Freundlich v. Berryhill

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          Robert M. Spector, United States Magistrate Judge

         This action, filed under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeks review of a final decision by the Commissioner of Social Security [“SSA”] denying the plaintiff Child's Insurance Benefits under the earnings record of his father.

         I. ADMINISTRATIVE PROCEEDINGS

         On December 19, 2013, the plaintiff filed an application for Child's Insurance Benefits, alleging disability due to attention deficit hyperactivity disorder [“ADHD”], anxiety, mood disorder, and pervasive developmental disorder [“PDD”], beginning January 1, 2004, when the plaintiff was fourteen years old.^[2] (Certified Transcript of Administrative Proceedings, dated September 28, 2018 [“Tr.”] 139, 203-04). His application was denied initially and upon reconsideration, and the plaintiff requested a hearing before an Administrative Law Judge [“ALJ”]. (Tr. 170-88, 190-91, 193-95). On November 16, 2017, a hearing was held before ALJ Eskunder Boyd at which the plaintiff, a vocational expert, the plaintiff's father, and Dr. Jeffrey Koffler testified. (Tr. 71-123; see Tr. 33-36, 39-44, 46-51, 64-65). On November 28, 2017, the ALJ issued an unfavorable decision denying the plaintiff's claim for benefits (Tr. 13-27), and on January 5, 2018, the plaintiff filed a request for review of the hearing decision. (Tr. 200). On June 29, 2018, the Appeals Council denied the request, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-3).

         On August 13, 2018, the plaintiff filed his complaint in this pending action (Doc. No. 1). The next day, the parties consented to the jurisdiction of a United States Magistrate Judge, and the case was transferred accordingly. (Doc. No. 10). On October 15, 2018, defendant filed an answer with a copy of the Certified Administrative Record, dated September 28, 2018. (Tr. 12; see also Tr. 14). On December 17, 2018, the plaintiff filed his Motion to Reverse the Decision of the Commissioner (Doc. No. 16), with a Statement of Material Facts (Doc. No. 16-2) and a brief in support (Doc. No. 16-3 [“Pl.'s Mem.”]). On January 16, 2019, the defendant filed her Motion to Affirm (Doc. No. 17), with a Statement of Material Facts (Doc. No. 17-1), and a brief in support (Doc. No. 17-2 [“Def.'s Mem.”]).

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 16) is granted such that this case is remanded for further proceedings consistent with this Ruling, and the defendant's Motion to Affirm (Doc. No. 17) is denied.

         II. FACTUAL BACKGROUND

         A. HEARING TESTIMONY

         At the time of the hearing, the plaintiff was twenty-seven years old. The plaintiff, his father, Lester Freundlich [“Mr. Freundlich”], his treating psychiatrist, Dr. Jeffrey Koffler, and a vocational expert testified.

         The plaintiff testified that he was able to dress, bathe and groom himself, he could perform household chores “[a]t a basic level[, ]” and, recently, he volunteered as an usher at a film festival in New York. (Tr. 106). When asked about his son's alleged disabilities, Mr. Freundlich testified that his son was dependent on him, that he financially supported his son, and that he tried to wake his son before leaving the house in the morning, but often his son did not get out of bed. (Tr. 85). According to Mr. Freundlich, the plaintiff could perform household chores, but “the typical response is that he doesn't do it.” (Tr. 79). Mr. Freundlich, who is a “widower twice over[]” (Tr. 78), testified that his son thought “differently” and had “difficulty with interpersonal relations, taking instructions, [and] doing . . . tasks of daily living[.]” (Tr. 79). The plaintiff did not have what his father would call “a real friend”; he misreads people. (Tr. 85-86). He had placed the plaintiff in “programs where they tried to learn to get along with other kids[, ]” but the programs did not help. (Tr. 85-86). Additionally, Mr. Freundlich explained that it was “more likely than not” that the plaintiff would not do something after being told to do so. (Tr. 86).

