoen, occurring on December 7 and 21, 2011, Plaintiff reported excessive sleep, increased anxiety, and some suicidal ideation associated with his prescription for Remeron. (Tr. 520-21.) As a result, Dr. Buoen discontinued Plaintiff's prescription for Remeron and restarted him on Ativan to address his anxiety issues. (Id. )

In his next meeting with Dr. Buoen, on February 1, 2012, Plaintiff indicated that he felt like quitting therapy. (Tr. 527.) He discussed experiencing a visual hallucination, but Dr. Buoen reported that Plaintiff was unwilling to take antipsychotic medication. (Id. ) At Plaintiff's next two visits to Dr. Buoen, he reported continuing visual hallucinations. (Tr. 528-29.) He also reported feeling "up" and "down", with the "up" feeling generally occurring on sunnier days. (Tr. 529.)

Starting with his April 17, 2012 meeting with Dr. Buoen, Plaintiff began reporting improved mood. (Tr. 530.) In his appointments with Dr. Buoen over the next four months, Plaintiff indicated that he was doing well, and that he was increasing his contact with people and enjoying it. (Tr. 531-33.) He reported decreased difficulty sleeping and a decreased need to take Ativan for his anxiety. (Id. ) However, by his last session with Dr. Buoen on November 7, 2012, Plaintiff noted that he was feeling increased anxiety and that he found all social interaction to be unrewarding. (Tr. 534.)

In a letter written in support of Plaintiff's SSDI benefits claim, dated January 2, 2013, Dr. Buoen related Plaintiff's diagnoses of Schizoaffective Disorder, Generalized Anxiety Disorder, and his symptoms of Schizotypal Personality Disorder. (Tr. 555.) She outlined his symptoms as including depression, social awkwardness, unusual thinking, abnormal perceptions, and some auditory and visual hallucinations. (Id. ) She noted Plaintiff's October 2011 hospitalization at Mercy Hospital, crediting it to "unrelenting suicidal and homicidal ideation", and provided that suicidal ideation had been present on and off. (Id. ) She described Plaintiff's experience with different medications, explaining that he had some success with anti-anxiety medications, responded poorly to anti-depressants, and was unwilling to try anti-psychotics. (Id. ) She reported that Plaintiff was generally motivated to help himself in ways that did not involve medication, and that he had a high intelligence, but that he had failed in his efforts to attend school or obtain a job. (Id. ) Because of Plaintiff's history of mental illness and his "profound inability to function in society despite his and others efforts, " Buoen stated her support for Plaintiff's Social Security Disability claim. (Id. )

2. Mental Health Evaluations

a. 2009 Neuropsychological Assessment

On August 4 and 11, 2009, Plaintiff was given a neuropsychological assessment by Amy Hilburger, PsyD, and Susan Storti, PhD, LP, CCC, with the Learning Language Specialists. (Tr. 229-40.) Plaintiff underwent formal testing of general cognitive ability, cognitive processing skills, and behavioral and emotional functioning. (Id. ) Accord to Drs. Hilburger and Storti, the results of testing showed that Plaintiff possessed superior general intellectual abilities, with an IQ in the 97th percentile, and average cognitive processing ability. (Id. ) He displayed evidence of persistent and longstanding Attention Deficit/Hyperactivity Disorder, with significant emotional difficulties also impacting his functioning. (Id. ) Plaintiff's results also revealed reduced learning efficiency, stemming from difficulties with planning, cognitive organization, retrieval of information, and reading rate and comprehension. (Id. ) Drs. Hilburger and Storti concluded that Plaintiff was suffering from longstanding symptoms of depression and anxiety, which, in conjunction with his attention issues, led to chronic academic underachievement. (Id. ) They provided a list of suggestions for accommodation which would help him establish a positive attitude toward academics, increase confidence, and maximize his potential. (Id. ) In addition to suggesting that Plaintiff consult with and receive treatment from a psychiatrist for his attention difficulties as well as his anxiety and depression, the evaluation recommended, inter alia, that Plaintiff work closely with student services, receive test taking accommodations, including extended time, and seek the help of tutors to assist with his comprehension and review of material. (Id. )

b. Minnesota Multiphasic Personality Inventory-2 Testing

The MMPI results indicated that individuals with Plaintiff's response profile are suffering from "a pattern of chronic maladjustment, " and are "overwhelmed by anxiety, tension, and depression." (Tr. 501-07.) His responses also evidenced considerable difficulties in carrying on normal interpersonal relationships, and that he was shy and emotionally distant. (Tr. 506.) This shyness was posited to be symptomatic of a broader pattern of social withdrawal. (Id. ) Plaintiff's profile tended to show that he had a severe psychological disorder, and would probably be diagnosed as severely neurotic with an Anxiety Disorder or Dysthymic Disorder in a Schizoid Personality, with the possible existence of a more severe disorder, such as Schizophrenic Disorder. (Tr. 507.) Addressing treatment considerations for individuals with Plaintiff's response profile, it was suggested that Plaintiff would need intensive therapy, as well as medication. (Id. ) Individuals with Plaintiff's profile were described as presenting a "clear suicide risk", and the interpretive report suggested that precautions be taken. (Id. )

The MMPI-2 interpretive report stated that Plaintiff's profile was probably valid. (Tr. 505.) It did express some concern, though, that his approach was inconsistent, and that he could have answered questions in the latter portion of the examination in an exaggerated manner. (Id. ) The report related that this behavior could have invalidated the latter portion of the test, and suggested that caution be used when interpreting the content and supplementary scales. (Id. )

c. 2012 Psychological Evaluation

In January 2012, Plaintiff saw Nina Syverson, MA, MSE, for a neuropsychological evaluation. (Tr. 522.) Plaintiff was referred for testing by Mr. Hitzelberger because of concerns that Plaintiff may have a thought disorder. (Id. ) During the evaluation, Plaintiff reported a number of perceptual distortions, and stated that he felt alone, and separate from others. (Tr. 522-23.) He explained that he did not remember a time that he was not depressed, and that he had great difficulty concentrating or trusting others. (Id. ) He reported that he was unemployed, and that he discontinued previous attempts at working because he found them to be too stressful. (Tr. 523.) Plaintiff stated that he was taking Ativan, but was unsure of whether it was helpful. (Id. )

