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Chang v. Berryhill

United States District Court, D. Minnesota

February 6, 2017

Dang Chang, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.

          David F. Chermol, Chermol & Fishman LLC, and Edward C. Olson, Attorney at Law, for Plaintiff Dang Chang.

          Pamela Marentette, United States Attorney's Office, for Defendant Nancy A. Berryhill.

          REPORT AND RECOMMENDATION

          HILDY BOWBEER, United States Magistrate Judge.

         Pursuant to 42 U.S.C. § 405(g), Plaintiff Dang Chang (“Chang”) seeks judicial review of a final decision by the Defendant Acting Commissioner of Social Security (“Commissioner”), who denied Chang's applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The case was referred to the undersigned pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 7.2 (2015). The matter is now before the Court on the parties' cross-motions for summary judgment [Doc. Nos. 14, 16]. For the reasons set forth below, the Court recommends that the District Court grant in part and deny in part Chang's motion, and grant in part and deny in part the Commissioner's motion.

         I. Background

         A. Procedural History

         Chang applied for DIB benefits and SSI benefits on September 30, 2011, alleging a disability onset date of September 30, 2011. (R. 58.) His applications were denied initially on July 18, 2012, and upon reconsideration on June 10, 2013. (R. 58.) Chang then requested and received a hearing. (R. 521-39.) An administrative law judge (“ALJ”) issued an unfavorable decision on August 4, 2014, determining that Chang had not been disabled within the meaning of the Social Security Act from September 30, 2011, through the date of the decision. (R. 55-70.) Chang requested Appeals Council review, which denied his applications on October 23, 2015 (R. 6-10), making the ALJ's decision the final decision of the Commissioner.

         B. Vocational Factors and Relevant Personal History

         Chang was born and raised in Laos. (R. 493.) His mother died when he was young, and his two brothers died of an unknown illness. (R. 493.) In records subsequent to the relevant time period, Chang reported his mother was killed and other family members were killed in front of him when he lived in the jungle. (R. 18.) During his time in the jungle living with his family, he was knocked unconscious, suffering a head injury, after a bomb exploded near him. (R. 337.) At some point, Chang escaped to Thailand and lived in a refugee camp there. (R. 492.) During his escape, he was shot in the back of his head and witnessed communists kill people, as well as dead bodies on the road. (R. 492.) Chang also suffered a broken arm during his escape. (R. 337.) Chang did not have any formal education in Laos. (R. 492.) Chang attempted to receive education in the refugee camp, but was unable to for various reasons. (R. 492.)

         Chang moved to the United States in 2005. (R. 492.) He attempted taking ESL classes for four years, but could not comprehend due to his distorted memory/concentration. (R. 492.) He also volunteered two years at a community center for Hmong elders. This volunteer work was part of a program he was involved in for receiving food stamps. (R. 337.) Chang also worked for three years at a temporary agency and was placed in positions such as labor, assembler, and janitor. (R. 492-93.)

         C. Relevant Medical Records

         The time period most relevant to the Court's consideration of the Commissioner's decision is September 30, 2011, the alleged onset of disability date, through August 4, 2014, the date of the ALJ's decision. Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000). Medical or other evidence before or after that period of time may also be relevant if it relates to Chang's impairments during that date range. See Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).

         In seeking judicial review of the Commissioner's decision, Chang focuses on his mental impairments. He does not directly challenge the ALJ's assessment of his physical impairments. The Court tailors its summary of the medical evidence accordingly.

         On March 15, 2011, approximately six months before the alleged date of disability, psychotherapist Willie Garrett provided a medical source statement. (R. 242-45.) Garrett diagnosed Chang with PTSD and gave a guarded prognosis. Garrett stated Chang's symptoms were depression, anxiety, nightmares, intrusive thoughts, irritation, and confusion. (R. 242.) Garrett opined that Chang's limitations prevented him from holding a job.