         According to Mr. Freundlich, when in high school, the plaintiff had a “fairly detailed IEP, ” but the school “ignored it[, ]” and he graduated high school even though he “did not deserve to pass[]” the English class that he needed to graduate. (Tr. 81). Mr. Freundlich explained that the school-recommended psychiatrist opined that the plaintiff was “not qualified to graduate[]” yet went to college “[a]s a result of a settlement.” (Tr. 82-83). The plaintiff attended Mitchell College, which “specializes in providing education to college students with mental disabilities[, ]” and then attended Curry College, which is made up of a similar population of students. (Tr. 93). The plaintiff transferred to and graduated from the University of Connecticut [“UConn”] at Storrs with a degree in political science. (Tr. 93, 105).

         The plaintiff has traveled in Greece, China and Israel. (Tr. 87, 113). Mr. Freundlich testified that his son traveled “primarily alone, with some limited support” when in Greece and China, and, during his trip to Greece, he had “[l]ots of problems[]” with his roommates. (Tr. 87). The plaintiff testified that he found the experiences in Greece and China “very stressful[]” (Tr. 113), and that he did not have good relationships with his roommates in college at UConn and Curry. (Tr. 88).

         When asked if his son could perform the work of a janitor, Mr. Freundlich testified that his “mind would wander[, ]” and he would fail to complete the set tasks. (Tr. 90). According to the plaintiff, he had a “hard time working in a normal group setting, ” and a “very hard time waking up on a regular time throughout the week.” (Tr. 107). He did not have a lot of friends, and had trouble concentrating. (Tr. 109-10). At the time of the hearing, the plaintiff was working part-time performing data entry work. (Tr. 106). The plaintiff testified that he could not perform work “when [he] feel[s] drained during the day . . . or when feeling drained for whatever reason, either mentally or physically drained.” (Tr. 114). Additionally, the plaintiff testified that he “might forget certain things, ” since when he performed the part-time data entry job, he had reminders and had someone to “make sure that things [were] being . . . done the way that . . . they want[ed] it to be done.” (Tr. 115). As the plaintiff described it, his data entry job was “very accommodating[, ]” allowing him to take off or take breaks whenever he wanted. (Tr. 116).

         Mr. Freundlich described his son as depressed and testified that his son has had suicidal thoughts. (Tr. 91). According to Mr. Freundlich, his son has become “uncontrollable[.]” (Tr. 91).

         Dr. Jeffrey Koffler, the plaintiff's psychiatrist and psychotherapist, testified that the plaintiff has “an autism spectrum disorder, a depressive disorder, an anxiety disorder, and . . . some ADHD[.]” (Tr. 97-98). Dr. Koffler explained that the plaintiff is “so talkative and so disfluent in his talking” and he “tends to go on and on[.]” (Tr. 98). According to Dr. Koffler, the plaintiff does not have an intellectual deficit or respond to internal stimuli, but he has “specialized interests” like “becoming a connoisseur of Japanese horror movies and of anime things in general[, ]” he will “sometimes . . . over generalize” and has “trouble staying on task.” (Tr. 100-01). Dr. Koffler testified that the plaintiff is “distracted by his own interests” and has reported that he felt his roommate in Greece could have killed him, and that if he was interviewed on a radio broadcast, people who listened might come after him. (Tr. 102-03). Dr. Koffler testified that there has not been an opportunity for the plaintiff to show that he could “run his own life fully[, ]” but he opined that it would “[t]ake a long time to work up towards that.” (Tr. 104).

         A vocational expert then testified that a claimant who had no exertional limitations, could perform simple and detailed, although not complex tasks, could sustain concentration, pace and persistence for three-to-four-hour segments, and could have occasional interaction with coworkers and the public, could perform the work of a cleaner, a vehicle cleaner, or a store laborer. (Tr. 118-19). Similarly, the vocational expert testified that a claimant could perform those jobs even if the claimant was limited to work with little to no changes in duties or routines, no work requiring independent judgment, and no responsibility for the safety of others. (Tr. 119-20). If such a person could not sustain concentration, pace and persistence for two-hour segments, or would be off task at least fifteen percent of the workday, the vocational expert opined that the foregoing work could not be performed. (Tr. 120). Additionally, if a person was absent three to four days a month, “an employer would not tolerate that at all.” (Tr. 120-21).

