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Herreid v. Colvin

United States District Court, D. Vermont

October 1, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


CHRISTINA REISS, Chief District Judge.

Plaintiff Margaret Herried, as guardian of Teresa M. Herreid ("Ms. Herreid"), is a claimant for Supplemental Social Security Income ("SSI") and disabled adult child's benefits. Pursuant to 42 U.S.C. ยง 405(g), she seeks a reversal and remand of a decision by Defendant Carolyn W. Colvin, the Acting Commissioner of the Social Security Administration (the "Commissioner"), denying Ms. Herreid benefits.

Plaintiff contends that Administrative Law Judge ("ALJ") Thomas Merrill erred by: (1) finding that Ms. Herreid's depression was not a severe impairment; (2) concluding that Ms. Herreid's impairments did not meet the criteria under Listing 12.05C; (3) failing to consider whether Ms. Herreid's impairments met the criteria under Listing 12.05D; and (4) evaluating Ms. Herreid's residual functional capacity ("RFC") without sufficient consideration of the evidence. The Commissioner moves to affirm the decision.

Plaintiff is represented by James Torrisi, Esq. The Commissioner is represented by Special Assistant United States Attorney Monika K. Crawford. The court took this matter under advisement on June 10, 2015.

I. Factual and Procedural Background.

Ms. Herreid is a twenty-five year old woman who resides with her father, Robert Herreid, in Waterford, Vermont. Her mother died when she was eight years old. Plaintiff alleges that Ms. Herreid became disabled on September 15, 2011, as a result of cognitive impairments and an affective disorder. Ms. Herreid graduated from high school at age twenty and has worked for a few weeks in a butcher's shop, a gift shop, and a yam shop. She has also volunteered in a nursing home and at a library. Most of these work settings involved her working with a relative, neighbor, or family friend.

A. Cognitive Impairments.

On October 7 & 9, 2009, Paul Donahue, Ph.D. conducted an educational assessment of Ms. Herreid. He administered a clinical interview, the Wechsler Individual Achievement Test ("WIAT-II"), and a parent interview. Dr. Donahue noted that Ms. Herreid enjoyed knitting, described herself as healthy, and "[s]he reported having adequate energy to get through the day." (AR 254.)

The WIAT-II measures several components of intelligence, including reading, mathematics, writing, and oral language abilities. The mean score on the test is 100, with a standard deviation of fifteen. Ms. Herreid's scores on the components of the WIAT-II ranged from eighty-two in spelling, which places her in the twelfth percentile, to sixty-six in listening comprehension, which places her in the first percentile. Her composite score was seventy-one, which places her in the third percentile.

Dr. Donahue concluded: "The Wechsler Individual Achievement Test (WIAT-II) yielded consistent results. All of the subscales were in single digits in terms of percentiles, with the exception of Spelling at 12%. This is a profile of a student with significant intellectual limitations, who requires significant modifications to be successful in school." (AR 255.)

From 2007 until 2010, Ms. Herreid participated in an Individualized Educational Program ("IEP") while attending the St. Johnsbury Academy. Eleanor Donovan, a special educator at the St. Johnsbury Academy, recorded that "[Ms. Herreid's] scores fell in the very low to low end of low average in all academic areas." (AR 234.) Ms. Herreid's teachers described her "as being very focused; independently completing tasks, sharing thoughts more in large groups; a hard worker; persistent; reflective; seeking adult assistance as needed; having more positive relationships with others; an eager learner; using supports about her emotions and doing better with talking about her frustrations." Id. Ms. Donovan described potential issues that Ms. Herreid would face in a work environment as: "the inability to initiate tasks in the workplace, lack of confidence in her abilities, very quiet, a little slow at tasks, sometimes makes random comments, and at times, daydreams." Id. She predicted that Ms. Herreid "will do well on a job site especially if some time is taken to show her how to do something. [Ms. Herreid] needs constant supervision and prompts until she learns a task. [Ms. Herreid] needs clear expectations and directions and then she will do well with just a few prompts." Id. The IEP predicted that "[u]pon completion of high school, [Ms. Herreid] will find employment in the geriatric services field" and "will complete any training requirements to become a geriatric aide." (AR 239.) The IEP further anticipated that Ms. Herreid would be able to live on her own.

