United States District Court, D. Connecticut
HECTOR G. BELTRE, JR., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OF DECISION DENYING MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER [ECF NO. 19]
Vanessa L. Bryant United States District Judge.
this Court is an administrative appeal filed by Plaintiff
Hector G. Beltre, Jr. (“Claimant”) pursuant to 42
U.S.C. § 405(g) following the denial of his application
for Title II Social Security Disability and Title XVI
Supplemental Security Income benefits. Claimant moves
for an order reversing the decision of the Commissioner of
the Social Security Administration
(“Commissioner”) and remanding the case pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3) on the basis
that ALJ Alexander Peter Borré gave too much weight to
the evidence of Claimant's substance abuse, which, in the
face of Claimant's undisputed disability, caused the ALJ
to improperly deny Claimant disability
benefits. See [ECF No. 19 (Mot. to Reverse
the Decision of the Comm'r)]. The Commissioner opposes
this motion. [ECF No. 25 (Mem. in Supp. of Mot. to Affirm the
Decision of the Comm'r)]. For the foregoing reasons,
Claimant's motion is DENIED and Commissioner's Motion
for an Order Affirming the Commissioner's Decision is
the Commissioner has filed a Statement of Material Facts in
this case.The Commissioner's Statement of
Material Facts accurately reflects the record and is
incorporated into this opinion. The following facts derive
from the Commissioner's Statement of Material Facts and
was born on March 29, 1981 and alleges his disability began
on March 25, 2011 when he was 29 years old. (R. 407). On
September 15, 2014, Claimant applied for SSDI and SSI
benefits. (R. 10). At the time of the hearings on September 26,
2017, and January 23, 2108, Claimant lived with his parents
in Manchester, Connecticut. (R. 88, 90, [ECF No. 1 at 6]).
received psychotherapy and psychiatric treatment from Dr.
Jose Santos at the Connecticut Anxiety and Depression
Treatment Center (“CADTC”) from February 18, 2010
through August 2010. (R. 676-96). On intake on February 18,
2010 he reported anxiety and depression and reported
marijuana use. (R. 685, 687).
11, 2010, Claimant was referred to admission in a
“professional program” at the Institute of Living
(“IOL”), which is part of the Hartford Hospital
Mental Health Network, by his outpatient psychiatrist for
increased depression and anxiety, isolating, risky sexual
behavior, feelings of guilt and worthlessness, poor
concentration, passive suicidal thoughts, and feelings of
hopelessness. (R. 666). His last day in the program was July
16, 2010. Id. Dr. Alfred Herzog, a supervising
psychiatrist, summarized Claimant's treatment in the
program in a treatment note dated July 22, 2010. (R. 666-68).
Dr. Herzog wrote that Claimant had a history of alcohol abuse
from age 22 through 25. (R. 666). He reported smoking
cannabis since age 17, five days a week, and then having a
period of not using it. Id. He used cocaine at that
time twice a month. Id. Dr. Herzog stated that
Claimant minimized his substance use problems but agreed to
abstain for the sake of the program. Id. During the
first two weeks in the program, Plaintiff reported
improvement, feeling less depressed and more hopeful, but by
the third week, he regressed. Id. He reported that
his work place, from which he was on a leave of absence, did
not appreciate him, but the vocational counselor had heard
from his work place that they very much valued his work. (R.
666-67). Two urine drug screens during his time in the
program were positive for cannabis and negative for cocaine.
(R. 667) Claimant admitted he had smoked marijuana
occasionally while in the program, but less than he had
previously. Id. He was diagnosed with bipolar
disorder, cannabis dependence, cocaine abuse, history of
alcohol abuse, asthma, and gastroesophageal reflux disease
(GERD). (R. 668). During his treatment, he took lithium,
which was ultimately discontinued, as well as Depakote and
Klonopin, which were continued at discharge. (R. 667). He was
also prescribed Wellbutrin, Lexapro, and omeprazole (an
anti-acid medication used to treat GERD) at discharge.
Id. His condition on discharge was listed as:
“Regressed, worsening of symptoms.” (R. 668).
