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Alexander K. Louis v. Michael Astrue

August 11, 2011

ALEXANDER K. LOUIS,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER REVERSING AGENCY DETERMINATION AND REMANDING FOR PAYMENT OF BENEFITS

Plaintiff Alexander K. Louis, proceeding in forma pauperis, by his attorneys, Sackett and Associates, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI") pursuant to Title XVI, of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. Following a review of the complete record and applicable law, this Court concludes that the Commissioner erred in determining that Plaintiff did not qualify for disability benefits, reverses the decision below, and remands this case for payment of benefits.

I. Administrative Record

A. Procedural History

On May 23, 2007, Plaintiff filed a SSI application. His claims were initially denied on September 12, 2007, and upon reconsideration, on November 20, 2007. On January 18, 2008, Plaintiff filed a timely request for a hearing. After Plaintiff failed to appear at the hearing on September 18, 2008, his attorney waived his presence and the hearing proceeded. On March 4, 2009, Administrative Law Judge William C. Thompson, Jr., denied Plaintiff's application. The Appeals Council denied review on January 27, 2010. On March 30, 2010, Plaintiff filed a complaint seeking this Court's review.

B. Factual Record

Plaintiff (born March 16, 1964) became disabled on September 1, 1990. He received SSI from June 30, 1997, until March 2005, when he was convicted of "petty theft with a prior" and incarcerated following his attempt to leave a grocery store without paying for the groceries in his cart.

Plaintiff was severely injured when he was beaten by sheriff's deputies in 1989, incurring a head injury that required several weeks of hospitalization. Plaintiff told consulting psychologist David Richwerger, Ed.D., that he was beaten because the deputies thought he was going to kill himself. Following the beating, Plaintiff attempted suicide. Thereafter, he spent an unspecified amount of time at Highland Hospital in Oakland. According to his mother, "he has never been the same." AR 118.

Plaintiff has experienced several other head injuries, notable a major head injury in an automobile accident while a child. He has a history of seizures. Plaintiff and his family attribute his mental illness to the 1989 beating.

Plaintiff contended that he was unable to work because of his 1989 head injury and mental illness, explaining, "I can't concentrate. I don't want to get out of bed. I have back pain." AR 87. His medications included Cogentin,*fn1 Risperdal,*fn2 and Wellbutrin.*fn3

Plaintiff attended school through the eleventh grade. Although Plaintiff told the agency that he had never worked, his mother reported that he did body and fender work and painted cars before he was injured in 1989. Before his death, Plaintiff's father owned a body shop and did auto restorations. Plaintiff told his psychiatrist at Atascadero State Prison that he had done car painting and restoration and had also worked as a warehouseman for a soap company.

Plaintiff had a history of ten to twelve arrests; most occurred after he was beaten in 1989. Plaintiff was incarcerated at California Men's Colony beginning on September 1, 1995, and again following his 2005 conviction. Plaintiff told Richwerger that he had been imprisoned a total of 22 to 25 years.

Beginning May 7, 2007, Plaintiff lived with his mother and a sister in Sonora, California. His family ensured that he remembered to take his medications and ate on schedule, helped him dress, and monitored his personal hygiene. In a third-party report to the agency, Plaintiff's mother reported that the entire family (Plaintiff has seven brothers and sisters) shared in Plaintiff's care and supervision.

Plaintiff was able to prepare soup and a sandwich with help. His household chores included emptying the garbage, helping fold laundry, making beds, and watering and raking the lawn. He was able to care for the family's cats and birds with help. He needed reminders to finish his chores.

Plaintiff was unable to handle money. He could not calculate change or recognize if he were overcharged. Plaintiff has been unable to drive since 1990 or 1991, when his mental illness resulted his losing the ability to do so.

Plaintiff left the family home to see the doctor, his parole officer, to go to the pharmacy, and to shop. His family did not let him go out alone; Plaintiff's sister generally accompanied him. He was easily confused. Plaintiff did not like to go out alone since he often could not find his way home and got lost by getting on the wrong bus. His mother opined that, since Plaintiff has been ill, "he has lost a great deal of his I.Q." AR 109.

Plaintiff's anger control was improved only as long as he took his medication on schedule. He was unable to handle stress or change, which made him annoyed. Continued anxiety and stress ultimately exacerbated his symptoms, particularly hearing voices.

Plaintiff's sister accompanied him to his initial interview at the agency. The interviewer noted that Plaintiff evinced difficulties in understanding, coherency, concentrating and answering. He had a "groggy or glazed look on face" and needed to ask his sister for assistance in responding to questions other than his address and the facilities at which he had been incarcerated.

Following his father's death on May 17, 2007, Plaintiff experienced increased anxiety, stress, and trouble sleeping. He heard voices more frequently and verbally responded to them.

