United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
plaintiff, Mark E. Titsworth, appeals the denial, initially
and upon reconsideration, of his application for disability
benefits under 42 U.S.C. § 405(g), see Filing No.
14 (Plaintiff's Motion to Reverse) and Filing
No. 17 (Defendant's Motion to Affirm).
administrative record (“Admin. R.”) has been
filed with the court. Filing Nos. 8-1 to 8-8, 9-1 to 9-5, and
10-1 to 10-6. Titsworth applied for disability benefits on
February 12, 2015. He alleges he is disabled by reason of
mental illness-Major Depression and Posttraumatic Stress
Disorder (“PTSD”). He alleges an onset date of
December 31, 2013. At the time of his alleged onset, he was
fifty-three years old. He has a high school education. He
served in the United States military from 1978 to 1980 and
was the victim of a sexual assault.
application was denied initially and on reconsideration. He
appealed the determination and requested a hearing before an
administrative law judge (“ALJ”). The ALJ held a
hearing on April 4, 2016. In a decision dated April 27, 2016,
the ALJ found that Titsworth was not disabled and therefore
not entitled to benefits. Id. at 19. On June 17,
2016, the Appeals Council of the Social Security
Administration (“SSA”) denied Titsworth's
request for review. Id. at 1. Titsworth seeks review
of the ALJ's decision as the final decision of the
Commissioner under sentence four of 42 U.S.C. § 405(g).
Testimony at Administrative Hearing
transcript of the hearing is found in the record at Admin. R.
32 to 68. Titsworth testified that all of his past work since
the military was as a self-employed painter with minimal
interaction with supervisors and customers. Id. at
39-41. He stated his income dropped off significantly in 2014
because he was “turning down jobs because I just
couldn't do it.” He testified that “[t]he
anxiety about even going to bid a job was overwhelming”
and related he had constant nightmares, depression and he
could not function. Id. at 43-44. He also testified
that when he did work in 2014, the work did not go well
because he had problems working with someone watching him, so
he would take breaks for 15-20 minutes to calm down, leave
early, or show up late. Id. at 45-47. He reported he
could not do a job with even minimal interaction with others
because he would still have to deal with people and would
miss work. Id. at 60-64. He testified he had trouble
even painting a friend's house because of his severe
testified that he sought treatment for his psychiatric
condition in late 2013 or early 2014 because he was suicidal.
Id. at 42. He testified he had planned to go turkey
hunting, and would shoot himself under the chin with a
shotgun. Id. at 43. He reported getting depressed
and stated on a bad day he could not get off the couch, but
would “sit and look at the floor.” Id.
reported panic attacks, a rapid heartbeat, profuse sweating,
and flashbacks of a sexual assault he suffered in the
military. Id. at 49-50. He stated he averaged three
or four flashbacks a week. Id. at 49. He also
testified to nightmares that cause poor sleep and stated he
requires a nap during the day. Id. at 50-51. He
stated he used small quantities of marijuana about three or
four times a month for sleep because it worked better than
medications he had been prescribed for sleep. Id. at
53-55. He further testified he had tried to adjust multiple
medications and medication levels, but was sensitive and
couldn't take many medications. Id. at 55.
stated he attended group therapy four days a week for a while
but, because it was difficult for him to bring up the
incident, his anxiety and depression worsened. Id.
at 57. He testified he had been seen by his psychiatrist once
a month beginning in early 2014, but had reduced the
frequency of his visits to every six weeks by the time of the
hearing. Id. at 53. He stated he still experiences
episodes of rage and “goes off.” Id. at
46, 53. At a recent job, he stated he missed work, showed up
late, left early and took multiple breaks because of anxiety.
Id. at 47.
vocational expert (“VE”) also testified at the
hearing. He was asked whether a hypothetical worker with past
relevant work as a painter who “has some functional
limits, no exertional limits, ” and “is able to
perform work that is simple and to respond appropriately to
routine changes in a work environment[, ]” and
“to perform work that does not require working in
tandem or as a partner or in close coordination with others,
and the worker is able to perform work that does not involve
more than brief, superficial, and incidental interaction with
the public” could find work in the national economy.
Id. at 59. The VE testified such a hypothetical
worker could find jobs in the national economy as an
industrial cleaner, night janitor, or production welder.
Id. at 60. The VE also testified that an individual
who needed to take a break twice an hour for 5 to 10 minutes,
or was absent five days per month, or was off-task thirty
percent of the work day would not be able to find competitive
employment. Id. at 66-67.
has been diagnosed with major depression and PTSD. He has
been treated for several years at Veterans'
Administration (“VA”) facilities. His diagnoses
are supported by notes and opinions in the record from
psychiatrists, psychologists, and licensed clinical social
workers. The record shows Titsworth sought treatment
complaining of nightmares, flashbacks, poor sleep,
depression, anxiety, irritability, anger, an exaggerated
startle response, hyper-vigilance, episodes of rage, and
problems with concentration and short-term memory. His
medical providers have prescribed multiple psychiatric
medications during the course of his care. He is presently
taking bupropion, buspirone, sertraline,
topiramate, and propranolol. Id. at 1237
Titsworth was treated at a VA facility by Dr. Willcockson, a
psychologist, in January 2014. Id. at 808-815.