16, 2010, Claimant was admitted voluntarily from the IOL
professional day treatment program to in-patient care because
he had been “feeling increasingly depressed,
increasingly anxious, and [had] suicidal ideation.” (R.
670). Social worker Joette Johnson provided a discharge note
summarizing Claimant's in-patient treatment at the IOL
from July 16 through July 21. (R. 670-73); see also
(R. 674). She noted that by the time of discharge, Claimant
“exhibited an appropriate affect” and “was
hopeful regarding the future.” (R. 672). “He
denied suicidal ideation, ” was
“cooperative” and “goal-directed, ”
and “reported positive effects [from his] medications.
Id. On discharge, he was given a post-hospital
treatment plan, advised to avoid alcohol and illicit
substances, and was assigned to the IOL dialectical
behavioral therapy (DBT) program with a start date of July
23, 2010. (R. 672-75).
tested positive for HIV in February 2011. (R. 699). His
primary care physician, Dr. Kenneth Abriola, gave him the
results on March 2, 2011. (R. 735). Dr. Abriola increased
Claimant's Lexapro dose to 30mg and encouraged him to see
his therapist. (R. 736). Claimant denied suicidal ideation.
March 29, 2011, Claimant told Dr. Abriola he was off his
medications due to not having health insurance. (R. 733). He
was “alert, ” “oriented, ” and
“pleasant, ” and his physical examination results
were normal. Id. Dr. Abriola discussed starting
antiretroviral therapy and “strongly encouraged”
Claimant “to remain on his psychiatric
medications.” (R. 734).
saw Dr. Abriola again and reported an improved mood and
improved energy on April 27, 2011 and stated that he had been
taking his medications. (R. 731). He was alert, oriented, and
pleasant, and a physical examination was normal. (R. 731-32).
He returned on May 13 to discuss his HIV care plan. (R. 867).
Examination results remained the same. (R. 867).
Abriola provided a medical opinion dated June 8, 2011
regarding Claimant's mental functioning. (R. 744-46). He
indicated that he had seen Claimant every two to three months
and as needed since March 2009, and that Claimant had
slightly improved during this time. (R. 744). Dr. Abriola
indicated that Claimant had diagnoses of bipolar disorder and
moderate depression. Id. He took Lexapro 20 mg
daily, Wellbutrin 300 mg daily, and Clonazepam 1 mg three
times daily. Id. Dr. Abriola stated that Claimant
was in “no acute distress, ” his speech was
“normal, ” he had no hallucinations or delusions,
and his decision-making was “moderately
impaired.” (R. 744-45). He indicated that Claimant was
depressed and anxious. (R. 745). Dr. Abriola opined that
Claimant had a slight problem asking questions or requesting
assistance, getting along with others without distracting
them or exhibiting behavioral extremes, and carrying out
multi-step instructions. (R. 746). He opined that Claimant
had an obvious problem using appropriate coping skills to
meet the ordinary demands of a work environment, handling
frustration appropriately, interacting appropriately with
others in a work environment, focusing long enough to
complete tasks, changing from one simple task to another, and
performing basic work activities at a reasonable pace. (R.
745-46). He further opined that Claimant had a serious
problem performing work activity on a sustained basis. (R.
746). He opined that Claimant had no problems in other areas
of work activity. (R. 745-46).
Abriola also provided an opinion dated June 8, 2011 regarding
Claimant's physical impairments due to HIV. (R. 748-49).
He reported that Claimant could perform daily life activities
and was responding to HIV treatment but had
“[d]ifficulties with participating in large group
activities.” (R. 749).
10, 2011, Claimant was tearful and anxious when he saw Dr.
Abriola. (R. 727). He reported taking Klonopin regularly but
was only taking 10 mg of Lexapro per day. Id. He was
alert, oriented, and pleasant. Id. Dr. Abriola
encouraged him to increase his daily dose of Lexapro to 30mg,
as previously instructed. (R. 728). His HIV infection
continued to be asymptomatic. Id.