Evaluating the results of testing, Ms. Syverson found that Plaintiff presented with problems with his thought process, evidenced by his conversation and the results of the BASC-2 and Rorschach tests. (Tr. 525-26.) The other test results showed that Plaintiff was significantly depressed, and suffering from a great deal of distress. (Tr. 524-26.) Tests previously administered showed Plaintiff to possess superior intellectual capacity, but his thought process issues were believed to significantly interfere with Plaintiff's ability to succeed. (Tr. 525-26.) In addition, Plaintiff's thought process problems were believed to significantly interfere with his ability to form and maintain relationships. (Id. ) Ms. Syverson recommended that Plaintiff continue therapy, and expressed her belief that he would do best in jobs that do not require significant social interaction. (Tr. 526.) She diagnosed Plaintiff with Schizophrenia and Major Depressive Disorder, Recurrent, with moderate severity, and she gave him a GAF score of 50. (Id. ) Ms. Syverson expressed that the test results could not be presented with absolute certainty because of the limitations of the testing process, as well as the unreliability of self and third-party reporting. (Id. ) However, she believed that Plaintiff was cooperative and put forward his best effort during assessment, and that the results were likely a valid estimate of Plaintiff's functioning at the time of examination. (Tr. 523.)

3. Plaintiff's Other Treatment Records

a. Mercy Hospital

Dr. Carly Evans, MD, admitted Plaintiff to Mercy Hospital via the emergency department on October 20, 2011, because of suicidal ideation, and a depression disorder. (Tr. 411-18.) During Dr. Evans' initial examination of Plaintiff, she noted that he had a history of schizoaffective disorder and had previously attempted suicide. (Tr. 412.) As part of his admittance, Plaintiff was required to complete Mental Health Assessment and Referral with Cynthia Dasch, LICSW. (Tr. 414-17.) When Ms. Dasch asked Plaintiff why he had been admitted to Mercy, he stated that he had "been thinking about doing it", and reported plans to commit suicide by poisoning, cutting his own wrists, or through use of a gun. (Tr. 414.) Plaintiff reported that he had previously attempted suicide by wrist-cutting when he was fourteen, and stated that he had engaged in self harm the night before the hospitalization by biting and pinching himself, as well as pulling his hair. (Id. ) He told Dasch that his only reason for not committing suicide was that he enjoyed making music. (Id. ) He reported general helplessness and hopelessness, and a feeling of constant sadness and worthlessness. (Id. ) Specifically, Plaintiff noted that his depression had been getting worse over the previous two months, and that he had been suffering anxiety related panic attacks "all of the time." (Tr. 415.) He presented with no symptoms of mania, but did describe occasionally feeling like people were trying to hurt or "screw with him." (Tr. 416.) Because of Plaintiff's comments during the Assessment, Dr. Evans admitted Plaintiff into Mercy's inpatient psychiatric unit on a seventy-two hour hold. (Tr. 412-13.)

The following day, October 21, 2011, Plaintiff was examined by Dr. Muhammad Khan. (Tr. 419-23.) Dr. Khan reported that Plaintiff denied suffering from Schizoaffective Disorder. (Tr. 420.) Plaintiff described suffering physical and mental abuse throughout his life at the hands of his father. (Tr. 419-20.) Plaintiff reported feeling depressed for the previous two weeks, but denied feeling suicidal or having any plans or intents. (Tr. 420.) He described worrying excessively for most of his life, and feeling restless. (Id. ) Plaintiff indicated that he struggled with concentration and sleep issues. (Id. ) He noted that he used to suffer from panic attacks, but that they had gone away. (Id. ) He denied feeling any compulsions or obsessive thinking, other than occasionally checking doorknobs or thinking about his music. (Id. ) He denied hearing voices, or seeing things that were not there, but reported once feeling that spirits would "go and get him." (Tr. 421.) Plaintiff reported previously using Luvox, Celexa, and Effexor, and current usage of Ativan, prescribed by his psychiatrist, Dr. Buoen. (Id. ) Based on his evaluation of Plaintiff, Dr. Khan diagnosed plaintiff with recurrent moderate to severe, nonpsychotic Major Depressive Disorder, Generalized Anxiety Disorder, and Post-traumatic Stress Disorder. (Tr. 422.) He gave Plaintiff a GAF score of 30. (Id. ) Dr. Khan convinced Plaintiff to begin a prescription of the antidepressants Remeron and Klonopin, and discontinued Plaintiff's prescription for Ativan. (Tr. 423.) He also convinced Plaintiff to try attending the outpatient group therapy sessions held at Mercy as part of his continuing treatment after discharge. (Id. )

Four days later, on October 25, 2011, Plaintiff was discharged from Mercy Hospital. (Tr. 409-11.) Dr. Khan diagnosed Plaintiff with recurrent Major Depressive Disorder, which had gone into partial remission, as well as Generalized Anxiety disorder and Post-traumatic Stress Disorder. Plaintiff endorsed symptoms of depression, but repeatedly denied experiencing any symptoms association with Schizoaffective Disorder. (Tr. 410.) He also denied any suicidal or homicidal ideation, intents, or plans. (Id. ). Dr. Khan noted that Plaintiff had initially been isolative during his stay at Mercy, but had later started going to groups, being social, ...

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