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Gorbitz v. Berryhill

United States District Court, D. New Mexico

October 24, 2018

MICHAEL DAVID GORBITZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 15) filed December 20, 2017, in support of Plaintiff Michael David Gorbitz's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title XVI supplemental security income benefits. On March 20, 2018, Plaintiff filed his Motion to Reverse and Remand For A Rehearing With Supporting Memorandum (“Motion”). (Doc. 22.) The Commissioner filed a Response in opposition on May 17, 2018 (Doc. 25), and Plaintiff filed a Reply on July 5, 2018. (Doc. 28.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is well taken and is GRANTED.

         I. Background and Procedural Record

         Claimant Michael David Gorbitz (“Mr. Gorbitz”) has a long history of mental impairments that prevent and/or interfere with, inter alia, his ability to drive, to live and function independently, to have friends, to attend post-secondary education, and to obtain and maintain employment. (Tr. 39, 43, 44, 48, 50-53, 59-61, 63, 194-96, 215-16, 249-50, 256-57, 272-74, 287-88.[2]) He was diagnosed with ADHD at age 4, and speech language delays in the second grade. (Tr. 256.) He attended special education throughout his primary and secondary education. (Tr. 185, 258, 272.) He has undergone three separate neuropsychological evaluations, all of which have resulted in psychiatric diagnoses, including ADHD, anxiety, depressive disorder, mood disorder, and cognitive disorder; and a medical diagnosis of brain trauma. (Tr. 263-66, 284-86, 297, 401.) Mr. Gorbitz completed high school in 2009, and worked briefly as a grocery store bagger and UPS loader. (Tr. 186, 201-05.) Mr. Gorbitz reported he stopped working on September 7, 2011, due to his medical conditions and “other reasons.”[3] (Tr. 185.)

         On July 26, 2013, Mr. Gorbitz filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 166-71.) Mr. Gorbitz alleges a disability onset date of January 1, 2013, [4] at age twenty-two because of brain injury, bipolar disorder, post-traumatic stress syndrome, mood disorder, and attention-deficit/hyperactivity disorder. (Tr. 11, 83, 184, 230.) Mr. Gorbitz's application was initially denied on November 26, 2013. (Tr. 69, 70-81, 96-99.) It was denied again at reconsideration on May 23, 2014. (Tr. 82, 83-95, 105-09.) On June 13, 2014, Mr. Gorbitz requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 111-13.) The ALJ conducted a hearing on March 30, 2016. (Tr. 26-68.) Mr. Gorbitz appeared in person at the hearing with attorney representative Michael Armstrong. (Id.) The ALJ took testimony from Mr. Gorbitz (Tr. 31-47), his mother Kristen Gorbitz (Tr. 47-57), his father Michael Gorbitz, Sr. (Tr. 58-64), and an impartial vocational expert (“VE”), Karen Provine (Tr. 65-67). On April 20, 2017, ALJ Ann Farris issued an unfavorable decision. (Tr. 8-21.) On May 16, 2017, the Appeals Council issued its decision denying Mr. Gorbitz's request for review and upholding the ALJ's final decision. (Tr. 1-6.) On July 14, 2017, Mr. Gorbitz timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled if he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:

(1) At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”[5] If the claimant is engaged in substantial gainful activity, he is not disabled regardless of his medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment(s) or combination of impairments that is severe and meets the duration requirement, he is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment(s) meets or equals in severity one of the listings described in Appendix 1 of the regulations and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If, however, the claimant's impairments do not meet or equal in severity one of the listing described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform his “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [claimant] can still do despite [his physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ determines the physical and mental demands of claimant's past work. Third, the ALJ determines whether, given claimant's RFC, the claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform his past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         B. Standard of Review

          This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         III. Analysis

         The ALJ made her decision that Mr. Gorbitz was not disabled at step five of the sequential evaluation. (Tr. 20-21.) Specifically, the ALJ determined that Mr. Gorbitz had not engaged in substantial gainful activity since his application date, July 26, 2013. (Tr. 13.) She found that Mr. Gorbitz had severe impairments of cognitive disorder, attention-deficit/hyperactivity disorder (ADHD), mood disorder, and personality disorder with passive-aggressive and self-defeating features. (Id.) The ALJ, however, determined that Mr. Gorbitz's impairments did not meet or equal in severity one the listings described in Appendix 1 of the regulations. (Tr. 14-15.) As a result, the ALJ proceeded to step four and found that Mr. Gorbitz had the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations:

he is limited to simple routine tasks with reasoning at level one, involving only occasional and superficial interactions with the general public. The claimant should not be required to work at a production-rate pace or perform tandem tasks such as an assembly job.