From November 12, 2009 until December 18, 2009, Ms. Herreid received special education in a small group environment in developmental math, written language, reading, and language arts. From December 21, 2009 until June 4, 2010, she received special education in a small group environment, including direct instruction in life skills/transition skills and history. Ms. Herreid was "[i]nside [r]egular [c]lass 40-79%" of the time. (AR 244.) She was permitted additional time to complete tasks, tested in small group environments, and was allowed to use a calculator and a computer to assist her with calculations and written responses. The IEP described her mathematics abilities as "substantially below proficient.'" (AR 248.) Overall, Ms. Herreid's "academic assessment indicates that she is performing below the 15th percentile rank in all areas and will require specialized instruction that is not available in the general system of support." (AR 250.)

B. Mental Health Impairments.

For over four years, Ms. Herreid participated in a one hour therapy session with Katherine Cote, LICSW every two weeks.[1] On September 12, 2011, Ms. Cote recorded that Ms. Herreid "started therapy following a 9 month break. She was seen from 2009-2011 in high school for severe depression." (AR 405.) She noted that in addition to sleep disturbances, Ms. Herreid was experiencing "PTSD flashbacks" related to "past sexual abuse." (AR 405.) Ms. Cote observed that Ms. Herreid "appear[ed] very depressed, no eye contact, flat affect, no interests" and that Ms. Herreid was "isolated at school and [at] home" and needed to "[f]ocus on relationship skills." Id. Ms. Cote saw Ms. Herreid again on September 29, 2011. During this session, Ms. Herreid "describ[ed] the relationship in which she is being abused" and advised that she "does not want to end [the] relationship but would like to have the ability to say no." Id.

In October of 2011, Ms. Cote noted that Ms. Herreid was taking a course with her sister in childcare skills and felt "bad that [her] sister has to sit through 3 [hour] classes with her." Id. She further noted that Ms. Herreid "did not pass tests for LPN training for nursing homes." Id. Ms. Cote opined that Ms. Herreid's "depression exacerbated her low mental functioning" and referred Ms. Herreid to her primary care physician, Sarah Berrian, M.D., for the purpose of evaluating whether an antidepressant should be prescribed. (AR 406.) In doing so, she asked that Dr. Berrian see Ms. Herreid earlier than the scheduled appointment because Ms. Herreid had been expressing suicidal thoughts as a result of recent stressors. On November 10, 2011, Ms. Cote observed that Ms. Herreid "had a little more eye contact, but no change in affect." (AR 406.) She noted that Ms. Herreid "feels hopeless about jobs." Id.

On November 17, 2011, a nurse working with Dr. Berrian recorded that Ms. Herreid "presents here with emotional distress. Has an [appointment] to establish care at a later date, but was put in for emotional distress per [Katherine] Cote. Patient reports trouble sleeping but would like to talk to Dr. Berrian about emotional distress." (AR 381.) Dr. Berrian then saw Ms. Herreid and screened her for a major depressive disorder and suicidality. She noted that she was doing so in response to Ms. Cote's report that Ms. Herreid "had voiced some suicidal thoughts[.]" (AR 383.) She further noted that she had talked to Ms. Cote prior to the visit and that, at that time, Ms. Cote had been seeing Ms. Herreid "for about 4 years." Id.

Dr. Berrian observed that Ms. Herreid was fully oriented and presented with a "normal mood and affect" and was "shy but once she was more comfortable with [Dr. Berrian] she had reasonable eye contact[.]" (AR 382.) Ms. Herreid reported no significant weight loss or gain or loss of appetite, no psychomotor agitation or retardation, and enjoyed "knitting and reading, crafts." (AR 381.) She, however, also reported that she had a depressed mood "some of the time[;]" "difficulty getting to sleep, then sleeps okay[;]" "mild fatigue" which "improves if she goes for a walk[;]" "sometimes" has "impaired concentration or indecisiveness[;]" was hopeless "some of the time[;]" and had recurrent thoughts of death or suicide "a little bit." (AR 381-82.)

Although Dr. Berrian recorded that Ms. Herreid reported "being sexually abused[, ]" (AR 383), she described Ms. Herreid's "[g]rief reaction[, ]" (AR 392), as the result of losing a relationship with one friend and the fear of losing another relationship but noted she had some friends to talk to and "is comfortable talking with [Katherine] Cote, her [counselor], and her grandmother[.]" (AR 382.) Dr. Berrian observed that Ms. Herreid "also has some intellectual limitations[, ]" was currently volunteering twice a week where her sister works, and that the "difficulty finding work along with the recent problems with relationships have been causing situational stress[.]" (AR 383.) She noted that Ms. Herreid had "a few thoughts" about suicide but "nothing she thinks she would act upon" and that she stated "if she feels she may harm herself she will call [Katherine] Cote and if unable to reach her will call her grandmother." Id. Dr. Berrian diagnosed Ms. Herreid with "depression, somewhat situational but also may be early in a major depressive episode." (AR 382.) She prescribed Prozac as an antidepressant but noted that Ms. Herreid said she wanted to think about it and consult with her father and Ms. Cote. Dr. Berrian printed out information regarding depression and antidepressants for Ms. Herreid to take with her after the appointment.

