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Marchel v. Berryhill

United States District Court, W.D. Wisconsin

July 16, 2018

AMY MARCHEL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Amy Marchel is seeking review of a final decision denying her claim for disability insurance benefits under the Social Security Act. 42 U.S.C. § 405(g). Plaintiff contends that she has been disabled since 1991 because of numerous impairments, including depression, anxiety, bipolar disorder and a learning disability. The administrative law judge concluded that even though plaintiff has several severe and non-severe impairments, she is not disabled because she can perform medium exertional work with limitations. As explained below, I agree with plaintiff that the administrative law judge did not give an adequate explanation for discounting the opinion of plaintiff's treating psychiatrist and failed to conduct a proper credibility analysis. However, I must deny plaintiff's request to award benefits outright. Although I am loathe to extend this litigation further, there are factual issues that must be addressed by an the Social Security Administration. Therefore, I am remanding this case for further proceedings. Allord v. Astrue, 631 F.3d 411, 418 (7th Cir. 2011) (social security case must be remanded for further proceedings if factual issues remain unresolved).

         The following facts are drawn from the administrative record (AR) and supplemental administrative record (Suppl. AR).


         A. Social Security Applications and Background

         Plaintiff Amy Marchel was born on March 7, 1973. She first filed for disability insurance and supplemental security benefits in November 2005, contending that she had been disabled since March 1, 1991 because of depression, anxiety, post-traumatic stress disorder and a learning disability. AR 770. Her application was denied initially and on reconsideration in 2006, and she requested a hearing before an administrative law judge. A hearing was held on February 10, 2009, with an unfavorable decision issued on May 5, 2009. AR 770. Plaintiff appealed to the Appeals Council in March 2010, which denied review in December 2010. She then filed suit in this court in January 2011.

         Meanwhile, plaintiff filed a second application, in June 2009, alleging disability as a result of depression, anxiety, bipolar disorder and a learning disability. That application was denied upon initial review in September 2009 and upon reconsideration in February 2010. A hearing on plaintiff's second application was held in May 2011 and a second unfavorable decision was issued the following month. AR 14-27. Plaintiff appealed that decision to the Appeals Council in July 2011 and the Appeals Council again denied review. AR 1. Plaintiff filed a lawsuit in this court in 2012 challenging the decision with respect to her second application.

         Plaintiff later filed a third application for disability benefits, alleging disability as a result of depression, anxiety, bipolar disorder, a learning disability and asthma. The third application was denied upon initial review in April 2012 and upon reconsideration in May 2013.

         In November 2012 and February 2013, I reversed the administration's decisions denying benefits and remanded plaintiff's claims to the commissioner for further administrative proceedings. AR 632-40. In August 2013, the Appeals Council directed the administrative law judge to consolidate all of plaintiff's claim files, make one record and issue a new decision on the consolidated claims, based on the applications filed on November 29, 2005. AR 648.

         On January 12, 2015, a hearing was held before Administrative Law Judge Thomas Springer in Wausau, Wisconsin, at which plaintiff was present and represented by counsel. AR 580-628. On February 24, 2015, the administrative law judge concluded that plaintiff was not disabled. AR 767-788. The Appeals Council denied plaintiff's request for review, making the hearing decision the final decision of the commissioner.

         B. Overview of Medical Problems and Treatment

         Plaintiff has a history of depression, with treatment records dating back to 2001. In December 2004, she was hospitalized for three days for depression and suicidal thoughts. Suppl. AR 267. Her diagnosis was “major depression, recurrent moderate to severe” and “posttraumatic stress disorder chronic with continued symptoms.” Suppl. AR 267. She was hospitalized again between May 2 and May 5, 2006 for major depression and generalized anxiety disorder with panic attacks. Suppl. AR at 307. From 2005 through 2008, she received mental health services through Portage County Health and Human Services, Suppl. AR at 364-370, 304, 382-95, 402-22, as well as therapy sessions at Children's Service Society of Wisconsin during this time. Suppl. AR at 297-303, 518-21. From February 2007 to November 2008, plaintiff had more than 30 visits to a doctor or to other care providers at Portage County. AR 477-522, 461-465. At various appointments, she was given a diagnosis of bipolar disorder, depression and generalized anxiety disorder. Suppl. AR at473; AR 1122.

