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Tale of two Ohio Social Security medicine zombies

August 27, 2013

Yesterday District Judge Timothy S. Black, reversed the decision of Social Security agency and remanded for immediate award of disability benefits to Dayna Perkins.

DAYNA PERKINS
Case No. 3:12-cv-153
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO,
WESTERN DIVISION
August 26, 2013

Here proof of disability is overwhelming and remand will serve no purpose other than delay. As fully recited here, in view of the extensive medical record of evidence of disability, and the credible and controlling findings and opinions of Dr. Siddiqi, her treating physician, and Dr. Olson, the psychological consultative examiner, the ALJ failed to meet her burden of finding substantial evidence that Plaintiff is able to engage in substantial gainful activity. Instead, proof of disability is overwhelming.

But just a few weeks ago in the same state of Ohio, in the Federal District just to the north, Magistrate Judge Kenneth S. McHargh affirmed Social Security denial of benefits to Ricky Noble.

RICKY NOBLE
CASE NO. 1:12-cv-1676
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO,
EASTERN DIVISION
August 15, 2013

the Magistrate Judge finds that the decision of the Commissioner is supported by substantial evidence. Accordingly, the Court AFFIRMS the decision of the Commissioner.

Why these two cases? Not only are they decided in two Federal Courts in the same state and in the same month but also both plaintiffs are diagnosed bipolar and both claimed that their medications made them zombies.

Plaintiff [Dayna Perkins] was seen by Dr. Siddiqi after approximately three months away, reporting that she had stopped taking her medication in April because she “felt like a zombie.”

[Ricky] Noble stated that medications take the pain away for a couple of hours, but make him “zombiefied,” tired, and prevent him from falling asleep.

So let’s compare these plaintiffs.

First Dayna Perkins:

Plaintiff was born on June 30, 1960 and has at least a high school education. She alleged disability on her initial application due to bipolar disorder, severe depression, and anxiety attacks. … Plaintiff has been psychiatrically admitted to the hospital and seen in the emergency room for psychiatric complaints on numerous occasions … September 2004. The diagnosis was panic disorder with agoraphobia and cocaine abuse. … on June 16, 2005, at which time she was requesting cocaine detoxification. … on October 23, 2006 with complaints of increasing depression, suicidal ideation, and delusional thinking. … A urine screen was positive for cocaine.

But then she sobered up and Judge Black says the ALJ did not properly credit to that:

The ALJ failed to acknowledge Plaintiff’s sobriety beginning in November 2006 and Plaintiff’s ongoing symptomology thereafter. The ALJ cited to a reference in September 2008 where Plaintiff told her counselor she had been clean for “at least” 9 months, which the ALJ interpreted as being inconsistent with Plaintiff’s testimony. (Tr. 773). This statement may be vague, but it is not inconsistent. Plaintiff is very clear as to her date of sobriety throughout the record, as reported on several occasions to several different sources. Her date of sobriety was November 2006, which is consistent with her testimony at the hearing.

And the ALJ didn’t properly credit the subjective psychiatric evidence:

the ALJ erred by discounting Dr. Siddiqi’s conclusions because she found they were “not supported by objective signs and findings in the treatment notes.” Psychiatric evidence is not discounted because it is based on subjective complaints, as psychiatric reports “do not easily lend themselves to the same degree of substantiation as other medical impairments.” Walker v. Sec’y of H.H.S., 980 F.2d 1066, 1071 n.3 (1992). Thus, the Sixth Circuit has found that a psychological opinion that is established “through clinical observations” or “proper psychological techniques” can suffice to demonstrate a “medically determinable” disability. Crum v. Sullivan, 921 F.2d 642, 645 (6th Cir. 1990). The diagnosis and observations of professionals, such as Dr. Siddiqi, trained in the field of psychopathology, are sufficient to substantiate a psychiatric impairment

So, therefore Judge Black doesn’t just remand, he awards immediate benefits.

