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Osborne v. Colvin

United States District Court, D. Nebraska

March 6, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security; and ERIC HOLDER JR., Defendants

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For Jerry Osborne, Plaintiff: Jenna R. Kessell, CAVANAUGH LAW FIRM, Omaha, NE.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Robert L. Homan, U.S. ATTORNEY'S OFFICE - OMAHA, Omaha, NE.

For Office of General Counsel Social Security Administration, Interested Party: Office of General Counsel Social Security Administ, SOCIAL SECURITY ADMINISTRATION - KANSAS CITY, Kansas City, MO.


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Joseph F. Bataillon, United States District Judge.

This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration (" SSA" ). Filing No. 1. Jerry Osborne appeals the final determination denying his application for Social Security benefits under Title XVI of the Social Security Act. 42 U.S.C. § § 1381 et seq. This court has jurisdiction under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). Upon review of the record, this court concludes that the decision of the Administrative Law Judge (" ALJ" ) denying benefits is not supported by substantial evidence. Accordingly, the decision of the ALJ, and thereby the Commissioner, is reversed.


On June 3, 2011, claimant Jerry R. Osborne (" Mr. Osborne" ) filed an application for Supplemental Social Security Income under Title XVI of the Social Security Act. Filing No. 9-5, Social Security Transcript (" Tr." ) at 128. In this application, he alleged that he was disabled as a result of post-traumatic stress disorder (" PTSD" ) and depression with an onset date of disability on September 30, 2004. Filing No. 9-6 at 175. Additionally, on June 3, 2011, Mr. Osborne also filed an application for Disability Insurance Benefits under Title II of the Social Security Act, alleging the same onset date of disability, that of September 30, 2004. Filing No. 9-5. Both claims were denied initially on August 12, 2011, and again upon reconsideration on November 16, 2011, for lack of medical basis. Filing No. 9-2; Filing No. 9-4. In response to these denials, Mr. Osborne requested and was granted a hearing with the ALJ on November 5, 2012, at which he amended his alleged onset date of disability to May 24, 2011, and effectively dropped his Title II claim. Filing No. 9-2. Following the hearing at which a vocational expert also testified, the ALJ denied the claim for benefits. Id. On November 22, 2013, the Social Security Administration denied Mr. Osborne's request for a review of the ALJ's decision. Id.

A. Factual History

Jerry Osborne is now a 39-year-old resident of Omaha, Nebraska. He obtained his GED in 1991 and has had no specialized job training, trade, or vocational schooling. Past work history for Mr. Osborne includes telephone solicitor, hotel desk clerk, laundry worker, cleaner, and hotel auditor. Mr. Osborne's last period of substantial gainful activity was in 2003, although he did work as a temporary laborer from 2005 to 2006 two days a week, and again in August 2008 for a period of three days until he was terminated with an accusation of sexual harassment of a coworker. At his ALJ hearing on November 13, 2012, Mr. Osborne contended that he was unable to work due to a combination of mental impairments that caused him to feel as though he was " being judged no matter what [he was] doing or how [he was] doing anything." Filing No. 9-2. As a result, Mr. Osborne found it very difficult to be around people and noted that it was hard to keep to himself at any job. Id.

Mr. Osborne grew up in Omaha, Nebraska, and various small towns in Iowa. He is the oldest of six siblings, but has no contact or relationship with either them nor his parents. Mr. Osborne related significant physical and mental abuse as a child, but denied any sexual abuse. As a result of this abuse, he was placed into foster care at ages 4, 8, 11, and 12, but was returned to his mother each time.

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Mr. Osborne reported that he attended several different elementary schools due to multiple placements throughout Omaha, Missouri Valley, and Council Bluffs. He stated that he repeated second grade and then dropped out of school in ninth grade and subsequently completed his GED. Mr. Osborne has never married but does have three children. He indicated that his three children were given up for adoption by his wife. He further reported that he no longer has contact with them, as they have been adopted by a family in Iowa that does not respond to his requests for contact.

