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Arrion J. Rose v. Michael J. Astrue

December 7, 2010

ARRION J. ROSE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, ELECTRONICALLY FILED COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

OPINION

I.INTRODUCTION

Plaintiff, Arrion J. Rose ("Rose"), brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final determination of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("Act").

42 U.S.C. §§ 401-433, 1381-1382f. Before this Court are cross-motions for summary judgment filed pursuant to Federal Rule of Civil Procedure 56. The record has been developed at the administrative level. For the reasons that follow, the decision of the Commissioner will be affirmed.

II. PROCEDURAL HISTORY

Rose protectively filed for DIB and SSI on April 17, 2007, alleging disability as of May 1, 2005. (Record of Rose v. Astrue, 11, 86-96, 111, 115)(hereinafter "R."). Rose alleged disability due to schizophrenia and depression. R. 115, 115. The applications were administratively denied on August 24, 2007. R. 47-58. Rose filed a timely request for an administrative hearing. R. 59. On February 4, 2009, a hearing was held before Administrative Law Judge Michael F. Colligan ("ALJ"). R. 25-46. Rose, who was represented by counsel, appeared and testified. R. 25-40. Mike Rose, Rose‟s father, also testified. R. 41-42. Additional testimony was taken from Ms. Crewell, an impartial vocational expert ("VE"). R. 42-44.

In a decision dated March 27, 2009, the ALJ determined that Rose was not "disabled" within the meaning of the Act. R. 8-24. The Appeals Council denied Rose‟s request for review on August 26, 2009, thereby making the ALJ‟s decision the final decision of the Commissioner.

R. 1-3. Rose commenced the present action on October 30, 2009, seeking judicial review of the Commissioner‟s decision. (Doc. No. 1). Rose and the Commissioner filed motions for summary judgment on July 15, 2010, and August 16, 2010, respectively. (Doc. Nos. 11 & 14). These motions are the subject of this memorandum opinion.

III. STATEMENT OF THE CASE

Rose was thirty years of age at the time of his hearing before the ALJ. R. 24, 88, 96. He was classified as a "younger person" under the Commissioner‟s regulation. R. 24. He had a high school education and the ability to read and write English. Id. In his claim for benefits, Rose submitted evidence of schizophrenia and depression. R. 86-98.

Rose sought treatment from Paul Soloff, M.D., beginning on January 23, 2007. R. 175. Rose reported that he was paranoid toward others. Id. Dr. Soloff examined Rose and found him to be alert and cooperative with normal speech and thought processes. R. 176. Rose did not exhibit any hallucinations or untoward depression or anxiety. Id. Rose was diagnosed with schizoaffective disorder and was prescribed Prozac and Risperdal. R. 175-76. Dr. Soloff indicated that Rose understood his symptoms and vulnerabilities. R. 176.

During Dr. Soloff‟s second examination, approximately four months later, Rose complained of paranoia and suspiciousness. R. 265. He was alert and cooperative with normal speech and thought processes. Id. Dr. Soloff indicated that Rose was unduly suspicious and paranoid of others, but that he had no delusions or specific plans. Id.

On June 25, 2007, Charles M. Cohen, Ph.D., a psychologist, examined Rose at the request of the state agency. R. 178-86. Rose relayed to Dr. Cohen that his mood was "good" and that his belief that people were conspiring against him was not as prevalent as it had been and that he tried not to let it affect his behavior. R. 179. Rose stated he slept well, but described his energy as "somewhat low". R. 180. Rose indicated that he had "no other complaints in terms of his mental health symptoms." R. 179.

Upon examination, Dr. Cohen found Rose to be friendly and cooperative, but slightly evasive. R. 180. Rose made eye contact and appeared to be relaxed. Id. He communicated with appropriate language, but somewhat overly elaborated speech. Id. Rose‟s affect was euthymic and he did not appear depressed or anxious. Id. Rose also had an average general fund of information and normal abstract reasoning. R. 181. Dr. Cohen indicated that Rose remained goal-oriented and coherent throughout the examination with normal thought productivity. R. 180.

Dr. Cohen indicated that Rose suffered from paranoia and believed that people and collective groups may be out to "get him". R. 180. Rose did not endorse any suicidal or homicidal ideations. Id. Dr. Cohen noted Rose had poor judgment, a fair to marginal ability to handle stress and "fairly good" concentration and task persistence. R. 182. Dr. Cohen opined that Rose‟s reliability was questionable. R. 181.

