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Schuyler v. Berryhill

United States District Court, D. Hawaii

September 21, 2018

SEAN PHILIP SCHUYLER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER GRANTING PLAINTIFF'S APPEAL AND REVERSING THE ADMINISTRATIVE LAW JUDGE'S OCTOBER 15, 2015 DECISION

          LESLIE E. KOBAYASHI, UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff Sean Philip Schuyler's (“Plaintiff”) Complaint for Review of Supplemental Security Income Determination (“Complaint”), filed on June 11, 2017, in which he appeals from Administrative Law Judge Jeffrey Hatfield's (“ALJ”) October 15, 2015 Decision (“Appeal”). The ALJ issued the Decision after conducting a hearing on July 8, 2015. [Administrative Record (“AR”) at 15.[1] The ALJ ultimately concluded Plaintiff was not disabled, for purposes of the Social Security Act, since February 26, 2013. [Decision, AR at 31.]

         On November 6, 2017, Plaintiff filed his Opening Brief. [Dkt. no. 14.] Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“the Commissioner”), filed her Answering Brief on January 8, 2018, and Plaintiff filed his Reply Brief on February 5, 2018. [Dkt. nos. 15, 18.] This Court heard oral argument on April 9, 2018 and issued an entering order ruling on Plaintiff's Appeal on June 29, 2018. [Dkt. no. 20.] The instant Order supersedes that entering order. Plaintiff's Appeal is granted, and the ALJ's Decision is reversed. The case is remanded to the ALJ for the payment of benefits.

         BACKGROUND

         On January 9, 2013, Plaintiff filed a Title II application for disability insurance benefits, but the application was denied because he did not have a sufficient earnings record to be eligible for Title II benefits. On February 26, 2013, Plaintiff protectively filed an application for supplemental security income (“SSI”), alleging he was disabled as of November 4, 2011. Plaintiff later amended the alleged onset date to November 3, 2009. Plaintiff's claim was denied, initially and on reconsideration. On June 17, 2014, Plaintiff filed a written request for a hearing. At the July 8, 2015 hearing, Plaintiff was represented by his current counsel. Plaintiff, Michael Wayne Schuyler - Plaintiff's father, and Alice L. Thomas - an impartial vocational expert (“VE”), testified at the hearing. Tracy R. Gordy, M.D., an impartial medical expert, was scheduled to testify, but did not do so. Dr. Gordy's responses to post-hearing interrogatories were included in the record. [Decision, AR at 15.]

         In the instant Appeal, Plaintiff does not dispute the ALJ's findings in step one through three of the five-step sequential analysis to determine whether a claimant is disabled. Thus, the ALJ's findings as to those steps are only briefly discussed here.

         At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since February 26, 2013. For two years prior to the hearing, Plaintiff helped at a tattoo shop on a regular basis, in what the shop owner - Peggy Sucher - described as “a volunteer position.” [Decision, AR at 17.] Plaintiff received tips of approximately $100.00-$150.00 per month and apparently received some free tattoos during the two-year period. The ALJ found Plaintiff's time at the tattoo shop did not constitute substantial gainful employment. [Id.]

         At step two, the ALJ found Plaintiff had a mental impairment that was considered severe - schizophrenia. The ALJ also found Plaintiff did not have any severe physical impairments. [Id. at 18.]

         At step three, the ALJ found Plaintiff's impairment did not meet or medically equal the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Id.]

         At step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”)

to perform a full range of work at all exertional levels but with the following nonexertional limitations: he would be off-task 5% of the workday[2] due to psychological symptomatology; he is limited to occasional changes in work setting; he cannot perform production rate pace work (that is, no traditional type assembly line work where another employee's production would be dependent on the claimant's immediate prior performance); he is limited to occasional interaction with the public, but could tolerate frequent interaction with supervisors and coworkers; and he would need to avoid even moderate exposure to hazardous machinery and unprotected heights.

[Id. at 20 (emphasis omitted).]

         In considering Plaintiff's symptoms to determine Plaintiff's RFC, the ALJ looked at: whether Plaintiff's mental impairment could reasonably be expected to produce his symptoms; and the extent to which Plaintiff's symptoms limited his functioning. [Id. at 21.] The ALJ noted Plaintiff testified he could not work because: his symptoms included auditory hallucinations that generally went on for half of his day, regardless of whether he is having a good day or a bad day; he needs breaks at least once an hour to regain his composure when his symptoms increase; he usually did not stay at the tattoo shop for eight hours in one day; on his bad days (which usually occur once a week), he does not stay at the tattoo shop for more than an hour; he is paranoid, dislikes people, and finds it difficult to get along with others, especially persons in authority; medications do not work for him because of their side effects; and he was becoming increasingly agitated, depressed, and isolated. [Id. (citing Exs. 4E, 8E, 11E, 16E).[3] The ALJ found Plaintiff's impairments could reasonably be expected to cause his symptoms, but his “statements concerning the intensity, persistence and limiting effects of these symptoms [were only] partly credible.” [Id. at 21-22.]

