Tooker v. Berryhill

          RULING ON PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND ON DEFENDANT'S MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          Robert M. Spector United States Magistrate Judge.

         This action, filed under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeks review of a final decision by the Commissioner of Social Security [“SSA”] denying plaintiff Supplemental Security Income [“SSI”] and Social Security Disability Insurance [“SSDI”] benefits.

         I. ADMINISTRATIVE PROCEEDINGS

         On or about April 13, 2012, the plaintiff filed applications for SSI and SSDI benefits claiming that she has been disabled since October 17, 2009, due to “[c]hronic kidney issues, chronic pain, [post-traumatic stress disorder], anxiety, ” and “shoulder, neck, back and leg issues from numerous car [accidents].” (Certified Transcript of Administrative Proceedings, dated May 19, 2016 [“Tr.”] 253; see Tr. 224-39, 249-62). The plaintiff's applications were denied initially and upon reconsideration. (Tr. 66-89, 92-120, 144-51, 159-65; see generally Tr. 152-58, 271-84). On December 16, 2013, the plaintiff requested a hearing before an Administrative Law Judge [“ALJ”] (Tr. 166-67; see Tr. 168-69, 188), and on April 17, 2015, a hearing was held before ALJ Brian Curley, ^[2] at which the plaintiff and a vocational expert, Larry Takki, testified. (Tr. 36-89; see Tr.189-223). On May 20, 2015, the ALJ issued an unfavorable decision denying the plaintiff's claim for benefits. (Tr. 123-43). On May 27, 2015, the plaintiff requested review of the hearing decision (Tr. 12-13), and on January 13, 2016, the Appeals Council denied the plaintiff's request for review, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-3; see Tr. 4-8).

         On March 15, 2016, the plaintiff filed her complaint in this pending action (Doc. No. 1), and on May 25, 2016, the defendant filed her answer and certified administrative transcript, dated May 19, 2016. (Doc. No. 11). On June 13, 2016, this case was transferred to United States District Judge Robert N. Chatigny, absent consent to a Magistrate Judge. (Doc. No. 13). On August 25, 2016, the plaintiff filed the pending Motion to Reverse the Decision of the Commissioner, with brief in support (Doc. Nos. 16, 16-2 [“Pl.'s Mem.”]; see Doc. Nos. 14-15), along with a Joint Statement of Material Facts (Doc. No. 16-1). On August 31, 2016, the defendant filed her Motion for Judgment on the Pleadings, with brief in support. (Doc. Nos. 17, 17-1 [“Def.'s Mem.”]).

         On March 31, 2017, this case was transferred to Senior United States District Judge Alfred V. Covello (Doc. No. 18), and on December 15, 2017, the parties consented to jurisdiction by a United States Magistrate Judge; the case was transferred to Magistrate Judge Sarah A. L. Merriam. (Doc. No. 33; see Doc. Nos. 19-21). Fourteen days later, on December 29, 2017, this case was transferred to Magistrate Judge Joan G. Margolis (Doc. No. 23), and on May 1, 2018, this case was transferred to this Magistrate Judge. (Doc. No. 24).

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 16) is DENIED, and the defendant's Motion to Affirm (Doc. No. 17) is GRANTED.

         II. FACTUAL BACKGROUND

         As of her alleged onset date of disability, October 17, 2009, the plaintiff was thirty-two years old. (See Tr. 66). The plaintiff lives with her partner, and, at times, her adult son and her grandson. (Tr. 43).^[3] The plaintiff has a twelfth grade education and does not have a driver's license; she is afraid to drive. (Tr. 24-25). She does not take public transportation because she panics when she is around other people; her psychiatrist approved her need for a medical livery service. (Tr. 46).

         At the time of the hearing, the plaintiff weighed 133 pounds (Tr. 24, 33); previously, she weighed 200 pounds. (See Tr. 32). She attributed her weight loss to her depression, suppressed appetite, and medications. (Tr. 24). She has a history of cutting herself, and she had cut herself two weeks prior to her hearing. (Tr. 31-32). As discussed below, she has been treated by Dr. Lori Sobel for depression, her lack of desire to leave her house, suicidal thoughts, anxiety, bipolar disorder, and post-traumatic stress disorder [“PTSD”]. (Tr. 31-32; see also Tr. 154-55).

         A. ACTIVITIES OF DAILY LIVING

         The plaintiff watches some television but has difficulty focusing on shows lasting an hour. (Tr. 44). She does not have any hobbies although, in the past, she would ride a motorcycle, camp, fish, and walk. (Tr. 45). The plaintiff's partner does their grocery shopping and cooks, and the plaintiff “tr[ies]” to do some housecleaning, but her partner helps her with all of their household chores. (Tr. 42-43; see Tr. 153 (the plaintiff wants to shower, clean her house, and talk to others but her mind tells her that others are talking about her)). At the time of her hearing, the plaintiff was attending a weekly women's support group at her church although sometimes she did not attend because of her depression or anxiety. (Tr. 45). When she is depressed, she does not shower for two or three days in a week. (Tr. 44).

