United States District Court, D. Connecticut
MEMORANDUM OF DECISION
Vanessa L. Bryant United States District Judge
Kendrix Paul Kelly (“Mr. Kelly” or
“Claimant”) challenges the Commissioner of Social
Security's final decision to deny his application for
disability benefits pursuant to 42 U.S.C. § 405(g). Mr.
Kelly moves to reverse or remand the decision, arguing that
Administrative Law Judge Robert A. DiBiccaro's (the
“ALJ” or “ALJ DiBiccaro”) findings
are not supported by substantial evidence in the Record
and/or were not rendered in accordance with law. Nancy A.
Berryhill, Acting Commissioner of Social Security
(“Commissioner”), moves to affirm the
Commissioner's final decision. For the reasons stated
below, the Court DENIES Commissioner's motion and GRANTS
Claimant's motion to remand for further consideration at
Step Five of the SSA analysis.
Kelly was born in 1985 and is a military veteran of the Gulf
War Era who served in Iraq and Afghanistan and was discharged
from the army in 2007. [R. 51, 567]. Mr. Kelly alleged in his
initial disability application that he has been unable to
work since February 2011, when he ceased working as a sales
associate, due to PTSD, bipolar disorder, and a back
condition. [R. 302-03]. Mr. Kelly has three relatively small
children at home. [R. 1280]. Starting in May 2012, Mr. Kelly
has been seen by medical professionals primarily at the
Veterans Affairs Medical Center (“VAMC”) in
Connecticut for a variety of conditions. [R. 463]. There is a
gap in his treatment between September 2012 and March 2014,
during which time Mr. Kelly was incarcerated in Alaska. [R.
12, 2012, Mr. Kelly saw advanced practice registered nurse
(“APRN”) Michel Coral at the department of
Veterans Affairs (VA) PTSD Clinic for an initial visit. [R.
443]. At that time, Mr. Kelly lived with his grandmother and
three uncles and had a fiancée who was pregnant with
his second child. [R. 443]. Mr. Kelly lived in a “crime
ridden area” and had witnessed a number of traumatic
events, including his friend get shot in their neighborhood
and a fellow soldier kill himself. [R. 443]. Mr. Kelly
attempted suicide by overdose while in the military and had
suicidal thoughts which he had shared with his girlfriend in
the past but denied any current suicidal ideation. [R. 443].
Mr. Kelly noted that he had pursued a job at Walmart
“but had to walk out due to not being able to tolerate
all the people inside.” [R. 443]. He also said he
completed a training program to work as a patient care
assistant but was unable to do the job because of back
spasms. [R. 444]. The back pain, for which he took Meloxicam
with little relief, dates back to surgery to remove a cyst.
[R. 444]. Mr. Kelly also took Sertraline to help with his
mood and nightmares, but he still experienced some issues.
[R. 444]. APRN Coral recommended increasing the dosage and
exploring other medications. [R. 444]. She also issued a
mental health care plan, with a goal of finding employment he
could maintain. [R. 442].
Kelly saw APRN Margaret Becker at the VAMC Primary Care
Clinic on June 14, 2012. [R. 436-39]. APRN Becker noted
wheezing when Mr. Kelly exercised, which improved with
Symbicort, and chronic mid-back pain, which was not
responding to Meloxicam but experienced some temporary relief
with chiropractic treatments. [R. 435]. APRN Becker noted
that Mr. Kelly may experience asthma because he was not
taking his medication and encouraged compliance. [R. 438].
APRN Becker noted that Mr. Kelly's PTSD seemed to be
better as a result of his resuming the Sertraline and care
with APRN Coral. [R. 435]. Mr. Kelly reported that his PTSD
had improved following adjustment of his medication during a
June 22, 2012 visit with APRN Becker. [R. 438]. She further
advised Mr. Kelly that his “asthma and lower back pain
do not represent a disability - he is able to work from that
perspective.” [R. 440].
Kelly saw APRN Coral on July 3, 2012. [R. 429]. He told APRN
Coral that the Sertraline was helping with his nightmares and
to control his anger, though he admitted he was missing
doses. [R. 429]. APRN Coral told Mr. Kelly that the
Sertraline was not habit forming and instructed him to follow
the dosing instructions. [R. 429].
a visit on July 25, 2012, APRN Coral noted that Mr. Kelly
appeared less depressed, but he still reported nightmares,
anxiety, and hypervigilance in crowds. [R. 422-23]. APRN
Coral increased Mr. Kelly's Sertraline dosage and
prescribed Prazosin. [R. 423].