         On April 8, 2011, Chang saw his primary physician, Dr. Robin Councilman. (R. 217.) Chang reported that his energy was “okay, ” but he was having trouble sleeping. (R. 217.) Upon review, Dr. Councilman found Chang was negative for fatigue, but positive for depression with insomnia and noted his very flat affect. (R. 215, 219.) She stated he was doing somewhat better, but he needed to see his psychiatrist. (R. 219.) Chang again saw Dr. Councilman on August 4, 2011. (R. 214.) She reported Chang was having a great deal of stress due to denial of SSI benefits. (R. 215.)

         Chang again saw Dr. Councilman on December 1, 2011. (R. 214.) Chang reported feeling very depressed and tired. (R. 214.) Dr. Councilman found Chang positive for depression and insomnia, and again noted his very flat affect. (R. 214.) She wrote his depression was “worsening.” (R. 215.) Chang saw Dr. Councilman again approximately ten months later on September 17, 2012. (R. 302.) Chang reported that the medications he was on really helped with his stress, but that back pain interfered with sleep. (R. 302.) On examination, Dr. Councilman again observed a flat affect. (R. 303.)

         On May 13, 2011, Chang saw psychiatrist Dr. Colón for an initial evaluation. (R. 250.) Dr. Colón wrote that Chang was employed until August 2009, when he suffered a fracture of his left arm and could no longer work. (R. 250.) After ceasing work, Chang became depressed and reported low energy and low motivation. (R. 250.) Chang reported one suicide attempt in which he drank cleaning fluid, but found it did not taste good and he did not want to die, so he stopped taking the fluid. (R. 250.) During that initial visit, Chang reported low energy, low motivation, and low concentration, as well as anxiety and irritability. (R. 250.) Chang also reported difficulty sleeping. (R. 250.) Upon examination, Dr. Colón found no tangentiality and no loose associations. (R. 250.) Dr. Colón found Chang's affect to be euthymic, but his memory was intact. (R. 250.) Chang denied any delusions or hallucinations. (R. 250.)

         Chang again saw Dr. Colón on August 12, 2011. (R. 249.) Chang reported he was not taking sertraline on a consistent basis and his mood was still depressed. (R. 249.) Chang reported low energy, low motivation, and low concentration, as well as anxiety, irritability, and poor sleep. (R. 249.) Dr. Colón increased his sertraline dosage and added trazodone. (R. 249.) Chang had another appointment with Dr. Colón on November 17, 2011. (R. 248.) Chang reported some improvement in his energy and motivation, but his concentration was still down, with anxiety and irritability present. (R. 248.) His mood had improved, but not reached a stable point. (R. 248.) Dr. Colón added bupropion to Chang's medications. (R. 247.)

         Chang again saw Dr. Colón on March 29, 2012. (R. 247.) Chang reported improvement in energy and motivation since taking the bupropion. (R. 247.) Concentration was still down, however, with anxiety and irritability present. (R. 247.) His mood had improved, but not reached a stable point. (R. 247.) At his next appointment, on June 21, 2012, Chang reported his mood was down, with low energy, low motivation, and low concentration, as well as anxiety and irritability being present. (R. 265.) Dr. Colón increased his bupropion dosage. (R. 265.) On December 7, 2012, Chang attended a follow-up appointment with Dr. Colón. (R. 333.) Chang reported a depressed mood, low energy, low motivation, low concentration, anxiety, irritability, and poor sleep. (R. 333.) Dr. Colón increased his bupropion, sertraline, and trazodone dosages. (R. 333.)

         Chang next saw Dr. Colón on March 7, 2013, and reported improvement in his mood, energy, motivation, and concentration. (R. 352.) Anxiety and irritability were still present, but more manageable, and Chang was sleeping better. (R. 352.) One month later, however, Chang reported to Dr. Colón a drop in mood since his last appointment, with low energy, low motivation, low concentration, and increased anxiety and irritability. (R. 353.) Dr. Colón accordingly changed Chang's medications. (R. 353.) Chang's mood had not improved by his next appointment on May 3, 2013. (R. 354.) Chang reported the same symptoms and Dr. Colón again adjusted Chang's medications. (R. 354.) At his appointment on May 30, 2013, Chang reported to Dr. Colón that his mood was more stable, with his anxiety and irritability under control. (R. 414.) He also reported that his sertraline caused reduced motivation and concentration in the morning, so Dr. Colón switched that medication to bedtime. (R. 414.) Two months later, Chang attended a follow-up appointment with Dr. Colón. Chang reported the current combination of medications was working fairly well, and that his mood was stable, with anxiety and irritability under control, though he had somewhat low energy, motivation, and concentration. (R. 415.)