         The ALJ noted that, at his alleged onset date of November 3, 2009, Plaintiff was a straight-A student at Sierra College. He previously attended the University of California -Davis (“UC Davis”), but dropped out because of his symptoms. [Id. at 22.] From November 3, 2009 to May 25, 2010, Jong Yoon, M.D., a psychiatrist at UC Davis's EDAPT Clinic, rated Plaintiff's global assessment of functioning (“GAF”) at sixty.[4] Dr. Yoon's diagnosis of Plaintiff's auditory hallucinations and fixed delusions supported a diagnosis on the schizophrenia spectrum, “‘warrant[ing] more aggressive use of neuroleptic.'” [Id. (quoting Ex. 6F).[5] Dr. Yoon's assessment was consistent until January 4, 2011, when he noted Plaintiff “was responding well to a higher dose of Abilify with ‘fairly good control of psychosis.'” [Id. (quoting Ex. 6F).] On April 5, 2011, Dr. Yoon noted Plaintiff's psychosis was “‘stable, '” and his auditory hallucinations and paranoia were “‘recurrent . . . but at low levels and with minimal effect on function.'” [Id. (quoting Ex. 6F).] Plaintiff complained of “‘free floating anxiety which [wa]s not related to any specific thought or triggers'” and frequent “‘depress[ion] for no apparent reason, '” but, according to Plaintiff, he was still going to class and getting A's. [Id. (quoting Ex. 6F).] Dr. Yoon last saw Plaintiff on July 12, 2011. He noted Plaintiff's psychosis had recently gotten worse because of breaking up with his girlfriend and attending his aunt's funeral, but “‘this worsening [wa]s remitting on its own.'” [Id. (quoting Ex. 6F).]

         Plaintiff moved to Hawai`i and has been under the care of psychiatrist Ethan Pien, M.D., since September 2, 2011. When Dr. Pien first saw Plaintiff, Dr. Pien considered him “stable on Abilify, without side effects.” [Id. (quoting Ex. 1F/11).[6] Plaintiff had auditory hallucinations two to three times a day, but said they “were not bothersome and no longer constant.” [Id. (quoting Ex. 1F/11).] He was anxious around law enforcement, and he occasionally took Propanolol for anxiety, primarily his anxiety around law enforcement and social anxiety. [Id. (citing Ex. 1F/11).] In spite of these symptoms, which Dr. Pien described as “‘residual, '” Plaintiff reported “‘feel[ing] highly functional, '” looking for a job in retail, and hoping to go back to school. [Id. (quoting Ex. 1F/11).] Dr. Pien rated Plaintiff's GAF at sixty two.[7] [Id. (quoting Ex. 1F/11).] Dr. Pien's assessments from October 10, 2011 through early 2012 remained largely the same. Plaintiff was looking for work, and his anxiety and paranoia were better than when he was living in California. [Id. at 22-23 (citing Ex. 1F).] On December 16, 2011, Dr. Pien noted Plaintiff said he was hearing voices twice a day, and the voices were “‘mild.'” [Id. at 23 (citing Ex. 1F).] On February 16, 2012, Plaintiff told Dr. Pien he was “doing ‘better and better'” and planning to go to community college, and, on April 16, 2012, Dr. Pien noted Plaintiff was doing well. [Id. (citing Ex. 1F).] At both visits, Dr. Pien noted Plaintiff “did not seem to be responding to internal stimuli, ” and Dr. Pien continued to rate Plaintiff at a GAF of sixty two. [Id. (citing Ex. 1F).]

         Plaintiff told Dr. Pien he stopped taking his psychotropic medications in February 2012 because he believed they hurt more than they helped, and he “‘want[ed] a chance to be himself.'” [Id. (citing Ex. 1F/4, 3F/2).[8] Plaintiff reported losing weight, “becom[ing] much sharper cognitively, [and having] better memory, energy, motivation and enjoyment.” [Id. (citing Ex. 1F).] Plaintiff also reported increased delusions, but stated he was learning to cope with his symptoms without medications. He did not appear to be responding to internal stimuli, and Dr. Pien rated Plaintiff at a GAF of fifty.[9] [Id. (citing Ex. 1F).] At both his November 9, 2012 session and his December 7, 2012 session with Dr. Pien, Plaintiff exhibited “circumstantial thought processes.” [Id. (citing Ex. 1F).] At the December session, Plaintiff stated he was planning to look for a job the following month. [Id. (citing Ex. 1F).]

