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Kinsolving v. Berryhill

United States District Court, W.D. Kentucky, Paducah Division

September 24, 2018

JESSE ORION KINSOLVING PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Lanny King, Magistrate Judge United States District Court.

         This matter is before the Court on Plaintiff's Complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability benefits. The fact and law summaries of Plaintiff and Defendant are at Dockets # 16 and 21, and the case is ripe for determination. The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. (Docket # 11).

         Because the ALJ's decision not to give great or controlling weight to the medical opinion of Plaintiff's treating psychiatrist, John Sallee, was not supported by substantial evidence, the Court will REMAND this case to the Commissioner for a new decision.

         The ALJ's decision on Plaintiff's disability claim

         Plaintiff was born in 1983 and alleges disability due to AIDS, affective disorder (including bipolar disorder), anxiety disorder (including panic disorder, obsessive compulsive disorder, agoraphobia, and post-traumatic stress disorder), and anorexia. (Administrative Record (“AR”), p. 20). He stated that he has had violent encounters with his father in the past, which he does not completely remember, and that he has made eleven attempts on his life. (AR, p. 26). Plaintiff was date raped in 2004, discovered he was HIV positive in 2005, and last worked in 2008 in San Francisco, after being gang raped. (AR, pp. 25, 54- 56). He was unable to continue working due to rape trauma and fear of men. In 2009, he returned home to Kentucky, where he lives with his parents. (AR, p. 26). He no longer drives, and he relies on his mother to take him to appointments. He mostly stays at home due to agoraphobia and fear of the public. (AR, pp. 69-74).

         Plaintiff previously applied for Social Security disability benefits. The Administration denied his claim, and the denial became final. In 2014, he again applied for benefits, alleging he became disabled on September 1, 2010. (AR, pp. 18, 20). He was last insured for Title II benefits on March 31, 2011. (AR, p. 20).

         In connection with the prior application, Plaintiff was examined in October 2010 at the request of the Commissioner by psychologist Thomas Muehleman, Ph.D. Dr. Muehleman diagnosed bipolar disorder, anxiety disorder with obsessive-compulsive symptoms, and anorexia nervosa. (AR, p. 624). Dr. Muehleman opined that these impairments likely render Plaintiff “moderately to markedly” impaired in his abilities to: 1) relate to fellow workers and supervisors, and 2) tolerate stress and pressures associated with day-to-day work activity. (Id.)

         In February 2015, in connection with the present application, the Commissioner's non-examining psychologist Mary Thompson, Ph.D., opined non-disabling mental limitations. (AR, pp. 147-150).

         In April 2015, treating psychiatrist John Sallee completed the standard mental assessment form. (AR, pp. 835-36). Like Dr. Muehleman, Dr. Sallee diagnosed bipolar disorder and obsessive-compulsive disorder. Dr. Sallee added that Plaintiff suffers from panic disorder. Dr. Sallee found that Plaintiff has “extreme” limitations in his abilities to: 1) complete a normal workday and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable No. and length of rest periods, 2) respond to changes in the work setting, and 3) travel in unfamiliar places or use public transportation. Dr. Sallee further found that Plaintiff has “marked” limitations in his abilities to: 1) understand and remember detailed instructions, 2) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, 3) work in coordination with proximity to others without being distracted by them, 4) interact appropriately with the general public, 5) accept instructions and respond appropriately to criticism from others, and 6) get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (Id.).

         In September 2016, Dr. Sallee opined that “I have high hopes for [Plaintiff's] future improvements through medication management and therapy, though I believe that the prospect for his ability to hold a regular job of any type is nearly nonexistent for the foreseeable future.” (AR, p. 1032). Dr. Sallee based this opinion on the fact that Plaintiff “has been traumatized in the past, and this continues to affect him.” (Id.). He “struggles on a nearly daily basis with panic attacks and anxiety, as well as mood symptoms” and “sometimes has problems with paranoia.” (Id.).

         In her January 2017 decision, the administrative law judge (ALJ) gave “little” weight to Dr. Muehleman's opinion, “partial” weight to Dr. Thompson's opinion, and found that Dr. Sallee's opinion “is not entitled to great or controlling weight, as it is not supported by the record.” (AR, pp. 28-29). The ALJ found that Plaintiff is able to “perform simple and routine work having occasional contact with the public, coworkers, and supervisors” and can “perform work that is non-fast-paced or quota driven and any changes in [his] work routine or environment must be rare and gradually introduced.” (AR, p. 25). The ALJ concluded that Plaintiff was not disabled through the decision date because, although he cannot perform his past relevant work, he retains the ability to perform a significant No. of jobs in the national economy. (AR, p. 31). Examples of such jobs are medium scrap sorter, laundry laborer, and nursery worker (plants not children) and light collator, garment sorter, and cleaner. (Id.).

         For informational purposes only, Plaintiff reports that he filed another application for benefits after the ALJ's decision and was awarded Title XVI supplemental security income (SSI) benefits. (Docket # 16, p. 8).

         The ALJ erred in weighing Dr. Sallee's opinion.

         A treating physician's medical opinion is entitled to special weight. It is entitled to “controlling weight” if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record.” 20 C.F.R. § 404.1527(c)(2). Even if it is not entitled to controlling weight, a treating physician's opinion might still be entitled to greater weight than any other opinion in the administrative record. The ALJ's decision must ...


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