Shailer-Solak v. Berryhill

          RULING AND ORDER ON MOTION TO REVERSE AND MOTION TO AFFIRM THE DECISION OF THE ACTING COMMISSIONER

          Victor A. Bolden United States District Judge

         On October 7, 2016, Elizabeth Ann Shailer-Solak (“Plaintiff”) filed this administrative appeal under 42 U.S.C. § 405(g) against the Acting Commissioner of Social Security (“Defendant” or “the Acting Commissioner”), seeking this Court's review of the decision of the Social Security Administration (“SSA”) denying her claim for Title II disability insurance benefits and Title XVI supplemental security income (“SSI”) under the Social Security Act. Complaint, dated Oct. 7, 2016 (“Compl.”), ECF No. 1.

         Ms. Shailer-Solak moves to reverse the Acting Commissioner's decision. Motion to Reverse, dated July 9, 2017 (“Pl.'s Mot.”), ECF No. 23; Memorandum of Law in Support of Motion to Reverse, dated June 9, 2017 (“Pl.'s Mem.”), ECF No. 23-1. The Acting Commissioner moves for an order affirming her decision.^[1] Defendant's Memorandum of Law in Support of Motion to Affirm, dated Sept. 11, 2017 (“Def.'s Mem.”), ECF No. 27.

         For the reasons explained below, Ms. Shailer-Solak's motion is GRANTED and the Acting Commissioner's motion is DENIED. The Acting Commissioner's decision is VACATED and REMANDED for the calculation and payment of benefits.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background

         Ms. Shailer-Solak, who is in her sixties, lives in Newington, Connecticut. See Transcript of Administrative Record, filed Jan. 27, 2017 (“Tr.”), annexed to Answer, ECF No. 15, at 42. Since 2008, she has been diagnosed with several mental health conditions including major depressive disorder, post-traumatic stress disorder (“PTSD”), and alcohol dependence. Tr. 335, 627. These conditions have led Ms. Shailer-Solak to have repeated nightmares, panic attacks, and flashbacks. Tr. 634. She also reports having difficulty sleeping and, as a result of her PTSD, sleeps only a few hours per night on her couch. Tr. 860.

         On several occasions, Ms. Shailer-Solak has experienced homelessness and reportedly lived out of a van. Tr. 587, 598-99. She currently lives alone in Newington. Tr. 855.

         Ms. Shailer-Solak used to volunteer at the local town hall several times per week, and she reported that she would spend time by her condominium's pool. Tr. 858. By May 2017, however, she reported that she no longer engages in many of these activities. Tr. 857-58. She also does not maintain many social contacts and does not keep in touch with her family. Tr. 1096.

         Since 2011, when she left her job at a gas station convenience store, Ms. Shailer-Solak has been out of the workforce. Tr. 855. She now seeks review of the Acting Commissioner's denial of benefits under Title II and Title XVI.

         1. Treatment at InterCommunity Mental Health Group

         Since February 2008, Ms. Shailer-Solak has been a patient at the InterCommunity Mental Health Group (“InterComm”) in East Hartford, Connecticut. Tr. 335. She has primarily been treated by Brian Cardona, a licensed clinical social worker employed by InterComm. Tr. 854. She has also been seen by other medical practitioners at InterComm who have, among other things, managed her prescriptions and co-signed Mr. Cardona's reports and treatment notes, including Dr. Ann Price, Dr. Anees Ahmed, and Advance Practice Registered Nurse Carole Montano. Tr. 584, 725, 1150.

         These providers have noted that Ms. Shailer-Solak “lack[ed] relapse prevention skills” and had “poor interpersonal communication skills, poor problem-solving and decision-making skills[.]” Tr. 1096. Additionally, she has had “intrusive memories” several times per week, daily hypervigilance, flashbacks twice a week, and nightmares every night about “bad dreams of bad things from the past.” Id.