         On January 15, 2013, Plaintiff told Dr. Pien he applied for approximately five part-time jobs. Dr. Pien noted Plaintiff's “thought process was linear and goal directed for the most, a bit tangential at times, and noted no abnormal/psychotic thoughts.” [Id. (citing Ex. 1F).] Plaintiff filed his SSI application on February 26, 2013. By his March 15, 2013 session, Plaintiff had not secured employment but planned to resume his job search soon. Dr. Pien still rated Plaintiff's GAF at fifty, but, according to Plaintiff, his schizophrenia symptoms had decreased, and he was “‘feeling more health [sic] in body and mind, less anxious, more confident about being able to hold a job.'” [Id. (citing Ex. 1F).]

         On July 2, 2013, Plaintiff underwent a consultive examination by William Marks, Ph.D. Plaintiff told Dr. Marks he was having daily auditory hallucinations and some visual hallucinations, although the ALJ noted that, during testimony, Plaintiff denied having visual hallucinations. According to Plaintiff, he had difficulty sleeping, was constantly pacing or moving, and would pull his hair and hit himself. At the time of Dr. Marks's evaluation, Plaintiff still was not taking psychotropic medication. [Id. (citing Ex. 2F).[10] Plaintiff told Dr. Marks he: often visited friends and neighbors; occasionally went out with family and friends; enjoyed walking, soccer, working out twice a week, and listening to music; and occasionally participated in a support group. [Id. at 26 (citing Ex. 2F).] Based on Plaintiff's performance during the evaluation, Dr. Marks found Plaintiff: was able to understand, remember, and carry out simple instructions; had “‘little or no problems with attention and/or concentration'”; only occasionally needed instructions repeated; was not “unusually physically active, distractible, or impulsive”; did not exhibit any “functional mathematical impairment”; and had an overall intelligence quotient score of 102 (in the 55th percentile), although his scores varied widely - as high as the 82nd percentile on the verbal comprehensive index and as low as the 18th percentile on the speed processing index. [Id. at 23-24 (quoting & citing Ex. 2F).] Dr. Marks noted Plaintiff's responses during the examination suggested Plaintiff may have poor interpersonal skills because he was suspicious and distrustful of others and had difficulty with authority, but Dr. Marks found Plaintiff could engage in minimal contact with others. Dr. Marks also found Plaintiff was able to speak clearly and intelligibly and was able to present relevant thoughts in a simple manner. [Id. at 26 (citing Ex. 2F).] Dr. Marks opined Plaintiff “appeared able to adapt to a low demand entry-level job, though consistency might be an issue, ” and Plaintiff “would benefit from working with others who understand his difficulties, offer minimal contact and would be willing to work with him in resolving his concerns.” [Id. at 24 (citing Ex. 2F).]

         As to Dr. Marks's suggestion that Plaintiff should have “a supportive work setting, ” the ALJ found “the evidence as a whole is not entirely persuasive in this regard, ” and Plaintiff's limitations could be addressed by reducing stressors, including minimal public contact, only occasional setting changes, and no production work. [Id. at 26.] The ALJ disagreed with Dr. Marks's opinion that Plaintiff may “have difficulties with consistent performance in job performance, interaction and attendance, ” because this was not apparent during Plaintiff's examination with Dr. Marks, and was contrary to the ALJ's view of medical records, which showed Plaintiff's improvement. [Id. (quoting Ex. 2F).]

         The reviewing psychological consultants from the state agency (“State Psychological Consultants”) also found Plaintiff could: understand and remember both simple instructions and detailed instructions; carry out work instructions; “maintain adequate attendance and sustain an ordinary routine without special supervision”; adapt to routine changes at work; interact with co-workers and supervisors, if “in a work setting that has limited demands for social interaction.” [Id. at 24 (citing Ex. 3A).[11] In a response to written interrogatories, Dr. Gordy opined Plaintiff could “do ‘simple repetitive work, some detailed work and probably some complex' work, can interact with coworkers, and can interact with supervisors to a limited extent.” [Id. at 24-25 (citing Ex. 11F).[12] Dr. Gordy acknowledged Plaintiff's prior difficulties with authority figures, but noted Plaintiff had satisfactory interactions with his therapists. [Id. at 25 (citing Ex. 11F).] Plaintiff argued Dr. Gordy failed to address all relevant aspects of Dr. Marks's assessment and may not have considered the statements by the owner of the tattoo shop about the nature of the time Plaintiff spent there, but the ALJ rejected these arguments. [Id.]

