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Cheryl J. v. Saul

United States District Court, D. Minnesota

September 25, 2019

Cheryl J., Plaintiff,
v.
Andrew Saul, Commissioner of Social Security, [1]Defendant.

          Edward C. Olson, and Karl E. Osterhout, Osterhout Disability Law, LLC, (for Plaintiff); and

          Kizuwanda Curtis, Special Assistant United States Attorney, Social Security Administration, (for Defendant).

          ORDER

          TONY N. LEUNG UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff Cheryl J. brings the present case, contesting Defendant Commissioner of Social Security’s denial of her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The parties have consented to a final judgment from the undersigned United States Magistrate Judge in accordance with 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D. Minn. LR 72.1(c).

         This matter is before the Court on the parties’ cross-motions for summary judgment. (ECF Nos. 12, 15.) For the reasons set forth below, Plaintiff’s motion is granted in part and denied in part; the Commissioner’s motion is granted in part and denied in part; and this matter is remanded to the Social Security Administration for further proceedings consistent with this opinion.

         II. PROCEDURAL HISTORY

         Plaintiff applied for DIB in February 2015, asserting that she is disabled due to, among other things, posttraumatic stress disorder, depression, and anxiety.[2] (Tr. 21, 84, 96, 99, 112.) Plaintiff’s DIB application was denied initially and again upon reconsideration. (Tr. 21, 94, 96, 111, 112.) Plaintiff appealed the reconsideration of her DIB determination by requesting a hearing before an administrative law judge (“ALJ”). (Tr. 21; see Tr. 117-18, 164-65.)

         The ALJ held a hearing in June 2017. (Tr. 21, 61-83.) After receiving an unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council, which denied her request for review. (Tr. 1-14, 21-33.) Plaintiff then filed the instant action, challenging the ALJ’s decision. (Compl., ECF No. 1.) The parties have filed cross motions for summary judgment. (ECF Nos. 12, 15.) This matter is now fully briefed and ready for a determination on the papers.

         III. BACKGROUND

         Plaintiff has a history of posttraumatic stress disorder, generalized anxiety disorder, and depression.[3] (See, e.g., Tr. 367, 365, 363, 361, 359, 357, 355, 353, 349, 347, 345, 343, 340, 419, 417, 415, 514, 512, 510, 508, 506, 504, 500, 498, 496, 494, 492, 490, 488.)

         A. Mental-Health Treatment

         Plaintiff has been seeing Deb Orman, APRN, [4] since at least March 2014 for mental-health treatment. (Tr. 368.) Up until approximately April 2016, Orman’s work was supervised by Craig J. Vine, MD. (Tr. 368, 366, 364, 360, 358, 356, 354, 352, 350, 348, 343, 343, 341, 338, 422, 420, 418, 416, 517, 515, 513, 511, 509, 507, 505, 503.)

         1. 2014

         In 2014, Plaintiff saw Orman approximately once per month. (Tr. 367, 365, 363, 361, 359, 357, 355, 353, 351, 349, 347, 345.) During her sessions, Plaintiff reported feeling depressed, anxious, hopeless, irritable, and tired. (Tr. 367, 363, 361, 359, 355, 353, 347.) Plaintiff would be “one minute up then bott[o]m to depression and full of anxiety.” (Tr. 359; see Tr. 357, 349.) Plaintiff reported difficulty interacting with others and connecting to people. (Tr. 367; see Tr. 365.)

         During their sessions, Orman observed that Plaintiff was generally well-groomed, and made good eye contact. (Tr. 367, 365, 361, 359, 357, 355, 353, 351, 349, 347. But see Tr. 363, 355.) Plaintiff’s attention and concentration were also generally within normal limits; her thought processes linear and logical; and her insight and judgement intact. (Tr. 367, 365, 363, 361, 359, 357, 355, 353, 351, 349, 347. But see Tr. 359.)

         Plaintiff’s mood varied. At times, Orman observed that she was depressed. (Tr. 367, 363, 359, 355, 353.) Other times, Plaintiff showed improvement and was within normal limits. (Tr. 365, 361, 351, 349, 347.) Plaintiff’s affect also varied. Plaintiff’s affect was described as being irritable, anxious, depressed, dysphoric, and flat as well as euthymic and less flat. (Tr. 367, 365, 363, 361, 359, 357, 355, 353, 349, 347.) Plaintiff experienced suicidal thoughts from time to time. (Compare Tr. 365, 359, 355, 347 with Tr. 367, 365, 361, 357, 353, 351, 349.) Orman routinely assigned Plaintiff a GAF score of 55, but also assigned lower scores, 48 and 50, on two occasions.[5] (Compare Tr. 367, 365, 361, 360, 358, 355, 353, 349, 347 with Tr. 364, 355.)

