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Merrell v. Berryhill

United States District Court, E.D. Arkansas, Jonesboro Division

April 23, 2018

HOWARD MERRELL PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT

          MEMORANDUM OPINION AND ORDER

         Plaintiff Howard Merrell (“Merrell”) began this case by filing a complaint pursuant to 42 U.S.C. 405(g). In the complaint, he challenged the final decision of the Acting Commissioner of the Social Security Administration (“Commissioner”), a decision based upon the findings of an Administrative Law Judge (“ALJ”).

         Merrell maintains that the ALJ's findings are not supported by substantial evidence on the record.[1] Merrell so maintains because his residual functional capacity was erroneously assessed. It is his position that a “therapist and treating physician both opined that [Merrell] could not work, and the ALJ pointed to no evidence contradicting their opinions.” See Docket Entry 13 at CM/ECF 35. Merrell also maintains that the record casts great doubt on his ability to perform the standing and walking requirements of light work and his ability to maintain adequate concentration, persistence, and pace.

         Merrell was born on December 17, 1970, and was thirty-eight years old on November 22, 2009, i.e., the day he allegedly became disabled. He filed his application for supplemental security income payments on March 31, 2015, and alleged that he became disabled as a result of impairments that included congestive heart failure, lymphoma, diabetes, sarcoidosis, high blood pressure, joint stiffness, arthritis, neuropathy, chronic pancreatitis, and hepatitis C. The ALJ denied the application on August 24, 2016. The relevant period in this case is therefore from March 31, 2015, through August 24, 2016. The Court will nevertheless briefly review the evidence prior to March 31, 2015, for the purpose of placing his application in an historical context.

         Merrell has ably summarized the evidence in the record, and the Commissioner has not challenged the summary. It will not be reproduced, except to note several matters germane to the issues raised in the parties' briefs.

         The record reflects that on May 13, 2014, Merrell presented to the Harris Hospital with complaints of an altered mental state. See Transcript at 345-347. He was unable to provide a medical history, and his failure to do so was attributed to possible drug use. He did report, though, that he had experienced similar episodes in the past. An impression of psychosis was made, but no medication was prescribed. He was discharged to a “correctional facility.” See Transcript at 347.

         Merrell returned to the Harris Hospital the following day with suicidal ideation but no formulated plan. See Transcript at 355-359. He also complained of pain throughout his body. Suicidal ideation, diabetes with hyperglycemia, and homicidal ideation were diagnosed, and he was transferred to the University of Arkansas for Medical Science (“UAMS”).

         Merrell was hospitalized at UAMS from May 14, 2014, through May 19, 2014. See Transcript at 519-526. He complained of vivid nightmares involving murder and mutilation, expressed homicidal and suicidal ideations, and admitted to previous suicide attempts. He reported that his symptoms had grown worse since he stopped taking hydrocodone and Xanax. He reported chronic pain as his primary stressor. Post-traumatic stress disorder, a psychotic disorder, and amphetamine use in remission were diagnosed. He was assigned a Global Assessment of Functioning (“GAF”) of forty-five and prescribed medications that included Celexa, Haldol, Minipress, and Desyrel.

         Merrell was thereafter seen by the professionals at Daysprings Behavioral Health/Health Resources of Arkansas (“Daysprings”) for his mental impairments on several occasions prior to the date he filed his application. See Transcript at 789-794 (06/04/2014); 798-801 (08/18/2014); 839-841 (08/19/2014); 802-805 (11/12/2014); 806-810 (02/09/2015); 851-853 (02/13/2015). He reported visions, nightmares, hallucinations, spiritual visitations, and homicidal ideations. He also reported a history of drug and alcohol abuse, as well as a history of physical abuse. His symptoms caused him anxiety and prevented him from sleeping at night. He was diagnosed with paranoid schizophrenia and post-traumatic stress disorder. He was continued on his prescription medications. His GAF was in the forty-five to fifty range.

         On April 6, 2015, or after Merrell filed his application, he sought mental health treatment at the Harris Hospital. See Transcript at 369-370. He reported hearing voices and smelling decomposing corpses. He had been using illegal substances and had not had Haldol for several days. He left the hospital against medical advice, reporting that he wanted to go home and sleep in his own bed where he felt safe.

         Merrell was thereafter seen by the mental health professionals at Daysprings for his mental impairment on multiple occasions.[2] See Transcript at 811-813 (04/07/2015); 814-818 (05/18/2015); 862-864 (06/16/2015); 865-869 (08/06/2015); 870-874 (08/18/2015); 1030-1031 (08/28/2015); 1028-1029 (09/04/2015); 1026-1027 (09/11/2015); 1024-1025 (09/18/2015); 1022-1023 (10/02/2015); 1020-1021 (10/09/2015); 1018-1019 (10/23/2015); 1016-1017, 1010-1015 (10/30/2015); 1007-1009 (11/03/2015); 1005-1006 (11/15/2015); 1003-1004 (11/20/2015); 1001-1002 (12/04/2015); 999-1000 (12/11/2015); 997-998 (12/18/2015); 1047 (01/08/2016); 1045-1046 (02/05/2016); 1037-1038 (02/26/2016); 1035-1036 (03/11/2016). His symptoms continued to persist, symptoms that included visions, nightmares, and hallucinations. He reported, though, that his medication helped reduce the frequency and severity of the episodes. He also reported that music, specifically playing with his band, helped reduce the frequency and severity of the episodes and helped relieve his anxiety. There appears to have been a situational component to Merrell's anxiety as he was oftentimes worried about his physical health and about meeting his child support obligations. He continued to be diagnosed with paranoid schizophrenia and post-traumatic stress disorder, and he was continued on his prescription medications. His GAF was repeatedly in the forty-five to fifty range.

