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Rivera v. Berryhill

United States District Court, D. Connecticut

September 30, 2019

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



         In this Social Security appeal, Yolanda Rivera moves to reverse the decision by the Social Security Administration (“SSA”) denying her claim for disability insurance benefits. Mot. to Reverse, Doc. No. 37. The Commissioner of Social Security[1] moves to affirm the decision. Mot. to Affirm, Doc. No. 35. For the reasons set forth below, Rivera’s Motion to Reverse (doc. no. 37) is DENIED and the Commissioner’s Motion to Affirm (doc. no. 35) is GRANTED.


          Rivera filed a motion for leave to file excess pages on August 17, 2018. That request was denied. On April 4, 2019, Rivera renewed her request for permission to file excess pages. I granted the request, in part, and limited the brief to seventy pages. What followed was a ninety-nine-page brief with lengthy quotations to the medical record. Rivera’s Memorandum of Law far exceeds the extended page limit granted by the court. Nevertheless, in the interest of efficiency, I decline to dismiss the motion on technical grounds and will proceed to the merits.

         Because the parties were unable to stipulate to the facts of this case, a general procedural and medical chronology follows.

         A. Administrative Proceedings

         Rivera is a 47-year-old former warehouse worker with a ninth-grade education. She is separated from her husband and lives with her two children. After 23 years of employment, Rivera quit her warehouse job in 2011, citing difficulty “bending, pushing carts, pulling carts, ” placing orders and dealing with customers. Tr. of ALJ Hr’g, R. at 87.

         Rivera filed an application for supplemental security income (“SSI”) on July 17, 2014. ALJ Decision, R. at 10. She later filed an application for Disability Insurance Benefits (“DIB”) on July 23, 2014. Id. In both applications, Rivera alleged a disability onset date of April 24, 2009. However, on the record and through counsel at the ALJ hearing, Rivera amended the alleged disability onset date to February 1, 2013. At the time of the alleged disability onset, Rivera was 41 years old. Rivera identified her disability as “depression, panic attacks, VP shunt in the head, lower back pain, herniated lumbar disc, anxiety, see[s] shadow[s] and hear[s] voices, anemia, behavioral health problem[s] [and] sciatica.” Disability Determination Explanation, R. at 162. The SSA initially denied her claim on April 8, 2015, and again on reconsideration on December 16, 2015, finding that “based on the evidence . . . [Rivera could] adjust to other work that is less strenuous, and simple and repetitive in nature.” Id. at 186. Rivera requested a hearing before an ALJ on January 21, 2016, and a hearing was held before ALJ John Noel on March 2, 2017. Request for Hearing, R. at 252, Tr. of ALJ Hr’g, R. at 62.

         B. Hearing

         At the hearing, the ALJ questioned Rivera about her conditions, work history, and ability to perform daily living functions. Tr. of ALJ Hr’g, R. at 62-111. Rivera testified that she could walk approximately half a block using a cane before she needed to stop and rest. Id. at 71. Rivera also testified that she could pick up ten pounds of weight, sit for ten to fifteen minutes, and stand for five minutes. Rivera described needing assistance with activities of daily living, such as cooking, laundry, cleaning, and grocery shopping. Id. at 74. She testified that she drove short distances and spent most of her days watching television and sleeping. Id. at 75.

         During the hearing, Rivera testified that she is a self-professed hoarder who refuses the help of a visiting nurse because she is embarrassed to have visitors in her home. Id. at 88. Although she manages the finances for the home, she has borrowed money from her mother to prevent eviction for non-payment of rent and to prevent her utilities from being shut off. Id. at 84. Rivera testified that she has been sued for causing automobile accidents, and she should not be driving; however, her anxiety disorder prevents her from taking public transportation. Id. at 90. Finally, Rivera testified that she hears voices and sees shadows. Id. at 102. Rivera described carrying on conversations with the voices, and she is convinced that “evil has happened to me in the house.” Id.

