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Terrence Rowland, Sr v. Michael Astrue

October 3, 2011

TERRENCE ROWLAND, SR.,
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'S DENIAL OF BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS

Plaintiff Terrence Rowland, Sr., by his attorney, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income 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 finds that the decision of the Administrative Law Judge ("ALJ") is insufficiently detailed to permit judicial review. Accordingly, this Court remands this matter for further proceedings consistent with this decision.

I. Administrative Record

A. Procedural Record

On August 2, 2005, Plaintiff filed an application under Title XVI for supplemental security income, alleging disability beginning January 1, 2003. The claim was initially denied on March 10, 2006, and upon reconsideration on June 6, 2006. Plaintiff requested a hearing on July 17, 2006.

Plaintiff appeared and testified at a hearing on July 10, 2007. In a decision dated August 31, 2007, Administrative Law Judge Christopher Larsen ("ALJ") denied Plaintiff's application. The Appeals Council affirmed the ALJ's decision on March 30, 2010. On May 20, 2010, Plaintiff filed his complaint in this Court.

B. Factual Record

On September 17, 2002, Plaintiff (born March 9, 1959) experienced an interventricular hemorrhage while living in Tennessee. Plaintiff explained that he stopped working after his "stroke" because his doctor told him that he was unable to work.

Thereafter, Plaintiff moved to Dinuba, California, to live with his mother, Sandra NicolMonroy. His niece, Sophia Zuniga, then age 21, also lived in the home. Nicol-Monroy had raised Zuniga, who was developmentally delayed and worked part-time as a child care worker. One or both of Plaintiff's two adult sons from his former marriage also lived with Plaintiff and Nicol-Monroy from time to time.

Plaintiff did not work after he returned home to California. Immediately prior to his hemorrhage, Plaintiff had worked as the houseman in a historic hotel in Chattanooga, Tennessee, where he had been employed since 2000. Plaintiff testified that, in this position, he supervised the maids, delivered supplies to them, and removed trash to bins. Six hours of his work day was spent walking or standing; he never lifted more than ten pounds. In his written work history report to the agency, Plaintiff indicated that he picked up linen, took out trash, delivered supplies to guest rooms, entered rooms that were completed into computer records, and supervised the maids. He walked for three hours; stood for three hours; sat, climbed, and stooped for one-half hour each; and wrote, typed, or handled small objects for one-half hour. He never lifted more than ten pounds.

In or about 1999, Plaintiff briefly worked as an industrial cleaner for Odwalla Juice. He testified that he sanitized the floors by spraying a chemical using a hose and was not required to do any lifting. According to the written work history, Plaintiff cleaned and sanitized juice machines and the floors, lifting and carrying the mops, "squeezer," and hoses for hot water buckets. He walked three hours; stood three hours; handled, grasped, or grabbed large objects one hour; and climbed or stooped for one-half hour each. The heaviest weight he lifted was twenty pounds, and he frequently lifted twenty-five pounds [sic].

Plaintiff was unemployed from 1992 through 1998. Plaintiff had previously worked as a gate security guard and served in the U.S. Army for three years, primarily working as a military policeman. Although Plaintiff completed an associate degree in business (computers) in 1979, he was never employed in that field.

Erlanger Health System. Plaintiff was hospitalized from September 17 to 24, 2002, following a spontaneous interventricular hemorrhage, possible caused by poorly controlled hypertension or an underlying lesion. His discharge diagnoses were (1) interventricular hemorrhage; (2) malignant hypertension; (3) obesity; (4) tobacco (snuff) use disorder; (5) heart rhythm disorder; and (6) depressive disorder. Following discharge, Plaintiff was directed to resume his regular activities as tolerated and to eat a low sodium cardiac diet.

Veterans' Administration. Beginning in November 2002, Plaintiff received medical care from the California Health Care Center of the Veteran's Administration ("CHCC"). CHCC provided various services to Plaintiff, including diabetes education, counseling, and prescription services.

Dr. Malakkla (CHCC). Nagabh Malakkla, M.D., was Plaintiff's initial physician at CHCC. He diagnosed Plaintiff's infection with Heliobacter pylori, esophageal reflux, essential hypertension, and cerebral artery occlusion with cerebral infarction. In 2004, Plaintiff sent CHCC a letter requesting CHCC to assign Plaintiff a different primary care physician.*fn1

Dr. Kator (CHCC). Beginning in July 2004, Stephen F. Kator, M.D., treated Plaintiff's physical ailments. His diagnoses of Plaintiff included diabetes mellitus, hypothyroidism, asthma, peripheral neuropathy, impetigo, shoulder joint pain, bad breath, headaches, late effects of cerebrovascular disease, obesity, dyslipedemia, refractive errors, and hyperglycemia. Kator referred Plaintiff for an examination of his vision, noting the Plaintiff was experiencing painless progressive loss of vision and associated muscle tension headaches.

