United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE
R. UNDERHILL UNITED STATES DISTRICT JUDGE
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 moves to affirm the decision.
Mot. to Affirm, Doc. No. 35. For the reasons set forth below,
Riveraâs Motion to Reverse (doc. no. 37) is DENIED and the
Commissionerâs Motion to Affirm (doc. no. 35) is GRANTED.
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.
the parties were unable to stipulate to the facts of this
case, a general procedural and medical chronology follows.
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.
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.
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.
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.”
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.
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.
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.
The ALJ’s Decision
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.
Mental Health Records
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
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.
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.
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.
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.
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.
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.
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 ...