Atascadero State Hospital. On June 28, 2006, Plaintiff was transferred from California Men's Colony to Atascadero State Hospital pursuant to California Penal Code § 2684(a) (Transfer to state hospital; mentally ill, mentally deficient, or insane prisoner), after Plaintiff requested help, telling prison authorities that he was having problems and wanted to hurt himself. On admission, Plaintiff related a variety of symptoms, including frustration, anger, and poor impulse control. Psychiatrist Hadley Osran, Sr., M.D., prepared the admission assessment.

Plaintiff was easily angered. He complained of periodic depression, with each episode lasting from two weeks to one month, and vegetative symptoms including weight fluctuation, low energy, low concentration, and periodic suicidal ideation. He also had periods of greater energy for a week or so at a time, but was able to sleep normal amounts during those periods.

Plaintiff reported being hospitalized by Tuolomne County Mental Health pursuant to California Welfare and Institutions Code § 5150 on six or seven occasions. He had also been hospitalized in South Carolina. Plaintiff had at least one previous suicide attempt.

Plaintiff admitted trying marijuana, cocaine, and methamphetamine. He drank wine. Although he denied any substance abuse problems, he had previously completed a twelve-step program while on parole. Later in the intake interview, Plaintiff admitted that he drank a lot.

Osran summarized Plaintiff's mental status:

The patient was alert and oriented to person, place and time. His mood seemed, at best, mildly depressed, most likely euthymic. His speech was coherent and mood directed without evidence of looseness of association, disorganization or confusion. His speech was normal rate and volume. He comprehended the questions posed to him and answered in a logical manner. He denied any paranoia, suicidal ideation or homicidal ideation. He reported occasional auditory and visual hallucinations last occurring one week ago.

He scored a 29 out of 30 on his Folstein Mini Mental Status Examination. AR 144.

Osran's diagnosis was:

Axis I 293.83 Mood disorder due to history of head injury

293.82 Psychotic Disorder due to head injury Axis II 301.7 Antisocial Personality Disorder Axis III Status Post Head Injury Axis IV Incarceration Axis V 50 Current GAF

Last Quarter GAF AR 144.*fn4

On July 31, 2006, Plaintiff reported that "he was doing well and stated that he barely heard voices." AR 140. He denied suicidal ideation. He was, however, sleeping three-quarters of the day and still felt tired.

On September 13, 2006, Plaintiff complained he was depressed and was hearing voices telling him to do things.

On October 18, 2006, Plaintiff reported that he had a good mood and no suicidal ideation, and that the "voices were quite a bit better." AR 140. On October 19, Plaintiff told Osran that he was still hearing voices "a little bit." AR 140. Because Plaintiff was stable on his medications, had no serious symptoms, and was not involved in treatment but laid in bed most of the day, Osran recommended that Plaintiff could be returned to prison.

On November 21, 2006, Plaintiff reported visual hallucinations, in which he saw a man smoking a cigarette. As a result, his Risperdal dosage was increased. On December 6, 2006, Plaintiff was still in Atascadero.

Parole Outpatient Clinic. Plaintiff reported for parole on March 29, 2007. Social worker June Henry noted Plaintiff's inconsistent compliance with medication. Henry noted that Plaintiff was mildly irritable and mildly paranoid, but not suicidal. His attention, concentration, insight and judgment were below normal limits. Plaintiff was trying to contact his sister but had not been successful.

Plaintiff missed his parole appointment on April 24, 2007.

On May 17, 2007, psychologist G. Zimmerman, Ph.D., performed an initial mental health evaluation for the Parole Outpatient Clinic to which Plaintiff was referred after his parole from prison. Plaintiff told Zimmerman that he was hearing voices and seeing things. Zimmerman assessed Plaintiff's mental status:

[Plaintiff] arrived for the interview session on time and was dressed in clean and appropriate clothing. He seemed to sit, stand, and move with no obvious difficulty. He was generally open, accessible and cooperative and appeared to be a generally reliable informant. At the time of the current evaluation, he was alert, with interest gained and held. His attention span was adequate for all tasks. Manner of speaking was within normal limits with no blocking, hesitation or other signs of cognitive editing. There was no loosening of association, concreteness of thought or other signs of thought disorder noted in his responses. Information was presented in a generally logical manner, with no obvious withholding or restriction due to hostile, fearful or defensive reaction. Mood was within normal limits and affective reaction was appropriate to ideation. [Plaintiff] was well oriented to person, place, and time, and appeared to have no serious difficulty recalling recent or remote events. Current reality contact was unimpaired. Currently, depressive signs were reported as mixed, with no reported disturbance of sleep patterns, somewhat limited appetite, and significantly lowered energy level, possibly due to Hepatitis C. [Plaintiff] denies any history of suicidal gestures or attempts within the last ten years. He gave a history of auditory and visual hallucinations, voices of a generally paranoid nature and "angels." There was no overtly delusional material reflected in his remarks. There is no indicationof paranoid ideation. [Plaintiff] appears to be mentally competent and responsible for his actions at this time. AR 154.