Kelly met with personnel at the VA's Compensated Work
Therapy (CWT) Support Employment Program around the same
time. A CWT peer specialist noted on August 6, 2012 that Mr.
Kelly expressed being open to any kind of employment, noting
that he wanted to look into Walmart because he had worked
there previously and had positive relationships with the
staff. [R. 420]. Walmart declined to rehire Mr. Kelly because
of past discrepancies with his time card, but Mr. Kelly was
interested in a deli or seafood worker position with another
employer. [R. 417-18].
September 12, 2012, Mr. Kelly again saw APRN Coral. He told
her that he had not yet found a job but planned to continue
looking. [R. 411]. He also planned to start mechanic classes
in October, telling APRN Coral that he would use his GI bill
or take out loans if needed. [R. 411]. APRN Coral encouraged
his efforts and provided potential resources for assistance.
[R. 411]. Mr. Kelly also said he was interested in involving
a lawyer with his social security disability application, in
hopes of a large retroactive check so he could move out of
his grandmother's house. [R. 11]. APRN Coral encouraged
Mr. Kelly to apply for a residential program which would
provide helpful transitional support and structure. [R. 411].
Kelly returned to APRN Coral on March 6, 2014, following his
release from prison in Alaska. [R. 407-08]. Mr. Kelly had
been on medication while incarcerated but had not taken
anything since returning to Connecticut in early February.
[R. 407-08]. Mr. Kelly and his girlfriend reported that he
had depression alternating with agitation and anger and had
significant mood swings, including an incident when Mr. Kelly
took thirteen Percocet pills and held a knife to his own
throat following a fight with his mother, which prompted the
visit to APRN Coral. [R. 407-08]. APRN Coral offered Mr.
Kelly voluntary admission for stabilization but he declined.
[R. 407-08]. APRN Coral noted that Mr. Kelly did not display
psychotic symptoms but that “his hypervigilance borders
on paranoia.” [R. 408]. She started Mr. Kelly on an
aggressive medication regimen, prescribing Depakote,
Prazosin, and Bupropion. [R. 408].
the same visit, Mr. Kelly noted that a previous girlfriend
with whom he had a child was in trouble and he wanted to be
able to take the child if the court deemed her unfit. [R.
408]. APRN Coral said she would not be comfortable with that
at the current time, but they could reevaluate the situation
when he was stable. [R. 408]. Mr. Kelly also noted that he
was hiring a lawyer to assist him in applying for social
security disability benefits “as he feels unable to
cope with working.” [R. 408]. During a visit five days
later, Mr. Kelly reported feeling “a lot more
mellow” with no serious anger outbursts. [R. 902]. He
reported sleeping better but was still experiencing some
depression. [R. 902]. Mr. Kelly also said that he had filled
out the social security disability paperwork, and APRN Coral
said she would fill out the form when she received it. [R.
March 20, 2014, Mr. Kelly reported to APRN Coral that he had
improved on the new regimen-sleeping better with no outbursts
and generally calmer. [R. 901]. He told her that he was
“anxious to complete SSD paperwork, ” stating
that he felt unable to work at that time but could consider
vocational rehabilitation once he is more stable. [R. 901].
a primary care visit on March 24, 2014 and review of
laboratory results, APRN Becker recommended further
evaluation for possible hyperthyroidism. [R. 898].
Kelly saw APRN Coral again on April 1, 2014, during which
APRN Coral recommended Benadryl for Mr. Kelly's reported
insomnia. [R. 892]. APRN Coral noted that Mr. Kelly would
continue the psychotropic regiment “as he finds it
helpful to manage his labile mood/anger.” [R. 892].
APRN Coral noted that she had not seen the social security
form yet and Mr. Kelly said he would ask his case worker to
fax it to her. [R. 892]. APRN Coral received the form and
filled it out the next day. [R. 555].
an April 23, 2014 visit with APRN Coral, Mr. Kelly reported
having continued issues with mood swings, including becoming
withdrawn and isolative after taking his second dose of
Bupropion in the afternoon. [R. 648-49]. APRN Coral noted
that it was unclear whether this was due to ongoing mood
dysfunction or over-sedation and reduced his medication
dosage. [R. 648]. Mr. Kelly also said he was anxious about
his thyroid issues. [R. 648].