         The ALJ noted Dr. Marks's opinions were consistent with Dr. Gordy's, as well as those of the State Psychological Consultants. All of them found Plaintiff had “generally moderate restrictions in social function and/or concentration, persistence and pace.” [Id. at 24.] The ALJ accorded “some weight” to these assessments because the findings of moderate restrictions in functioning were “supported by the record including findings from the mental status examinations, the psychological test results and the evidence of [Plaintiff's] wide range of activities of daily living.” [Id. (citing SSR 96-2p).]

         The ALJ also noted that, although Dr. Pien assessed Plaintiff's GAF at fifty, Dr. Pien's records indicated Plaintiff showed consistent improvement, without medication. On September 27, 2013, Dr. Pien noted that, since May 2013, Plaintiff had been spending his days at the front desk of the tattoo shop, and was “‘[d]oing well there.'” [Id. at 25 (alteration in Decision) (quoting Ex. 4F).[13] On December 12, 2013, Plaintiff told Dr. Pien he still heard voices, but was able to tune them out, and he felt comfortable at the tattoo shop. Dr. Pien noted Plaintiff's “social and occupational functioning [was] ‘gradually improving.'” [Id. (quoting Ex. 4F).] On January 23, 2014, Dr. Pien noted Plaintiff was still able to block out his auditory hallucinations, “was functioning well at his job, and hoping to start ballet, soccer and swimming.” [Id. (citing Ex. 4F).[14] Further, Plaintiff “had linear and goal directed thought processes, ‘normal' associations, and moderate judgment and insight, ” with no detected abnormal/psychotic thoughts. [Decision, AR at 26 (quoting Ex. 4F).] On April 17 and October 27, 2014, Dr. Pien also noted Plaintiff: had no detected abnormal/psychotic thoughts; said it was easier to ignore the auditory hallucinations; and was “‘gradually improving'” in his “‘social and occupational functioning.'” [Id. (quoting Ex. 7F).[15]

         The ALJ gave greater weight to Dr. Pien's findings that Plaintiff was stable and improving, as shown by his activities of daily living and his testimony before the ALJ. [Id. at 27.]

         The ALJ emphasized that, as of January 29, 2015 and February 26, 2015, Plaintiff was spending approximately thirty two hours per week volunteering at the tattoo shop. At the February 26 session, Plaintiff reported he was “learning a lot skills and knowledge” at the tattoo shop, and it was becoming easier to cope with his symptoms, and Dr. Pien noted Plaintiff continued to improve while off of his medication. [Id. (citing Exs. 7F/5, 11F).] At the February 26 session, as well as during sessions on March 26, April 23, and May 21, 2015, Dr. Pien noted Plaintiff was stable and discussed his job options. At the May 21 session, Dr. Pien and Plaintiff discussed Plaintiff's “growing confidence.” [Id. (citing Ex. 11F); Exh. 7F/1 (AR at 432).]

         The ALJ considered statements by the owner of the tattoo shop and Plaintiff's father that Plaintiff: does not have set hours or duties at the shop; decides what time to come in and what to do; and takes a break of approximately ten minutes once or twice an hour “to compose himself or do his own thing.” [Decision, AR at 27 (citing Ex. 19E).[16] The ALJ found these statements had limited persuasive value in light of the other evidence in the record. As to the issue of Plaintiff's breaks, the ALJ stated there was no indication Plaintiff needed such a break during Dr. Marks's examination, and Dr. Pien never stated Plaintiff was easily distracted, restless, or otherwise displayed “psychomotor agitation.” [Id.]

         On June 27, 2015, Piyush Tiwari, M.D., evaluated Plaintiff and “assessed marked limitations in categories across multiple areas of concentration, persistence and pace and in social function, and with regard to episodes of deterioration.” [Id. (some citations omitted) (citing Ex. 9F).[17] Dr. Tiwari also rated Plaintiff's GAF at forty.[18] [Id.] The ALJ only gave Dr. Tiwari's opinions limited weight because Dr. Tiwari's “assessment consisted of checking boxes on a three-page form, . . . he did not cite detailed clinical findings, or provide any rationale or discussion to support his assessment, ” and was “not consistent with the other mental health evidence of record including the clinical findings and psychological test results.” [Id. at 27-28 (some citations omitted) (citing SSR 96-2p).]