Schroeder, Ph.D., who indicated he had been treating Claimant
since February 24, 2010, provided an opinion regarding
Claimant's mental functioning on June 30, 2011. (R.
752-55). He reported that Claimant had “racing
thoughts” and reduced memory and concentration, but
that he was fully oriented. (R. 752). His mood was depressed,
and his affect was flat, but his insight and judgment were
good. (R. 753). Dr. Schroeder opined that Claimant had from
obvious to serious problems in activities of daily living.
Id. He opined that Claimant had no problems getting
along with others without distracting them or exhibiting
behavioral extremes, slight problems asking questions and
responding appropriately to others in authority, and an
obvious problem interacting appropriately with others in a
work environment. (R. 754). He further opined that Claimant
had no problems carrying out single-step instructions,
focusing long enough to finish assigned tasks and activities,
and changing from one simple task to another; a slight
problem carrying out multi-step instructions; an obvious
problem performing basic work activities at a reasonable
pace; and a serious problem performing work activity on a
sustained basis. (R. 754). Dr. Schroder also submitted
therapy notes dating from February 2010 through June 2011,
which reflect notations from an initial session on February
24, 2010 discussing Claimant's history of anxiety and
depression, and several sessions from March through June
2011. (R. 756-64).
21, 2011, Claimant returned to Dr. Abriola. (R. 774). A
physical examination was normal, and he was alert, oriented,
and pleasant. Id. Claimant's mental health
appeared to be stable, and Dr. Abriola noted that he would
have to address the issue of activating prescriptions from
providers that Claimant was no longer seeing. (R. 775).
was admitted to the IOL on September 7, 2011 with suicidal
thoughts, noting stressors including his HIV diagnosis and
having to live with his parents because he had lost his job.
(R. 803). He had stopped mental health treatment after losing
his job because he no longer had insurance. Id. On
intake Amy Taylor, M.D., a psychiatrist, noted Claimant's
prior diagnoses of bipolar disorder, cannabis dependence, and
cocaine dependence, and noted that prior to admission
Claimant had been using marijuana and crack cocaine daily
after relapsing two months prior. (R. 803, 806). His
admittance drug test was positive for benzodiazepines,
cocaine, opiates, and marijuana. (R. 803). During his
hospital admission, his medication was switched from Lexapro
to Celexa because Celexa was on the hospital formulary, and
he was also prescribed Haldol 5mg twice a day and Cogentin
0.5 mg twice a day. Id. He stabilized fairly quickly
and reported that his mood was good. Id. He was
discharged on September 9, 2011, at which time he denied
suicidal or homicidal ideation, and reported feeling calmer
with his medication adjustments. Id. Dr. Taylor
noted that this depressive episode was most likely related to
substance dependence and stated that “the reason he
[was] feeling better [was] that he [was] no longer using
crack” cocaine. Id. He had a fair response to
treatment with therapy, coping skills groups, and medication
management. (R. 807). He was encouraged to abstain from
illicit drugs in order to maintain his mood and prevent
repeat episodes of depression. (R. 803).
had an intake assessment with social worker Heidi Friedland
on September 14, 2011. (R. 833). He admitted that prior to
his inpatient treatment at the IOL with Dr. Taylor he was
using marijuana almost daily and was using $25-$50 worth of
cocaine daily, and that his drug use had increased since
February 2011. (R. 837-38). Claimant said he did not believe
he had this substance abuse problem anymore. (R. 838). Mental
status examination results indicated that Claimant was
well-groomed and cooperative, with good eye contact.
Id. His speech was normal but pressured, and his
thought process was intact. Id. He was fully
oriented, and his memory, judgment, and insight were intact
(though it was also noted that his memory was questionable
because some of his reporting contradicted information in his
medical records). (R. 838, 841). He expressed suicidal
ideation, but no plan. (R. 839). His mood was depressed and
anxious. (R. 841).
returned to Dr. Abriola on September 28, 2011. (R. 875). His
family said he had been behaving oddly, but he had no memory
of his behaviors. Id. He was disgusted with himself
and had thrown out all of his medication. Id. He was
alert, oriented, and pleasant, with pressured speech and
intermittent tearfulness and agitation. Id.
