Findings & Recommendation

THOMAS M. COFFIN, Magistrate Judge.

Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's applications for Disability Insurance Benefits and Supplemental Security Income.

FACTUAL BACKGROUND

The ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset date, May 12, 2012.

The ALJ found that plaintiff had the following severe impairments: Meniere's disease; diabetes mellitus, type II; hypertension; hyperlipidema; major depressive disorder; unspecified attention deficit hyperactivity disorder (ADHD); anxiety disorder; panic disorder with agoraphobia; and bilateral hearing loss treated with hearing aids.

The ALJ found that plaintiff had the residual functional capacity to perform light work, except that he could perform no telephone work. And that he must avoid even moderate exposure to workplace hazards. The ALJ found that plaintiff can understand, remember and carry out simple, routine, repetitive tasks and can have no more than occasional contact with coworkers, and no contact with the general public in a work setting.

The ALJ found plaintiff was unable to perform his past relevant work, but retained the ability to work as an assembler of small products or a sorter.

DISCUSSION

The Commissioner acknowledges numerous reversible errors made by the ALJ including, but not limited to, the mistaken consideration by the ALJ of some evidence that invaded a prior adjudication period. P. 2 of Defendant's Brief and Motion for Remand (#21).

The Commissioner concedes that reversal is appropriate, but "takes the position that the case should be remanded for further proceedings, because there are unresolved issues and a finding of disability would be inapposite." P. 2 of Defendant's Brief and Motion for Remand (#21). The Commissioner argues that further proceedings are necessary to clarify the period of adjudication, to reevaluate the opinion of treating psychiatrist Dr. Bonner, and to reassess plaintiff's testimony and lay witness testimony.

Plaintiff argues for the remand with an immediate award of benefits based on harmful legal errors made with regard to plaintiff's testimony and the opinion of treating psychiatrist Dr. Bonner.

Dr. Bonner and Dr. Northway

Treating psychiatrist Dr. Bonner completed a statement that plaintiff had been her patient since July, 2014. Her diagnosis was unspecified anxiety disorder, and persistent depressive disorder. Clinical findings included anxiety and agoraphobia. Plaintiff was afraid of people, could not work with the public or closely with others, and could not work in a crowd. He was afraid to leave home and would be absent more than two days per month. Dr. Bonner submitted a Mental Residual Functional Capacity Report in which she indicated that plaintiff was "markedly limited" in his ability to maintain attention and concentration for extended periods; perform activities within a schedule and maintain regular attendance; and sustain an ordinary routine without special supervision. He was "markedly" limited in his ability to interact appropriately with the public; respond appropriately to criticism from supervisors; and respond to workplace changes.

The ALJ stated:

Tr. 25.

Contrary to the ALJ's statement, Dr. Bonner's opinion was based upon her own clinical observations of plaintiff as well as upon the neuropsychological administered by Dr. Northway. In September of 2014, Dr. Bonner observed that plaintiff's thinking was illogical and tangential and he was making thinking errors. Tr. 455, 661. She also referred him to Dr. Northway for psychological testing after noting that plaintiff was making thinking errors, was illogical and tangential, and appeared "more obsessive in his thinking." Tr. 455, 661. Examining psychologist Dr. Northway found that plaintiff performed extremely poorly on measures of attention, vigilance and distractibility, and was in the severely impaired range with simple tracking, sequencing and mental efficiency Tr. 679. In personality testing, he found prominent signs of depression, peculiarities in thinking, a likelihood of poor social skills, and confused thought processes. Tr. 681. The ALJ gave the opinion of Dr. Northway great weight. Tr 24.

As for the ALJ's statement regarding public transportation, one of the limitations identified by Dr. Bonner was that plaintiff was markedly limited in his ability "to travel in unfamiliar places or to use public transportation." Tr. 648 (Emphasis added). Defendant argues that this opinion is inconsistent with plaintiff's report that he took a bus to medical appointments, or to shop or for food.

Plaintiff testified that he generally stays home as he finds it disorienting to be in situations with a lot of people and a lot of movement. Tr. 43. However, he does take the bus to medical appointments, or his daughter will pick him up and take him to lunch occasionally. Tr. 43.