         On December 11, 2015, or during the period Merrell was being seen at Daysprings, Tammi Ivy (“Ivy”), a Daysprings therapist, wrote a letter to the Jackson County, Arkansas, Child Support Enforcement Office on behalf of Merrell. In the letter, Ivey represented the following:

This letter is in regards to ... Merrell. He is currently receiving mental health services through our Newport Clinic and has been doing so since May of 2014. His current diagnosis is Schizophrenia and Post Traumatic Stress Disorder. Services that he receives includes weekly individual psychotherapy and mental health paraprofessional services as well as medication management approximately once every 3 months. He is unable to maintain employment due to his physical and mental disabilities and is in the process of obtaining financial assistance through Social Security. ...

See Transcript at 934.

         Merrell was also seen for his physical impairments on several occasions prior to the date he filed his application. For instance, he presented to the Harris Hospital on April 17, 2014, complaining of pain and swelling in his feet. See Transcript at 382-385, 387-389. He also reported pain in his hips that made it difficult to walk. A CT scan of his right foot suggested the presence of gout. A right foot irrigation was performed, as was a debridement of his right foot abscess. See Transcript at 338-339. A CT scan of his pelvis revealed some arthritis and bursitis. See Transcript at 336. He was diagnosed with diabetic foot ulcer/abscess, diabetes mellitus with uncontrolled neuropathy, and a history of recurrent Hodgkin lymphoma. He was prescribed medication that included Levemir and Norco and instructed to use a walker.

         Merrell also sought treatment for complaints that included abdominal pain, high blood sugar, shortness of breath, arthralgia, lymphadenopathy, and pain in his lungs. See Transcript at 619-624 (06/24/2014), 614-618 (09/03/2014), 609-613, (10/02/2014), 604-608 (01/02/2015). A chest x-ray showed no acute process. See Transcript at 665-666. His joint pain, identified at times as arthritis and/or arthralgia, was attributed to sarcoidosis. He was prescribed prednisone. When it proved to be ineffective, he was encouraged to see a rheumatologist.

         On April 2, 2015, or after Merrell filed his application, he saw a rheumatologist for immunosuppression with disease-modifying, anti-rheumatic drugs. See Transcript at 597-603. A physical examination revealed no swelling or tenderness in his joints and no weakness in his lower extremities. X-rays of his feet showed erosive arthropathy and possible gout. See Transcript at 657-658. X-rays of his ankles were unremarkable. See Transcript at 659-660. A pelvic x-ray indicated degenerative arthrosis of the hips, see Transcript at 661-662, and a lumbar x-ray indicated mild multilevel discogenic degenerative changes, osteophytosis, and some facet arthropathy, see Transcript at 663-664. A subsequent x-ray showed degenerative disease of the thoracic spine. See Transcript at 379-380. Merrell was diagnosed with impairments that included congestive heart failure, diabetes, neuropathy, and sarcoidosis. He was continued on medication and referred to other professionals for a more thorough evaluation of his impairments.

         Merrell was thereafter seen for his physical impairments on multiple occasions. See Transcript at 591-596, 577-590 (05/04/2015);573-577, 651-652 (05/19/2015); 755-781 (06/16/2015); 770-774 (08/04/2015); 823-827 (08/05/2015); 957-962 (10/05/2015); 882-888, 894-896, 900 (10/05/2015-10/07/2015); 1467 (10/08/2015); 1428 (10/09/2015); 1417 (10/13/2015); 1405-1406 (10/16/2015); 1394 (10/20/2015); 1383 (10/22/2015); 1372 (10/27/2015); 986-992 (10/28/2015); 1361 (10/30/2015); 1350 (11/06/2015); 877-888 (11/10/2015); 1334 (11/13/2015);1323 (11/20/2015); 1312 (11/25/2015); 1301 (11/30/2015); 952-956 (12/02/2015); 1267 (12/09/2015); 1255 (12/16/2015); 936-947, 950-951 (12/17/2015); 1243 (01/06/2016); 1558-1562 (01/08/2016); 1231 (01/13/2016); 1218-1219 (01/28/2016); 1552-1556 (02/01/2016); 1192 (02/02/2016); 1181 (02/05/2016); 1169 (02/10/2016); 1157 (02/12/2016); 1146 (02/15/2016); 1135 (02/19/2016); 1124 (02/22/2016); 1113, 1566 (02/25/2016); 1547-1551 (03/01/2016); 1102 (03/02/2016); 1091 (03/08/2016); 1569-1572 (03/23/2016); 1080 (03/25/2016); 1543-1546 (05/10/2016); 1539-1542 (05/24/2016); 1573-1575 (05/18/2016). The progress notes reflect that Merrell continued to experience joint pain believed to be caused by sarcoidosis but reported some benefit from methotrexate and other medications. He complained of numbness, tingling, and pain in his arms and legs and was treated for ...


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