(Tr. 15.) The ALJ further concluded at step four that Mr. Gorbitz was not able to perform his past relevant work. (Tr. 20.) The ALJ determined at step five that considering Mr. Gorbitz's age, education, work experience, and RFC, that there were jobs that existed in significant numbers in the national economy that Mr. Gorbitz could perform and he was, therefore, not disabled. (Tr. 20-21.)

         Mr. Gorbitz argues that the ALJ (1) improperly rejected the opinions of treating psychiatrist E. B. Hall, M.D.; and (2) failed to account for all the moderate limitations assessed by nonexamining State agency psychologists Cathy Simutis, Ph.D., and Charles F. Bridges, Ph.D. (Doc. 22 at 16-23.) Based on the medical and record evidence in this case, as more fully discussed below, the Court finds the ALJ's reasons provided for according limited weight to Dr. Hall's assessments are not supported by substantial evidence and that this case requires remand.

         A. Relevant Evidence

         1. Edwin B. Hall, M.D.

         The Administrative Record contains seventeen treatment notes from Edwin B. Hall, M.D., from February 12, 2010, through January 23, 2016.[6] (Tr. 360, 361, 364, 366-67, 368-69, 378-81, 382-85, 386-89, 412-17, 418-23, 424-29, 430-35, 436-41, 442-46, 447-51, 452-56, 457-60.)

         a. 2010 - 2012

          From 2010 through 2012, Mr. Gorbitz saw Dr. Hall, or PA-C Belina Avner of Dr. Hall's office, a total of five times. (Tr. 360, 361, 364, 366-67, 368-69.) The treatment notes reflect Mr. Gorbitz's reports of irritability, increased emotional agitation, feelings of suicide, and depression. (Id.) In response, Dr. Hall, or PA-C Avner, adjusted Mr. Gorbitz's medications and refilled his prescribed medications. (Id.)

         b. 2013

          In 2013, Mr. Gorbitz saw Dr. Hall four times following an incident on April 17, 2013, in which Mr. Gorbitz threatened his father with a knife, was arrested and charged with domestic violence, and subsequently evaluated at Kaseman Presbyterian ER for suicidal ideation (Tr. 299-304, 378-81, 382-85, 386-89, 457-60.) The narrative portions of Dr. Hall's treatment notes related to the incident are largely garbled and confusing. What is discernable, however, is that Dr. Hall intervened with law enforcement on Mr. Gorbitz's behalf to have him psychiatrically evaluated. (Id.) Dr. Hall explained that Mr. Gorbitz “was off his medicine and noncompliant accidentally and went into a manic depressive episode.” (Tr. 386.) Dr. Hall noted that Mr. Gorbitz was “developmental, ” had “mood swings, ” and was suicidal and homicidal. (Tr. 376. 378-79.) Dr. Hall also noted that “Michael does not need to be treated in a jail or penal system he needs to be adjudicated as psychiatrically incompetent to stand trial and that he basically needs to be treated as mental health facility and making and with outpatient.” [Sic.] (Tr. 382, 386, 457.)

         On April 20, 2013, on mental status exam, Dr. Hall noted that Mr. Gorbitz's mood and affect were sad, depressed and irritable; he had poor insight and impaired judgment; and his thought content was suicidal. (Tr. 380.) Dr. Hall indicated that all other aspects of Mr. Gorbitz's mental status exam were normal.[7] (Id.) Dr. Hall diagnosed unspecified episodic mood disorder and anxiety state, unspecified. (Tr. 381.) Dr. Hall added Zonegran to Mr. Gorbitz's medication therapy, [8] and indicated his goal was to restabilize Mr. Gorbitz on his medications. (Id.)

