United States District Court, D. Connecticut
RULING AND ORDER ON MOTION FOR JUDGMENT ON THE
PLEADINGS AND MOTION TO AFFIRM THE DECISION OF THE
A. Bolden United States District Judge.
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.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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
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.
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.
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.
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 of 38. Ms. Breen recommended one-on-one
therapy for coping with his mood disorder and medication
management. Tr. 425.
Novaco met with licensed clinical social worker Larry Cerrato
at Bridges for therapy a number of times starting in the fall
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.
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.
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. Id. Mr. Novaco also discussed
some bipolar traits, including hypomania and depression.
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.
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.
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.
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.
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.
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.
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.
continued therapy through the summer without significant
changes to his reports. See Tr. 353-60, 474.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
continued therapy, without significant changes, through the
end of February 2015. Tr. 513, 528, 530, 533.
Proceedings Before the SSA
August 7, 2013, Mr. Novaco filed an application for
disability benefits, claiming a disability as of August 11,
2012. Tr. 199-200.
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.
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 ...