Kelly met with Dr. Magdalena Bogun, an endocrinology fellow,
on May 5, 2014, at the VAMC. [R. 645-58]. Dr. Bogun indicated
that Mr. Kelly's symptoms, including increased heart rate
and very mild tremor, were consistent with hypothyroidism,
and test results were also consistent with Grave's
disease. [R. 571-75, 646].
Claimant saw APRN Coral on May 22, 2014. [R. 883]. APRN Coral
notes that Mr. Kelly was mildly pressured and talkative, but
that he said “he feels his meds are helping greatly
with sleep, anger and mood.” Id. She also
noted that Mr. Kelly was about to start taking medication for
Grave's disease, warranting additional monitoring of his
mood and mental status. Id. APRN Coral's notes
from the visit state that Mr. Kelly was “[v]ery focused
on getting SSD as a way to help him stabilize and work toward
longer range goals; he wants to go to school for both
automotive repair and cooking, both of which he loves to do,
and then decide which career he wants to pursue.”
Id. She further notes that “[i]t isn[‘]t
clear what his chances are of receiving SSD.”
Kelly had a follow-up appointment with Dr. Bogun on June 3,
2014, during which Mr. Kelly reported that his symptoms were
much improved-he felt less anxious and while he still got
tired, he believed that was due to a lack of sleep. [R.
Kelly underwent a consultative examination with Dr. Frank
Mongillo on June 9, 2014. [R. 564-67]. After examination, Dr.
Mongillo concluded that, physically, Mr. Kelly “could
certainly do light to moderate work.” [R. 567]. Mr.
Kelly was assessed by Dr. Earl Sittambalam, a medical
consultant, on June 12, 2014, who concluded that Mr. Kelly
could perform a range of medium work. [R. 142-43].
a visit with APRN Coral on June 27, 2014, Mr. Kelly reported
that he had been “turned down again by SSD” and
“feels he can't work competitively because he gets
panicky and angry around other people.” [R. 622]. APRN
Coral noted that Mr. Kelly has “many job skills he
could use, ” further noting that “he is also
applying to take culinary arts at Gateway, his main wish is
to be a chef.” Id. She encouraged Mr. Kelly to
call CWT. [R. 858]. At the same visit, Mr. Kelly admitted to
“playing with the dosages of his meds, ”
including taking his Bupropion erratically because he thought
it made him tired, though he also admitted to taking Benadryl
in the morning and at night. Id. APRN Coral
discontinued the Bupropion and urged him to take full doses
of his other medications as directed. Id.
August 6, 2014 chart entry, APRN Coral notes that Mr. Kelly
was “complaining of on-going insomnia and some mild
irritability/withdrawal” and as a result adjusted Mr.
Kelly's medication dosage. [R. 616-17]. She noted that it
was “[n]ot entirely clear how much of his symptoms are
thyroid driven.” Id.
Claimant underwent an initial PTSD evaluation with Dr. Elbert
G. Richardson on October 4, 2014. [R. 836]. Mr. Kelly
indicated that he had nearly every symptom of PTSD listed
under diagnostic criteria and Dr. Richardson diagnosed Mr.
Kelly with PTSD. [R. 839-41].
October 28, 2014, Mr. Kelly visited APRN Coral. [R. 833]. He
remained focused on getting benefits, giving APRN Coral
another evaluation form. Id. During the visit, Mr.
Kelly requested to be referred back to CWT. Id.
Kelly had a follow-up visit with an endocrinologist, Dr.
Perdigoto, on November 3, 2014. [R. 830-32]. Mr. Kelly had
stopped taking his Methimazole when he became sick,
potentially with the flu, but reportedly started taking his
Atenolol again, which resulted in less palpitations and
tremors. [R. 830]. Dr. Perdigoto saw Mr. Kelly again on
December 1, 2014, when Mr. Kelly reported feeling sleepy and
gaining significant weight. [R. 824-26]. Mr. Kelly's
doctors appeared to favor definitive treatment, surgery or
radiation, for his thyroid condition. Id.
Coral saw Mr. Kelly on November 25, 2014, noting that he
“[a]ppeared in good spirits” and had been
“granted 50% [service connected] for [PTSD], and will
get a retro[active] check in the mail.” [R. 827]. Mr.
Kelly “asked for info[rmation] on starting school after
the holidays.” Id. APRN Coral reported that
Mr. Kelly “is still pursuing social security disability
and has a lawyer involved now, but hopefully will still work
on getting education and a job at some point.”
