Moore v. Berryhill

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND ON THE 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 the plaintiff Disability Insurance benefits [“DIB”].

         I. ADMINISTRATIVE PROCEEDINGS

         On or about December 2, 2013, the plaintiff^[2] filed an application for DIB benefits claiming he has been disabled since December 1, 2012, due to bipolar disorder and attention deficit, hyperactivity disorder [“ADHD”]. (Certified Transcript of Administrative Proceedings, dated August 3, 2017 [“Tr.”] 198-201). The plaintiff subsequently amended his onset date of disability to January 1, 2014. (Tr. 217). The plaintiff's application was denied initially (Tr. 133-36) and upon reconsideration. (Tr. 141-49). On August 15, 2014, the plaintiff requested a hearing before an Administrative Law Judge [“ALJ”] (Tr. 150-51), and on September 14, 2015, a hearing was held before ALJ Eskunder Boyd, at which the plaintiff and a vocational expert testified. (Tr. 63-95; see Tr. 164-88). On October 27, 2015, ALJ Boyd issued an unfavorable decision denying the plaintiff's claim for benefits. (Tr. 42-62). On December 23, 2015, the plaintiff filed a request for review of the hearing decision (Tr. 197), and on May 4, 2017, the Appeals Council denied the request, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-7).

         On July 7, 2017, the plaintiff filed his complaint in this pending action (Doc. No. 1), and on September 11, 2017, the defendant filed her answer and administrative transcript, dated August 3, 2017. (Doc. No. 14). On September 29, 2017, the parties consented to the jurisdiction of a United States Magistrate Judge; the case was transferred to Magistrate Judge Joan G. Margolis. (Doc. No. 18). On December 13, 2017, the parties filed a Joint Stipulation of Facts (Doc. No. 21), ^[3]and the plaintiff filed his Motion to Reverse the Decision of the Commissioner (Doc. No. 22), and brief in support. (Doc. No. 21-1 [“Pl.'s Mem.”]). On February 13, 2018, the defendant filed her Motion to Affirm (Doc. No. 23), and brief in support. (Doc. No. 23-1 [“Def.'s Mem.”]). On May 1, 2018, this case was reassigned 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. 22) is denied, and the defendant's Motion to Affirm (Doc. No. 23) is granted.

         II. FACTUAL BACKGROUND

         A. HEARING TESTIMONY

         As of the date of his hearing in 2015, the plaintiff was fifty-eight years old, living with his husband in a “historical house museum.” (Tr. 69-70). He testified that he could groom and bathe himself, do yard work and laundry, and take out the trash, though he sometimes lacked motivation. (Tr. 73). Additionally, he would run three to four miles a day. (Tr. 73). He said he spent a lot of time watching television (Tr. 77) and checked his emails once a day. (Tr. 79).

         According to the plaintiff, he was disabled due to depression, ADHD, borderline personality disorder, and post-traumatic stress syndrome, which resulted in anxiety and panic attacks. (Tr. 74, 81). He testified that he got along with people, but had trouble concentrating. (Tr. 77, 79). He had suicidal thoughts “almost daily” and, indeed, felt suicidal during the week of the hearing. (Tr. 80). He said he did not want to go to the hospital because he was “starting a volunteer program for hospice” the next day and had a per diem job lined up later in the week that he wanted to keep. (Tr. 80).

         The plaintiff held a bachelor's degree in communications, and at the time of the hearing, was working per diem as a recreation therapy aide. (Tr. 70-71). He served as a paid intern at the Residence House in 2013, and at the same time, he went back to school to earn a certificate in recreation therapy. (Tr. 82). However, the internship and the schooling proved “too much for [him][]” in terms of his ability to concentrate and deal with the behaviors of the people around him. (Tr. 83). At his hearing, the plaintiff's counsel explained that he amended the onset date of disability to January 1, 2014 in light of the plaintiff's “significant employment” in 2013. (Tr. 68-69). Prior to performing his work in 2013, he was self-employed as a video producer. (Tr. 72, 84). The plaintiff worked at Foxwoods Casino from 2002-2010, first as a video producer, and then as the director of communications. (Tr. 84-85). He was “over [his] head[]” in the director's position so he decided that “maybe it was time for [him] to get out o[f] corporate work and . . . start to try to do something with [his] business.” (Tr. 85). At that time, he started having “social issues where [he] was uncomfortable around a lot of people.” (Tr. 85). From 2001-2002, he was a supervising producer at True Entertainment Television; he won an Emmy when working in that capacity. (Tr. 85-86).