Titsworth told Dr. Willcockson he had a history of sexual
assault while on active duty in the military in 1978. He
stated he did not report the incident at the time, nor did he
seek medical attention because he felt uncomfortable and
“he didn't trust anyone at the time and still
doesn't.” Id. at 809. He reported his
symptoms included nightmares, high anxiety, low stress
tolerance, sleep problems, and fear of crowds. Id.
He reported nightmares of rape on a daily basis but does not
remember the details of the dreams, and stated he had
recurrent, intrusive thoughts at least once per week.
Id. He stated he was unable to talk about his
military experiences with anyone. Id. He reported
problems with fatigue, motivation, exaggerated startle
responses, and problems with concentration and short term
memory. Id. at 810. Dr. Willcockson diagnosed
Titsworth with PTSD secondary to experience of military
sexual trauma. Id. at 812.
April 2014, Titsworth began treatment with Dr. Joanna E.
Faryna, his treating psychiatrist at the VA. He reported
flashbacks, hypervigilance, and anger. She also diagnosed
PTSD. The record shows Dr. Faryna treated Titsworth on a
monthly basis. See generally Id. at 1237 (indicating
frequency of treatment); 463-467, 491-494, 508-511; 559-562,
590-592, 603-606; 622-625, 634-637, 650-653, 662-665,
669-672, 681-684, 689-691, 695-698, 701-705; 732-735,
739-742, 750-753; 952-955, 960, 968; 1000-1003, 1036-1038,
1046-1048; 1125-1128, 1159-1162; 1191, 1217-1219. In June
2014, Titsworth reported to Dr. Faryna that his condition had
gotten worse. Id. at 732-735. He reported he was
sleeping more but having more violent dreams of sexual nature
and fantasies of killing himself. Id.
also underwent group psychotherapy, but was noted to be
withdrawn and noncooperative and walked out of the group.
Id. at 680. At various times he reported problems
with fatigue, motivation, concentration and short term
memory, and exaggerated startle responses, flashbacks, and
intrusive thoughts. The record shows Titsworth missed
appointments, left early, or showed up late. Id. at
610 (“Veteran was late to apt today, stating he has
been getting his appointments confused”); 968
(Titsworth called in saying he would not be in for groups
stating, “I'm too depressed”); 1159
(Titsworth failed to appear for appointment, having
“made the decision to go out of town in an impulsive
reported worsening symptoms in June 2014 to clinical social
worker, Ms. Erinn Tighe. Id. at 730-732. He stated
he was concerned about his medications and reported
“seeing light spots again” and “dark shapes
along the floor.” Id. at 730. Titsworth again
reported worsening symptoms in August 2014. Id. at
681-82. He again admitted to suicidal thoughts. Id.
at 670. Dr. Faryna increased the dose of topiramate and
continued him on sertraline and risperidone. Id. at
September 26, 2014, Titsworth again met with clinical social
worker Erinn Tighe. Id. at 660-662. He reported
anger outbursts. In October 2014, Ms. Tighe noted Titsworth
had stopped going to AA meetings. Id. at 638-640.
Titsworth stated “[h]e has not been able to get off the
couch, ” and reported having nightmares and
“larger ‘hallucinations' in peripheral
vision.” Id. at 638-40.
November 2014, Titsworth reported to Dr. Faryna he was
feeling depressed and did not feel he was getting any better.
Id. at 634-637. Dr. Faryna noted Titsworth
“may have some visual illusions” but not
“true visual hallucinations.” Id. at
634. In February 2015, Dr. Faryna again noted Titsworth was
not doing well, had poor motivation, and was spending a lot
of time on the couch. Id. at 590-592. He reported
anxiety, panic attacks, occasional hallucinations, seeing
shapes of “blobs” and sometimes the shape of a
person, and hearing noises but not voices. Id. at
March 2015, Titsworth reported problems with rage.
Id. at 527-533. Titsworth began participating in
group therapy and attended most of his scheduled groups, but
on occasion he left group early because he was feeling
anxious. Id. On March 25, 2015, Titsworth asked to
meet with social worker, Ms. Colleen Evans. Id. at
500-502. He reported he had not been eating or sleeping well.
Id. Two days later, Titsworth contacted the VA and
reported feeling depressed, anxious, stressed, and suicidal.
