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Kelley v. Colvin

United States District Court, M.D. Alabama, Eastern Division

August 26, 2014

LARRY D. KELLEY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SUSAN RUSS WALKER, Chief Magistrate Judge.

Plaintiff Larry D. Kelley brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits and supplemental security income under the Social Security Act. The parties have consented to entry of final judgment by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c). Upon review of the record and briefs submitted by the parties, the court concludes that the decision of the Commissioner is due to be reversed.


The court's review of the Commissioner's decision is narrowly circumscribed. The court does not reweigh the evidence or substitute its judgment for that of the Commissioner. Rather, the court examines the administrative decision and scrutinizes the record as a whole to determine whether substantial evidence supports the ALJ's factual findings. Davis v. Shalala , 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan , 936 F.2d 1143, 1145 (11th Cir. 1991). Substantial evidence consists of such "relevant evidence as a reasonable person would accept as adequate to support a conclusion." Cornelius , 936 F.2d at 1145. Factual findings that are supported by substantial evidence must be upheld by the court. The ALJ's legal conclusions, however, are reviewed de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis , 985 F.2d at 531. If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, the ALJ's decision must be reversed. Cornelius , 936 F.2d at 1145-46.


Plaintiff filed the present applications for benefits on December 16, 2010 (with a protective filing date of December 2, 2010) alleging disability since August 15, 2008 - when he was approaching his 27th birthday - due to a shoulder injury that causes his shoulder to dislocate if he reaches out "too far" or overhead. (R. 132-39, 165, 170, 191, 341).[2], [3] In his function report, plaintiff checked only two boxes to indicate the functions affected by his condition - lifting and reaching. (R. 191). The state agency sent plaintiff to Dr. Dimtcho Popov for a consultative physical examination (see Exhibit 4F, 2/16/11 CE report) and, thereafter, Dr. Heilpern - a non-examining state agency physician - reviewed plaintiff's file. Dr. Heilpern concluded - giving significant weight to Dr. Popov's report - that plaintiff is capable of performing the exertional requirements of "light" work, with a limitation to no overhead reaching with the right arm (see Exhibit 5F, Dr. Heilpern's 2/18/11 physical RFC assessment; 20 C.F.R. § 404.1567(b)(physical exertion requirements of light work)).

On December 1, 2010, just before he filed the present claims for disability, plaintiff called East Alabama Mental Health ("EAMH"). The "initial contact" note reads, "Caller reports mood disturbance, has a bad attitude. Cannot sleep at night. Has upsetting dreams. Wakes up in sweats." The staff member who took the call gave plaintiff an appointment to see Kathie Roper Ericson on January 25, 2011 for an intake evaluation. (R. 387). Licensed Professional Counselor Ericson evaluated the plaintiff on March 1, 2011, two weeks after his consultative examination with Dr. Popov. (R. 393, 394-97). Ericson's note for the intake evaluation reflects plaintiff's report of a head injury in 1993 in which he suffered a "cracked skull" and was in a "coma for 1½ months."[4] (R. 394). She notes, "attitude change - temper, acting out" at age 16-17, nightmares, "3-4 hrs per sleep, waking up in a sweat[, ]" "vague suicidal/homicidal thoughts without plan or intent[, ]"[5] "vague [visual] hallucinations - sees shadows at night[, ]" and his self-report of a sustained emotions of depression and anger. (R. 394-95). Ericson noted that plaintiff was applying for disability and was represented by attorney Faye Edmondson, that he "smokes pot" every day and "marijuana calms him down[, ]" and that he worked at Taco Bell in 2008 but "lost" that job "because of attitude[.]" (R. 394). On mental status examination, Ericson observed that plaintiff's affect was labile, constricted, and depressed; she noted no other abnormalities. (R. 394).

Ericson summarized the intake interview as follows:

Consumer is a 29 yr old African American single male who has history of head injury, cracked skull, at age 11 (1½ months in coma). Reports [illegible] anger, acting out, unable to keep job due to attitude, jail for temper problems. Reports depression, night sweats, nightmares, sees shadows at night. Reports daily marijuana us that helps control [illegible] temper. Thoughts of hurting self and others from time to time without plan or intent. Signed written no harm agreement.

(R. 388). In plaintiff's treatment plan, Ericson recorded plaintiff's "Long-Term Vision" as "Get Disability; Help w/Mental Health Symptoms[.]" (R. 390). She assessed a need for weekly group counseling and monthly individual counseling, medication management and assessment by a physician. (R. 392). Psychiatrist Heather Rowe signed the treatment plan on March 25, 2011, approving diagnoses of: (1) Mood Disorder, NOS; (2) Intermittent Explosive Disorder; (3) Marijuana Abuse; and (4) Rule out Personality Disorder NOS. (R. 389, 393).

The next mental health treatment note of record is for plaintiff's visit to Dr. Robert Schuster on August 17, 2011 - five months after the initial evaluation. Plaintiff was not yet on medication. He reported interrupted sleep and occasional "voices" and visual hallucinations, no alcohol or drug use or suicidal/homicidal ideation, and "OK" mood and appetite. Dr. Schuster prescribed Zyprexa - an antipsychotic medication[6] - at a dosage of 5 mg at bedtime, and gave plaintiff a sample of 14 pills. (R. 385, 398).

On September 14, 2011, plaintiff saw therapist Ericson. She noted, "Met w/consumer. Decrease in visual hallucinations. Worked on anger management. Recommend GPT [group therapy]. Clean sober from marijuana for 1 month. Went over parenting issue. Sleeping OK. Meds are helping. Appears stable on meds[.]" (R. 384). The same day, plaintiff also saw Dr. Schuster. Plaintiff reported a decrease in mood swings, improved sleep, and that he had been out of medications for three weeks. Dr. Schuster noted "OK" mood and appetite, no "voices" or suicidal/homicidal ideation, and "Sleep better[.]" He increased plaintiff's dosage of Zyprexa to 7.5 mg. (R. 383). On that date, plaintiff's treatment plan was amended to add a diagnosis of "Psychotic Disorder, NOS[.]" (R. 389).

Plaintiff next sought treatment at EAMH on February 1, 2012. He told therapist Lucy Lawrence that he had run out of medication one month earlier, that he had been "locked up in Dec[ember] for an old fine[, ]" and that he "waits for Disability[.]" He agreed "to attempt therapy[.]" (R. 382). Dr. Schuster evaluated plaintiff that same day. He noted that plaintiff was "out of meds[, ]" that his mood was better, and mood and sleep were both "fine[.]" Dr. Schuster again prescribed Zyprexa, 7.5 mg. (R. 381)

Ericson saw plaintiff on February 23, 2012 for Anger Management group therapy. She noted "No evidence of overt psychoses[.]" (R. 380). Plaintiff returned to see Dr. Schuster on February 29, 2012. Plaintiff told the intake nurse that he was hearing voices every day and "feels like hurting others sometimes[.]" The nurse noted his affect/mood as "depressed." (R. 379). Plaintiff told Dr. Schuster that his mood was a "little worse[.]" Dr. Schuster noted "now tremors[, ]" "anxious[, ]" "sleep fine at times[, ]" no suicidal or homicidal ideation, and "voices no better ...

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