         A vocational expert testified at the plaintiff's hearing that the job the plaintiff was then-currently performing as a recreation aid was light, unskilled work. (Tr. 89). She testified that an individual who could perform simple and detailed tasks, with sustained concentration, pace and persistence for three-to-four hour segments, with occasional interaction with coworkers and brief superficial interaction with the public, could perform the work of an office cleaner, laundry worker, and hand packer. (Tr. 90). Additionally, if the individual was (1) unable to perform work requiring a specific production rate; (2) limited to performing simple, routine, repetitive tasks, with sustained concentration, pace and persistence for two hour segments, with occasional interaction with coworkers, but no interaction with the public; and (3) restricted to not making anything more than simple, work-related judgments, such individual could perform the work of a laundry worker and a housekeeper, but not a hand packer. (Tr. 91). The vocational expert also acknowledged that, if the individual could not sustain concentration, pace and persistence for two-hour segments, the individual could not work. (Tr. 91-92). Similarly, if someone was absent three times a month, it would be “unlikely” that he or she could maintain employment. (Tr. 92).

         B. MEDICAL HISTORY

         As discussed above, the plaintiff's amended onset date of disability is January 1, 2014. (Tr. 217). There are scores of medical records pre-dating this onset date which this Court has reviewed. (See Tr. 333-56 (treatment at Select Behavioral Health from May 3, 2008 to June 23, 2012);^[4] Tr. 357-59, 495-96, 579-80 (July 9, 2012 MRI of the brain showing abnormal findings and “[s]mall foci of white matter disease[]”); Tr. 486-87, 593-94 (May 2011 new patient record with Dr. Anandhi Pathman at the Community Health Center [“CHC”] noting, “Moderate Depression”); Tr. 482-83, 587-88 (April 2012 referral from Dr. Pathman to Behavioral Health for “Mild Depression[]”); Tr. 474-75, 583-84 (2012 records from Ngozi Mewe-Pirn, APRN regarding fainting/dizziness); Tr. 360-75, 464-65, 471-72, 490-91, 570-78, 581-82, 585-86 (2012 records from Dr. Pathman regarding fainting/dizziness); Tr. 480-81, 484-85, 589-90 (February and May 2012 treatment record from Dr. Pathman for medication management for hypertension, hyperlipidemia, and bipolar disorder); Tr. 376-414, 417-25, 428-30, 433-42, 444-53, 456-63, 466-70, 473, 476-79, 506-10, 514-16, 519-20, 523-27, 529-40, 617-20, 720-21, 724, 727, 769-70, 77, 778-79, 782-83, 786-89, 793-94, 797, 820 (May 2012-October 2013 bi-weekly treatment records from Janet Noyes, LMFT, Community Health Center for bipolar disorder, PTSD and ADHD); Tr. 415-16, 431-32, 443, 511-12, 517-18, 521-22, 528, 541-42, 621-22, 722-23, 725-26, 771-72, 775-76, 780-81, 784-85, 791-92, 795-96 (December 2012 and February, April, May, June, July, September and October 2013 treatment records from Dr. Victor Tirado-Montanez at CHC for bipolar disorder, PTSD and ADHD); Tr. 426-27, 560, 567-69, 774, 777, 790, 909 (February, June September, and October 2013 treatment records from Dr. Anandhi Baleswaren^[5] for blood pressure checks)).^[6] As required, the Court will focus on the relevant period at issue and the records related to that time period.