         The ALJ then considered testimony from Vocational Expert Howard Steinberg (“Steinberg”), who testified that, given Rivera’s light work limitations, she could no longer perform her previous work as a warehouse worker. Id. at 105. The ALJ asked Steinberg to consider a hypothetical individual of the same age, education, and past work experience as Rivera, who was constrained to working with the following limitations: could occasionally climb ramps and stairs, occasionally climb ladders, ropes or scaffolds; could occasionally balance, stoop, kneel, crouch and crawl; could only have occasional exposure to extreme cold or extreme heat; could only have occasional exposure to wetness or humidity; could only have occasional exposure to odors, dust, fumes, and other pulmonary irritants; could perform simple, routine tasks; could apply limited judgment to simple work-related decisions; could deal with routine changes in the work setting but could not work on a team with coworkers; and could only have occasional contact with the public. Tr. of ALJ Hr’g, R. at 106. The ALJ asked Steinberg whether there were any jobs in the national economy that the hypothetical individual could perform. Steinberg testified that the hypothetical individual could work as an office helper, with approximately 207, 000 existing jobs in the national economy; as a mail clerk, with approximately 122, 000 existing jobs in the national economy; and as a chambermaid, with approximately 137, 000 existing jobs in the national economy. Id. at 107. The ALJ further inquired if the jobs could be performed by a hypothetical individual who uses a cane for ambulation. Steinberg responded that only the job of a mail clerk would survive because most of the walking involves delivering and picking up mail using a cart, which can supplant the use of a cane. The remaining jobs “would be compromised . . . significantly and there would be a reduction in the number of jobs that would survive.” Id. In other words, the “Office Helper [job] would reduce by 50% and the Mail Clerk [c]ould be performed.” Id. at 108.

         The ALJ then changed the hypothetical, adding that the hypothetical individual would not need a cane to ambulate, but could only stand or walk four hours in an eight-hour workday. With the removal of the cane restriction, Steinberg testified that the hypothetical individual could perform work as an office helper; a mail clerk; and a storage facility rental clerk, with approximately 43, 000 existing jobs in the national economy. Id. at 108. Steinberg also testified that, based on his experience, the storage facility clerk job could be performed with a cane. Id. Finally, the ALJ asked Steinberg whether there were any sedentary jobs in the national economy that could be performed if the hypothetical individual did not require a cane to ambulate. Steinberg responded that there were various sedentary assembly production jobs that could be performed under this hypothetical, such as a brake lining coater, with approximately 78, 000 jobs in the national economy; and a surveillance system monitor, with approximately 45, 000 jobs in the national economy. Id. at 109. The jobs could also be performed if the hypothetical individual used a cane to ambulate. Id. at 110.

         Finally, the ALJ asked Steinberg whether any employer would allow the hypothetical employee to be off task for more than 10% of the workday. Id. Steinberg opined that “[i]t would be essentially impossible for the person to sustain employment.” Id. The same opinion applied to the hypothetical employee who regularly missed one day of work a month. Id. at 110.

         C. The ALJ’s Decision

         On May 17, 2017, the ALJ issued an opinion in which he found that Rivera was “not disabled” and was capable of transitioning to other work that exists in significant numbers in the national economy. ALJ Decision, R. at 24. At the first step, the ALJ found that Rivera had not “engaged in substantial gainful activity since February 1, 2013, the alleged onset date.” Id. at 13. At the second step, the ALJ determined that Rivera’s impairments of degenerative disk disease, hydrocephalus with VP shunt, obesity, depressive disorder, and anxiety disorder were severe impairments that more than minimally limited Rivera’s ability to engage in basic work activities. Id. At the third step, the ALJ determined that Rivera did not have an impairment, or combination of impairments, that meets or medically equals the severity of one of the listed impairments. Id. at 14. The ALJ then assessed Rivera’s residual functional capacity and found that she could perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b); however, the ALJ’s decision did not account for Rivera’s use of a cane. The ALJ issued his decision on May 17, 2017, finding that Rivera was not disabled. Id. at 24. On September 8, 2017, the Appeals council denied Rivera’s request for review. AC Denial, R. at 133.

