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Bormes v. Berryhill

United States District Court, D. South Dakota, Southern Division

October 18, 2017

MARK R. BORMES, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY; Defendant.

          MEMORANDUM OPINION AND ORDER

          VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Plaintiff, Mark R. Bormes, seeks judicial review of the Commissioner's final decision denying him payment of supplemental security income (SSI) benefits under Title XVI of the Social Security Act.[1] Mr. Bormes has filed a complaint and has requested the court to reverse the Commissioner's final decision denying him disability benefits and to enter an order awarding benefits. Alternatively, Mr. Bormes requests the court remand the matter to the Social Security Administration for further hearing. The matter is fully briefed and is ready for decision. For the reasons more fully explained below, the Commissioner's decision is reversed and remanded.

         JURISDICTION

         This appeal of the Commissioner's final decision denying benefits is properly before the district court pursuant to 42 U.S.C. § 405(g). This matter is before this magistrate judge pursuant to the consent of the parties. See 28 U.S.C. § 636(c).

         STIPULATED FACTS[2]

         Claimant Mark Bormes (“Claimant”) is a male born April 12, 1961. AR 184. On November 25, 2013, Claimant protectively filed an application for supplemental security income (“SSI Claim”), alleging disability since October 1, 1996. AR 184-192. The Social Security Administration (“SSA”) denied Claimant's SSI claim initially on March 7, 2014, and on reconsideration on October 22, 2014. AR 114-116, 123-129.

         On November 5, 2014, Claimant filed a written request for hearing. AR 130-133. On November 16, 2015, Claimant appeared and testified before Administrative Law Judge Denzel Busick (the “ALJ”) at a hearing held in Sioux Falls, South Dakota. AR 64-99. James Miller, an impartial vocational expert (“VE”), also testified at the hearing. AR 64. On December 21, 2015, the ALJ issued an unfavorable decision. AR 43-57.

         On February 11, 2016, Claimant requested the Appeals Council to review the ALJ's decision. AR 42. On September 1, 2016, the Appeals Council denied Claimant's request for review. AR 1-7.

         The ALJ found that the Claimant has not engaged in substantial gainful activity since November 25, 2013, the date of the application at issue. AR 48. (Decision 3). The ALJ found that Claimant has the following severe impairments pursuant to 20 CFR 416.920; eczema[3] and hearing problems. AR 48. (Decision 3.) At the hearing, Claimant testified he was not alleging disability due to poor hearing. AR 80. The ALJ determined that Claimant's medically determinable impairment of affective disorders and anxiety disorders were non-severe. AR 48. (Decision 3.)

         In June 2014, Claimant's human immunodeficiency virus (HIV) test was positive and asymptomatic. AR 345. Charles Shafer, M.D., also assessed chronic hepatitis B virus. AR 345. (Ex. 5/F/9).

         In his July 2014 Function Report, Claimant stated that he lived alone, prepared meals, fed and walked his dog, watched television, did laundry, mowed his small yard, and did light housework. AR 251-253. Claimant also said he drove, gardened, shopped in stores, and went to his brother's house for dinner once a week. AR 254-255. He said he had no problems shaving, feeding himself, caring for his hair, and using the toilet. AR 252.

         At the hearing, Claimant testified that he was diagnosed with HIV in 1991. AR 71. He said that he continued to work for at least the next four years. AR 71. Claimant testified that he was diagnosed with full-blown AIDS in 2005. AR 71. Claimant testified that he was diagnosed with Hepatitis B in about 1995. AR 71-72.

         Claimant testified that he takes the following prescription medications to treat his HIV condition: Epzicom and Triumeq. AR 74. Claimant testified that he takes the following prescription medications to treat his conditions of affective disorders and anxiety disorder: Klonopin, Abilify and Doxepin. AR 75.

         Claimant testified that he has been continuously treated for HIV and hepatitis B since he was diagnosed with those diseases. AR 72. Claimant testified that he takes the following prescription medications to treat hepatitis B: Viry. AR 73.