         Chang saw Dr. Colón again on October 31, 2013. Since his last appointment, there had been a drop in mood, resulting in low motivation and concentration. (R. 416.) Irritability had increased, and sleep was poor. (R. 416.) Upon examination, Dr. Colón found Chang's mood to be depressed, his affect euthymic, but his memory intact, and he had good insight. (R. 416.) When Chang next saw Dr. Colón on January 2, 2014, he reported that his chief complaint was anxiety. (R. 417.) His sleep had improved, but his mood was still down, with low energy, low motivation, low concentration, and irritability. (R. 417.) Dr. Colón examined Chang and made the same findings as the previous appointment. (R. 417.) At an appointment three months later, on March 6, 2014, Chang reported that his mood remained depressed with the same symptoms as the previous visit. (R. 418.) Dr. Colón's examination resulted in the same findings as the previous two visits. (R. 418.)

         In December 2012, Dr. Colón provided a mental medical source statement. (R. 319-21.) Dr. Colón wrote that he had treated Chang since May 13, 2011, and saw him approximately every three months. (R. 319.) His last appointment with Chang before completing the mental medical source statement was approximately six months prior. (R. 319.) Dr. Colón diagnosed Chang with major depression, recurrent, diabetes, and elevated blood pressure. (R. 319.) Dr. Colón also noted Chang had financial difficulties and assigned him a Global Assessment of Functioning (“GAF”) rating of fifty. (R. 319.) Dr. Colón's prognosis for Chang was “fair.” (R. 319.) Regarding Chang's ability to sustain work, Dr. Colón stated that Chang remained depressed, had low energy, low motivation, poor concentration, anxiety, and irritability. (R. 319.) Dr. Colón wrote Chang's impairments were expected to last more than twelve months. (R. 319.)

         Dr. Colón completed a checkbox form and found Chang was markedly limited in his ability to remember locations and work-like procedures, understand and remember very short and simple instructions, understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for more than two hour segments, work in coordination with or proximity to others without being distracted by them, complete a normal work-day and work-week, without interruptions from psychologically-based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods, interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, respond appropriately to changes in the work setting, set realistic goals or make plans independently of others, and tolerate normal levels of stress. (R. 320.) Dr. Colón found Chang was moderately limited in his ability to carry out very short and simple instructions, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine without special supervision, make simple work-related decisions, ask simple questions or request assistance, get along with coworkers or peers without distracting them or exhibiting behavioral extremes, maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness, be aware of normal hazards and take appropriate precautions, and travel in unfamiliar places or use public transportation. (R. 320.)

         Dr. Colón wrote that Chang required unscheduled breaks during an eight hour workday to accommodate his difficulty concentrating, although contrary to the form's instructions, he did not indicate how many unscheduled breaks would be required. (R. 321.) Dr. Colón wrote that because of his impairments, Chang was likely to miss more than three days of work per month. (R. 321.) Dr. Colón also wrote that Chang had a medically documented history of a mental disorder that limited his ability to function outside of a hugely supportive living arrangement and that Chang was completely unable to function independently outside of his home. (R. 321.)

         On July 16, 2012, James Alsdurf, Ph.D., LP, completed a mental residual functional capacity (“RFC”) for the SSA. (R. 271-73.) Dr. Alsdurf found Chang was not significantly limited in any memory category, but he was moderately limited in his ability to carry out detailed instructions, his ability to work in coordination with or proximity to others without being distracted by them, his ability to complete a normal workday and work week without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, the ability to accept instructions and respond appropriately to criticism from supervisors, and the ability to respond appropriately to changes in the work setting. (R. 271-72.) As a result, Dr. Alsdurf found Chang was mildly limited in activities of daily living, moderately limited in maintaining social functioning, and moderately limited in maintaining concentration, persistence, or pace. (R. 285.) In the narrative portion of his opinion, Dr. Alsdurf stated that Chang had the capacity to complete routine, repetitive tasks, and three and four step, uncomplicated instructions, but would have moderate problems with detailed, and marked problems with complex, instructions. (R. 273.) Additionally, his ability to interact with coworkers and the public would be moderately impaired, but adequate for brief and superficial contact. (R. 273.) Finally, Chang's ability to handle stress would be moderately impaired, but adequate to tolerate the routine stressors of a routine, repetitive, and three and four step work setting. (R. 273.)