November 10, 2011, Dr. Abriola again noted that
Plaintiff's HIV was asymptomatic and encouraged him to
adhere to mental health treatment. (R. 719). He also provided
an opinion on Claimant's mental impairments, stating that
Claimant had normal speech, but poor concentration and
difficulty focusing. (R. 821). He was depressed and anxious
and his decision-making was moderately impaired. Id.
Dr. Abriola opined that Claimant had no problem taking care
of personal hygiene or caring for his physical needs, and had
a slight problem using good judgment regarding safety and
dangerous circumstances. Id. He opined that Claimant
had a serious problem handling frustration appropriately and
a very serious problem using coping skills to meet ordinary
demands of a work environment. Id. He noted that
Claimant had difficulty accepting that he had a mental health
condition, and Dr. Abriola encouraged Claimant to adhere to a
mental health treatment plan. Id.
saw Dr. Abriola again on December 19, 2011. (R. 879). He had
not taken his psychotropic medications for a month and was
not taking his HIV medication. (R. 879, 880). He was alert
and oriented, but his thought process was somewhat
“tangential.” (R. 879). His physical examination
was normal. Id.
April 18, 2012, Claimant returned to Dr. Abriola for follow
up HIV care. (R. 881). He continued to resist efforts to use
medication for his bipolar disorder. Id. He was
alert, oriented, and calm, and physical examination results
were normal. Id. His HIV continued to be
asymptomatic. Id. The following month, he reported
that he was feeling better mentally and working with his
therapist but wanted to stay off medications until November
2012 and was focusing on prayer. (R. 883, 885). His physical
and mental status examination results continued to be normal.
(R. 884-85). Blood test results showed that Claimant's
CD4 count was 319, which was below the normal range of
535-1451, and Dr. Abriola noted that Claimant should clearly
be back on antiviral therapy, but Claimant was reluctant to
consider any medications until after November 2012. (R. 885).
saw Dr. Abriola again in October 2012. (R. 890). Mental and
physical examination results remained normal. (R. 891). He
asked to resume HIV treatment, so Dr. Abriola prescribed
Truvada and Isentress. (R. 892). Claimant remained off
medication for his depression and bipolar disorder.
Id. In December 2012, Claimant reported to Dr.
Abriola that he was working two jobs. (R. 893). Examination
results remained normal. Id. He was still off
psychotropic medications. (R. 894).
March 2013, Claimant told Dr. Abriola he was doing well with
his new job. (R. 898). At that appointment, as well as
appointments in April and November 2013, he continued to take
his HIV medications and to refuse medications for depression
and bipolar disorder, and his examination results remained
the same. (R. 899, 901-02, 904-05).
March 2014, Claimant told Dr. Abriola that he had used crack
cocaine that week after an episode at work. (R. 907). He was
alert and oriented, pleasant, calm, and appropriate, and
physical examinations were normal. Id. Dr. Abriola
noted that Claimant remained off medication for his mood
disorders, and he was concerned by Claimant's paranoid
ideation and cocaine use. (R. 908). He cautioned Claimant
against further use of cocaine. Id.
weeks after reporting the episode of cocaine use, on March
21, 2014, Claimant told Dr. Abriola that he had been fired
from work and was having chest pain related to anxiety. (R.
910). He had, however, obtained a new job that he would be
starting on April 7. Id. He stated that he had used
other peoples' Xanax and would use alcohol if he could
not get Xanax but denied using cocaine or crack again.
Id. His mental status and physical examinations
remained normal. (R. 912). Dr. Abriola prescribed clonazepam
to treat Claimant's mood disorder but noted that
historically he was not particularly adherent to his
prescriptions. Id. He advised Claimant to resume
treatment with his therapist. (R. 912).
Jesus Lago conducted a psychiatric assessment of Claimant for
Connecticut Disability Determination Services on November 11,
2014. (R. 934-37). Claimant was calm, cooperative, polite,
and respectful. (R. 934). His posture and gait were normal,
and he had excellent grooming and hygiene. Id. Dr.