         Mr. Cardona completed two Mental Impairment Questionnaires during Ms. Shailer-Solak's treatment with Intercomm: (1) on December 18, 2013, co-signed by Dr. Ahmed. Tr. 709; and (2) on December 15, 2015, co-signed by Nurse Montano, Ms. Shailer-Solak's medication provider. Tr. 1150. Both questionnaires indicate that Ms. Shailer-Solak experienced a flight of ideas, hyperactivity, sleep disturbance, easy distractibility, emotional withdrawal and isolation, and “recurrent obsessions or compulsions which are a source of marked distress.” Tr. 710, 1146. They also state that Ms. Shailer-Solak: (1) is “unable to meet competitive standards” in responding to changes in routine work settings, working in coordination with or proximity to others, and performing at a consistent pace, Tr. 711, 1147; and (2) has “marked” difficulties in maintaining social functioning, extreme restrictions in daily life and in maintaining concentration, persistence, or pace, and has experienced four or more “episodes of decompensation within [a] 12 month period.” Tr. 713, 1149.

         2. Non-Treating Medical Sources

         Ms. Shailer-Solak has also been evaluated by several sets of non-treating examiners throughout the course of her claim. Ms. Shailer-Solak was referred for these assessments by the State of Connecticut Bureau of Rehabilitation Services/Disability Determination Services.

         a. Diane Reese, LCSW, and Margarita Hernández, Ph.D.

         In February, 2012, Ms. Shailer-Solak underwent a mental status assessment with licensed clinical social worker Diane Reese and licensed clinical psychologist Margarita Hernandez. Tr. 622. This evaluation included a review of her medical records as well as a clinical interview. Ms. Reese and Ms. Hernández made behavioral observations and clinical impressions in their report after Ms. Shailer-Solak's examination. Tr. 626.

         On February 7, 2012, Diane Reese examined Ms. Shailer-Solak. Tr. 622. Her report recounted Ms. Shailer-Solak's health history, and noted that “Ms. Shailer [sic] was alert, cooperative, and made regular eye contact . . . She was friendly and euthymic . . . . She was oriented to person, place, and time. Thought process was goal directed, logical, and there was no evidence of loose association or tangential thinking.” Tr. 626. Additionally, she reported that “[n]o prominent problems were observed with regard to immediate, recent, or remote memory, ” and that Ms. Shailer-Solak “demonstrated adequate attention and concentration skills.” Id. Ms. Reese concluded, however, that her “diagnostic impression” of Ms. Shailer-Solak suggested depressive and anxiety disorders, as well as PTSD and alcohol abuse. Tr. 627.

         Ms. Reese concluded that Ms. Shailer-Solak frequently attempts to cope with her symptoms by resorting to alcohol and drug use, but also that she “appears to minimize her feelings of depression and anxiety.” Tr. 627. Her PTSD led to her “having startled responses to common things such as a phone ringing or someone raising his hand, ” but “it appears as if she minimizes her symptoms so that she can feel some sense of being in control.” Id. Ms. Shailer-Solak's anxiety also “parallels her feelings of depression and anxiety in that she feels anxious when she feels she can't cope, ” and Ms. Reese noted that “[w]hen these feelings become so intense she often seeks help by going to the emergency room for a crisis evaluation and possible admission to a psychiatric unit.” Id.

         Ms. Hernández reviewed and co-signed Ms. Reese's findings. Tr. 627.

         b. Steven Kahn, M.D.

         In July 2012, Dr. Steven Kahn, M.D. conducted a disability evaluation of Ms. Shailer-Solak. Tr. 632. His report noted that “[i]n terms of her formal mental status exam” she was “cooperative, makes good contact, ” and was “able to follow the instruction” of several tests “with moderate complexity properly and she was able to remember three out of three words after several minutes, suggesting short-term memory was intact.” Tr. 633-34.

         Dr. Kahn, however, concluded that his “diagnostic impression would be that [Ms. Shailer-Solak] does suffer from major depression recurrent, which at this point is slightly improved [sic] on the Lexapro, but she is still quite symptomatic . . . .” Tr. 634. He also concluded that she had “panic disorder with a degree of agoraphobia and she still gets several panic attacks a week and also PTSD which manifests itself at least partially in terms of occasional flashbacks and bad dreams.” Id.

         c. State Agency Evaluations

         State agency psychiatrist Dr. Janine Swanson, PsyD and Warren Leib, Ph.D. also examined Ms. Shailer-Solak. Tr. 85, 110.

         On February 22, 2012, Dr. Swanson concluded that while Ms. Shailer-Solak's anxiety and affective disorders were “Severe, ” she only experienced mild restrictions in her daily living, moderate difficulties maintaining social function, mild difficulties in maintaining concentration, persistence or pace, and no repeated episodes of decompensation. Tr. 84. Dr. Swanson concluded that Ms. Shailer-Solak “can adjust to other work.” Tr. 88.