On December 5, 2011, Ms. Cote saw Ms. Herreid and noted that her "affect [was] still flat" and she was "very quiet and [her] body [was] slumped over" but her "eye contact [was] improved." (AR 407.) She opined that Ms. Herreid's "[d]epression overshadows [her] mental functioning" and that "[h]er low IQ limits her ability to use cognitive skills to improve her emotional range." (AR 407.) That same month, Ms. Cote noted Ms. Herreid reported that she was happy to have finished her childcare class and was knitting gifts, that the "medication is helping, but [she] still reports some loneliness, " and that Ms. Herreid had "poor eye contact, flat affect, [however] a few more smiles on her face." Id. On January 5, 2012, Ms. Cote noted that Ms. Herreid presented with "little eye contact, flat affect, slumped posture" and had received "no response from child care center for jobs" and was currently volunteering at a nursing home. Id.

On January 6, 2012, Dr. Berrian saw Ms. Herreid for a physical evaluation. Dr. Berrian noted that Ms. Herreid reported she had been "rape[d]" and suggested some testing with regard to that event which was declined by Ms. Herreid who did not want to discuss the details of the event. (AR 380.) Dr. Berrian's notes indicate: "I think her understanding is a little limited. Will try and discuss further at the next visit. It may help for her to have a sister with her at a future visit[.]" Id. She further noted that Ms. Herreid reported that in the prior two weeks she had experienced several days of depression and andedonia, but denied anxiety and unusual stress. With regard to Ms. Herreid's "[s]ituational stress/depression" she noted that Ms. Herreid reported that she "feels she is doing well with [Katherine] Cote." Id. Dr. Berrian observed that Ms. Herreid's mental status was "intact recent and remote memory, judgment and insight[.]" Id. Several days later, Ms. Cote saw Ms. Herreid and recorded that her affect was still flat, her eye contact was intermittent, she exhibited slumped posture and that she "still feels hopeless about future relationships and work opportunities." (AR 408.)

On February 2, 2012, Ms. Cote again observed that Ms. Herreid had a flat affect, intermittent eye contact, and slumped posture and that she reported an inability to sleep. She noted that Ms. Herreid was depressed and "hopeless" and reported "suicidal ideation" including that she "thinks about taking [a] bottle of aspirin." Id. At the time, Ms. Herreid reported that she felt her online relationship was "hopeless" because her boyfriend was a paraplegic who lived in Wisconsin. Id. Ms. Cote noted that "[c]lient has contracted for safety." Id.

On February 16, 2012, Ms. Herreid's father was present during her treatment session with Ms. Cote. The appointment focused on Ms. Herreid's lack of job opportunities and the severity of her depression. Her father agreed to make sure that Ms. Herreid saw Dr. Berrian. Ms. Cote noted that Ms. Herreid "has even lower self-esteem around authority figures" and that her "limited mental IQ is impairing her ability to assert her power." (AR 409.) She observed that she "behaves more like an 8-10 [year] old child with father" and is "even quieter and loses eye contact" in his presence. Id.

On February 24, 2012, Dr. Berrian completed a one-page Mental Status Report which consisted of brief one word or partial sentence responses to thirteen criteria. She described Ms. Herreid as "quiet" and observed that her affect was "somewhat flat" but that her orientation, attention, and concentration were normal. (AR 377.) She did not record Ms. Herreid's "reported mood, " but noted that her memory was intact and her energy level was normal. She recorded that although in the past Ms. Herreid had suicidal ideation, she reported none currently. She further noted that Ms. Herreid had difficulty falling asleep, but there were no reported changes in her appetite or weight. She observed that although it "sounds like [Ms. Herreid] does okay with family, " her ability to relate was "difficult with strangers." Id. She indicated that Ms. Herreid would continue to be followed by her mental health counselor Ms. Cote.