Lago noted that Claimant was an excellent historian.
Id. Claimant reported that he had lost his job in
2011 after it was revealed that he was HIV positive, after
which he was hospitalized for one week for depression.
Id. He then had psychiatric care for 14 months. (R.
935). He reported that he did well with treatment and
returned to work and was doing well in his usual state of
health until March 2014 (which, as other records show, was
when he began using crack cocaine). (R. 907, 934). He was not
taking psychotropic medications or receiving mental
healthcare. (R. 934). He reported being depressed for the
last three to four months, and that he had been anxious as
well. (R. 935). He reported that he was taking HIV
medications and Klonopin. Id. He stated that he last
used crack cocaine two months before and marijuana one year
before. Id. He had never been to a formal
rehabilitation program but had attended groups at his church.
Id. He said he was not sure if he would be able to
work and he was tired of being harassed. (R. 935-36). He
lived with his parents, took care of his chores, did his
activities of daily living, and functioned independently. (R.
Lago's November 11, 2014 mental status examination showed
that Claimant was relaxed, cooperative, and pleasant, with
very good rapport. (R. 936). His speech was normal rate,
tone, and intensity, and he was coherent, logical, and
goal-directed. Id. His mood was “okay, ”
and his affect was appropriate. Id. He reported
being depressed five to six days out of seven for the past
three to four months. Id. He reported low energy and
fluctuating appetite. Id. His cognition was
excellent, he was fully oriented, and he followed simple
commands and instructions. Id. He was insightful,
attentive, and well-focused. Id. Dr. Lago assessed
major depressive disorder, recurrent mild-to-moderate, crack
cocaine dependence in early full remission, and cannabis
dependence in sustained full remission. Id. Dr. Lago
opined that Claimant had an excellent understanding of his
condition, his memory was intact, and he demonstrated
sustained concentration and persistence throughout the
interview. (R. 937). His social interaction with supervisors
and coworkers has been excellent. Id. Dr. Lago
opined that in the short term, Plaintiff may have difficulty
adapting to work setting, but his prognosis was excellent,
and that he had done very well with psychiatric care and
treatment in the past. Id.
January 7, 2015, Claimant had an intake assessment at CHR, a
behavioral health care provider, with therapist Christine
Grant. (R. 941). He reported uncontrollable anxiety and
depression. Id. He was not working but was looking
for work and had been unemployed since March 2014.
Id. He reported that he had been feeling depression
symptoms for the last year due to loss of work and the murder
of his uncle. Id. He stated that his anxiety was
manageable until November 2014. (R. 942). He stated that he
had not used drugs in the last 30 days, but he that he used
alcohol to help him relax and deal with depression. (R. 944).
His drinking was variable from week to week, and sometimes he
did not drink, but sometimes he had blackouts. Id.
Mental status examination results were generally
unremarkable, including that Claimant was fully oriented, his
thought process was organized and clear, his psychomotor
activity was normal, and his judgment was intact, but his
immediate recall was poor. (R. 947). It was recommended that
Claimant begin individual therapy. (R. 972).
March 5, 2015, Claimant saw Dr. Abriola, who noted that
Claimant had had a manic episode and was hospitalized at
Manchester Memorial Hospital (MMH), where his urine tested
positive for cocaine, and he reported that he had relapsed on
crack cocaine. (R. 990). Claimant was alert and oriented,
with a flat affect, slow speech, and a depressed mood. (R.
March 6, 2015, Claimant saw therapist Shirley Higgins for
assistance with panic attacks, anxiety, and substance abuse
issues. (R. 1361). Claimant reported severe anxiety, as well
as grief issues stemming from the murder of his uncle. (R.
saw Dr. Teodora Andrei on March 10, 2015. (R. 954). The
treatment note indicated that Claimant had recently been to
the emergency department with chest pains and was found to be
manic. Id. Claimant told Dr. Andrei that prior to
the emergency department visit, he was bingeing on cocaine
for two days. Id. When he was discharged from the
hospital, he was supposed to follow up at STEPS, but he only
attended for three days because he did not tolerate going to
group therapy. Id. He had had three sessions with
Ms. Higgins. Id. Claimant's mood was irritated
but his thought process was organized. Id. He stated
that he had a couple of panic attacks since he was discharged
from the hospital, and they “just happened.”