         On July 25, 2012, Dr. Leib examined Ms. Shailer-Solak and reached the same conclusions as Dr. Swanson. Tr. 110-11.

         B. Procedural History

         On November 28, 2011, Ms. Shailer-Solak applied for Title II disability insurance benefits and for Title XVI supplemental security income, alleging being disabled since January 31, 2010. Tr. 46-49, 50-58. Her applications were first denied on February 24, 2012, and then denied again upon reconsideration on July 30, 2012. Tr. 136-39; 140-43; 146-48; 149-51.

         On August 22, 2012, Ms. Shailer-Solak filed a written request for a hearing before an Administrative Law Judge. Tr. 153. On September 5, 2012, the SSA granted her request. Tr. 154.

         1. Initial Administrative Hearing

         On January 14, 2014, the SSA held a hearing on Ms. Shailer-Solak's applications in Hartford, Connecticut. Tr. 12. Ms. Shailer-Solak appeared, represented by counsel, before Administrative Law Judge (“ALJ”) Ryan A. Alger. Id. Ralph E. Richardson, an impartial vocational expert, also appeared. Id. The hearing lasted a total of 32 minutes. Tr. 61, 75.

         In response to questions from the ALJ, Ms. Shailer-Solak testified that she was fifty-five years of age, graduated from high school, and completed one year of college education. Tr. 63. The last job she held was as a cashier and stock person at Food Bag Citgo Station. Id. She testified that she worked there from May 2010 until April 2011, but quit because her boss was “very mean.” Tr. 63-64. Before Citgo, she worked as a cashier in a corporate cafeteria restaurant. Tr. 64.

         She explained that she could not go back to work because she has “too many appointments” to keep “and too many groups” she was attending “to help myself get better.” Id. She explained that she had just started several therapy groups including a trauma group, a women's group, and Alcoholics Anonymous (“AA”) meetings. Id.

         Ms. Shailer-Solak testified that she was no longer engaged in her volunteer work with Human Services at Newington Town Hall, where she used to help with the food pantry and clothing closet. Id. She estimated that the last time she had regularly volunteered was in Spring 2013, and that she had done a “very little bit” of volunteering in the fall. Tr. 64-65.

         Ms. Shailer-Solak testified that she was living alone and supported herself with a HUD grant, food stamps from the state of Connecticut, and cash assistance. Tr. 65. She said she does not visit with friends or family on a regular basis and drives herself to all of her appointments- except that she had relied on a friend the day of the hearing because she didn't have enough money for gas or parking. Tr. 65-66.

         Ms. Shailer-Solak's attorney then asked her to describe her level of alcohol use. Tr. 66. She testified that she drank five “nips”-i.e., small airline-size bottles-of tequila the day before, and that she periodically drank two nips a day. Id. She used alcohol because it “numbs the pain and the anxiety temporarily, ” but “[i]t always comes back after.” Id.

         Ms. Shailer-Solak explained that she sees Bryan Cardona for one-on-one therapy weekly, that she attends two groups per week, and that she sees Dr. Ahmed for medication review. Tr. 66-67. All of this treatment is necessary, she said, because she has experienced significant trauma in her life “that seems to be getting in the way of [her] functioning, ” causing her to “freeze” and preventing her from performing basic daily functions. Tr. 67. She further reported suffering from regular panic attacks and flashbacks, Tr. 68, and stated that she is unable to get out of bed two to three times a week. She also reported going days without eating, testifying that she had not eaten since last week and that she has gone without food for as long as two weeks. Id. Her sleep schedule, she said, was extremely inconsistent, plagued with bad dreams and/or panic attacks. Tr. 68-69. She also reported regularly going days without bathing. Tr. 69.

         Finally, Ms. Shailer-Solak testified that she could not even maintain enough mental focus to watch television; when she tried to, she said, she drifts, focusing instead on whatever pops into her head, including flashbacks. Id. She also described suffering from obsessive behavior, mainly involving counting, for several years. Tr. 69-70.

