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Novaco v. Berryhill

United States District Court, D. Connecticut

March 28, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Victor A. Bolden United States District Judge.

         Bryan James Novaco (“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 to reverse the decision of the Social Security Administration (“SSA”) denying his claim for Title II disability insurance benefits under the Social Security Act. Complaint, dated Nov. 21, 2016 (“Compl.”), ECF No. 1.

         Mr. Novaco moves for a judgment on the pleadings reversing the decision of the Acting Commissioner. Motion for Judgment on the Pleadings, dated Apr. 14, 2017 (“Pl.'s Mot.”), ECF No. 13; Memorandum in Support of Pl.'s Mot., dated Apr. 14, 2017 (“Pl.'s Mem.”), ECF No. 14. The Acting Commissioner moves for an order affirming her decision. Motion for an Order Affirming the Decision of the Commissioner, dated Jun. 13, 2017 (“Def.'s Mot.”), ECF No. 16; Memorandum in Support of Def.'s Mot., dated June 13, 2017 (“Def.'s Mem.”), ECF No. 16-1.

         For the reasons explained below, Mr. Novaco's motion is GRANTED IN PART AND DENIED IN PART. His motion is granted with respect to the Acting Commissioner's Step Five finding, but denied as to his other claims of error. The Acting Commissioner's motion is DENIED. The decision of the Acting Commissioner is VACATED and REMANDED for rehearing and further proceedings in accordance with this decision.


         A. Factual Background

         Mr. Novaco, now 40 years old, lives in East Haven, Connecticut. Tr. 48. He has two years of college education and has worked as a pet store shift manager, a restoration cleaner, and a warehouse inventory manager. Tr. 36, 225, 267. He alleges that he became disabled and unable to work on August 11, 2012. Tr. 211-12.

         Mr. Novaco suffers from at least three identified mental health conditions: depressive disorder, anxiety disorder, and personality disorder. The ALJ also identified an additional mental impairment related to cannabis dependence.

         Since August 2012, Mr. Novaco has not worked. He now seeks review of the Acting Commissioner's denial of his application for benefits under Title II.

         1. Medical Evidence

         Mr. Novaco has a history of mental health treatment with multiple providers. Tr. 282. During the entire relevant period, he primarily received outpatient treatment at Bridges Community Support System (“Bridges”). Joint Statement of Material Facts, dated Apr. 14, 2017 (“J. SMF”), ECF No. 15, at 3.

         On August 30, 2012, psychologist Paula Leshine referred Mr. Novaco for a psychiatric evaluation, medication management, and therapy for symptom management. Tr. 282. She noted that Mr. Novaco had a “[l]ongstanding history of psych[iatric] treatment, with multiple providers, ” and noted that he experienced “severe anxiety, mood regulation problems, [and] minimal appetite.” Id. She also noted that Mr. Novaco's “[w]ork history [was] impaired by anxiety, ” and that he reported a “[l]imited effectiveness of medication currently and with past medications.” Id. She diagnosed Mr. Novaco with generalized anxiety disorder, rule-out panic disorder with agoraphobia and bipolar disorder. Id. He had been taking Klonopin. Id.

         On September 6, 2012, Mr. Novaco visited Dr. Leshine again. Tr. 281. She noted that Mr. Novaco's anger with his psychiatrist, Dr. Charney, for failing to return Mr. Novaco's phone calls, and that he was scheduled to meet with Dr. Charney later that day. Tr. 281. Dr. Leshine found that Mr. Novaco had extreme anxiety and noted that he had expressed suicidal and homicidal thoughts, toward Dr. Charney. Id. Rather than see Dr. Charney, later that day, “given his current state, ” Mr. Novaco reported to the emergency room. Id.

         Mr. Novaco was then admitted to Yale-New Haven Hospital, after expressing a desire to hurt Dr. Charney. Tr. 291, 294. He stayed under in-patient care for ten days until he was stable enough to discharge. Id. During that time, he reduced his usage of Klonopin and began to take Depakote. Tr. 292. His discharge summary stated that he “has had multiple admissions, although none recently with his last reportedly at Yale Psychiatric Hospital in 1999.” Tr. 291.