         On April 4, 2013, SSA psychologist Mark Schuler, Ph.D., completed a disability determination evaluation of Chang. (R. 336.) Dr. Schuler assigned Chang a GAF rating of forty-two. (R. 336.) Chang reported depressive symptoms, as well as disturbing dreams 2 to 3 days per week. (R. 338.) Chang attributed these dreams to his culture and beliefs, stating that they occurred because his soul did not come with him from Thailand. (R. 338.) Dr. Schuler found that Chang did not describe any frank hallucinations, but Chang did state that on one occasion he had heard voices that other people could not hear, specifically that one day in this world, there would be a war. (R. 339.) Chang also recounted dreaming that there would be a big explosion. (R. 339.) Dr. Schuler opined that Chang's one reported experience of hearing voices saying that there was going to be a war was a “dreamlike” experience, and noted that in the Hmong culture, there is little differentiation between the dream state and the waking state. (R. 340.) Dr. Schuler ultimately diagnosed Chang with major depressive disorder, recurrent, moderate to severe, without psychotic features. (R. 340.)

         Licensed social worker Panukoochi Vah completed a diagnostic assessment of Chang on November 12, 2013. (R. 491.) An interpreter was not present, but the report states Chang's mother[2] and spouse were present. (R. 491.) Vah wrote that the presenting problems were hallucinations, flashbacks, intrusive thoughts, nightmares, and other mental health symptoms. (R. 491.) Chang explained his nightmares were related to his escape from Laos, including communists torturing and killing Hmong, dead bodies on the road, gun shooting, and mistreatment in the refugee camp. (R. 494.) He reported that whenever he heard noises, he would get startled and panic. (R. 494.) Vah diagnosed Chang with major depression with psychotic features, PTSD, and anxiety. (R. 495.) She also found he had a personality disorder. (R. 495.) Chang saw Vah again on January 9, 2014. (R. 489.) He reported hearing voices and sounds as if people were talking to each other. (R. 489.) She did not diagnose him with psychosis at that visit, however. (R. 489.) In subsequent visits, Vah diagnosed Chang as having depression, but did not again diagnose him with psychosis. (R. 491, 489, 486.)

         On April 28, 2015, approximately eight months after the ALJ's decision, David Tupper, Ph.D., LP, completed a neuropsychological evaluation of Chang. (R. 17.) Dr. Tupper wrote that there was concern as to whether Chang had a traumatic brain injury in connection with the grenade explosion from his childhood. (R. 17.) Dr. Tupper recounted medical records from 2015 in which Chang reported a history of past hallucinations, and in which he was diagnosed with major depressive disorder with psychotic features. (R. 17.) During the interview, Chang reported experiencing sightings of ghosts. (R. 19.)

         On October 3, 2015, approximately a year after the ALJ's decision, Dr. Councilman wrote a letter summarizing Chang's limitations. (R. 15.) Dr. Councilman wrote Chang had severe depression with psychotic features. (R. 15.) She wrote that Chang would not be able to hold competitive employment. (R. 16.)

         Chang submitted the additional records after the ALJ's decision to the Appeals Council, specifically medical records from Hennepin County Medical Center, dated November 24, 2014, through April 28, 2015, and the medical source statement and records from Dr. Councilman, dated April 27, 2015, through August 3, 2015. (R. 7.) These records included Dr. Tupper's evaluation described above. The Appeals Council did not consider this evidence because it was after the date of the ALJ's decision, August 4, 2014. (R. 7.) The Appeals Council wrote that if Chang wanted the SSA to consider evidence after that date, he needed to submit a new claim. (R. 7.)

         D. Chang's ...


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