         On September 26, 2013, Dr. Baleswaren, the plaintiff's primary care provider at CHC, completed a Medical Report for DDS in which she opined as to the plaintiff's physical limitations, but noted that a “mental health provider” will complete the mental health portion of the form; that portion, however, is not attached. (Tr. 552-59, 597-604, 634-42). Dr. Baleswaren indicated that the plaintiff's mental health had recently declined, but that he was not prevented from working at that time. (Tr. 552, 597, 634). On November 14, 2013, the plaintiff's therapist at CHC since 2012, Janet (also referred to as Jana in the record) Noyes, LMFT, and his psychologist, Dr. Victor Tirado-Montanez, completed the same Medical Report. (Tr. 607-14). In their report, they noted that the plaintiff had been working part-time but that, since he started his internship through the Bureau of Rehabilitation Services [“BRS”], his “symptoms of anxiety and depression have exacerbated to the point of feeling unable to function and wanting to sleep all the time.” (Tr. 607). They reported that the plaintiff experienced “severe depressive episodes with suicidal ideation, weight loss, insomnia, depressed mood, fatigue, loss of energy, feelings of despair, hopelessness, worthlessness, [and] diminished ability to think/concentrate.” (Tr. 610). They opined that he was moderately limited in his ability to remember locations and work-like procedures; understand and remember very short, simple instructions; understand, remember and carry out detailed instructions; respond appropriately to changes in a work setting; be aware of normal hazards; and, set realistic goals or make plans independently. (Tr. 611-12). Additionally, they opined that the plaintiff was markedly limited in his ability to maintain attention and concentration; perform activities within a schedule; sustain an ordinary routine; work in coordination with others without being distracted; and, complete a normal workday or workweek. (Tr. 611).

         Consistent with his treatment history at CHC, and to address his depression and anxiety, from November 2013 to August 2015, the plaintiff regularly met with Noyes. On November 7, 2013, the plaintiff reported to Noyes that he was “not doing well, fearful; feeling a sense of impending doom; fear of everything; working, responsibility, everything.” (Tr. 719, 768). Similarly, he reported to Dr. Baleswaren that he felt “hopeless.” (Tr. 766-67, 907-08). On November 14, 2013, the plaintiff told Dr. Baleswaren that he would be in need of health insurance and was thinking about quitting his job on November 29, 2013 and applying for Social Security Disability. (Tr. 715-16, 762-63).^[7]

         On November 14, 2013, the plaintiff also saw Noyes, who noted a “pale, dead expression in eyes, tearful, limp posture, low energy[, and] [a]nhedonia.” (Tr. 717-18, 764-65). On November 19, 2013, the plaintiff reported suicidal ideation without plan or intent; Noyes noted that the plaintiff “seems unable to continue working.” (Tr. 713-14, 760-61). The next day, the plaintiff returned to Noyes reporting “vague, pervasive anxiety, but cannot specify, just reports he lacks confidence.” (Tr. 712, 759). On November 21, 2013, he reported to Noyes that he was in a “dark place[, ]” but Noyes found his judgment minimally impaired, his insight moderately impaired, and that he had no suicidal ideation. (Tr. 711). Noyes saw the plaintiff on December 2, 5, 9, 13 and 17, 2013; he had no suicidal ideation, minimal impairment in judgment, and moderate impairment in his insight. (Tr. 697-98, 705-06, 742, 749-50, 753-55). On December 5, 2013, Dr. Baleswaren noted that the plaintiff quit his job as he could “not complete the tasks at work.” (Tr. 751-52, 905-06). Seven days later, on December 12, 2013, Dr. Tirado-Montanez noted that the plaintiff had “chronic stressors but [he] seem[ed] to be coping.” (Tr. 743).