Coral noted in relation to a January 7, 2015 appointment that
Mr. Kelly “admitted he has been off psych meds, not
clear why he stopped but this has been an ongoing issue. I
put them back in for him with an up-tapering schedule and
urged him to comply.” [R. 822].
Disability Determination Explanation for Mr. Kelly's
disability reconsideration relied in part on opinions from
Dr. Robert Decarli and Dr. Robert Mogul, both agency medical
consultants, following consultative examinations in January
2015. See [R. 163-77]. Mr. Kelly had initially been
seen by Drs. Sittambalam, Hill, and Mongillo in April and
June 2014. See [R. 166]. On January 30, 2015, Dr.
Robert Mogul concluded that Mr. Kelly was physically capable
of a range of medium work. [R. 170-72]. On January 21, 2015,
Dr. Decarli determined that Mr. Kelly was mentally capable of
performing simple work. [R. 172-74]. Dr. Decarli observed
that Mr. Kelly had shown improvement with treatment and was
stable on his medication. [R. 174].
February 2015, Mr. Kelly was hospitalized at the VAMC for
symptoms attributed to gallbladder sludge, which would later
require surgery. [R. 772-818, 1045-49]. Doctors determined
that Mr. Kelly was non-compliant with his medication for
Grave's disease and posited that “RAI [radioactive
iodine] ablation may be better with some chance of preserving
thyroid function keeping in mind medication
noncompliance.” [R. 1047].
Kelly began physical therapy on March 23, 2015 to address his
complaints of lumbosacral radiculopathy down to the backs of
his knees, consistent with “disk involvement and muscle
spasms, causing pain, decreased range of motion and muscle
performance.” [R. 1024-26]. The condition improved with
Tylenol, exercise, and electric stimulation. [R. 1024]. Mr.
Kelly had several additional rounds of physical therapy. [R.
1025, 1014-15, 1006-07, 991-92, 997-98, 999-1000, 1156-59].
During the fourth session, a home traction unit was
April 2015, Mr. Kelly was treated for his gall bladder and
thyroid issues, including radioactive iodine treatment so
that the gall bladder surgery could take place. [R. 1008-13].
Also in April, Mr. Kelly underwent audiological evaluation
for complaints of tinnitus and loss of hearing, which showed
hearing within normal limits and excellent speech recognition
ability. [R. 1002].
a May 21, 2015 primary care clinic appointment with Dr.
William Johns, Mr. Kelly reported improvement in his
abdominal pain and hyperthyroid symptoms. [R. 993]. Dr. Johns
said he would refer Mr. Kelly for surgical consultation once
Mr. Kelly was euthyroid (having a normal functioning
thyroid). [R. 995]. At the same appointment, Mr. Kelly
complained of back pain-he had gained significant weight and
had been lifting children-and requested narcotics. [R.
993-95]. Dr. Johns recommended tapering Mr. Kelly off of
narcotics and suggested he may need a physiatry referral.
Id. On May 29, 2015, the physical therapist deemed
Mr. Kelly to have reached maximum benefit from physical
therapy after the sixth and final session and Mr. Kelly was
discharged. [R. 992].
Kelly saw Dr. Perdigoto on June 15, 2015. [R. 988]. Dr.
Perdigoto noted Mr. Kelly's general noncompliance with
his medications and getting blood work done. Id. He
further noted that Mr. Kelly appeared overall euthyroid that
day but that some of his symptoms pointed to hyperthyroidism
and hypothyroidism. Id. Dr. Perdigoto emphasized to
Mr. Kelly the importance of getting bloodwork done until he
achieved euthyroid state. Id.
Kelly also saw physiatrist Dr. John W. O'Brien on July
15, 2015 regarding his back pain. [R. 978-83]. Dr.
O'Brien recommended a home exercise program and noted
that Mr. Kelly's functional status had no limitations.
Mr. Kelly's hearing loss and tinnitus evaluation on
August 12, 2015, he reported that the condition was
“bothersome to him.” [R. 1296-1301]. The
assessment concluded that he had normal hearing and that any
impairment did not meet the criteria to be considered a
disability for the VA and would not impact ordinary
conditions of daily life, including ability to work. [R.
Kelly had an appointment with Dr. Johns on August 28, 2015
and reported that he had no abdominal symptoms at that time.
[R. 1283]. He again requested narcotics for back pain but
also admitted to using marijuana, via a marijuana card, for
his PTSD. Id. During a November 17, 2015 visit with
Dr. Johns, he recommended another physiatry reevaluation for