         Plaintiff had an eight-session psychological evaluation in 2006, ordered by the court as a condition for returning her children to her care. Suppl. AR 453-55. The evaluator found that plaintiff met the criteria for major depressive disorder and borderline personality disorder. Suppl. AR at 455. On the Wechsler Adult Intelligence Scale-3, she had a verbal IQ of 70, a performance IQ of 100 and a full IQ of 91. Suppl. AR at 454. The evaluator found her skill level in all three areas well below average and her skills significantly deficient. Id. The Minnesota Multiphase Personality Inventory-2 profile showed that plaintiff was experiencing a significant level of depression and anger, difficulty with trust, feelings of insecurity and at high risk for abusing alcohol or drugs. Id. However, the evaluator also stated that plaintiff's profile showed an “unusual number of psychological symptoms” and might be “invalid, ” either because of plaintiff's poor reading ability, confusion, disorientation, stress, exaggeration or malingering. Suppl. AR 425.

         In August 25, 2008, plaintiff saw Barbara Schira, APN-P, BC at Portage County Health and Human Services. AR 466-67. Plaintiff told Schira that she was feeling overwhelmed by the amount of hours she was working at Goodwill Industries and that she wanted to work only 20 hours because she had family and other obligations and because she was concerned that she would end up back in the hospital if she worked more. Schira found plaintiff in a good mood but “overwhelmed with working too much and anxious.” Id. She restricted plaintiff to 20 hours of work a week. Id. Plaintiff continued receiving treatment for depression and mental health problems throughout 2009, 2010, 2011 and 2012, with periodic appointments to check and adjust her medications. At some appointments, plaintiff reported doing well, while at others, she reported having racing thoughts and feeling depressed and suicidal. AR 564-57, 1356, 1515-30.

         In 2012, plaintiff saw Dr. Maureen Leahy, a psychiatrist with Portage County, for several appointments. In early 2012, plaintiff reported feeling depressed, having racing thoughts and trouble sleeping and managing her medication. AR 1516-18. In April 2012, Dr. Leahy noted that plaintiff could not afford her medications. AR 1522. Leahy made several adjustments to plaintiff's medications throughout 2012. In April 2012, Leahy called plaintiff's employer to state that plaintiff could not work more than 15 hour a week. Id. In May 2012, Leahy noted that plaintiff was “finally stabilizing after a prolonged hypomanic episode, ” with sleep, appetite and energy all within normal limits. AR 1524. However, in June 2012, plaintiff was again having racing thoughts and difficulty sleeping. AR 1525. Her troubles continued into July 2012, when she reported going days without sleeping at all. AR 1526. In October and November 2012, plaintiff had appointments with Dr. Leahy at which she reported having racing thoughts, trouble sleeping, panic attacks, difficulty concentrating and trouble with her medication. AR 1529-30.

         In November 2012, plaintiff was hospitalized for several days after threatening to stab herself with a knife. AR 1370. After she was released, she felt better, but still had racing thoughts and depression. AR 1402. Later in November 2012, Dr. Leahy noted that plaintiff was experiencing fluctuating moods, from severe depression to agitation, racing thoughts and hypomania. AR 1531. Leahy also noted that plaintiff could not afford a sleep medication that had been helping her, and that plaintiff “continue[d] to minimize her symptoms.” Id. Plaintiff reported feeling better during an appointment in December 2012, but shortly thereafter was struggling again with racing thoughts and concentration. AR 1533-38. Dr. Leahy recommended that plaintiff try lithium, but plaintiff was afraid to do so. AR 1538.

         Between January and April 2013, plaintiff had trouble with racing thoughts and anxiety, despite being on two antipsychotic medications and a mood stabilizer. AR 1541-42. Her mood improved in late 2013, and she remained stable throughout much of 2014. However, in August 2014, plaintiff was again admitted to the hospital because of suicidal thoughts, reporting that she had been depressed and contemplating suicide for the last ...

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