         On December 11, 2013, Noyes and Dr. Tirado completed another assessment of the plaintiff in connection with his application for benefits in which they reported that the plaintiff has suffered from major depression for 25 years and bipolar disorder for 13 years. (Tr. 627). The plaintiff had a disheveled appearance, short-term memory loss, difficult concentrating, a depressive, anxious and constricted mood, and mild-to-moderate judgment. (Tr. 627-28). They rated the plaintiff as having an “[o]bvious [p]roblem” taking care of his personal hygiene, caring for his physical needs, interacting appropriately with others, carrying out single-step instructions, and changing from one simple task to another; he was having a “[s]erious [p]roblem” handling frustration and carrying out multi-step instructions; and, a “[v]ery [s]erious [p]roblem” using appropriate coping skills to meet the ordinary demands of work, focusing long enough to finish assigned simple activities, performing basic work activities at a reasonable pace, and performing work on a sustained basis. (Tr. 628-29). They commented that the plaintiff was having frequent suicidal ideation, a sense of feeling overwhelmed “(anxiety) and despair (depression)[, ]” with “[e]pisodes of depression alternating with hypomania [and] memory loss.” (Tr. 628).^[8]

         On the same day, Noyes and Dr. Baleswaren saw the plaintiff because he claimed to be experiencing dementia. (Tr. 702-03, 746-48, 904). The next day, on December 12, 2013, Dr. Baleswaren again saw the plaintiff, who reiterated that he was “quitting his full job and would like to explore applying for Social Security Disability.” (Tr. 700-01, 707-08, 744-45). He also noted that “he may be open to part-time employment and is not fully committed to the idea of applying for permanent disability.” (Tr. 700, 707). He planned to explore unemployment benefits as well. (Tr. 701). The plaintiff also saw Dr. Tirado-Montanez for medication management; he reported “increased anxiety associated with poor sleep[]” and “[d]escribed increased financial stress.” (Tr. 699).

         On December 17, 2013, he returned to Noyes; he had minimal impairment in his judgment, moderate impairment in his insight, and no suicidal ideation. (Tr. 741). On December 18, 2013, Dr. Tirado-Montanez and Noyes submitted an identical medical report to the one submitted on December 11, 2013 in connection with his application for benefits, but in the December 18 version, they added that the plaintiff was hospitalized on two occasions for severe major depression.^[9] (Tr. 649; see Tr. 643-50). The next day, on December 19, 2013, the plaintiff reported to Noyes that he was feeling “worse, overwhelmed, tired.” (Tr. 696, 740). On December 27, 2013, he told Dr. Baleswaren that “he wanted to sleep all the time, ” felt lethargic, and had nausea with panic attacks. (Tr. 733-37, 900-01).

         The plaintiff was admitted to the Pond House at Lawrence & Memorial Hospital from December 28, 2013 to January 6, 2014 for “safety and stabilization[]” after presenting in the emergency room on December 27, 2013 (Tr. 660-71) with “long-terms feelings of suicide as well as feeling somewhat depressed[.]” (Tr. 653; see Tr. 651-91). The plaintiff reported that he was having financial problems and “started to feel that his career is not very fulfilling and not very worthwhile.” (Tr. 655, 665). He was discharged with a diagnosis of major depression, single episode, in remission, and a GAF score of 60. (Tr. 654). The plaintiff returned to Noyes the day of his discharge. (Tr. 737).

         The day after his discharge, Dr. Tirado-Montanez saw the plaintiff for medication management and noted that the plaintiff had been admitted “due to mood decompensation in the context of limited financial limitations.” (Tr. 693-94, 735-36). On January 8, 2014, Dr. Baleswaren rated the plaintiff's depression as “[s]evere.” (Tr. 897-98). On January 16, 2014, the plaintiff returned to Noyes who found his judgment and insight to be moderately impaired. (Tr. 692, 730-31). He saw her again on January 21, for a family therapy visit (Tr. 944), and on January 23, 2014, at which time he was referred to Backus “PHP [Partial Hospitalization Program] for two to four weeks.” (Tr. 728-29, 942-43).

