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Pingel v. Colvin

United States District Court, E.D. Wisconsin

January 20, 2016

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


WILLIAM C. GRIESBACH, Chief District Judge.

On July 2, 2010, Plaintiff Matthew Pingel filed an application for disability and disability insurance benefits alleging disability beginning October 10, 2005. His date last insured is September 30, 2008. Plaintiff's application was denied initially and on reconsideration. Following a hearing on September 10, 2013, an administrative law judge (ALJ) found the medical evidence to show that Plaintiff has affective and anxiety disorders in addition to polysubstance dependence. However, the ALJ also found Plaintiff to be not entirely credible and held that Plaintiff was not disabled within the meaning of the Social Security Act as of his date last insured. The Appeals Council subsequently denied review, rendering the ALJ's decision the final decision of the Commissioner. Plaintiff filed this action for judicial review. For the reasons given below, the decision of the Commissioner will be reversed and remanded.


Plaintiff was 20 years old and driving forklift at Borden's dairy plant when on October 6, 2005, he became acutely unresponsive and catatonic, resulting in his employer sending him to an urgent care center. At the hospital Plaintiff could only slowly follow commands, could not provide a medical history, moved little, and struggled to respond to questioning. (R. 359, 365-66, 361-62). A urine drug screen and all other testing returned negative results. (R. 359). In the week before the hospitalization, Plaintiff had been increasingly unresponsive and nonverbal while at home and at work. Plaintiff received inpatient treatment from October 6, 2005 through October 23, 2005. With medication, he began talking again after receiving individual psychiatric care and counseling. Plaintiff eventually disclosed to his mother that his difficulties were precipitated by harassment at work by the father of one of his high school friends. (R. 380.) The medical center's final diagnosis included findings of catatonia and a psychotic disorder, with a global assessment functioning (GAF) of 25 to 30 on admission and 55 to 60 on discharge. (R. 356.) Plaintiff was discharged with a plan for close outpatient follow up and prescription medications (Effexor, Zyprexa, Risperdal, and Cogentin). He was also told to abstain from driving, alcohol, and drugs, with cautions about operating machinery. (R. 357.)

Plaintiff's treating psychiatrist, Stephen Krummel, M.D., and therapist, Audrey Aardappel M.S.W., L.C.S.W., continued to see Plaintiff on an out-patient basis after his discharge from the hospital on October 23, 2005. Ms. Aardappel assigned him a GAF score of 65 by February 2006, noting his communication difficulties but also recognizing his goal-directed thought processes. By April 6, 2006, Plaintiff indicated that he felt "75% himself." Plaintiff was driving again and stated he had been to Florida with his family over the last month and had a good time visiting some amusement parks, like Busch Gardens. (R. 384.) Although Ms. Aardappel's May 8, 2006 note indicates a reluctance on Plaintiff's part to go back to work at the dairy plant (R. 387), he did return by early June. Dr. Krummel noted in May 2006 that Plaintiff was doing fine and in good spirits. He denied being depressed, his affect brightened and his mood was normal with no thought disorder or psychosis. (R. 394.)

The following month, Dr. Krummel noted that Plaintiff continued to do well. Plaintiff had been back to work for three weeks and reported no problems driving a forklift and doing what he had to do. Plaintiff seemed quite happy and denied any problems with fatigue or motor coordination. He denied any depression and said he had been doing some fishing on weekends. He reported no problems with his medications. On mental status, Dr. Krummel noted Plaintiff's affect appeared mildly restricted and he was a bit quiet, but "does brighten when discussing work." (R. 396).

In July 2006, Dr. Krummel noted that Plaintiff had some difficulty moving to third shift at work. He got anxious and had difficultly sleeping during the day. He went home after vomiting earlier in the week and thought it might have been the heat. Otherwise, his moods had been pretty good and he had not been having any psychotic symptoms. On mental status exam, Dr. Krummel noted that Plaintiff looked quite good, his affect was bright, and his mood was normal. He was talkative and showed no signs of depression. There was some discussion of medically restricting him to first or second shift, but Plaintiff wasn't sure there would be work for him and wanted to try going back on third shift. Dr. Krummel added a prescription for 10 mg of Ambien for help with sleep and authorized a return to work on third shift to see if Plaintiff could adjust. (R. 397.)

On August 11, 2006, Plaintiff called Dr. Krummel after he tripped over some shoes in the locker room at work and strained his arm. Concerned that it might be medication-related, Dr. Krummel kept Plaintiff off of work until he could see him on August 23, 2006. At that time, Plaintiff appeared to be doing fine. He reported he had no problems running the forklift or doing other jobs at work. He reported no imbalance or dizziness, but Dr. Krummel lowered his medication dosages slightly because he reported some mild tremors. Again, he was pleasant with bright affect and mood normal. (R. 400.)

Plaintiff's last therapy session with Ms. Aardappel was on September 12, 2006. He told her he had some difficulties but overall was doing well at work. He did not like changing shifts but was coping with it, and was interested in finding a girlfriend. He felt comfortable and, with the agreement of Ms. Aardappel, concluded he was no longer in need of therapy. (R. 393.)

