Beltre v. Commissioner of Social Security

          MEMORANDUM OF DECISION DENYING MOTION TO REVERSE THE DECISION OF THE COMMISSIONER [ECF NO. 19]

          Hon. Vanessa L. Bryant United States District Judge.

         Before 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.^[1] 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.^[2] 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 GRANTED.

         I. Background

         Only the Commissioner has filed a Statement of Material Facts in this case.^[3]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 the record.

         Claimant 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^[4] on September 26, 2017, and January 23, 2108, Claimant lived with his parents in Manchester, Connecticut. (R. 88, 90, [ECF No. 1 at 6]).

         A. Medical History

         Claimant 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).

         On June 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).

         On July 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).

         Claimant 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. Id.

         On 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).

         Claimant 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).

         Dr. 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).

         Dr. 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).

         On June 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.

         David 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).

         On July 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).

         Claimant 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).

         Claimant 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).

         Claimant 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.

         On 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.

         Claimant 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.

         On 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).

         Claimant 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).

         In 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).

         In 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.

         Two 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).

         Dr. 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. 936).

         Dr. 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.

         On 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).

         On 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. 991).

         On 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. 1362).

         Claimant 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 abuse.” Id.

         On 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. Id.

         Claimant 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.

         Dr. 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).

         Claimant 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. Id.

         Claimant 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).

         Claimant 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. Id.

         Claimant 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. Id.

         Claimant 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).

         Claimant 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 ...