         The ALJ then heard testimony from Mr. Richardson, who reviewed the claim file and exhibits to familiarize himself with Ms. Shailer-Solak's vocational background. Mr. Richardson explained that Ms. Shailer-Solak had experience in five occupational titles bearing a range of exertional demands and skill levels: (1) bookkeeper, 210.382-014, sedentary, SVP-6, ^[2] skilled; (2) cashier, stocker, 290.477-714, light, SVP-3, semi-skilled; (3) CNA, 355.674-014, medium, SVP-4, semi-skilled; self-service gas station attendant, 211.462-010, light, SVP-2, unskilled, and (5) hostess/restaurant, 352.677-010, light, SVP-3, semi-skilled.

         The ALJ and the witness then engaged in the following colloquy:

Q: Please assume the individual the same age, education and work experience as the claimant limited to medium work. Carry out and remember simple instructions. Handle an environment with few changes in the workplace with occasional interaction with coworkers. No. interaction with general public. Can this hypothetical individual do the past work of the claimant?

A: No, Your Honor.

Q: Are there other jobs in the local or national economy that person could do?

A: Night cleaner, 381.687-018, SVP-2, unskilled, medium, state 1, 700, nationally 305, 000. Hand packer, 559.687-074, SVP-2, unskilled, light, state 1, 400, nationally 234, 000. Inserter, 731.685014, unskilled, SVP-2, sedentary, state 1, 100, nationally

Q: If I add to that hypothetical, you gave me a range of light and sedentary. I'm not going to change the exertional level. If I add that the individual could not maintain their concentration and would be off-task 20 percent of the workday needing a break every hour of about 10-12 minutes, would those positions allow for that?

A: No, Your Honor.

Q: Would there be any others?

A: There would be no work.

Tr. 71-72. Mr. Richardson further clarified that in the first hypothetical, if the person was absent from work three or more days per month, the jobs he had identified would not be available to them. Tr. 73.

         Finally, the ALJ asked Ms. Shailer-Solak her weight, and why she drank more than a couple of nips the day before. Id. She testified that she weighed 124 pounds, and that she had been anxious about the hearing and unable to find her driver's license. Id.

         2. First ALJ Decision

         On February 24, 2014, the ALJ issued a written decision denying Ms. Shailer-Solak's claim for disability and disability insurance benefits and supplemental security income. Tr. 9-11. The ALJ found that Ms. Shailer-Solak was not disabled under sections 216(i) and 223(d) of the Social Security Act (for purposes of Title II benefits), nor was she disabled under section 1614(a)(3)(A) of the Act (for purposes of Title XVI benefits). Tr. 25.

         The ALJ concluded that while the medical evidence supported a finding of an affective disorder and an anxiety disorder, these impairments would not meet listing-level severity. Tr. 14-15. This determination was largely based on the ALJ's conclusion that Ms. Shailer-Solak experienced only minor restrictions in her daily living, moderate difficulties in her social functioning, and moderate difficulties with concentration, persistence and pace. Tr. 16.

         With respect to residual functional capacity, the ALJ found that Ms. Shailer-Solak could perform “medium work, ” “except she can understand, remember and carry out simple instructions for simple, routine tasks in an environment with few workplace changes.” Id. The ALJ also found that Ms. Shailer-Solak “can tolerate occasional interaction with coworkers” but “none with the public.” Id.

         While the ALJ found that Ms. Shailer-Solak could not return to her previous occupation, he nevertheless concluded that there were jobs Ms. Shailer-Solak could perform and that existed in significant numbers in the national economy. Tr. 24. Further, he found that while Ms. Shailer-Solak had limitations that prevented her from performing all or substantially all of the requirements of “medium work, ” she nevertheless was able to perform the requirements of certain jobs, such as night cleaner, hand packer, and inserter. Id.

         The ALJ therefore concluded Ms. Shailer-Solak was “not disabled” and “is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” Id.

         3. Appeal of ALJ Decision

         On May 30, 2014, Ms. Shailer-Solak requested a review of the ALJ's ruling by the SSA's Appeals Council. Tr. 7. On August 27, 2014, the Appeals Council declined her request. Tr. 1.

         On September 15, 2014, Ms. Shailer-Solak filed an appeal with the United States District Court for the District of Connecticut. See Complaint, dated Sept. 15, 2014, No. 3:14-cv-1328 (JGM), ECF No. 1. The appeal was assigned to United States Magistrate Judge Joan G. Margolis.