Shortly thereafter, Plaintiff was laid off or terminated from his job at the dairy plant. When he next saw Dr. Krummel on November 13, 2006, he was still out of work, but seemed to be doing well. He had had no problems with depression, being withdrawn, or paranoia. He denied any problems with his medications and stated he planned on attending a job fair. Dr. Krummel noted that he is pleasant, his affect was bright and he was talkative. He was able to express what was going on, his thoughts were tracking well, and he did not appear depressed or paranoid. (R. 402.)

At this point, there is a gap in the treatment records. Plaintiff did not see Dr. Krummel again until August of 2007. On August 6, 2007, Plaintiff's mother called Dr. Krummel and reported that Plaintiff and his father got into a physical altercation, likely as a result of alcohol use, leading to Plaintiff being jailed. (R. 404-406.) Plaintiff came in to see Dr. Krummel the following week. Dr. Krummel noted in his report that Plaintiff had not been in for awhile. With respect to the fight with his father, Dr. Krummel noted that the two were apparently drinking and Plaintiff's father may have thrown the first punch. Plaintiff was upset because he could not find work. He had done some dishwashing but nothing more. He reported that he had been taking his medications and not drinking regularly. Though somewhat withdrawn with restricted affect, he denied ongoing depression, paranoia or psychosis. The following month, Dr. Krummel discharged Plaintiff from his care after Plaintiff attempted to forge a prescription for Oxycodone by adding the drug to a prescription for his other medications. (R. 408.)

Following his discharge by Dr. Krummel, Plaintiff's mother reported that Plaintiff became much worse without his medication. (R. 228.) On May 8, 2008, Plaintiff presented to Dr. Deubler, seeking medications for his nerves. Plaintiff noted he had not been taking his medications since about November 2007. (R. 441.) Dr. Deubler noted very poor communication skills, failure to complete sentences, and that Plaintiff seemed to stare right through him. Dr. Deubler diagnosed Plaintiff with psychological process and possible depression, and prescribed Effexor with a followup in two weeks.

Two weeks later on May 23, 2008, Dr. Deubler noted little change. Plaintiff's affect was unchanged and he continued to have problems with speech and completing sentences. Dr. Deubler increased Plaintiff's prescription for Effexor. (R. 443.) Dr. Deubler next saw Plaintiff on July 17, 2008, at which time he noted that Plaintiff continued to be almost nonverbal, requiring Dr. Deubler to get information from his mother. He notes Plaintiff had been given a one-week supply of Abilify 5 mg daily and was now seeking a prescription for 10 mg daily. Dr. Deubler wrote the prescription and gave them a sample kit for Effexor. Dr. Deubler also recommended to Plaintiff's mother that he be seen by a psychiatrist because his problems "are more than I can handle." (R. 445.)

Shortly thereafter, Plaintiff appeared to have moved from the Sheboygan area. Plaintiff presented to a new primary care physician at Family Health/La Clinica on December 31, 2008, because he was told he had high blood pressure while selling blood plasma. The report notes that he had a normal affect and ability to make good eye contact with slight nervousness or fidgeting. (R. 270.) At a follow-up appointment for his high blood pressure complaint on February 23, 2009, Dr. Fred Gross noted that Plaintiff's anxiety and depression were improved and he discussed with Plaintiff weaning him off of the Abilify and alprazolam. (R. 269.) On March 18, 2009, Plaintiff was seen for back pain after he slipped on ice. The following week Plaintiff was seen again for high blood pressure and indicated his anxiety is under decent control. (R. 267.) In August 2009, Plaintiff was seen for knee pain which he claimed started when he fell on his bike the previous winter.

Finally, on October 1, 2009, more than a year after his date last insured, Plaintiff had an office visit with his chief complaint concerning his mental health. According to the notes, Plaintiff was brought in by his mother's boyfriend with a report that he had been "going downhill psychologically over the last few months." (R. 265.) Dr. Gross spoke to Plaintiff's mother by phone and was told that, although Plaintiff has had fairly good success on Effexor and Abilify in the past, she was not sure if he was still taking his Effexor. He had not been taking the Abilify for at least six months, and his condition had deteriorated. According to his mother, Plaintiff had more recently been staring into space, talking about things that don't make sense, and acting as though things that happened long ago had just occurred. (R. 265.) Dr. Gross decided to restart Plaintiff on Effexor and Abilify, and wean him off of alprazolam. Ten days later, Plaintiff was much improved. He was much more verbal, coherent, and responsive to questions. (R. 264.) He reported that he was not so much depressed as just having difficulty putting thoughts and actions together.

The next entry isn't until June 3, 2010, for a skin problem. (R. 262.) Plaintiff complained of a lump on his chest. Though Plaintiff reported no depression or loss of interest in activities over the past two weeks, he was reminded to follow up with his primary care physician for his depression. He agreed to do so, but the visit dealt mostly with his plan to discontinue smoking. (R. 263.)

Between late 2009 and March of 2011, it appears that Plaintiff had a number of stays in the Waushara County Jail. (R. 303-29.) Over the next several years, Plaintiff's condition seems to have further deteriorated as he was in and out of jail and on and off his medication. On March 11, 2011, Waushara County jail officials referred Plaintiff for a mental health assessment noting that he appeared disoriented and unable to make sense or speak meaningfully. (R. 309.) A cerebral CT scan was performed at Wild Rose Community Hospital, which was essentially negative. (R. 302.) In May 2011 ...

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