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Lathon v. Berryhill

United States District Court, D. Minnesota

March 29, 2018

Drew Lathon, Plaintiff,
Nancy Berryhill, Acting Commissioner of Social Security, Defendant.

          Ann Motl, for Plaintiff. [1]

          Ann Bildtsen, Assistant United States Attorney, for Defendant.



         Plaintiff Drew Lathon seeks judicial review of the final decision of the Acting Commissioner ("Commissioner") of the Social Security Administration ("SSA"), who denied his application for disability insurance benefits under Title XVI of the Social Security Act. This Court has jurisdiction over Plaintiffs claim pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), 28 U.S.C. § 636(c), and Rule 73 of the Federal Rules of Civil Procedure. The parties have submitted cross motions for summary judgement. See ECF Nos. 33 and 38. For the reasons set forth below, the Commissioner's decision is AFFIRMED and the case is DISMISSED WITH PREJUDICE.


         On December 2, 2013, Lathon filed an application for supplemental security income ("SSI"). Administrative Record ("AR") 29, 69. Lathon's initial alleged disability onset date was April 1, 1992.[2]AR 29, 171. Lathon later amended his disability onset date to September 25, 2014. AR 69. Lathon's application for SSI was denied initially on February 28, 2014, and upon reconsideration on October 20, 2014. AR 29, 98, 113. On September 25, 2015, an administrative hearing was held before Administrative Law Judge ("ALJ") Jeffrey Hart. AR 29. On September 28, 2016, the SSA Appeals Council denied Lathon's request for review, rendering the ALJ's decision final for purposes of judicial review. AR 3-8; see 20 C.F.R. § 404.981. On November 30, 2016, Lathon commenced this civil action, seeking an award of benefits, or alternatively, reversal and remand for further proceedings. ECF No. 1 at 2.


         A. Background

         Lathon was born on May 14, 1981, and was thirty-three years old on the amended disability onset date, which is defined as a younger SSI claimant. AR 171; see 20 C.F.R. § 416.963. Lathon suffers from several severe impairments: anxiety disorder, asthma, diabetes, and schizoaffective/affective disorder. AR 31; see 20 § C.F.R. 416.920(c).

         B. Medical Evidence

         On April 21, 2014, Lathon presented to Dr. Carlos Figari, his primary care physician, for diabetes treatment. AR 47. At this appointment, Lathon reported being depressed and easily teary. Id. In addition, Lathon stated that his depression had been recently exacerbated because he had witnessed the murder of a family friend. Id. Dr. Figari did not prescribe any medication for Lathon's depression; instead he recommended follow-up appointments to make sure that he would be "safe." Id.

         On May 1, 2014, Lathon was assessed by Licensed Social Worker (hereinafter "LicSW") Elizabeth Shook Peterson. AR 50-51. Ms. Peterson's notes described Lathon as sitting slumped forward, looking into his lap or in his hands, and speaking in a soft, monotonous voice. AR 50. Lathon told Ms. Peterson that he often heard voices and was afraid to sleep due to the "things that come out of the closet at night." Id.

         On October 1, 2014, Lathon attended a follow-up appointment with Dr. Figari regarding his ongoing diabetes and asthma treatments. AR 53. Dr. Figari's notes indicate that Lathon's mental health was concerning. Id. Lathon also reported hearing voices that told him to do bad things. Id.

         On October 6, 2014, Lathon presented to Dr. Donald Wiger for a psychological consultation. AR 386-90. Dr. Wiger performed psychometric testing. Id. Dr. Wiger noted that Lathon had slow movements and struggled to make eye contact. AR 387. Lathon stated that he often felt anxious in large crowds, had attempted suicide, and heard voices. AR 387-88. Dr. Wiger diagnosed Lathon with psychotic disorder, history of post-traumatic stress disorder ("PTSD"), panic disorder, and major depressive order. AR 388.

         On December 15, 2014, Lathon visited LicSW Kathleen Sapp, who completed a diagnostic assessment. AR 56. Lathon was not taking psychotropic medication at the time of his appointment. AR 58. Lathon reported to Ms. Sapp that he suffered from long-term depression and was prone to hearing things. AR 56. Additionally, Lathon recounted his friend's murder, stating that he had also seen other people shot and killed. Id. Ms. Sapp noted that Lathon reported and exhibited symptoms of depression, anhedonia, insomnia, psychomotor retardation, fatigue, feelings of worthlessness/guilt, difficulty concentrating, impaired memory, recurrent thoughts of death, suicidal thoughts with specific plans, paranoid ideation, auditory hallucinations, disorganized speech, and disorganized behavior. AR 56-58. Ms. Sapp recommended a psychiatric consultation and individual therapy for Lathon, and provided him with information for psychiatric emergency use, and discussed his unwillingness to use insulin prescribed by his primary care physician. AR 63.

         On December 31, 2014, Lathon was examined Dr. Ngozi Wamuo. Id. Dr. Wamuo noted that Lathon exhibited depressive and anxiety symptoms, as well as psychotic symptoms of trauma-related hallucinations, and diagnosed Lathon with depression and PTSD. Id.; see also AR 462. At a February 27, 2015, appointment with Dr. Wamuo, Lathon reported improvement while taking his depression medications, but continued experiencing nightmares and dissociative episodes. AR 464. Lathon's subjective level of depression was listed as severe. AR 465.

         At a May 5, 2015, follow-up appointment with Dr. Wamuo, Lathon reported that he had been unable to obtain his mental health medication due to a lack of insurance and financial resources, and that his depression, anxiety, and PTSD were worsening. AR 466-68. On April 13, 2015, on a Hennepin County Human Services Request for Medical Opinion, Dr. Wamuo diagnosed Lathon with major depression and PTSD, and stated that Lathon would not be able to perform any employment in the foreseeable future. AR 473.

         On June 18, 2015, Lathon returned to Dr. Wamuo and reported some symptom improvement. AR 469. Lathon reported that his auditory hallucinations had subsided, but the visual hallucinations remained. Id.

         C. Therapy Records Produced after the September 25, 2015, Hearing

         At the request of the ALJ, Lathon produced medical records after the September 25, 2015, hearing. On July 1, 2015, Lathon visited Ms. Sapp for individual therapy. AR 475. Lathon reported he had been using his medications when they were available to him through insurance, that his sleep had improved, but he still continued to experience visual and auditory hallucinations. Id. On July 13, 2015, and July 22, 2015, Lathon visited Ms. Sapp and he discussed the traumatic events he had experienced in his past. AR 476-79.

         Between August 3, 2015, and September 15, 2015, Lathon returned to Ms. Sapp for four subsequent evaluations. AR 479, 481-83. During these treatments, Ms. Sapp noted slight fluctuations in Lathon's mental state, and issued a Medical Source Statement opining that Lathon suffered from marked limitations in understanding and remembering short, simple instructions; understanding and remembering detailed instructions; carrying out detailed instructions; and the ability to make judgments in simple work-related decisions. AR 490-92. Ms. Sapp found Lathon to be moderately limited in his ability to carry out short, simple instructions, and extremely limited in his ability to respond appropriately to work pressures in a usual work ...

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