Id. Dr. Andrei noted that “[a]lthough he is
aware of the deleterious effects of cocaine on both the
physical and mental health he is not accepting that his most
recent psychiatric admission was related to his cocaine
March 24, 2015, Claimant told Dr. Andrei that he had not
abused alcohol in over one week and had no cocaine since his
most recent hospital admission. (R. 958). He was planning to
take a trip to Nevada with his cousin at the end of March.
Id. Claimant reported having run out of 30 one-half
milligram tabs of lorazepam within one week, having taken
more than recommended due to experiencing chest pains.
Id. Mental status examination results were
unremarkable, and Claimant stated that his anxiety had been
less in the last week despite the fact that he had not been
taking his lorazepam. Id. He reported that for the
past week, he was able to calm himself down, and had decided
to manage his anxiety by not taking so much medication, but
rather by deep breathing and relaxation techniques.
saw Dr. Andrei again on February 1, 2016. (R. 983). He had
missed the previous month's appointment because he was
working. Id. He was a little anxious about his new
job as a case manager but had been performing well.
Id. He reported sobriety from alcohol, cannabis, and
cocaine, as well as good sleep, and appropriate energy.
Id. He had started jogging, which he said helped
with his anxiety. Id. Mental status examination
results were normal. Id.
Abriola submitted a letter dated February 24, 2016 reporting
that Claimant had no physical limitations that would affect
his ability to do work-related activities such as sitting,
standing, walking, lifting, carrying, and bending, but that
his mood disorder would make it difficult for him to
concentrate, remember instructions, and handle work-related
pressures. (R. 986).
returned to therapy with Ms. Higgins on June 20, 2016. (R.
1362). Ms. Higgins noted that he had ended therapy in
November 2015, after which he had lost his job at a leasing
agency because he did not receive a promotion, and then got
another job as a caretaker at a farm. Claimant stated that he
liked his new job at first but lost it after he relapsed on
crack cocaine and alcohol. Id. Claimant got another
job as a case manager but felt that people were bullying him
and was told to either resign or be fired. Id. He
was frustrated with himself for losing his job and relapsing.
was hospitalized from June 20, 2016 to June 27, 2016 at St.
Francis Hospital. (R. 997, 1004). He was instructed to start
weekly group counseling. (R. 1007).
began an intensive outpatient mental health treatment program
(IOP) at Hartford Health Care on July 11, 2016, noting recent
depression and substance abuse. (R. 1332). A discharge report
indicates that he initially engaged well and participated in
the program, but relapsed on crack cocaine after three weeks,
and then sustained a tooth infection that required surgery,
after which his attendance decreased. (R. 1334). He
eventually returned to the program, but did not fully
re-engage, and eventually dropped out of the IOP.
had a CT scan with contrast of his neck on December 7, 2016
to evaluate enlarged lymph nodes that worsened after a tooth
extraction in October 2016. (R. 1137). The CT scan showed
Claimant's lymph nodes were enlarged, but not infected.
(R. 1138). Lymphoproliferative disorder, or uncontrolled
proliferation of lymph node cells, was strongly suspected.
went to the emergency department at Manchester Memorial
Hospital (“MMH”) on December 13, 2016 complaining
of chest pain, which was precipitated by smoking crack
cocaine. (R. 1149). Claimant reported he had been bingeing on
cocaine for the past couple of days and had been having
problems with crack cocaine for the past several months.
Id. He was kept overnight and discharged home in
satisfactory condition. (R. 1153).
began what was supposed to be a four-day series of therapy at
MMH on December 15, 2016 (R. 1131-33) after he had been
drinking alcohol, smoking marijuana and smoking crack cocaine
“really bad” but was terminated ...