         The discharge summary also noted that Mr. Novaco had overdosed twice in the past, and a possible third in 2003, that he has a history of violence, and that he “reported a past feeling that his anger ‘went through the roof' when he was prescribed Zoloft.” Id. Furthermore, Mr. Novaco had been treated in the past with other medications. Id. While Mr. Novaco did not provide “a history of distinct manic episodes, but does have a history of episodes of feeling irritable and full of rage.” Id. The discharge summary also noted that he had a recent history of using cannabis: he had been using cannabis daily, he had stopped for a few weeks, and he had relapsed the day before he was admitted. Id. He was advised to continue to seek follow-up treatment at Bridges. Tr. 293.

         On September 24, 2012, Mr. Novaco returned to Bridges and met with licensed clinical social worker Isabelle Breen, an intake clinician at Bridges. Tr. 416-25. He had the following symptoms: depressed mood, grief, hopelessness, worthlessness, guilt, anxiety, panic attacks, obsession/compulsions, irritability, sleep disturbance, and substance use. Tr. 420. He was also well-groomed, cooperative, anxious, agitated, his speech was normal, and his thought process was intact. Tr. 421. Ms. Breen noted Mr. Novaco's suicidal and homicidal ideation. Tr. 422. Ms. Breen diagnosed him with a mood disorder, not otherwise specified (“NOS”), an anxiety disorder NOS, and cannabis dependence in remission. Tr. 424. She also assessed a Global Assessment of Functioning (“GAF”) score[1] of 38.[2] Ms. Breen recommended one-on-one therapy for coping with his mood disorder and medication management. Tr. 425.

         Mr. Novaco met with licensed clinical social worker Larry Cerrato at Bridges for therapy a number of times starting in the fall of 2012.

         On November 8, 2012, Mr. Novaco reported a long history of mood swings, obsessive-compulsive behavior, a history of agoraphobia, and that he tended to move from job to job, spending only two or three years at each. Tr. 426. Mr. Cerrato noted that Mr. Novaco was well- groomed, on time, alert, engaged, and that he recognized his feelings. Id. Mr. Cerrato also noted that Mr. Novaco's mood was depressed and anxious. Id. Mr. Novaco was taking Depakote and Klonopin, and smoking marijuana. Id.

         On November 13, 2012, Mr. Cerrato's evaluation of Mr. Novaco was unchanged since the previous week, and he noted that Mr. Novaco was “motivated [and] doing ok considering circumstances.” Tr. 428.

         On November 19, 2012, Mr. Cerrato noted that Mr. Novaco was again well-groomed, prompt, alert, and engaged. Tr. 430. Mr. Cerrato also recorded that Mr. Novaco was anxious and depressed.[3] Id. Mr. Novaco also discussed some bipolar traits, including hypomania and depression. Id.

         On December 11, 2012, Mr. Novaco felt depressed, feared going outside, and felt he had too much spare time. Tr. 436. They continued to meet through January, and Mr. Cerrato marked no significant changes. Tr. 344-46.

         On February 5, 2013, Mr. Novaco reported that he went out every day, that people were helping him and he wished he could help others, and that he was “doing much better this week.” Tr. 347, 444.

         On February 19, 2013, Mr. Novaco reported that he was sleeping poorly and not eating, and that he had “passive ideation, not plan or intent, ” and Mr. Cerrato noted that Mr. Novaco had a depressed and anxious mood. Tr. 348.

         That same day, Dr. Rafique Tai, M.D., a psychiatrist at Bridges, evaluated Mr. Novaco. Tr. 413-15. Mr. Novaco told Dr. Tai that he had anxiety, and that he had used Depakote, Klonopin, and marijuana to relieve his anxiety. Tr. 341. Dr. Tai noted that Mr. Novaco's thought content focused on anxiety, that he had a mildly anxious mood, and that he had poor insight. Tr. 342. Dr. Tai also noted that Mr. Novaco's thought process was goal-oriented, that he was cooperative and responsive, that he was vague about his history, and that he did not exhibit a thought disorder. Id. Dr. Tai diagnosed Mr. Novaco with generalized anxiety disorder and prescribed Citalopram. Id.

         On March 7, 2013, Mr. Novaco met with Mr. Cerrato, and stated that he was “off all [his] meds, ” because he did not want to deal with them, and that he was finding that he was “a real mean person off meds” and “more confrontational.” Tr. 350. He did not report homicidal or suicidal ideation. Id.