         During this time, Orman prescribed a number of different medications, including Latuda, [6] Klonopin, [7] Paxil, [8] Sonata, [9] Tegretol XR, [10] lithium carbonate, [11] and Zyprexa.[12] (Tr. 368, 366, 364, 362, 360, 358, 356, 354, 352, 351, 350.) Plaintiff most often took Latuda and Klonopin combined with other medications. Plaintiff experienced some improvement with her medication. (Tr. 365, 363, 361, 359, 357, 353, 351; see Tr. 349.) And, while some of these medications helped with some of Plaintiff’s symptoms, they also at times caused increases in other symptoms, such as difficulty sleeping, increased depression, and anger. (See, e.g., Tr. 359, 355.)

         2. 2015

         a. Treatment with Orman

         Plaintiff continued seeing Orman throughout 2015. During the first half of 2015, she saw Orman more often, about twice per month. (Tr. 345, 342, 340, 337, 421, 419, 417.) Towards the second half, Plaintiff saw Orman once per month. (Tr. 414, 516, 514, 512, 510, 508.) Plaintiff continued struggling with depression and anxiety. (Tr. 342, 341, 340, 337, 414, 417, 516, 514, 510, 508; see Tr. 512.) Plaintiff also had trouble with ruminating thoughts. (Compare Tr. 342, 340 with Tr. 516, 514; see Tr. 414.)

         Additionally, Plaintiff reported difficulties concentrating. (Tr. 342, 337, 421.) Plaintiff would “sit[] at [her] desk confused and [was] unable to sort out what she has to do next.” (Tr. 342.) Plaintiff also had “a hard time staying focused on things” and could “only do things for short periods.” (Tr. 337.) Plaintiff had little motivation to do things. (Tr. 337.) Plaintiff moved between a recliner and her bed and was “unable to do her crafts.” (Tr. 417; see Tr. 414.) In April, Orman noted that Plaintiff “remains unable to work due to severe depression and anxiety, ” is “[u]nable to concentrate, [and] minimally functions in the day.” (Tr. 338.) In or around the end of June, Plaintiff moved in with her mother. (Tr. 414; see Tr. 516.)

         The findings of Plaintiff’s mental-status examinations were largely the same. She continued to present generally as well groomed with good eye contact. (Tr. 345, 342, 340, 337, 421, 419, 417, 414, 516, 514, 512, 510, 508. But see Tr. 342, 340, 337, 508.) Her attention and concentration likewise generally continued to be within normal limits; her thinking was most often linear and logical; and her judgment and insight were intact. (Tr. 345, 342, 340, 337, 421, 419, 417, 414, 415, 516, 514, 512, 510, 508. But see Tr. 337, 510.)

         While Plaintiff’s mood was at times within normal limits, it was most often depressed. (Compare Tr. 345, 419, 417, 414, 510 with Tr. 342, 340, 337, 516, 514, 512, 508.) Similarly, while Plaintiff’s affect was occasionally euthymic, it was most often blunted and at times anxious and flat. (Compare Tr. 345, 419, 417 with Tr. 340, 414, 516, 514, 512, 510, 508 with Tr. 342, 340, 337, 421.) Plaintiff also continued to experience suicidal thoughts. (Tr. 342, 340, 508; see Tr. 337, 414, 514.) During this time, Orman most commonly assessed Plaintiff as having a GAF score of 48, with one score of 55 and one score of 40. (Tr. 345, 343, 340, 338, 420, 417, 415, 516, 515, 513.)

         Orman continued to prescribe Klonopin and Zyprexa. (Tr. 346, 343, 341, 338, 422, 420, 418, 415, 517, 515, 513, 511, 509.) At times, Plaintiff tried Latuda and Paxil as well. (Tr. 346, 343, 341, 338, 422.) Plaintiff also tried Wellbutrin (Tr. 515), [13] Valium (Tr. 511), [14] and Rexulti (Tr. 509).[15]

         b. ASD

         i. Pre-Assessment

         In March, Orman noted that Plaintiff “is very concrete, does not get jokes, has a rough time [with] reciprocity, [and] has a great deal of social difficulty.” (Tr. 340.) Orman discussed autism spectrum disorder (“ASD”) with Plaintiff and referred her to the Autism Society of Minnesota for further evaluation. (Tr. 341; see Tr. 338.) During her appointment at the end of April, Plaintiff reported that she had been diagnosed “with being on the spectrum.” (Tr. 421.) While awaiting the results of the evaluation, Orman noted “rule out ASD” in Plaintiff’s diagnoses. (See Tr. 340, 337, 419, 417, 415.)

         ii. Assessment

         For three days in and around the middle of April, Plaintiff met with Tamara Phillips, MA, LMFT, with the Autism Society of Minnesota for an assessment. (Tr. 381-91.) Plaintiff reported a history of depression and anxiety with an increase in symptoms. (Tr. 381.) Plaintiff reported that she used to enjoy cross-stich, crochet, and bead work, but now spends most of her day watching television. (Tr. 381; see Tr. 385, 387.)