         B. MEDICAL HISTORY

         1. RECORDS PRE-DATING THE ALLEGED ONSET DATE OF DISABILITY

         The first medical document of record is a letter from Dr. Murray Engel to Dr. Judith Nemec, dated July 7, 1997, in which Dr. Engel noted that the plaintiff had “anxiety” and “attentional problems.” (Tr. 556-57). From May 25, 1999 to July 15, 1999, the plaintiff was treated in-patient and out-patient at the Four Winds Hospital for a history of “aggressive [and] impulsive behavior.” (Tr. 498-550). At that time, he was described as a “9½ year old boy with long standing history of explosive disorder and mood swings [with] one prior impatient hospitalization[.]” (Tr. 505). The diagnoses were mood disorder, intermittent explosive disorder, and ADHD, combined type. (Tr. 508). He was discharged from the in-patient program on June 18, 1999 with prescriptions for Depakote, Zyprexa, Cylert, and Lithium (Tr. 516), and then, due to concerns for his safety, the plaintiff was re-admitted to the in-patient program on July 1, 1999 and discharged on July 15, 1999, with diagnoses of bipolar disorder, not otherwise specified and psychotic disorder, not otherwise specified. (Tr. 523). He was discharged with prescriptions for Lithium Carbonate, Thorazine, and Depakote. (Tr. 528).

         Following his discharge from Four Winds, the plaintiff began treatment at KidsPeace National Center for Kids in Crisis on July 17, 1999. (Tr. 492-94). Dr. Chala Sargent Pratt completed a psychiatric evaluation in which he found the plaintiff “awkward[, ]” his mood was “good[, ]” his thought process was “clear[, ]” and his insight and judgment were “nil.” (Tr. 493). Dr. Pratt concluded that it was a “medical necessity that this child receive[ ] residential treatment to address the . . . documented pathology.” (Tr. 494).

         Two months later, school social worker Karen Holzman completed a Social Work Assessment for Stamford Public Schools in which she noted the plaintiff's problems in the “areas of organizational skills and peer relations[, ]” and that he was “so pre-occupied with his internal thoughts that he [was] oblivious of his immediate interpersonal environment.” (Tr. 704-706).

         The plaintiff underwent a psychiatric evaluation with Dr. Sanders Stein on January 21, 2000 (Tr. 476-78), which included “a synopsis of Marc's psychiatric history up until now[]” because Dr. Stein had been treating the plaintiff since August 1997. (Tr. 476). As of early 2000, the plaintiff's mental status was “clear, ” and there was no evidence of thought disorder, but his diagnoses remained bipolar disorder, not otherwise specified, with a past history of Tourette's syndrome, ADHD, obsessive-compulsive disorder, and PDD, and he continued to take Carbatroil, Lithium, and Thorazine. (Tr. 478).

         On February 16, 2000, Dr. Engel reviewed results of EEG and MRI testing and concluded that “[c]linically[, ] it [was] not clear that [the plaintiff] had clear seizures.” (Tr. 554). A repeat EEG on June 5, 2000 was interpreted as an “abnormal EEG because of the right centrotemporal sharp and slow wave complexes.” (Tr. 555).

         From February 29, 2000 to June 7, 2000, the plaintiff was treated at the Mid-Fairfield Guidance Center, Inc., Prospects Extended Day Treatment & Partial Hospitalization Program for “very poor social skills[, ]” “impaired school functioning[, ]” oppositional behaviors, history of manic and out of control behavior, and “unresolved grief pertaining to [the] death of [his] mother.” (Tr. 601-07).

         At the request of his school social worker, the plaintiff was evaluated by Elizabeth Helmig, Psy.D. in early 2000 (Tr. 597-600), at which time the plaintiff was taking Tegretol, Lithium, Thorazine, and Carbotrol. (Tr. 598). Dr. Helmig noted that the plaintiff was, at that time, “a ten-year old boy with very high intelligence. However, his functioning [was] severely limited by his social skills deficits, his rigid and obsessive thinking style, his distractibility and hypomania.” (Tr. 599). Dr. Helmig diagnosed the plaintiff with PDD, ADHD, and bipolar I disorder, and recommended continued treatment and medication management. (Tr. 599-600).