         On March 12, 2013, Mr. Novaco stated that he was still not taking his medications, and that he had stopped using synthetic marijuana because of its side effects. Tr. 352. He reported “high anxiety, ” that he had been anxious all weekend, and said, “the good thing is I realized I want to live.” Id.

         At therapy, on March 19, 2013, Mr. Novaco felt that he didn't deserve to be alive. Tr. 351. He had an anxious and depressed mood, and a flat affect. Id. Several months later, on July 23, 2013, he stated that he could not seem to get control of his moods, that he had not slept in two days, was not eating, and that he had not been taking any medications for ten months. Tr. 358. He also requested assistance with his disability insurance benefits application. Tr. 359.

         He continued therapy through the summer without significant changes to his reports. See Tr. 353-60, 474.

         On September 3, 2013, Mr. Cerrato completed a report for the Social Security Administration. Tr. 332-35. He noted that Mr. Novaco had made slight improvements, since he began weekly therapy appointments one year earlier, and that he was not taking medications. Tr. 332. He listed Mr. Novaco's diagnoses as mood disorder, rule out bipolar disorder, and cannabis abuse. Id. He also stated that cannabis had a very calming effect on Mr. Novaco's conditions. Id. He also noted that Mr. Novaco was thin and gaunt, had poor short-term memory, adequate judgment and insight, a depressed and anxious mood, and a flat affect. Tr. 332-33.

         Mr. Cerrato opined that Mr. Novaco had a “very serious problem” in his ability to cope with the ordinary demands of a work environment, to handle frustration appropriately, and that he had a history of yelling at co-workers and customers and a history of homicidal ideation toward his former psychiatrist. Tr. 333. Mr. Cerrato also stated that Mr. Novaco had a very serious problem handling frustration appropriately, as well as a very serious problem performing work activity on a sustained basis, i.e., eight hours a day, five days a week. Id.

         Mr. Cerrato reported that Mr. Novaco has an obvious problem in his ability to get along with others without distracting them or exhibiting behavioral extremes and in his ability to perform basic work activities at a reasonable pace and finish on time, due to periodic mood swings involving low frustration tolerance, agoraphobic tendencies, and poor concentration and memory. Tr. 334. During stable periods, he explained, Mr. Novaco generally got along with supervisors and did not have a problem using good judgment about safety and dangerous circumstances or carrying out single-step or multiple-step instructions. Tr. 333-34. The report also noted that Mr. Novaco had a slight problem caring for his physical needs and responding appropriately to authority. Id.

         On September 10, 2013, Dr. Tara Kerner, M.D., a supervising psychiatrist at Bridges, co-signed Mr. Cerrato's September 3, 2013 report. Tr. 335; J. SMF at 7.

         On September 24, 2013, Mr. Novaco met with Mr. Cerrato and stated that he felt like he was “losing it” and that he was “in the fight or flight response 24/7.” Tr. 361. He stated that he was sleeping only two or three hours each night, and Mr. Cerrato noted that he had a depressed and anxious mood with a labile affect. Id.

         On October 8, 2013, Mr. Novaco and his mother met with Mr. Cerrato. Tr. 362. He stated, “I don't know what's wrong with me . . . I feel like stripping off my clothes and running down the street screaming . . . I can't explain it.” Tr. 362. He stated that he was self-medicating with synthetic marijuana and that he did not want to stop, and thought that it was the only thing that worked. Tr. 362. His report stated that he had a depressed mood and a labile affect, as well as homicidal ideation. Id.

         On October 15, 2013, Mr. Novaco reported to Mr. Cerrato that he was doing better. Tr. 363. His mood was stable, and Mr. Cerrato noted a big difference from the previous week. Id.

         On November 12, 2013, Mr. Novaco reported that he felt like someone else was controlling his brain, and that he was increasingly confused and in conflict. Tr. 364. He was not smoking marijuana. Id. He had a depressed and anxious mood and a labile affect. Id.

         On November 22, 2013, Mr. Cerrato partially completed a report for the Social Security Administration, reporting that Mr. Novaco's mental status findings had not changed since Mr. Cerrato's September 2013 report. Tr. 368-70.

         On January 7, 2014, Mr. Novaco told Mr. Cerrato that he felt stuck, feared leaving his home, and felt that marijuana helped him. Tr. 486. He had an anxious and depressed mood and a constricted affect. Id. Mr. Novaco also stated that he felt hopeless and depressed and threatened suicide, if his girlfriend left him. Id. He continued therapy without significant changes through the end of February 2014. Tr. 488-93.