         The plaintiff testified that she has difficulty falling asleep, she has a lot of nightmares that cause her to wake in a panic, and she is tired during the day from getting less than four hours of sleep each night. (Tr. 33). Additionally, according to the plaintiff, it is very difficult for her to focus and concentrate on tasks, including on counseling sessions with Dr. Sobel (Tr. 33-34; see also Tr. 250 (SSA claims representative noted that the plaintiff had difficulty answering questions, was unable to focus, and was overly talkative)), and she feels angry when people speak to her. (Tr. 263, 266).

         The plaintiff testified that she was being treated with Methadone for opiate dependence at the Connecticut Counseling Center; she became dependent on OxyContin which had been prescribed for pain from her kidney surgeries and for her back problems. (Tr. 38-39). However, the plaintiff has been “clean” for the past three years, with the exception of prescribed Benzodiazepines when she had her kidney surgeries. (Tr. 39-40). According to the plaintiff, she never felt that she was abusing drugs, but rather, was using them only as needed. (Tr. 51-52).

         The plaintiff worked as a hostess at the Holiday Inn Express at the CoCo Key Resort; as a taxi driver; in the seafood department of Price Chopper; and as a school bus driver.^[4] (Tr. 26-27). At the time of her hearing, the plaintiff was watching her two-year old nephew for three to five hours a week (Tr. 36-37), however, she testified that at times she cannot watch him because she is “very depressed, very nervous, ” and she does not think it would be “good for him in that state of mind.” (Tr. 37).

         B. MEDICAL RECORDS^[5]

         1. DR. SOBEL

         The record reflects a long and consistent treatment history with Dr. Lori Sobel at Connecticut Counseling Centers. The plaintiff was initially evaluated by Dr. Sobel on December 21, 2010. (Tr. 995-96). The plaintiff's mental status examination revealed a history of depression and crying for the past year, decreased sleep, anxiety, panic attacks (shaking, shortness of breath) lasting a few minutes, flashbacks and nightmares, decreased concentration, compulsive behavior, feelings that she would be better off dead but no plans to harm herself, racing thoughts especially if she had a flashback, and irritability. (Tr. 996). She indicated the plaintiff's diagnoses were depression and PTSD, and she prescribed Vistaril and Zoloft. (Tr. 996). Thereafter, Dr. Sobel regularly saw the plaintiff for medication management.

         On March 11, 2011, the plaintiff reported that she felt no improvement with Zoloft and Vistaril; Dr. Sobel added Seroquel. (Tr. 380). The plaintiff described feeling very frustrated and depressed; she said that she had a panic attack in a supermarket. (Tr. 380). She also advised that she had no appetite and had lost twelve pounds. (Tr. 380). A month later, the plaintiff reported that she felt “awful[, ]” and that she was moody; she went from being a raving lunatic to crying, sitting on her bed doing nothing, and banging her head against the wall. (Tr. 381). The plaintiff continued to complain of depression with irritability and racing thoughts; Dr. Sobel felt the plaintiff was at chronic risk to act impulsively, and she noted that the plaintiff “likely has Bipolar NOS . . .[, and] PTSD[.]” (Tr. 381). She discontinued the plaintiff's Vistaril and Seroquel and added Trazodone and Abilify. (Tr. 381). By May 20, 2011, the plaintiff had lost another seven pounds (Tr. 383), and she continued to complain of depression, decreased motivation, and crying. (Tr. 383). Dr. Sobel noted that, although the plaintiff continued to be “symptomatic[, ] she . . . appear[ed] a little better.” (Tr. 383). She increased her Trazodone and Zoloft dosages and started to taper her Lamictal prescription. (Tr. 383).

         In July 2011, Dr. Sobel noted that the plaintiff appeared a little calmer, and she recommended Intensive Outpatient Treatment [“IOP”], but the plaintiff expressed a concern over a lack of transportation. (Tr. 384). At that time, the plaintiff's diagnoses were bipolar NOS (not otherwise specified), PTSD, and borderline personality traits. (Tr. 384). Dr. Sobel continued to prescribe Trazodone, Zoloft, Abilify, and Lamictal. (Tr. 384). On September 16, 2011, Dr. Sobel thought that the plaintiff appeared better emotionally, although the plaintiff reported that her mood was still up and down, she had decreased sleep, crying, and racing thoughts, and she felt depressed. (Tr. 385). Dr. Sobel added Ambien to the plaintiff's medication regimen. (Tr. 385).

         On November 14, 2011, the plaintiff complained of decreased sleep, and although Ambien helped her fall asleep, she would wake because of pain, crying, or racing thoughts. (Tr. 387, 972). Dr. Sobel noted that the plaintiff appeared calmer and better, but the plaintiff reported that she still would have periodic thoughts of wishing she would not wake up, and urges to cut herself. (Tr. 387, 972). According to Dr. Sobel, the plaintiff was “not a reliable historian” because, although she filled her medications as prescribed, she did not pick up the refills, yet told Dr. Sobel that she was taking her medications compliantly. (Tr. 387, 972). Dr. Sobel increased the plaintiff's prescription for Trazodone for sleep and discontinued Lamictal. (Tr. 388, 973).