Mr. Osborne has been arrested twice, once for domestic abuse and once for excessive discipline of a child. He indicated that he was accused of child abuse in 2004 for attempting to control a child by holding him still. As a result, Mr. Osborne attended court-ordered anger management therapy, which led to his first treatments for PTSD.

At the time of his application, Mr. Osborne was living in an apartment with his girlfriend, Juanita Trudell, and had been for approximately a year and a half. Prior to this, he had been homeless. Mr. Osborne related that his longest period of employment was two and half years, which ended when the motel he was working at closed. Previous experience included work in factories and hotels in shuttle service, security, bell hop, desk clerk, and auditor positions. Mr. Osborne related that the reason that he moved from job to job was " due to people." Mr. Osborne indicated, however, that he had been fired twice for sexual harassment, and once for failing a drug test when the presence of THC was detected in his system. Additionally, he stated that he was currently unable to obtain new work at that time because he was always told that girls bring in the business or that he was overqualified for the position.

Additionally, Mr. Osborne has a long history of substance abuse. He also reports a family history of alcoholism. He first tried marijuana at age 5 and began using regularly at age 14. He reported using as much as he could from age 17, and although he has had periods of abstinence from the drug, he still continues to use when he is able to obtain it. He reported one such period from 2000 to 2004, but indicated that when he was not using he became irritable. There is no report of substance abuse treatment at any time. Mr. Osborne did state that when he had a job, his rent, utilities, food and cigarettes were paid for first, and that if he couldn't buy cigarettes, then he couldn't buy marijuana. He reported that he did have a period of amphetamine use from 1997 to 1999, but that he quit using on his own because he " didn't like the way [he] was on meth." Mr. Osborne reports having tried other drugs including cocaine, LSD, and alcohol, but reports few incidences and no current use.

In his applications for disability, Mr. Osborne stated that he did not go out to visit others and had no social activities, did not talk to his family, and never affiliated with his coworkers. Mr. Osborne stated that he did engage in cooking twice a week, washed dishes when they piled up and assisted with dusting when it was thick. He did not engage in outside yard work (although this may not be indicative of anything as he lived in an apartment where he was not responsible for such work) and did not supervise or assist in supervising any children. Mr. Osborne reported that he did not have a valid driver's license and instead either walked or a friend drove him to where he needed to go. Id. He stated that he did leave the apartment every few days to walk to the gas station for cigarettes.

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Mr. Osborne reported that he generally spent his days playing video games alone, watching comedy T.V., or reading. He did indicate that he had two friends with whom he occasionally played video games, and he also indicated that he played video games with his girlfriend, walked around with her, and just relaxed with her. He stated that he did not take naps during the day, but had trouble sleeping and would read for up to 7 hours before being able to fall asleep. He also reported that he liked to walk, but that his girlfriend became paranoid when he went out and accused him of cheating. He indicated that he is never alone. Mr. Osborne reported anxiety reactions in which he felt as though he was being judged and getting dirty looks when grocery shopping, clothes shopping, or standing in long lines. He stated that these reactions appeared when he was around big crowds, lasted for a couple hours, and improved only when he was able to get away from the crowd.

As a result of his illness, Mr. Osborne reported that he did not want to meet new people nor was he able to trust anyone. He also reported that his lack of work and constant rejection when applying for work added to his depression. Additionally, Mr. Osborne reported that due to his anxiety he was no longer able to go out to parks, indoor or outdoor concerts, shopping, or out to eat. Mr. Osborne's girlfriend also reported that he did not bathe as often as he used to and was in need of new clothes.

Upon review of Mr. Osborne's medical records, Dr. Gerald Spethman, M.D., found that Mr. Osborne did not have any severe physical issues and that none were alleged. Filing No. 9-7. This was confirmed by Dr. Jerry Reed, M.D., on November 15, 2011 with a notation that there were no new physical allegations, limitations, or treatments. Id. There is no dispute in this fact.