         Upon intake at the PHP, the plaintiff reported that he could not remember a time when he had not felt depressed in his life; the intake counselor noted that “the patient ha[d] been very successful in the past in his work life. . . . He [did] not feel that he [was] capable of meeting the expectations of his new role [as the tour guide of his historic home when his spouse starts his new job] . . . and he was very focused on [that] for a good part of his treatment[]” which ran from January 27 to March 11, 2014. (Tr. 801, 836, 856, 893; see Tr. 801-20, 836-77, 893-96; see also Tr. 802, 837, 857, 894 (reporting that “this new job [as a tour guide] should give him a sense of purpose, but it [did] not, and he [was] exploring options for other careers that might give him more of a sense of purpose.”)). Upon admission, the plaintiff rated his depression and anxiety as a nine on a scale to ten; he had a ten pound weight loss in the past two months; and his concentration and attention were poor. (Tr. 818, 853, 872). The plaintiff reported that he was employed at Reliance House for three months and left the job in November 2013 which he felt was a “mistake[.]” (Tr. 818, 853, 872). He was attending school while working and “this was too much for him to handle, ” and he “‘deeply regret[ed]' leaving” that job. (Tr. 818, 853, 872). Treatment notes reflect improvement over the course of the program. (Tr. 803, 838, 858 (felt “significant improvement from the time that he had started the program[]”), 807, 842, 862 (noting the plaintiff was neatly groomed, bright, articulate, and “showing significant increase in spontaneity[]”)).^[10]

         On March 13, 2014, the plaintiff returned to treatment with Dr. Tirado-Montanez; he reported episodes of anxiety and rumination; the mental status exam revealed an anxious mood, appropriate affect, normal speech, and circumstantial thought process. (Tr. 940-41). When he returned to Noyes on March 18, 2014, he was smiling and appeared more comfortable and relaxed. (Tr. 938-39). On April 1, 2014, the plaintiff told Noyes that he was looking into Massage Therapy school; he was bowling and walking for recreation, and he was smiling and had a neat appearance. (Tr. 936-37). Noyes's notes reflect the same positive improvement on April 10, 2014 and May 1, 2014, as well as the plaintiff's report that he was “[l]ooking forward to working outside of [his] home” and he was planning to volunteer at hospice. (Tr. 930-31, 934-35). On April 22, 2014, the plaintiff reported to Dr. Tirado-Montanez that he experienced ruminations at bedtime, but that his depression improved; he “continue[d] to be fragile with a low tolerance to stress.” (Tr. 932-33). A month later, the plaintiff reported that the sedation he was experiencing with Seroquel improved with a decreased dose. (Tr. 928). On May 23 and 28, 2014, Noyes noted that the plaintiff felt lonely, but that he had “moderate[]” progress towards treatment. (Tr. 924-27; see also Tr. 922-23 (participation in group therapy)). On June 4, 2014, the plaintiff told Noyes that he was considering continuing school and internship placements. (Tr. 920-21). Six days later, he expressed “excessive[]” worry (Tr. 918-19), and on June 12, 2014, Noyes noted that he was in work-out clothes, and the plaintiff reported that he was jogging, walking and doing yoga. (Tr. 916-17). On June 18, 2014, Noyes noted that the plaintiff was planning on an internship at Apple Rehab, two days a week, plus taking a class, and two more classes in the Spring. (Tr. 914-15). The plaintiff was thinking about it to “make sure he want[ed] to do [that].” (Tr. 914).^[11]

         On June 30, 2014, Noyes completed another assessment of the plaintiff in connection with his application for benefits; Dr. Tirado-Montanez co-signed this assessment on July 1, 2014. (Tr. 1048-51). Noyes found “[s]light [i]mprovement” in the plaintiff's condition while noting the exacerbation of symptoms in the “winter 2013-14[.]” (Tr. 1048). According to Noyes, the plaintiff had difficulty focusing and concentrating even with ADHD medications, and he had memory issues that “seem related to anxiety and [ADHD].” (Tr. 1048). At that point, his speech was normal, although she noted it was “pressured at times over this past year[.]” (Tr. 1049). She opined that he had a “mild impairment at present” and “[had] been mild-moderately impaired at times over this past year.” (Tr. 1049). She noted continuing suicidal ideation, “sense of overwhelm and anxiety. Sense of despair has lessened since PHP treatment. Depression continues. Client tends to ruminate over stressors. Depression and anxiety lead to feelings of hopelessness [and] worthlessness.” (Tr. 1049). She rated him as having a “[s]erious [p]roblem” using appropriate coping skills, handling frustration appropriately, carrying out ...