The decision of the Commissioner, that Dayna Perkins was not entitled to disability insurance benefits and supplemental security income beginning December 31, 2001 is hereby found to be NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the ALJ for an immediate award of benefits. The Clerk shall enter judgment accordingly

Contrast, Ricky Noble:

Noble was born on September 4, 1977, and was 30 years old at the time of his alleged onset of disability. … Plaintiff has marginal education. His past work experience includes the following positions: painter, fork lift operator, warehouse supervisor, towel-rolling machine operator, grinder operator, cashier-checker and fast-food worker.

…On October 18, 2002, Noble was brought by Emergency Medical Services to MetroHealth Medical Center’s Trauma Bay after being removed from an apartment fire. Plaintiff was initially unconscious and was admitted to the hospital for treatment of carbon monoxide poisoning as well as second and third degree burns over 30-60% of his body. A skin grafting operation was completed to treat back and buttock burns. During his hospital stay, Plaintiff experienced persistent fevers, sinus tachycardia and deep venous thrombosis with inferior vena cava filter.

…Dr. Nigro documented diagnoses of PTSD and Panic Disorder as well as symptoms including mood swings, somatization, anxiety, pain, depression, concentration, and suicidal tendencies. He indicated that Plaintiff was struggling, unstable and in crisis with moderate risks. Noble continued to be treated by Dr. Nigro through December 7, 2010. Dr. Nigro’s additional treatment notes reference a diagnosis of Bipolar II Disorder on January 6, 2009.

[footnote #3]: Dr. Nigro’s medical records are scarce and generally illegible.

The Magistrate finds that the ALJ included “good reasons” to give little or no weight to Dr. Nigro;

The ALJ held Dr. Nigro’s findings were not deserving of controlling weight because his “records were inconsistent and unsupportive of such significant mental limitations.” Thus, Dr. Nigro’s opinion was not entitled to controlling weight under Wilson. The ALJ supplied “good reasons” for disregarding Dr. Nigro’s opinion. To begin, the ALJ found that Dr. Nigro failed to explain why he concluded that Plaintiff’s ability to maintain attention and concentration was poor, when the doctor had previously concluded that Noble’s abilities in these areas were adequate. The undersigned notes that neither Dr. Nigro nor Plaintiff identified any specific event or reason justifying such a dramatic change in Dr. Nigro’s finding.

[footnote 7]: Dr. Nigro’s records are largely illegible. However, neither party has raised this issue as a concern. Therefore, the undersigned declines to address it sua sponte.

That’s twice about the doctor’s illegible records, and neither party raised that issue, but it seems important to Judge McHargh. And:

Although Dr. Nigro’s treatment notes contain differing accounts of Plaintiff’s mental health, at times described as stable, and other times as unstable, the ALJ was responsible for assessing Plaintiff’s ultimate mental residual functional capacity. Therefore, due to the noted inconsistencies within Dr. Nigro’s opinion, it was reasonable for the ALJ to look to the state agency psychologist’s opinion in order to assess Plaintiff’s mental functionality

So therefore,

In this case, the ALJ found that Plaintiff had a history of burns on the body with residual scarring, a history of a hammer toe subsequently repaired, bipolar disorder, personality disorder, post traumatic stress disorder, and a history of substance abuse. …[but]… the ALJ found that Plaintiff’s alleged pain was “inconsistent with the objective medical evidence of record, [his] treatment history and the claimant’s acknowledged activities.”

Ricky Noble, burn victim, gets no disability benefits. Dayna Perkins recovered cocaine user does.

I’m not sure what the moral of this story is. I’m not sure this juxtaposition says anything about North-South-Ohio or these judges in particular. I don’t know enough about Social Security law to really make any educated comments here. But perhaps one moral of this story is to make sure your shrink keeps legible records and get documentation about your crusty feet:

The ALJ also held that there were no records supporting the frequency or severity of [Ricky Noble]’s claim of debilitating pain and regularly cracking and bleeding feet.

As with so many zombie topics, the issue is about credibility and which case reasoning you prefer may depend strongly on your politics.

Also, this is not the first time ZombieLaw has covered two social security cases together with different results. Part of this is because there are so many more zombies in social security than other case law and I am just consolidating for expediency – but also note the connection of zombies to paired opposites.

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