Therefore, the evidence does show that plaintiff can take public transportation. However, the item that Dr. Bonner checked on the form with marked limitations addressed "travel to unfamiliar places" OR "to use public transportation." Tr. 648 (emphasis added)

In addition, Dr. Bonner identified many other "marked" limitations that are fully supported by the record, including the ability to maintain concentration and attention, perform activities within a schedule, sustain an ordinary routine without special supervision, or respond appropriately to criticism from supervisors. Tr. 646-647. These findings are fully supported by Dr. Northway's test results showing that plaintiff performed extremely poorly on a measure of sustained attention, vigilance and distractibility and had visual processing difficulties and poor ability to track that likely led to problems in recognizing social cues and maintaining normal conversation. Tr. 682-683.

The ALJ did not provide adequate reasons for rejecting the opinions of Dr. Bonner.1

Even if the ALJ's reasoning regarding travel was accepted, the other marked limitations Dr. Bonner identified independently support plaintiff's arguments.

Plaintiff's Testimony

Plaintiff testified that he has episodes of vertigo and loss of equilibrium that occur weekly, or sometimes monthly. At times, he hits the ground, dizzy and incapable of walking. These events create a feeling of anxiety and panic as he fears he will end up face down somewhere away from home. An anxiety attack will trigger a vertigo attack and vice versa. The spells of disequilibrium sometimes last 24 hours, but once lasted for six months. His panic attack lasts 20 minutes to an hour or sometimes three or four hours. He has extreme difficulty focusing and concentrating when he has a panic attack. When he is around a lot of people and a lot of movement, his head begins to swim. He stays home other than going to medical and counselor appointments, and occasionally his daughter takes him to lunch. He has difficulty interacting with others. He is easily agitated and does not feel any connection with people most of the time.

The ALJ gave five reasons for rejecting plaintiff's testimony: the record did not support the severity of symptoms; plaintiff had significant improvement of symptoms with medication; plaintiff's counselor, Clint Nelson, described plaintiff in a note as articulate, detailed and cognitively clear; 4) plaintiff's treatment had been very conservative and not the type expected for someone who is "totally disabled;" and plaintiff's activities indicate greater functioning than alleged. Tr. 22-24.

With one exception, the Commissioner offered no response to plaintiff's several argument's in his opening brief that persuasively demonstrated2 that the ALJ's reasons were not adequately clear and convincing to reject plaintiff's testimony.

The one response the Commissioner offered was related to the ALJ's statement that while the plaintiff reported frequent coordination, dizziness, balance issues, headaches, and loss of balance, the examinations had shown a normal gait, intact cranial nerves, motor strength and sensation. Plaintiff had noted in his opening brief that plaintiff's symptoms regarding Meniere's disease have varied over the course of the relevant period and at the time of the hearing, he was experiencing episodes of vertigo and loss of equilibrium weekly or sometimes monthly. The Commissioner appears to argue that there are places in the record where plaintiff reported only sometimes being in a spinning fog or off balance, or that he is still experiencing dizziness. While the reports are true, plaintiff does not claim to constantly have episodes of vertigo and the episodes had reduced to weekly or monthly occurrences by the time of the hearing. In addition, the findings noted by the ALJ do not conflict with the diagnosis of Meniere's disease, as the ALJ appeared to recognize elsewhere in her decision when the ALJ accepted the condition as a "severe" impairment at step two and ruled out even moderate exposure to workplace hazards at step four.

The ALJ made a harmful legal error by not providing clear and convincing reasons for rejecting plaintiff's testimony. The review of the record as a whole indicates that it has been fully developed, it is free from conflicts and ambiguities, and all essential factual issues have been resolved.3 The ALJ would be required to find plaintiff disabled on remand if the improperly credited evidence were credited as true. The record as a whole does not create serious doubt as to whether plaintiff is, in fact disabled. He is. As such, this court exercises its discretion to recommend the case be remanded for an award of benefits.

An additional and independent reason this case should be remanded for benefits is the harmful legal error the ALJ made by not providing adequate reasons for rejecting Dr. Bonner's opinion, as extensively discussed above. Again, the review of the record as a whole indicates that it has been fully developed, it is free from conflicts and ambiguities, and all essential factual issues have been resolved.4 The ALJ would be required to find plaintiff disabled on remand if this improperly credited evidence were credited as true. As noted, the record as a whole does not create serious doubt as to whether plaintiff is, in fact disabled. As such, this court exercises its discretion to recommend a remand for an award of benefits.

CONCLUSION

The decision of the Commissioner should be reversed and remanded for an immediate award of benefits pursuant to sentence four of 42 U.S.C. §405(g).