         D. Medical Background

         1. Mental Health Records

         On February 21, 2013, Rivera was evaluated at Charter Oak Health Center (“COHC”) for medication management related to a diagnosis of major depressive affective disorder. R. at 1816. Rivera complained that the medication affected her ability to function because it made her feel tired. Id. During the visit, Rivera reported experiencing fleeting suicidal ideation; however, she did not feel she was an imminent danger to herself or others. Id. Three months later, Dr. Mercado-Martinez noted that Rivera was compliant with her medication and therapy. Additionally, she noted an improvement in Rivera’s daily home life. R. at 1824.

         In late July 2013, Rivera again expressed suicidal ideation and was referred by Dr. Ashok Parekh to the Emergency Department at Hartford Hospital for evaluation. R. at 1830. At the hospital, Rivera complained of chest pains, which she associated with increasing emotional stress and depression. R. at 1238. Rivera also admitted to experiencing suicidal ideation and auditory hallucinations. Id. On July 31, 2013, Rivera had a follow-up visit with Nurse Ana Caceres. R. at 1836. During the visit, Rivera again verbalized suicidal ideation with a plan to overdose on medication. Id. at 1837. As a precaution, Nurse Caceres limited Rivera’s prescription to ten tablets. Id. In October, Rivera treated with Dr. Parekh who documented that Rivera’s mood was “still depressed . . . primarily due to financial stressors.” Id. at 1843. During the visit, Rivera explained that some utilities were shut off as a result of nonpayment. Id.

         On December 31, 2013, Rivera was admitted to Hartford Hospital after she verbalized a plan to jump out of a second story bedroom window, as well as experiencing “vague visual hallucinations and auditory hallucinations.” R. at 748. Rivera was diagnosed with “major depressive disorder” that was “recurrent, severe with psychotic features.” R. at 749. After an eight-day hospital stay, Rivera was deemed stable for discharge and instructed to follow up with the adult day treatment program at the Institute of Living (“IOL”). Id.

         On January 8, 2014, Rivera was transitioned to the IOL, where she was treated from January until mid-March. R. at 812–75. During the course of treatment, Rivera reported seeing shadows and expressed feelings of sadness and helplessness. R. at 812–13. Although Rivera was attentive and responsive during group therapy, the staff observed a continued unstable mood. R. at 828. On March 11, 2014, Rivera reported “thoughts of jumping out of her car or walking in front of a car or bus.” R. at 868. An evaluation completed by Dr. Tilla Ruser and Todd MacDonald, APRN, on March 11, 2014 notes that Rivera had shown no improvement in her condition despite receiving treatment approximately two to three times a week. R. at 793. According to the evaluation, Rivera continued to report hearing voices and experienced a serious problem using appropriate coping skills and handling frustration. R. at 794. On the other hand, the treating providers deemed that Rivera could carry out single-step instructions and perform basic work activities with only a “slight problem.” R. at 795. Two months later, the discharge summary completed by Dr. Ruser and Nurse MacDonald indicates an improved mental status, as well as orientation to “person, place [and] time, ” without any suicidal or homicidal ideations or obvious auditory or visual hallucinations. R. at 875. Rivera was referred to Catholic Charities Institute for the Hispanic Family for aftercare. Id.