         On April 27, 2013, Dr. Hall noted that Mr. Gorbitz was much improved on Zonegran. (Tr. 382.) Mr. Gorbitz reported moderate stress due to family, occupational, and health concerns. (Id.) On mental status exam, Dr. Hall noted that Mr. Gorbitz's mood and affect were sad, depressed, and irritable; his insight was poor and judgment impaired; and his thought content was suicidal. (Tr. 383.) All other aspects of Mr. Gorbitz's mental status exam were normal. (Id.) Dr. Hall diagnosed unspecified episodic mood disorder and anxiety state, unspecified. (Tr. 384.) Dr. Hall noted that Zonegran had really helped Mr. Gorbitz's mood and that he felt confident he could get Mr. Gorbitz back on track. (Id.) Dr. Hall planned to continue Mr. Gorbitz on his current medication regimen and to continue current psychotherapy focus.[9] (Tr. 385.)

         On May 31, 2013, Dr. Hall again noted that Mr. Gorbitz was much improved on Zonegran. (Tr. 386.) Mr. Gorbitz reported moderate stress due to family, occupational and health concerns. (Tr. 387.) On mental status exam, Dr. Hall noted that Mr. Gorbitz's mood and affect were sad, depressed, and irritable; however, his thought process was goal directed, and his thought content was normal. (Id.) All other aspects of his mental status exam were normal. (Id.) Dr. Hall diagnosed unspecified episodic mood disorder and anxiety state, unspecified. (Tr. 388.) Dr. Hall planned to continue Mr. Gorbitz on his current medication regimen and to continue current psychotherapy focus. (Tr. 389.)

         On October 29, 2013, Dr. Hall noted that Mr. Gorbitz was much improved on Zonegran, and had been stable since his medication change. (Tr. 457.) Mr. Gorbitz reported moderate stress due to family, occupational and health concerns. (Tr. 458.) On mental status exam, Dr. Hall noted that Mr. Gorbitz's mood and affect were sad, depressed, and irritable. (Tr. 458.) All other aspects of his mental status exam were normal. (Id.) Dr. Hall noted that Mr. Gorbitz's mood was stable, that he had had no outbursts of anger, and had no suicidal or homicidal thoughts. (Tr. 459.) Dr. Hall diagnosed unspecified episodic mood disorder and anxiety state, unspecified. (Id.) Dr. Hall planned to continue Mr. Gorbitz on his current medication regimen and psychotherapy focus. (Tr. 460.)

         c. 2014

         On February 6, 2014, Dr. Hall completed a Medical Assessment of Ability to Do Work-Related Activities (Mental) on Mr. Gorbitz's behalf. (Tr. 406-07.) Dr. Hall assessed that Mr. Gorbitz had moderate limitations in his ability to (1) remember locations and work-like procedures; (2) understand and remember very short and simple instructions; (3) carry out very short and simple instructions; (4) make simple work-related decisions; (5) complete a normal workday and workweek without interruptions from psychological based symptoms and to perform at a consistent pace without unreasonable number and length of rest periods; (6) ask simple questions or request assistance; (7) accept instructions and respond appropriately to criticism from supervisors; (8) maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; and (9) be aware of normal hazards and take adequate precautions. (Id.)

         Dr. Hall assessed that Mr. Gorbitz had marked limitations in his ability to (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods of time (i.e., 2-hour segments); (4) perform activities within a schedule, maintain regular attendance and be punctual within customary tolerance; (5) sustain an ordinary routine without special supervision; (6) work in coordination with/or proximity to others without being distracted by them; (7) interact appropriately with the general public; (8) get along with coworkers or peers without distracting them or exhibit behavioral extremes; (9) respond appropriately to changes in the work place; (10) travel in unfamiliar places or use public transportation; and (11) set realistic goals or make plans independently of others. (Id.) Dr. Hall based his assessment on Mr. Gorbitz's “severe mood disorder” and “ADHD - Untreated.” (Tr. 407.)

         On February 7, 2014, Dr. Hall also completed forms for Listing 12.04 Affective Disorders and 12.06 Anxiety-Related Disorders, and assessed that Mr. Gorbitz met the A, B and C criteria for both. (Tr. 409-410.) Dr. Hall assessed, inter alia, that Mr. Gorbitz had marked restrictions in his activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining ...


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