         The ALJ found the Claimant has the RFC to perform light work as defined by 20 CFR 416.967(b) as follows: can lift 20 pounds occasionally and less than 10 pounds frequently; can sit for a total of 6 hours, as well as stand and walk, combined, a total of 6 hours in an 8-hour day; no limits in reaching and handling; is able to perform all postural activities frequently; has no visual limits with proper glasses; has some difficulty hearing; and is unable to wear a hearing aid, thus he must avoid environments with loud noise, large crowd noise, and loud background noise. AR 49-50. (Decision p. 4.)

         Treatment notes dated December 2012, August 2013, February 2014, June 2014, and July 2015 indicated that Claimant's HIV testing was positive, but asymptomatic (AR. 289, 300, 345, 360, 396). At an August 2013 HIV follow-up appointment, Claimant reported new skin lesions. AR 286. He said that his current skin lesions were always related to heat. AR 286. Claimant also said that he used Triamcinolone Acetonide Cream (TAC) and Hibiclens, which helped a bit. AR 286. Charles Shafer, M.D., thought that Claimant's skin issues involved “some component from psych/stress.” AR 289.

         In November 2013, Claimant sought treatment for a left groin rash, which he attributed to recurrent fungal problems. AR 285. Claimant had no other concerns of fever, chills, headaches, nausea or vomiting. AR 285.

         At a December 2013 psychotherapy appointment, Claimant's speech, attitude, cognitive functioning and affect were normal. AR 308. His thought processes and thought content were not impaired. AR 308. He said he felt good physically and emotionally and was coping with stressors well. AR 308. At a follow-up psychiatry visit that same month, Claimant said the Thanksgiving holiday was a little stressful, but he had not had a major breakout of hives. AR 307. He said his medications were working fine. AR 307.

         When Claimant returned to psychotherapy in January 2014, his appearance, grooming, and attitude were normal. AR 362. He was also cooperative with no behavior abnormalities. AR 362. Claimant reported he did not have a painful breakout of sores, but was frustrated because he was sick. AR 362-363. At a follow-up later that month, Claimant reported anxiety because his car window was broken. AR 361. He also said some family issues caused him to “break out.” AR 361. During the session, Erin Sanford, M.A., worked with Claimant on better ways to manage his feelings and stress levels so as to help with the breakouts and associated pain. AR 361.

         In a January 2, 2014, letter to Disability Determination Services, Vicki Harkness, Claimant's social worker, stated that he enjoyed gardening, watching television, walking his dog, and exploring antique stores. AR 330.

         In March 2014, Claimant told Rajesh Singh, M.D., that he was doing fair and his mood was fairly stable. AR 353. He said that he used Xanax when he started to feel breakouts, which seemed to help. AR 353. Claimant also said Celexa seemed to be working well. AR 353. Dr. Singh noted Claimant was alert with coherent thoughts. AR 353. He did not make any medication changes. AR 353.

         In August 2014, Claimant told Ms. Sanford that he still had some painful skin rashes and bumps, but for the most part, they were getting better. AR 422. Claimant said his health was great and he was doing better with his anxiety. AR 422.

         Also in August 2014, Claimant followed up with Dr. Shafer. AR 423. Claimant reported that he had not been using his TAC ointment and creams on a regular basis, and never more than once per day. AR 423. He said his skin felt better when he used the ointments/creams, but that it eventually peeled and seemed worse. AR 423. Claimant said his skin always got worse when he was emotionally stressed. AR 423. Dr. Shafer instructed Claimant to use the ointment when his rash was really bad, and then use the cream when it got better. AR 426.

         In September 2014, Claimant attended a psychotherapy follow-up. AR 419. He said that his physical health “has been good, ” and he reported no major rashes or breakouts. AR 420. Claimant also said he was doing some things to improve his self-care such as gardening, accepting invitations to do things with his brother, etc. AR 420.

         In December 2014, Claimant told Dr. Singh that his skin symptoms were worse when stressed. AR 470.