         On May 9, 2014, Rivera began treating with clinician Jennifer Schnapp of Catholic Charities. R. at 1384. Rivera reported experiencing “severe depressed mood, anhedonia, isolating and compulsive behaviors, including lock and appliance checking, apparent hoarding behaviors, difficulty concentrating, difficulty remembering things . . . anxiety and panic attacks.” Id. On June 24, 2014, Rivera was evaluated by Jane Clark, APRN. R. at 1407. During a mental status examination, Nurse Clark noted that Rivera reported seeing shadows and hearing garbled voices. R. at 1404. Rivera also exhibited “some paranoia” and seemed “unmotivated.” Id. Rivera was diagnosed with major depressive disorder with psychotic features. R. at 1406. On August 23, 2014, Nurse Clark indicated that Rivera’s medications were “working, ” despite Rivera not taking her medications “all the time.” R. at 1408. In November 2014, the progress notes reveal that Rivera’s mood was stable and she reported feeling “less depressed.” R. at 1410. In March 2015, Rivera ran out of her medications. R. at 1415. Nurse Clark documents that Rivera was “angry and irritable.” Id. During the visit, Rivera was counseled regarding missing her appointment in January. Id. Two months later, she reported that “restarting [the] medications helped her almost immediately.” R. at 1420. Rivera, however, was angry that Nurse Clark would not complete her disability forms. Id. On August 4, 2015, at a follow-up visit with Nurse Clark, Rivera was advised to continue therapy because “changing medications [would not] make a difference.” R. at 1425. Rivera was described as “sobbing, ” “feeling helpless, sometimes hopeless” and exhibiting anger about her disability forms. Id. In total, Rivera received treatment through Catholic Charities between May 2014 through August 4, 2015. R. at 1384–1425.

         Clinician Jennifer Schnapp and Nurse Clark completed and co-signed two Mental Impairment Questionnaires for Rivera’s disability application. The report dated August 18, 2014 details Rivera’s diagnoses as “generalized anxiety disorder” and “major depressive disorder, recurrent, severe, with psychotic features.” R. at 898. Rivera’s judgment and insight were deemed “quite low . . . with regard to [her] understanding of her role in recovery, capability to recover [and] understanding of symptoms as [a] treatable illness.” R. at 900. The remainder of the form was left blank, including the functional abilities evaluation. R. at 901–02. The report dated September 1, 2015 includes a brief psychiatric history and a short description of Rivera’s response to treatment, but the functional abilities section was again left blank. R. at 1428–32.

         On October 7, 2015, Rivera began treating at Hartford Behavioral Health (“HBH”). During Rivera’s evaluation, she exhibited difficulty recalling three words at two different intervals. R. at 1467. Rivera was diagnosed with major depressive disorder, recurrent and severe with moderate-severe anxious distress, and borderline personality disorder. R. at 1468. Although Rivera reported that her anxiety around people made it difficult for her to leave her home, Maybelle Mercado, PhD, LPC, notes that she waited 30 minutes in a crowded room, apparently without distress. Id. On October 28, 2015, Rivera treated with Dr. Cristina Sanchez-Torres. R. at 1470. Rivera reported experiencing audio-visual hallucinations. For example, Rivera detailed seeing shadow figures and family members that have passed away. R. at 1470. Furthermore, Rivera routinely “hears steps, people calling her name . . . [and] feels the presence of a young girl at her home.” Id. During the visit, Rivera reported feeling “intermittent death wishes, with no intent or plan.” Id. The exam notes indicate that Rivera’s judgment and insight were limited. R. at 1472. With respect to Rivera’s physical appearance, Dr. Sanchez-Torres recorded that Rivera needed the “help of a cane to walk.” Id. The treatment plan included a recommendation for a visiting nurse to supervise the administration of Rivera’s medications. R. at 1473.

         In November 2015, Rivera returned for a follow-up visit with Dr. Sanchez-Torres. At the time, Rivera was non-compliant with therapy. R. at 1475. Dr. Sanchez-Torres again encouraged engaging a visiting nurse for medication management, but Rivera was not interested. R. at 1477. A month later, Rivera reported a slight improvement with the optimization of certain medications. R. at 1485. Despite the doctor’s concerns with medication safety, Rivera continued to refuse the services of a visiting nurse. Id. In January 2016, Dr. Sanchez-Torres observed that Rivera looked better and exhibited a brighter affect. R. at 1488. In February 2016, Rivera verbalized “wanting to die . . . and not knowing what she [was] capable of when she [went] home.” R. at 1493. Rivera related that “she has jumped off buildings and has attempted to [overdose]” in the past. Id. Rivera was involuntarily transported to the emergency department at Hartford Hospital because of her worsening depression. R. at 1494. At the hospital, Rivera’s physical exam revealed that she was “well-appearing, in no apparent distress” and there were “no acute signs in all four ...

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