         On February 25, 2014, Mr. Cerrato reported that he was treating Mr. Novaco for bipolar I disorder, characterized by rapid mood swings, racing thoughts, irritability, difficulty concentrating, depression, sleep problems, and mania. Tr. 402. He opined that Mr. Novaco would be unable to work because of these characteristics, which would interfere with job requirements, and because Mr. Novaco had a history of arguing with customers, threatening co-workers, and other aggressive behavior. Id. Mr. Novaco was not taking any medications. Id.

         On March 18, 2014, Mr. Novaco and his mother met with Mr. Cerrato and reported that he spends the entire day wrestling with himself. Tr. 494. Mr. Novaco had a depressed mood and a flat affect that day, and no changes were documented on April 22, 2014. Id. On May 20, 2014, Mr. Novaco expressed some recent improvement. Tr. 498. That day, his mood was stable and his affect was appropriate. Id.

         On June 6, 2014, Mr. Cerrato completed a Mental Impairment Questionnaire, diagnosing Mr. Novaco with bipolar II disorder, a history of cannabis abuse, rule-out generalized anxiety disorder. Tr. 503. Mr. Novaco was not taking medications. Id. Mr. Novaco had symptoms including anger, difficulty with impulse control, anxiety, and agoraphobia. Tr. 505. Mr. Cerrato opined that Mr. Novaco was not a malingerer and that his symptoms had been present since at least August 11, 2012. Tr. 503, 507. Mr. Cerrato also found that Mr. Novaco had no limitations or mild limitations remembering locations or work procedures, or remembering one- or two-step instructions, being basically neat, being aware of hazards, and taking basic precautions. Tr. 506.

         He also found that Mr. Novaco had moderate limitations in carrying out detailed instructions, maintaining attention and concentration for extended periods, performing activities within a schedule, sustaining a routine, setting realistic goals, and making independent plans. Id. Mr. Novaco had marked limitations in coordinating with others, completing a workday without interruptions, performing at a consistent pace without rest periods of unreasonable length or frequency, interacting appropriately with the public, maintaining socially appropriate behavior, traveling to unfamiliar places or using public transportation. Tr. 506. Mr. Novaco also had moderate or marked limitations in asking simple questions or requesting assistance, accepting instructions, responding appropriately to criticism from supervisors, getting along with co-workers and peers, and responding appropriately to workplace changes. Id.

         On July 1, 2014, Mr. Novaco reported to Mr. Cerrato that he had panic attacks from imagining going outside, that he was struggling with making decisions, and that he was experiencing anxiety, panic, and helplessness. Tr. 509. He had a depressed mood. Id.

         On September 2, 2014, Mr. Novaco reported that he felt paralyzed and that pretending to go to work would make him anxious. Tr. 511. He had an anxious and depressed mood and a flat affect. Id.

         He continued therapy, without significant changes, through the end of February 2015. Tr. 513, 528, 530, 533.

         2. Proceedings Before the SSA

         On August 7, 2013, Mr. Novaco filed an application for disability benefits, claiming a disability as of August 11, 2012. Tr. 199-200.

         On October 25, 2013, Dr. Thomas Hill, a State agency physician, reviewed Mr. Novaco's record, including records from Yale Hospital, Bridges, Dr. Leshine, Milford Hospital, and Dr. Rama. Tr. 82-92. Dr. Hill noted that Mr. Novaco, whose alleged onset date was August 11, 2012, allegedly had the following impairments: severe anxiety disorder, bipolar disorder, and attention deficit disorder. Tr. 82, 83, 85. Dr. Hill found that Mr. Novaco had mild restrictions in activities of daily living and moderate difficulties in maintaining social functioning, concentration, persistence, and pace. Tr. 87. Dr. Hill also noted that Mr. Novaco had one or two episodes of decompensation. Id.

         He concluded that the evidence did not establish the presence of “C” Criteria: having “either an organic mental, schizophrenic, etc., or affective disorder(s) . . . .” Id. Dr. Hill also found that Mr. Novaco's impairments were aggravated by cannabis abuse and that he would benefit from therapeutic doses of mood stabilizers. Id. He found that Mr. Novaco tended to act aggressively when under stress, and that ...

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