         In February 2015, Claimant sought treatment for generalized anxiety disorder. AR 475. He reported that a rash on his left leg had gotten worse over the past week secondary to stress and anxiety pertaining to family and financial stressors. AR 475. Claimant also reported that aside from situational anxiety, his moods had been good with no depression or feelings of helplessness/hopelessness. AR 475. He also said his sleep had been better the past couple of days. AR 475. Claimant's symptoms were “well controlled” on current psychiatric medications, and he reported no side effects. AR 476.

         In April 2015, Claimant saw Dr. Shafer for a re-check of multiple medical problems. AR 402. He reported a right lower leg rash, but said that he had stopped using his TAC cream and ointment because it caused burning. AR 402. Claimant reported no nausea, vomiting, abdominal pain, or diarrhea. AR 402. Dr. Shafer instructed Claimant to restart the TAC ointment for his right leg rash. AR 405. He also recommended that Claimant “get out and exercise.” AR 405.

         At a May 2015 psychiatry appointment, Claimant reported family and financial stressors, but said that he was still gardening and trying to get out and do things. AR 484. He believed his medications were adequately managing his symptoms with no reported side effects. AR 484. On examination, Claimant was well-groomed, appropriate, and cooperative. AR 486. His speech and thought processes were normal, his associations were intact, his judgment and insight were fair, and his mood, attention, and concentration were good. AR 486. Dr. Singh instructed Claimant to continue his current mediations. AR 486.

         In July 2015, Claimant reported that his skin issues had worsened amount a month ago due to stress, but were currently improving. AR 377. He also said he experienced some diarrhea about 2 months ago but that is had cleared up on its own. AR 377.

         In October 2015, Claimant told Dr. Shafer that his skin broke out due to stress after learning that he had to visit with a judge regarding his disability claim. AR 383. Claimant also reported right ear fullness and discomfort, but his recent labs were “really quite excellent.” AR 383. He reported no nausea, vomiting, or diarrhea. AR 383. He said he experienced abdominal pain when anxious, but that it resolved when the source of stress disappeared. AR 383. On examination, Claimant was alert and in no acute distress. AR 384.

         In an April 2015, “To Whom It May Concern” letter, Dr. Shafer, one of Claimant's treating physicians, opined that Claimant struggled with a number of medical and mental health issues. AR 370. He concluded that Claimant was not able to work at that time due to the combination of his diagnoses and treatment. AR 370. (Ex 7F).

         In December 2014, Dr. Singh, Claimant's psychiatrist, opined that Claimant was unable to work due to generalized anxiety disorder combined with his chronic medical conditions. AR 369. (Ex 6F).

         In his December 21, 2015, decision, the ALJ determined that the Claimant had no past relevant work. AR 52. (Decision 7). At the November 16, 2015, hearing, Claimant testified that he has an associates degree in fashion merchandising and visual merchandising. AR 69. Claimant testified that his last full time work was with Bloomingdales department store, which ended in 1996. AR 70. Claimant testified that he earned about $3, 500 in 2014, and would earn approximately $3, 500 by the end of 2015. AR 70. Claimant testified that he lived alone and was able to care for himself “pretty good.” AR 83. He also testified that his doctors had never advised him not to work. AR 84.

         At the hearing, the ALJ asked the VE to consider a hypothetical individual with limitations that matched the ALJ's ultimate RFC finding. AR 49-50, 88-89. The VE testified that such a hypothetical individual could perform light, unskilled jobs of an electronics worker, motel cleaner, and survey worker. AR 90. Accordingly, the ALJ found that Claimant was not disabled because there are jobs existing in significant numbers in the national economy that Claimant can perform. AR 52-53. (Decision 8).

         Based on the testimony of the VE, the ALJ found that “considering age, education, work experience and RFC, the claimant is capable of making a successful adjustment to other work existing in significant numbers in the national economy.” Accordingly, the ALJ determined that Claimant was not disabled between November 25, 2013, the date he protectively applied for SSI, and December 21, 2015, the date of the ALJ's decision. AR 53. (Decision 8).

         Claimant testified that the side effects he experiences from taking Viry are severe fatigue and diarrhea. AR 73. Claimant testified that the diarrhea he experiences requires him to immediately need to use a bathroom and he experiences this type of diarrhea about once per week and the episode of diarrhea can last for four or five days. AR 73-74.