Id. at 495-497. He later met with Dr. Faryna and
reported he “blew up” at the nurses/staff at
Bergan Mercy Hospital the day before and indicated that he
was surprised he did not get arrested. Id. at 492.
On March 30, 2015, Titsworth reported being “afraid to
get off the couch” and missing meals. Id. at
487. He also reported difficulty making decisions.
April 2015, Titsworth reported lack of sleep due to
nightmares and so much anxiety he was unable get off the
couch. Id. at 455-456. Group therapy notes indicate
Titsworth had not engaged in group discussion and left group
early, appearing to struggle with the topics discussed.
Id. Titsworth sat with his head down and did not
participate in group discussion. Id. at 969-970. He
missed another appointment, stating he was “too
depressed.” Id. at 968. In August 2015,
Titsworth reported to Dr. Faryna his depression had worsened
and he stated he could not “get off the couch.”
Id. at 1046-1048. Dr. Faryna noted he was more
anhedonic and more unmotivated. Id. at 1046.
January 5, 2016, Titsworth reported to Ms. Evans that he was
having increased anger and incidents of rage. Id. at
1152. He also reported increased nightmares which are usually
related to his sexual assault. Id. Other evidence in
the record shows Titsworth is prone to rage and anger
outbursts and is limited in his ability to recognize hazards.
See, e.g., Id. at 491-494 (indicating Titsworth
“blew up” a the nursing staff and “he is
surprised that he did not get arrested”); 564-576
(Titsworth had suicidal thoughts and stated he was
“close to pulling the trigger”); 681-684
(Titsworth got lost driving in St. Louis on his way back from
Illinois even though he had been there many times before and
normally knows his way around the city); 943-946 (Titsworth
reported he “raged on a guy”); and 1152
(Titsworth became angry with another driver and got out of
his car to confront the person).
Veterans Administration Rating
also applied to the VA for a service connected disability.
See Id. at 178. On June 19, 2014, Titsworth
underwent a Veterans Administration Compensation and Pension
(“C&P”) examination for PTSD conducted by
clinical psychologist John P. Engler, Ph.D. Dr. Engler found
Titsworth had a diagnosis of PTSD that conformed to DSM-5
criteria based on the examination and also noted
“[v]eteran has been given diagnosis of Unspecified
Depressive Disorder in the past which is being considered as
part of the PTSD symptomology at this time.”
Id. at 713. He concluded that Titsworth's level
of occupational and social impairment due to his condition
was “[o]ccupational and social impairment with reduced
reliability and productivity”. Id. at 713-714.
Dr. Engler also found it “at least as likely as not the
[military sexual trauma] stressor noted in the examination by
the veteran of being held and raped while he was stationed at
Chanute AFB and living in the dorm, has resulted in current
PTSD diagnosis and symptoms.” Id. at 726.
April 29, 2015, Titsworth met with Dr. Matthew Peter for a VA
examination. Id. at 943-946. Dr. Peter's notes
show that Titsworth reported persistent symptoms since the
sexual assault 37 years before, and stated the symptoms had
worsened over the previous 10 years, “significantly
impacting his daily functioning.” Id. at 943.
Dr. Peter noted the assault experience led to pronounced
substance abuse and Titsworth's eventual discharge from
the service. Id. Titsworth reported a suicide
attempt in 1980. Id. at 944. Titsworth described
himself as significantly withdrawn from others, unable to
associate with friends or go to AA meetings as a result of
anxiety. Id. Titsworth described “pronounced
anxiety occurring daily and often including panic attacks of
varying intensity” that had “dissipated slightly
over the past several months with medication but continue to
occur more than once per week.” Id. at 944. He
reported difficulty participating in AA because of
hypervigilance and noting that “I raged on a guy”
the last meeting he attended. Id. at 945. He also
reported seeing moving “grey blobs”. He reported
he is often unable to tolerate work conditions for more than
one hour and that he is often engaged in conflict with
coworkers when not working in an isolated setting.
Id. Dr. Peter found Titsworth demonstrated a wide
range of symptoms associated with PTSD. Id. He
appeared distracted and had difficulty concentrating.
first found Titsworth fifty-percent disabled as a result of
PTSD, but Titsworth disagreed with that evaluation and sought
review by a Decision Review Officer. Id. at 178. On
review the VA increased Titsworth's disability rating
from fifty-percent to one hundred percent. Id. at
178-221. The rating decision was based on the report from Dr.
Peter and on Titsworth's:
-Intermittent inability to perform activities of daily living
-Total occupational and social impairment
-Intermittent inability to perform maintenance of minimal
-Memory loss for names of close relatives
-Difficulty in adapting to work
-Neglect of personal appearance and hygiene
-Obsessional rituals which interfere with routine activities
-Near-continuous panic affecting the ability to function