In his original disability report, Mr. Osborne listed his mental conditions as PTSD and Depression and stated that these conditions caused him pain or other symptoms. Filing No. 9-6. He first sought mental health treatment for these conditions in 2004 when he received court ordered anger management therapy in relation to an allegation of child abuse. Filing No. 9-6; Filing No. 9-7. On October 29, 2004, services were initiated at the Institute for Therapy and Psychological Solutions, LLC in Council Bluffs, Iowa, with El Siebert, LISW. Filing No. 9-6. The initial referral listed problems including " Re-experiencing flashbacks and dreams of his own victimization as a child. Anger problem." Filing No. 9-7. Mr. Osborne's treatment plan diagnosis was Adjustment Disorder with Disturbance of Conduct and a GAF score of 65 was listed, along with a diagnosis of Prolonged Post Traumatic Stress Disorder.[1] Id. at 251, 253. Siebert created a treatment plan on January 5, 2005, for the presented problem of anger, and a second treatment plan for a presented problem of " intrusive thoughts/dreams, flashbacks of childhood abuse experienced at the hands of his step-dad." Id. at 248, 253. In these plans, Siebert recommended

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eight to twelve individual therapy/cognitive behavioral sessions for anger management and, to meet the listed goals of reducing and eliminating the negative impact of trauma and developing and implementing effective coping skills that promote healing and acceptance of the past, 18 sessions of Behavioral/Cognitive therapy. Id. at 252, 254. Siebert stated that the desired outcome from these sessions was " to eliminate all inappropriate anger behaviors." Id. at 252.

Mr. Osborne dropped out of therapy with Siebert on December 21, 2005. Id. at 248. The final report includes statements from Siebert that Mr. Osborne met his goal of " increasing ability to express anger appropriately," but he failed to " reduce or eliminate negative impact of trauma." Id. at 248, 312. This was recorded as a good response to treatment for anger, but a fair response for the PTSD problem. Id. at 248. Mr. Osborne's discharge diagnosis was Prolonged PTSD with a GAF score of 65 and he was not prescribed any medications. Id. at 249. Aftercare/Follow-up was listed in the report as necessary, but Siebert noted that Mr. Osborne did not respond to letters indicating such. Id. Siebert also made further recommendations for individual therapy and medications evaluation to assess for PTSD. Id. at 250.

Subsequent to filing his original application for disability, Mr. Osborne was examined on July 5, 2011 by Dr. A. James Fix, Ph.D., after a referral by the Disability Determination Services of the State of Nebraska, Department of Education, Division of Rehabilitation Services, with the specific purpose of determining disability status. Id. at 277. Dr. Fix reported that Mr. Osborne's behavior during the interview was very bizarre and difficult to deal with. Id. Mr. Osborne was observed to be very intense in all of his expressions and easily prone to anger. Id. Dr. Fix noted that once Mr. Osborne started talking and trying to make his point, he refused to be stopped while trying to convey it, regardless of whether the statement had anything to do with the question asked. Id. Mr. Osborne was also noted to be very overly dramatic. Id.

Mr. Osborne related to Dr. Fix that his disability was PTSD and that he had trouble being around people. Id. at 277. He further stated that he " felt people staring at him," he heard voices in his head, and he was convinced that people were talking about him. Id. at 278. Mr. Osborne reported that these delusions had existed his entire life. Id. at 279. He also stated that he lost track of conversations and that he had " anger outbursts" that resulted in quitting jobs. Id. at 278, 279.

Dr. Fix stated that throughout the interview, Mr. Osborne remained alert and responsive, albeit very unusual in his presentation. Id. at 279. Dr. Fix also reported that Mr. Osborne was very irritable overall, with shifts from responsibly calm to overtly angry. Id. Responses were intense, rapid, and obsessive at times, but clear and adequately formed with no psychotic disorganization. Id. at 280. Additionally Dr. Fix noted that Mr. Osborne appeared not to recognize that his behavior was bizarre or inappropriate. Id. At the review by Dr. Fix, Mr. Osborne was oriented in all spheres, but did state that the voices in his head told him who was talking about him. Id. His memory was tested and he was determined to be of at least average intelligence with a past ability to work at a level of average intelligence for periods of time, but not continuously. Id.

Mr. Osborne reported to Dr. Fix that he lived with his girlfriend who was disabled due to bipolar condition. Id. Mr. Osborne stated that his daily routine involved getting up at 9:00 a.m. to have ...

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