         On January 30, 2015, Ms. Shailer-Solak moved to reverse the decision of the Acting Commissioner. See Motion to Reverse, dated Jan. 30, 2015, No. 3:14-cv-1328 (JGM), ECF No. 14. She argued that the ALJ committed two errors: (1) at Step Three of the disability determination, the ALJ failed to accord the primary treating physician's and counselor's opinions requisite weight and deference, failed to provide good and sufficient reasons for discounting those opinions, and substituted his own opinion for that of the medical expert; and (2) at Step Five, the ALJ failed to include all impairments and limitations in his determination of residual functional capacity, resulting in a determination not supported by the record and insufficient to satisfy the Acting Commissioner's burden at this step. See Memorandum in Support of Motion to Reverse, dated Jan. 30, 2015, No. 3:14-cv-1328 (JGM), ECF No. 14-1, at 17-31, 31-34.

         On April 9, 2015, the Acting Commissioner moved, with Ms. Shailer-Solak's consent, to reverse the decision of the ALJ under Sentence Four of 42 U.S.C. 45(g) and remand for further proceedings:

Upon remand, the Social Security Administration Appeals Council will remand this case to an ALJ. Plaintiff will be given an opportunity for a new hearing and to submit additional evidence in accordance with 20 C.F.R. §§ 405.331 and 405.350. The ALJ will reassess plaintiff's maximum residual functional capacity, and in so doing, reevaluate the medical and other opinions of record. The ALJ will also reassess whether plaintiff can perform past relevant work and/or make an adjustment to other work that exists in significant numbers, obtaining vocational expert testimony, if warranted. The ALJ will then issue a new decision.

         Consent Motion to Remand, dated Apr. 9, 2015, No. 3:14-cv-1328 (JGM), ECF No. 17, at 1-2.

         That same day, the court granted the Acting Commissioner's motion, as well as Ms. Shailer-Solak's motion (to the extent that a remand was agreed to). Electronic Orders, dated Apr. 9, 2015, No. 3:14-cv-1328 (JGM), ECF Nos. 18-19. On April 15, 2015, the Acting Commissioner filed an amended motion, which the Court granted. Amended Consent Motion to Remand, dated Apr. 15, 2015, No. 3:14-cv-1328 (JGM), ECF No. 20; Electronic Order, dated Apr. 15, 2015, No. 3:14-cv-1328 (JGM), ECF No. 21. On April 16, 2015, the Clerk of the Court entered a judgment reversing the Acting Commissioner's decision and remanded the case to the agency for further proceedings. Judgment, dated Apr. 16, 2015, No. 3:14-cv-1328 (JGM), ECF No. 22; see also Tr. 896.

         4. Proceedings on Remand

         On September 1, 2015, the Appeals Council vacated the final decision of the Acting Commissioner and sent the case back to the ALJ for further proceedings consistent with the order of the court, stating that “[f]urther evaluation of the opinion evidence is warranted.” Tr. 902.

         The Council explained that Brian Cardona, Ms. Shailer-Solak's treating therapist, had indicated more restrictive mental limitations than identified by the ALJ, but that “the decision does not provide adequate rationale when according little weight to this opinion.” Tr. 902. The Appeals Council specifically noted: (1) that the decision does not evaluate the numerous low GAF scores in the record that support Cardona's opinion; (2) that the decision “inaccurately relies on volunteer and part-time work that appears to show the claimant cannot function in a regular work environment”; and (3) that the decision does not discuss evidence that indicates the claimant has either few or no friends, and no social peer support. Id. Finally, the Council found that further evaluation of the non-treating source opinions of Dr. Margarita Hernandez and Dr. Steven Kahn was warranted “because they include statements that tend to show greater limitations” than were described in the decision. Id.

         The Appeals Council therefore ordered the ALJ to take three steps:

• Obtain updated evidence concerning the claimant's impairments in order to complete the administrative record in accordance with the regulatory standards regarding existing medical evidence (20 CFR 404.1512-1513 and 416.912-913). Additional evidence may include, if warranted and available, a consultative examination and medical source statements about what the claimant can still do despite her impairments.

• Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p). In so doing, evaluate the opinion evidence in the record, with specific consideration of the opinion evidence in [the consultative examination report of Diane Reese, LCSW, Steven Kahn, MD, and impairment questionnaire filled out by Brian Cardona, LCSW] and explain the weight given to such opinion evidence.

• If warranted by the expanded record, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base . . . . The hypothetical questions should reflect the specific ...