On March 1, 2012, Ms. Cote observed that Ms. Herreid was "having difficulty with concentration. She has not been reading. Her loss of interest in all activities is a symptom of the severity of her depression. She would like to have more friends." (AR 409.) At the time, Ms. Herreid exhibited poor eye contact and a slumped posture. She reported that she was quite isolated, had not been able to have any job interviews, and was "volunteering at nursing homes." Id. Later that same month, Ms. Cote noted that Ms. Herreid had "lost about 11 lbs." (AR 410.) She reported issues with sleep, depressed mood, and distractibility and "some suicidal ideation." Id. She exhibited "a little more eye contact, poor slumped posture, and tearfulness." Id. Ms. Cote again opined that Ms. Herreid's "[d]epression... increases her inability to use [her] mental resources." Id. Approximately two weeks later, Ms. Cote reported that Ms. Herreid was participating in online relationships that "are abusive for her" because she was lonely, that she presented with a depressed mood and poor eye contact and that her "[d]epression is chronic and not likely to change." Id.

Ms. Cote's observations of Ms. Herreid in subsequent sessions remain relatively unchanged. She noted that Ms. Herreid was quiet and exhibited poor eye contact, a depressed mood, and poor posture. During three visits in May 2012, she reported that Ms. Herreid had "some tearfulness" in addition to a flat affect; little eye contact; and poor, slumped posture. (AR 412.) On May 31, 2012, she noted that Ms. Herreid suffered from "[c]hronic depression with limited resources." Id.

On July 20, 2012, Dr. Berrian saw Ms. Herreid again for a follow-up "for mood" and for "depression." (AR 385.) She noted that Ms. Herreid was "[l]earning impaired[, ]" was "hoping to maybe eventually get at least some part-time work" and that "[s]he does have some mental disability, and so may not be able to hold down a 40-hour a week job." (AR 386.) She observed that although Ms. Herreid "feels she is doing okay" "[i]t sounds like she does have some mood fluctuations[.]" (AR 385.) She noted that Ms. Herreid sees Ms. Cote every two weeks and feels comfortable talking with her about things and was "[o]pening up with talking with [Dr. Berrian] a little bit more." (AR 386.) She discussed Ms. Herreid's past history of rape and its impact on her current relationship and noted that she "seems happy that she does have a relationship" and concluded that Ms. Herreid was currently "doing well" and would "continue with the counseling with [Katherine] Cote." Id.

On July 12 and 26, 2012, Ms. Cote had a treatment session with Ms. Herreid who reported that she "had [a] difficult time" with a family member and "[had] isolated herself, " and is "still tearful[.]" (AR 414.) Ms. Cote observed that Ms. Herreid exhibited "stooped posture, " and "limited eye contact." Id. She opined that Ms. Herreid was experiencing "[c]hronic depression exacerbated by low IQ" and was "unable to use cognitive skills to reduce depressive affect." Id. In August of 2012, Ms. Cote again observed that Ms. Herreid exhibited poor eye contact, flat affect, and poor posture. She noted that she was "crying in session[.]" (AR 415.) In September and November of 2012, Ms. Cote observed that although Ms. Herreid continued to have a flat affect and poor eye contact, to have sleep and mood disturbances, and was "[s]till losing weight[, ]" she was less depressed. (AR 418.) On November 19, 2012, Ms. Cote noted that Ms. Herreid was tearful with poor eye contact and her assessment was "[d]epression chronic, anhedonia, suicidal ideation continues." Id.

In December of 2012 until February 25, 2013, Ms. Cote recorded Ms. Herreid continued to lose weight, had a poor appetite, exhibited low self-esteem, poor posture, poor eye contact, and was tearful. She assessed Ms. Herreid with "[c]hronic depression" and "limited mental coping" and noted that she was "unable to protect herself from abusive or dominant people[.]" (AR 421.)

C. Ms. Herreid's Work History.

For several years, Ms. Herreid received vocational services from the Vermont Agency of Human Services, including support from Jeff Dudley, a vocational rehabilitation counselor. On October 28, 2011, Mr. Dudley noted that Ms. Herreid was "volunteering with her sister at a local Health and Rehabilitation facility roughly 10 hours a week [and he] believes that she is working at capacity volunteering with support." (AR 370.) He opined that Ms. Herreid could not "manage too much stimulation and needs to be in environments that are concrete and predictable to work independently and if she is to increase her capacity for independent employment she will need the assistance of supported employment services to secure and maintain employment." Id. He noted that she struggled to regulate her emotions and could be easily overwhelmed and that she also "struggles with cognitive delays, and significantly delayed processing[] impact[s] her in such a way that she needs a support structure to facilitate her daily existence." Id.

On February 6, 2012, in a second letter, Mr. Dudley noted that Ms. Herreid was being "taken care of by her father and older brothers and sisters" and "that it is all she can do to navigate day to day needs with the support of her family." (AR 375.) He opined that Ms. Herreid "requires hand over hand, or close one on one support to learn new skills and requires an extended period of time to master them." Id. He concluded that "if she is to ...

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