Mental Health Clinic (CHCC). Psychiatric nurse Paula Hensley, R.N., prepared an initial intake report for the CHCC mental health clinic on February 24, 2004. Plaintiff's presenting complaint was depression. His history included depression with suicidal and homicidal intent. Describing persistent thoughts of harming himself, Plaintiff disclosed that he had given his mother his gun and knife because he did not trust himself, although he had no suicide plan.

Hensley described Plaintiff as moderately impaired in his ability to care for himself. He was disheveled and carelessly dressed. He demonstrated satisfactory attention and concentration and variable distractibility.

Dr. Howasepian (CHCC). Clinical psychiatrist Avak Howasepian, M.D., diagnosed learning disability, alcohol abuse in remission, and depressive disorder. He oversaw Plaintiff's treatment with medication and individual psychotherapy. Because of the distance between Plaintiff's home and CHCC, Plaintiff did not participate in group therapy.

At a May 6, 2004 appointment, Plaintiff told Howasepian that his SSI application had been denied because he had too much education. Plaintiff expressed concern that, if his mother lost her house, he would have to live on the street or commit suicide. Although Plaintiff reassured Howasepian that he had no plans to commit suicide in the short term, Plaintiff had considered various ways to kill himself, including shooting, hanging, or poisoning himself. At a follow-up appointment on June 9, 2004, Plaintiff again stated that he had no plans to commit suicide, but would not contract for his own safety in the long run. Howasepian discussed with Plaintiff how his continued alcohol abuse affected his emotional and cognitive functioning, worked against his antidepressant, and worsened his depression.

On June 21, 2004, Howasepian noted:

Has, in the past few months, told one care provider (Dr. Battista) that he drinks a case of beer every week, then told me that he drinks 18 beers every two weeks, then 8 beers a week. In light of the arrangement made with son regarding accepting phone calls, is not above prevarication.

AR 381.

On April 18, 2005, Howasepian noted that Plaintiff again reported that he had stopped drinking alcohol.*fn2

Dr. Battista. On April 16, 2004, clinical neuropsychologist Matthew Battista, Ph.D., conducted a neuropsychological evaluation at Dr. Kator's request. Plaintiff told Battista that his primary concern was his memory functioning, which Plaintiff described as weak but not disordered. Plaintiff reported chronic vomiting and headaches.

Battista observed that Plaintiff appeared older than his age. He was obese and malodorous. His clothes were torn and dirty.

Plaintiff's gait, alertness, and eye contact were within normal limits. Although his speech was slow and monotonic, Plaintiff did not display any difficulties with word finding or auditory comprehension. He was despondent about his situation. Although Plaintiff was cooperative and conversant, Battista had difficulty assessing Plaintiff's insight and judgment.

Plaintiff reported social isolation although he maintained a daily internet relationship with a woman in Indiana. He had few interests other than cooking for his family. In a typical day, Plaintiff fed and watered his dogs, cared for his plants, and cooked lunch and dinner for his family. He enjoyed spending time with his family and watching the news with his mother.

Plaintiff reported that he drank alcohol and used drugs for many years after returning from the army. Although he claimed to no longer used drugs, Plaintiff told Battista that he drank about a case of beer a week.

Battista administered a battery of tests. On the NCSE, an omnibus measure of cognitive functioning, Plaintiff's scores were all within the normal range except for arithmetic calculation. Plaintiff's memory, orientation, attention, and reasoning abilities were all within the normal range. Plaintiff's scores were approximately the same on the MMSE, a test of cognitive functioning. Results of the WAIS-III revealed that Plaintiff's intellectual functioning was within the average range, but the discrepancy between his verbal IQ (106) and his performance (nonverbal) IQ (83) was significant. The test revealed specific weaknesses in perceptual organization, processing speed, arithmetic, digit-symbol coding, matrix reasoning, and picture completion. On the WRAT, Plaintiff's reading skills were within normal limits, but his arithmetic and spelling scores were lower than would be expected. Finally, on the MCMI-III, a personality inventory, elevated scores suggested schizoid tendencies, avoidant symptoms, and depressive symptoms.

Battista opined that Plaintiff's alcohol abuse and dependence undermined the reliability of Plaintiff's test results. He recommended that alcohol cessation and treatment of depression be priorities in Plaintiff's care. He diagnosed:

Axis I Dysthymic Disorder

Alcohol Dependence

Learning Disorder NOS Axis II Schizoid and avoidant traits Axis III HTN, Hepatitis C Axis IV unemployed, divorced, resides with mother and his son [in] mother's home Axis V GAF = 55 AR 323-324.*fn3

Daily activities questionnaire (2002). In a daily activities questionnaire completed December 6, 2002, Plaintiff reported that he could dress, bath, and cook for himself. He kept his own room clean. He tired easily and needed to pace himself and to rest as needed. He napped for an hour after lunch and retired at 9:00 p.m.

