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Kelly v. Berryhill

United States District Court, D. Connecticut

March 25, 2019



          Hon. Vanessa L. Bryant United States District Judge

         Claimant 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.


         Mr. 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].[1] 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. 557].

         I. Medical History[2]

         On June 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].

         Mr. 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].

         Mr. 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].

         During 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].

         Mr. 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].

         On 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].

         Mr. 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].

         During 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. 902].

         On 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].

         Following a primary care visit on March 24, 2014 and review of laboratory results, APRN Becker recommended further evaluation for possible hyperthyroidism. [R. 898].

         Mr. 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].

         During 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].

         Mr. 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].

         The 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.” Id.

         Mr. 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. 641-43].

         Mr. 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].

         During 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.

         In her 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.

         The 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].

         On 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.

         Mr. 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.

         APRN 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.” Id.

         APRN 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].

         The 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].

         In late 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].

         Mr. 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 prescribed. Id.

         In 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].

         During 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].

         Mr. 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.

         Mr. 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. [R. 979].

         During 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. 1299].

         Mr. 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 Mr. ...

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