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Titsworth v. Berryhill

United States District Court, D. Nebraska

August 16, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          Joseph F. Bataillon Senior United States District Judge

         The 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).

         I. BACKGROUND

         A. Procedural history

         The 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.

         Titsworth's 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[2]. 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).

         B. Testimony at Administrative Hearing

         A 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 anxiety. Id.

         Titsworth 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. at 48.

         He also 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.

         He 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.

         A 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.

         C. Medical Evidence

         Titsworth 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.[3] 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.

         In 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.

         Titsworth 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 manner.”)

         He also 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 682.

         On 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.

         In 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 590.

         In 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. Id.

         In 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.

         On 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).

         D. Veterans Administration Rating

         Titsworth 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”)[4] 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.

         On 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. Id.

         The VA 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 personal hygiene
-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
-Spatial disorientation
-Near-continuous panic affecting the ability to function independently, ...

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