         Claimant testified that he took Triumeq to treat his HIV and took a pill that combined Reyataz and Epzicom. AR 74. Claimant testified that for years he has suffered from severe fatigue cause by his HIV medications. AR 74-75. Claimant testified that the fatigue he experiences requires naps about 10:30-11:00 a.m. of one to three hours. AR 75.

         Claimant testified that he takes Doxepin primarily to treat skin rashes. AR 76. He also said that it helped with his depression. AR 76. Claimant testified that the rash condition he experiences manifests itself as sores the size of nickels or dimes. AR 76. Claimant testified that the sores he experiences develop primarily on his wrists, legs, ankles, feet and toes. AR 76-78. Claimant testified that his sores bleed and ooze bodily fluid. AR 76. Claimant described these sores as being nearly constant and having about a 10 day cycle. AR 77. Claimant testified that he takes triamcinolone to treat his sores. AR 77.

         Claimant testified that he is about half deaf in each ear. AR 79. Claimant testified that he is unable to wear hearing aids. AR 80. Claimant testified that he takes Klonopin twice daily. AR 81. Claimant testified that taking Klonopin causes him to experience confusion. AR 81. He also testified that he described the confusion he experienced to his doctor. AR 82. His doctor did not suggest discontinuing the drug. AR 82. Instead, he instructed Claimant to take it twice a day, but adjust it down a couple of hours, which Claimant said seemed to help. AR 82. Claimant testified that he experiences drowsiness from Klonopin and Xanax. AR 82. Claimant testified that he would require a nap of about one hour in the morning and in the afternoon if he worked an 8-hour job. AR 85. Claimant testified that the Klonopin would cause him to feel “a step behind everything.” AR 86.

         Claimant testified that because of his hepatitis B, he must clean his socks or other things which came in contact with bodily fluids from his sores with bleach. AR 87. Claimant testified that sometimes the bodily fluid from his sores which gets in his socks cannot be cleaned with bleach so he must throw away the socks. AR 87.

         The VE's opinion is that a person able to perform light level work requiring a 30 minute to one hour break during the first half of the day and another 30 minute to one hour break in the afternoon would not be able to maintain competitive full-time employment. AR 91. The VE's opinion is that an unskilled person with moderate limitations on his ability to perform because of the side effects of Doxepin which Claimant described would not be capable of competitive employment. AR 92-94. The VE's opinion is that employers would not be willing to “deal” with an employee with HIV and hepatitis B who experiences an outbreak of sores as Claimant described his condition. AR 95.

         DISCUSSION

         A. Standard of Review.

         When reviewing a denial of benefits, the court will uphold the Commissioner's final decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Minor v. Astrue, 574 F.3d 625, 627 (8th Cir. 2009). Substantial evidence is defined as more than a mere scintilla, less than a preponderance, and that which a reasonable mind might accept as adequate to support the Commissioner's conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Klug v. Weinberger, 514 F.2d 423, 425 (8th Cir. 1975). "This review is more than a search of the record for evidence supporting the [Commissioner's] findings, and requires a scrutinizing analysis, not merely a rubber stamp of the [Commissioner's] action.” Scott ex rel. Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (internal punctuation altered, citations omitted).

         In assessing the substantiality of the evidence, the evidence that detracts from the Commissioner's decision must be considered, along with the evidence supporting it. Minor, 574 F.3d at 627. The Commissioner's decision may not be reversed merely because substantial evidence would have supported an opposite decision. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005); Woolf v. Shalala 3 F.3d 1210, 1213 (8th Cir. 1993). If it is possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, the Commissioner must be affirmed. Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993). “In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record.” Mittlestedt v. Apfel, 204 F.3d 847, 851 (8th Cir. 2000)(citations omitted).

         The court must also review the decision by the ALJ to determine if an error of law has been committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992); 42 U.S.C. § 405(g). Specifically, a court must evaluate whether the ALJ applied an erroneous legal standard in the disability analysis. Erroneous interpretations of law will be reversed. Walker v. Apfel, 141 F.3d 852, 853 (8th Cir. 1998)(citations omitted). The ...


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