         The ALJ noted Alan Koike, M.D., opined Plaintiff's schizophrenia rendered him totally disabled and unable to work. Dr. Koike noted Plaintiff had difficulty “initiating tasks, maintaining focus and simple problem solving, such as with mowing the lawn, raking leaves or trimming hedges, ” and was “easily overwhelmed, . . . often leaving a social situation to [be] by himself.” [Id. at 28.[19] The ALJ discounted Dr. Koike's opinion because: Dr. Koike is Plaintiff's uncle; Dr. Koike based his opinion on personal observations, having never performed a formal psychiatric evaluation of Plaintiff; and a psychiatrist's statement that a claimant is disabled or unable to work does not necessarily mean the claimant will be found disabled under the Social Security Act. [Id. (citing SSR 96-2p).]

         The ALJ found Dr. Pien's records and Plaintiff's volunteer work at the tattoo shop for the last two years before the hearing showed Plaintiff was capable of “frequent interaction with those with whom he has some familiarity, like coworkers and supervisors” and “occasional interaction with the general public.” [Id.] Plaintiff's father testified Plaintiff was “a ‘high functioning' schizophrenic.” [Id.] While the owner of the tattoo shop accommodated Plaintiff's condition by allowing him a flexible schedule and extending leniency, and although Plaintiff still had symptoms requiring ongoing monitoring, the ALJ found “there is well supported mental health opinion showing the claimant is fairly capable despite his symptoms.” [Id.] Plaintiff had family support, but did “a lot for himself in terms of carrying out his activities of daily living including living alone, keeping up his condo and getting to his appointments, ” and the record showed Plaintiff was “stable for some time and improving.” [Id.]

         The ALJ considered Plaintiff's subjective statements and testimony about his auditory hallucinations and the evidence regarding Plaintiff's paranoia about authority - which was focused on law enforcement - and found they did not require significant limitations on interactions with supervisors and co-workers. [Id. at 28-29.] The ALJ also considered the evidence that Plaintiff required breaks to deal with his symptoms, but found:

there is also no evidence that he is unable to complete the tasks that he engages in at the tattoo shop where he has a regular presence, or carry out the usual activities of daily living. The record as a whole is not persuasive in demonstrating the claimant would require more than the usual breaks typically allotted during an 8-hour workday. The claimant was earning A's in college when he was being treated the [sic] EDAPT clinic, and after moving to Hawaii, he has been managing most of his own activities of daily living, and reports his symptoms are better. According to Dr. Marks's report, the claimant, without assistance, “can take care of most daily activities including personal grooming, cooking, housework and laundry, shopping, managing his own money, travel around the city and take care of his medical needs.” [Ex. 2F] Testimony by the claimant and his father also indicate the claimant continues to take care of his basic activities of living, like personal hygiene, cleaning his apartment and is independent in getting from place to place. In addition, the claimant was able to complete psychological testing and the consultative mental health evaluation, and there is no consistent evidence of significant inattentiveness or lack of focus during the consultative evaluation or during his treatment sessions. Dr. Marks noted the claimant only occasionally needed instructions repeated. The treatment records also indicate minimal symptoms, and in recent years, the mental status exams reveal no detectable hallucinations, and no need for psychotropic medication.

[Id. at 29.] Thus, the ALJ found the medical records and other evidence supported the RFC finding.

         The ALJ found Plaintiff had past relevant work as a cashier II, Dictionary of Occupational Titles (“DOT”) § 211.462-010, which is unskilled (SVP 2)[20] and involves light exertion. The ALJ found that, based on the VE's testimony and Plaintiff's “significant nonexertional restrictions, ” Plaintiff could not return to his past relevant work. [Id. at 29-30.]

         As to step five, on the date of the SSI application, Plaintiff was “a younger individual age 18-49, ” had at least a high school degree, and was able to communicate in English.[21] [Id. at 30 (citing 20 CFR 416.963, 416.964).] In light of these factors, Plaintiff's RFC, and the Medical-Vocational Guidelines (20 C.F.R. Part 404, Subpart P, Appendix 2), the ALJ found Plaintiff could perform jobs “that exist in significant numbers in the national economy.” [Id. (citing 20 CFR 416.969, 416.969(a)).] The ALJ acknowledged Plaintiff's nonexertional limitations eroded the ...


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