         In June 2000, at the end of the plaintiff's fifth grade year, his school social worker detailed the treatment interventions for both the plaintiff and his family (Tr. 702), which appear to have resulted in some improvement, and she made recommendations for the 2000-01 academic year. (Tr. 703).^[3]

         The plaintiff saw Dr. Jon Durica of Stamford Pediatric Associates for an annual health check on April 23, 2003, at which time the plaintiff was “doing well in school[, ]” and continued to take Lithium and Carbatrol for bipolar disorder, ADHD, and PDD. (Tr. 688-89).

         In May 2003, when the plaintiff was an eighth grader, Kelly E. Sullivan performed an Occupational Therapy Observation of the plaintiff at the Turn of River Middle School. (Tr. 364-69, 558-60). Sullivan noted that the plaintiff's anxiety was a “concern[, ]” he could “rarely complete[] assignments independently[, ] and [he] require[d] much assistance to remain on task and complete assignments correctly.” (Tr. 559). The plaintiff's “objective testing” in a language and speech assessment was “within the average range.” (Tr. 352-53). The Neuropsychological Report completed in June 2003 identified slow processing speed and a nonverbal learning disability. (Tr. 354-63).

         2. RECORDS WITHIN THE PERIOD OF ALLEGED DISABILITY (2004-2011)

         The plaintiff was seen by Dr. Durica on April 23, 2004 for his annual physical. (Tr. 694-95). At that time, the plaintiff was a ninth grader at the Academy for Information Technology and Engineering, described as “a C student” who was doing well at home. (Tr. 694-95). Dr. Durica noted diagnoses of bipolar disorder, ADHD and PDD, as well as “some motivation issues in school[.] [N]o friends[.] [S]eems [i]solated[.] [S]trongly rec[ommend] counseling[.]” (Tr. 695).^[4]

         Elliot Zelevansky, Ph.D. treated the plaintiff in counseling sessions from June 25, 2004 to August 30, 2004 for “suspected bipolar disorder and oppositional behavior disorder.” (Tr. 462) “The patient was completely refractory to participation in treatment and despite a variety of attempts to reduce his resistance, his refusal to participate was adamant and so treatment was terminated.” (Tr. 462).

         Dr. Lambros Geotes of Stamford Pediatrics performed an annual physical for the plaintiff on May 4, 2006, at which time the plaintiff was in eleventh grade, taking Lithium Carbonate. (Tr. 639-41). Additionally, in May 2006, the plaintiff underwent a neuropsychological evaluation for Stamford Public Schools at the request of the plaintiff's father. (Tr. 339-47, 465-73). The plaintiff went through a battery of tests and a clinical interview before Maria J. Harris, the school neuropsychologist, concluded that the plaintiff continued to “show significant processing speed and concentration difficulties[, ]” and recommended “extended time and quiet setting for standardized testing and critical course testing and projects.” (Tr. 471).

         School psychologist Linda Wieland administered intelligence testing and evaluated the plaintiff in December 2006. (Tr. 329-35). Ms. Wieland noted that the plaintiff demonstrated an excellent attitude toward testing and displayed good attention and concentration throughout the session. (Tr. 329). She further noted that the plaintiff's cognitive abilities ranged from low average to superior, and that perceptual organization and processing speed issues were the plaintiff's biggest weaknesses. (Tr. 329). She concluded that the plaintiff struggled with significant processing issues and that his learning profile was “reflective of a student with learning disabilities.” (Tr. 330). She recommended that the plaintiff should advocate for support services for organization and writing assignments as he transitioned to college. (Tr. 330). Ms. Wieland also noted, after observing the plaintiff, that his “social communication, social responsiveness, creativity, and range of behaviors are not consistent with a classification of Autism.” (Tr. 334-35).

         At the request of the Bureau of Rehabilitation Services [“BRS”], Dr. Leon Tec completed an assessment of the plaintiff on January 11, 2007. (Tr. 474-75). Dr. Tec noted the plaintiff's difficulty in focusing and that he is “easily distracted, not disciplined, [and] needs prodding from his father.” (Tr. 474). Dr. Tec recommended “continued psychotherapy [and] medication[.]” (Tr. 474). Dr. Tec described the plaintiff's communication skills as “not always clear”; he noted that, for “self-direction, ” the plaintiff “needs supervision”; and, he stated ...