The heaviest object he lifted was a laundry basket, which he estimated weighted fifty pounds. Plaintiff shopped once weekly with his niece's help. His memory was poor, and he required help keeping track of his medications.

Residual functional capacity (2003). On February 21, 2003, Alfred Torre, M.D. completed a residual functional capacity analysis on behalf of the agency. He opined that Plaintiff could lift fifty pounds occasionally and twenty-five pounds frequently; sit, stand or walk for six hours in an eight-hour work day; and had unlimited ability to push and pull.

Psychological evaluation (2003). On March 27, 2003, psychologist Peggy JacksonSalcedo, Ph.D., conducted a psychological evaluation on behalf of the agency. Plaintiff reported that his current symptoms included sleeping difficulties, headaches, fatigue, lack of energy, poor memory, heart palpitations, dizziness, and fainting spells. He denied alcohol use. Plaintiff reported that he was able to cook, do his own laundry, and manage his own checking account and finances. Because of his poor memory, however, he needed to make shopping lists and sometimes burned things when he cooked.

Jackson-Salcedo administered various psychological tests. On the Wechsler Adult Intelligence Scale III, Plaintiff scored 97, verbal; 76, performance; and 87, full scale. Plaintiff's scores on the various subtests showed similar disparities. Jackson-Salcedo opined that the disparity in Plaintiff's scores could reflect a neurological disorder (brain damage), emotional or psychiatric disorder, or normal aging. Accordingly, she recommended that these scores be used with caution.

On the Wechsler Memory Scale III, Plaintiff generally scored within the normal range, although his "working memory" was low average. On the Wide Range Achievement test, Revision 3, Plaintiff read at the high school level; spelled at the fifth grade level, and did arithmetic at the sixth grade level. On the Bender Visual Motor Gestalt Test, Plaintiff scored within the normal range.

In the course of the examination, Jackson-Salcedo observed that Plaintiff was pleasant and cooperative with satisfactory attention, concentration, and distractability. He had dirty hands and nails, and wore messy and smelly clothing. His hair, beard, and moustache were messy, uncombed and required trimming. His bad breath was unpleasant. Jackson-Salcedo did not observe any motor or gait difficulties, or perceptual disturbances. Plaintiff's judgment and insight were intact, and he was well oriented.

Jackson-Salcedo diagnosed Plaintiff as having a depressive disorder. She opined that Plaintiff could understand, remember, and carry out instructions based on his intellectual capacity. His lowered performance scores could mean, however, that he would exhibit slower response times, initiative, and follow through. Plaintiff had low-average attention, concentration, and pace, with particular difficulties in spatial reasoning and visual-motor coordination. His memory ability was average but would be enhanced if materials were presented to him in visual form. Plaintiff could be expected to be pleasant, cooperative, and to make good effort on the job.

Mental residual functional capacity (2003). On May 5, 2003, Evelyn Aquino-Caro, M.D., a staff physician for the agency, prepared the psychiatric review technique, diagnosing Plaintiff as having both organic mental disorders and affective disorders. Neither disorder fit any of the specific categories set forth on the assessment form. She opined that Plaintiff had mild restriction of activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace.

Aquino-Caro also prepared a mental residual functional capacity assessment. She opined that Plaintiff had no significant limitations except for moderate limitations in his ability to understand and remember detailed instructions and in his ability to carry out detailed instructions.

SSI application (2005). In his August 2, 2005 SSI application, Plaintiff stated that his ability to work was limited after his hemorrhage since light caused headaches and his medications slowed him down. Since his 2002 application for benefits, Plaintiff had developed diabetes mellitus and associated peripheral neuropathy. Pain in his feet precluded his going outside if the weather was too hot or too cold.

Daily activities questionnaire (2005). In a daily activities questionnaire completed September 14, 2005, Plaintiff reported that any effort made him feel so sick that he returned to bed. Even walking fifteen yards to the mailbox left him exhausted, with burning feet. He could lift little more than the garden hose or a small glass of milk. He no longer shopped. He needed to rest six to eight times a day, and could not sleep at night.

Dr. Kator (CCHC). On August 1, 2005, Kator completed a questionnaire for Tulare County Child Support Services, describing Plaintiff's hemorrhage as having left him with chronic pain, ataxia, cognitive deficits, and heat intolerance. In response to the question of when Plaintiff could return to work, Kator wrote, "permanently disabled."*fn4

On August 2, 2005, Kator observed that Plaintiff displayed mild stuttering and word-finding problems and walked with an ataxic gait.*fn5 He noted that Plaintiff had "dysmetabolic syndrome," a precursor to diabetes.*fn6 Kator stated, "It is important you lose weight in any way possible." On March 15, ...


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