         Plaintiff reported that she had no social relationships and “a few acquaintances.” (Tr. 381; see Tr. 387.) She had “[d]ifficulty making and keeping friends.” (Tr. 385.) When asked about how she responds to a person who is emotional, Plaintiff stated that she does not know what to say after asking what is wrong. (Tr. 383; see Tr. 388.) Plaintiff reported that she “sometimes has difficulty understanding humor, ” and is “[o]ften told she is wrong relating to people’s emotions.” (Tr. 383; see Tr. 388.) Plaintiff also reported “[d]ifficulty reading body language . . . .” (Tr. 383.) Similarly, Plaintiff had “[d]ifficulty reading between the lines, [and] prefer[red] people to be direct with her.” (Tr. 383; see Tr. 388.) Plaintiff also “[d]islike[d] small talk, ” stating that she “doesn’t know what to talk about and needs the other person to lead the conversation.” (Tr. 383; see Tr. 388.) Plaintiff reported that she “[c]an relate well to her cats” and “[s]peaks the same to children and pets as she does adults.” (Tr. 385.)

         Plaintiff also reported that she “[b]ecomes agitated and anxious” in the face of “unexpected changes.” (Tr. 385; see Tr. 388.) Plaintiff believed she was capable of multitasking, but got “frustrated when she [wa]s interrupted.” (Tr. 385.) Plaintiff “[l]ike[d] rules to help her function.” (Tr. 385.)

         During these sessions, Phillips observed that Plaintiff’s mood was anhedonic and depressed, and her affect was flat. (Tr. 382, 383, 385; see Tr. 387.) Plaintiff’s thoughts were oriented. (Tr. 382, 383, 385.) Phillips assessed Plaintiff with a GAF score of 50. (Tr. 382, 384, 386.)

         Phillips diagnosed Plaintiff with ASD along with depression, generalized anxiety disorder, and posttraumatic stress disorder. (Tr. 391.) Phillips’s diagnosis was cosigned by Barbara Lushkin, PhD, LP. (Tr. 391.) Phillips’s assessment was based in part on the Ritvo Autism Asperger Diagnostic Scale-Revised (RAADS-R). “Individuals need to score [greater than] 65 to receive an ASD diagnosis, ” and Plaintiff “obtained a score of 146.” (Tr. 389.)

         Among other things, Phillips stated that Plaintiff “has difficulty with back-and-forth conversation, understanding facial expressions, eye contact and non-verbal communication.” (Tr. 389.) Plaintiff’s “own emotional expressions are limited and she has restricted use of social smiling.” (Tr. 389.) “While [Plaintiff] intermittently enjoys being around others, her relationships lack reciprocity, ” and “[s]he has difficulty adjusting her behavior to suit various social contexts.” (Tr. 389.) Plaintiff also “understands language very literally.” (Tr. 390.)

         Phillips also stated that Plaintiff “struggles with change in routine, ” and “[h]as historically had difficulty with transitions, rigid patterns of thinking and greeting rituals.” (Tr. 390.) Plaintiff also “becomes overwhelmed in loud environments or when she is with a large number of people.” (Tr. 390.) Plaintiff also “engage[d] in repetitive behaviors including rocking back and forth.” (Tr. 390.)

         Phillips additionally stated that “[a]nother common characteristic of ASD is a language processing delay.” (Tr. 390.) Phillips noted that Plaintiff’s processing of information may be delayed when she is under stress. (Tr. 390.) “[Plaintiff] may often need additional time (10 to 15 seconds) to process the information and respond, may ask for the information to be repeated, and may need additional clarification.” (Tr. 390.) Phillips further noted that “[i]t may be beneficial for [Plaintiff] to have information written down for her to read[] instead of given verbally.” (Tr. 390.)

         On a three-point scale where “1” indicated “requiring support” and “3” indicated “requiring very substantial support, ” Phillips rated Plaintiff a “1” in both “[s]ocial communication” and “[r]estricted, repetitive behaviors.” (Tr. 391.)

         iii. Post-Assessment

         Beginning in July and continuing thereafter, Orman included ASD among Plaintiff’s diagnoses.[16] (Tr. 516, 514, 512, 510, 508; see also Tr. ...


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