Zimmerman diagnosed Plaintiff: Axis I 298.90 Psychotic Disorder, Not Otherwise Specified 296.990 Mood Disorder, Not Otherwise Specified 305.70 Amphetamine Abuse V71.01 Adult Antisocial Behavior Axis II V71.09 No Diagnosis Axis III Medical Concerns: History of Head Injury, leg and shoulder pain Axis IV Psychosocial stressors: Release for Custody, Unemployment Axis V GAF=85 AR 154.*fn5 Psychiatrist Jaime Ortiz, M.D., treated Plaintiff in "telemedicine sessions" on June 5 and July 31, 2007. On both occasions, Plaintiff was stable on his medications.

Tuolumne County Behavioral Health. On June13, 2007, Plaintiff was initially evaluated at Tuolumne County Behavioral Health, which was to provide psychiatric supervision in lieu of the parole system because of the distance from Plaintiff's home to the nearest parole office. Presenting problems included inability to keep a train of thought, forgetfulness, lack of clear goals, difficulty expressing feelings, apathy, fatigue, and sluggishness. Plaintiff heard voices, experienced visual hallucinations, and was paranoid and irritable. Social worker Linda Torkend, M.S.W., noted that Plaintiff's caregiver, who completed the behavioral checklist, reported symptoms that Plaintiff denied.

Plaintiff was then using nicotine and caffeine daily. He had recently consumed a single alcoholic beverage. He had tried methamphetamine a few times four years previously.

Plaintiff's intake diagnosis was:

Axis I: Psychotic Disorder, Not Otherwise Specified (298.9) Axis II: Deferred (799.9)

Axis III: Severe head injuries Back injury, chronic pain

Axis IV: Axis V: GAF=43 AR 215.*fn6 TCBH did not consider Plaintiff to have a substance abuse issue. Initiation of treatment was delayed since TCBH then lacked a psychiatrist.

On September 10, 2007, psychiatrist Peter Gleason, M.D., recommended group rehabilitation and case management. His diagnosis of Plaintiff was:

Axis I: Schizoaffective Disorder Rule Out Organic Affective Disorder

Axis II: Antisocial traits Axis III: History of head trauma, rule our seizures, slowing Axis IV: Moderate, recent incarceration Axis V: Current GAF=50 Last Year GAF=50 AR 221.

Gleason described Plaintiff's diagnosis as guarded. He ordered an EEG.

Plaintiff was re-evaluated on October 22, 2007. Gleason noted that Plaintiff was unable to work because of auditory hallucinations, ideas of mind reading, and ideas of reference.*fn7 His mood was "fairly stable" on medication. Although he was well-oriented, Plaintiff displayed odd affect with incongruous mood, mildly impaired judgment, and disorganized and concrete thought processes. Gleason recommended that Plaintiff attend the group day program, and noted that he "may be a candidate for supervised housing." AR 219. Plaintiff declined the offer of day programming.

Plaintiff continued treatment at TCBH, where he was consistently reported compliant with medications. On December 21, 2007, Gleason noted early symptoms of tardive dyskinesia.*fn8

Plaintiff declined changing medications to minimize the risk of abnormal involuntary movements.

On June 9, 2008, psychiatrist Lillian R. Boone, M.D., prepared a follow-up evaluation, noting Plaintiff's anxiety about securing disability benefits and satisfying his parole officer. His affect was odd. He had chronic delusions and occasional auditory hallucinations. His insight was mildly impaired.

On Jul 24, 2008, Plaintiff told psychiatrist Stanley Dugan, M.D., that he was stressed by the denial of his SSI application. He was recently feeling tired, "spacey," and anxious. On September 11, 2008, Boone evaluated Plaintiff, who complained of dry mouth caused by medications and of stress. He was feeling the loss of his father greatly.

References in the medical notes indicate that TCBH also provided Plaintiff with individual therapy independent of his treatment by psychiatrists.

Internal Medicine Consultation. On July 21, 2007, Satish Sharma, M.D., provided a summary report of an internal medicine consultation of Plaintiff for the agency.*fn9 Sharma noted tenderness of Plaintiff right knee to palpation and pain and crepitation on flexion of the right knee at 100E. Sharma also noted tenderness to palpation of the superolateral aspect of Plaintiff's left shoulder, with pain on abduction at 120E, and pain on internal rotation of 30E. Sharma diagnosed:

1. Depression, mood swings, schizophrenia, auditory hallucinations, and psychotic features.

2. Headaches combination of muscle tension and vascular headaches.

3. Problems with memory. Memory recall was three of three words immediately and two of three words after five minutes.

4. Left shoulder pain secondary to tendinitis. 5. Right knee pain, status post meniscus tear, has decreased motion in right knee and also tenderness to palpation of right knee. Right ...


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