Rose‟s prognosis was guarded and Dr. Cohen noted that "this is a difficult call for me from a disability point of view." R. 182. Dr. Cohen concluded that Rose suffered from symptoms of his mental health impairment, but "they do not appear to be so severe at this point as to preclude all employment." R. 183. Dr. Cohen completed a Medical Source Statement of Ability to do Work-Related Activities (Mental) indicating that Rose had moderate limitations in his ability to understand, remember and carry out short, simple instructions; make judgments on simple work-related decisions; interact appropriately with supervisors and co-workers, and respond appropriately to changes in a routine work setting and work pressures in a usual work setting. R. 185. Dr. Cohen determined that Rose had marked limitations in his ability to understand, remember, and carry out detailed instructions and interact appropriately with the public. Id.

Ray M. Milke, Ph.D., a psychologist, reviewed Rose‟s record and completed a Mental Residual Functional Capacity Assessment on August 6, 2007. R. 201-04. Dr. Milke determined that Rose had mild restrictions in his activities of daily living, marked difficulty in social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. R. 197. Dr. Milke was unable to determine if Rose had experienced "repeated episodes of decompensation, each of extended duration" because of insufficient evidence. Id.

Dr. Milke also evaluated Rose‟s residual functional capacity ("RFC"). R. 203. Dr. Milke determined that Rose had marked limitations in his ability to handle complex or detailed instructions and needed limited interaction with the public. Id. Rose was also found to have an impaired ability to function socially and difficulty working with or near other employees without being distracted. Id. Rose‟s frustration tolerance was low and he had a paranoid quality to his behavior. Id. Stress was noted to exacerbate his symptoms. Id. Dr. Milke concluded that Rose‟s limitations resulting from his mental impairment did not preclude him from "performing the basic mental demands of competitive work on a sustained basis." Id.

Rose met with a therapist at Western Psychiatric Institute and Clinic ("WPIC") between April and July 2008. R. 251-66. Throughout the individual therapy appointments, Maritza Daniels, MSW, observed Rose to be cooperative with normal speech, a neutral to full affect, and fairly good eye contact. R. 256, 258, 260, 262, 264. However, Rose was racially preoccupied and paranoid. R. 262. Ms. Daniels also found Rose to be guarded and his conversation was limited to the most immediate concerns. R. 264. At times, Rose had slightly disorganized speech. R. 256, 258.

On September 11, 2008, Ms. Daniels noted that she had been unable to contact Rose. R. 255. Ms. Daniels telephoned Rose‟s mother who informed her that Rose had been decompensating for the "last four weeks and that he [had become] progressively worse." Id. Mrs. Rose reported her son was disorganized, experiencing visual and auditory hallucinations, and was stripping naked. Id. Rose refused to be evaluated and Ms. Daniels urged Mrs. Rose to contact Mobile Crisis. Id. Ms. Daniels also reminded Mrs. Rose that she could call the police if Rose became threatening. Id. On September 15, 2008, Ms. Daniels telephoned Mrs. Rose who relayed that Rose had been missing for several days and the family had called Washington County police to determine their 302*fn1 guidelines. R. 254.

On September 13, 2008, Rose was admitted to the Washington Hospital. R. 231. Doctors noted that Rose had not been taking his prescribed psychotropic medications. Id. Rose appeared paranoid and disorganized. Id. He presented with "very bizarre behavior" and continued to refuse medication. Id. Rose was diagnosed with paranoid schizophrenia and eventually placed on Prozac and Risperdal. Id. Abilify was added and he was given injections of Risperdal Consta and required one Geodon injection for break-through psychosis. Id.

o the person has attempted suicide or the person has made threats to commit suicide and committed acts in furtherance of the threats; or o the person has mutilated himself/herself or the person has made threats to mutilate themselves and committed acts in furtherance of the threats.  Danger to others shall be shown by establishing that within the previous 30 days the person has inflicted or attempted to inflict serious bodily harm on another or has threatened serious bodily harm and has committed acts in furtherance of the threat to commit harm to another.

Because this commitment is involuntary it may require the assistance of family, crisis professionals, police, ambulance and any ...


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