         On January 23, 2012, the plaintiff returned to Dr. Sobel with continued complaints of panic attacks, feeling depressed and stressed, decreased sleep, racing thoughts, urges to cut herself, and feelings that she would be better off dead. (Tr. 389, 411, 968). Dr. Sobel thought that the plaintiff appeared “improved and calmer[, ]” and Dr. Sobel noted again that the plaintiff was “an inconsistent and unreliable historian[, ]” and that medication compliance “has been an issue in the past.” (Tr. 389, 411, 968.). Her diagnoses remained bipolar disorder NOS, PTSD, and borderline personality traits, and Dr. Sobel added Neurontin to the plaintiff's medication regimen. (Tr. 389, 411, 968). A month later, the plaintiff reported ongoing panic attacks, depression, and stress. (Tr. 391, 413). Dr. Sobel increased the plaintiff's Trazodone dosage and repeated that the plaintiff was “an inconsistent and unreliable historian” and that medication compliance had been a problem in the past. (Tr. 391, 413).

         The plaintiff returned on May 8, 2012; she continued to complain of panic attacks especially when she had to leave her house. (Tr. 393, 415, 958). Dr. Sobel noted, however, that the plaintiff appeared “improved and calmer.” (Tr. 393, 415, 958). She continued the plaintiff on her same medications (Trazodone, Zoloft, Abilify, Ambien, and Neurontin). (Tr. 393, 415, 958). On July 17, 2012, the plaintiff reported that she felt about the same although she was scattered and had problems focusing. (Tr. 941). Dr. Sobel added attention deficit disorder [“ADD”] to the plaintiff's diagnoses. (Tr. 941). Her medications remained the same. (Tr. 941.).

         On September 25, 2012, the plaintiff reported that she felt about the same, but Dr. Sobel noted that she appeared “much brighter.” (Tr. 933). The plaintiff had been able to stop the illicit use of Klonopin (Tr. 933); she continued to complain of panic attacks and depression, but did not appear as depressed and did not discuss wanting to hurt herself. (Tr. 933). According to Dr. Sobel, the plaintiff was “doing better and [was] less symptomatic both psychiatrically and physically.” (Tr. 933). The plaintiff mentioned that she was focused on her daughter-in-law's baby shower, which helped to “organize her.” (Tr. 933). Dr. Sobel stated that, in the past, the plaintiff had been an “inconsistent and unreliable historian” and that she had issues with medication compliance, but she appeared “better with this.” (Tr. 933). A month later, Dr. Sobel noted that the plaintiff “continues to do about the best I have seen her.” (Tr. 931). Dr. Sobel also noted that she was doing better with her medication compliance as well. (Tr. 931). Plaintiff continued to complain of depression, difficulty leaving the house, and panic attacks, but the panic attacks occurred less often, and she used behavioral techniques to lessen their intensity. (Tr. 931). Dr. Sobel added Concerta to the plaintiff's medication regimen. (Tr. 931).

         On November 13, 2012, the plaintiff continued to complain of periodic triggered panic attacks, but they were occurring less often and were less intense. (Tr. 450, 929). She also complained of depression, difficulty leaving the house, and periodically thinking she would be better off dead. (Tr. 450, 929). Dr. Sobel opined that the plaintiff had “been doing better and [was] less symptomatic both psychiatrically and physically[, ]” but “[m]edication compli[a]nce [was] still an issue.” (Tr. 450, 929). She increased the plaintiff's prescription for Concerta. (Tr. 450, 929). A month later, the plaintiff reported that she had not noticed a change on Concerta, but she might have been more irritable and had a bad panic attack with stress. (Tr. 451, 924). The plaintiff continued to do better, and Dr. Sobel advised her to monitor her irritability. (Tr. 451, 924).

         On February 25, 2013, the plaintiff reported that the Concerta helped her to focus and be better organized. (Tr. 917). A mental status examination revealed the plaintiff's speech was fluent and her language was coherent, although she continued to complain of depression and crying, and she had difficulty leaving the house. (Tr. 917). She had no psychosis, but she ruminated on negative thoughts and had low self-esteem. (Tr. 917). Dr. Sobel opined that the plaintiff was doing better, but she still had “much stress” and continued to be symptomatic. (Tr. 917). Dr. Sobel increased her Zoloft prescription and told her to continue to monitor her irritability. (Tr. 917).

         When the plaintiff returned on April 8, 2013, she reported that she was seeing her pastor on Sundays for counseling. (Tr. 913). According to the plaintiff, Concerta helped her focus, but she was more irritable. (Id.). On October 29, 2013, Dr. Sobel noted that she had not seen the plaintiff since April due to the plaintiff's hospitalizations for kidney problems and surgery. (Tr. 901; see generally Tr. 519-55, 611-854, 1034-1141). Following a phone call from the plaintiff, Dr. Sobel noted that she had not filled her prescriptions regularly; she ordered refills of prescriptions for ...