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Holstein v. Berryhill

United States District Court, D. Vermont

January 26, 2017

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


          Christina Reiss, Chief Judge United States District Court.

         Plaintiff George K. Holstein, Jr. is a claimant for Social Security Disability Insurance Benefits ("DIB") under the Social Security Act ("SSA"). He brings this action pursuant to 42 U.S.C. § 405(g) to reverse the decision of the Social Security Commissioner that he is not disabled. Plaintiff filed his motion to reverse on April 25, 2016. (Doc. 12.) The Commissioner filed her motion to affirm on August 4, 2016. (Doc. 17). The court took the matter under advisement on August 22, 2016.

         Plaintiff is represented by John C. Mabie, Esq. The Commissioner is represented by Special Assistant United States Attorney Sandra M. Grossfeld.

         Plaintiff raises the following issues: (1) whether Administrative Law Judge ("ALJ") Matthew Levin erred in determining that Plaintiffs severe impairments do not meet the requirements of the Listings; (2) whether ALJ Levin erred in his residual functional capacity ("RFC") analysis; (3) whether ALJ Levin demonstrated bias; and (4) whether evidence which became available in March of 2016 requires a remand.

         I. Procedural History.

         On August 28, 2012, Plaintiff filed for DIB benefits alleging that he was disabled as of July 30, 2011. The Commissioner initially denied his claims on November 21, 2012, and again on reconsideration. On January 29, 2013, Plaintiff filed a timely request for a hearing before an ALJ.

         At a May 13, 2014 hearing before ALJ Levin, Plaintiff appeared with John Pyatak, Esq. and testified. Vocational expert ("VE") Louis Laplante also testified. On June 12, 2014, ALJ Levin issued a written decision finding that Plaintiff was not disabled. The Appeals Council denied Plaintiffs request for review on October 1, 2015. As a result, ALJ Levin's decision stands as the Commissioner's final decision.

         II. Factual Background.

         Plaintiff is a forty-seven year old, left-handed male with a 10th grade education. He served in the Navy from 1988 to 1991 when he received a general discharge. Since his discharge, he has held jobs at restaurants, in sales, as an automotive technician, and in retail establishments. Plaintiff stopped working in July of 2011, citing problems with his knees, back, and anger issues. Plaintiff is separated from his wife, has three children, and lives with his girlfriend and one of his sons.

         A. Medical History.

         In December of 2008, Plaintiff began treatment at Department of Veterans Affairs ("VA") medical facilities in Vermont. At a December 8, 2008 primary care session, Plaintiff raised concerns regarding his sleep, pain in his lower back and right knee, and hearing loss. Plaintiff was referred to sleep and audiology specialists for evaluation. Plaintiff was also screened for depression and post-traumatic stress disorder ("PTSD"), but each was initially assessed as negative.

         1. Knee and Back Pain Treatment History.

         During the December 8, 2008 primary care session, Plaintiff reported experiencing pain in his back and right knee since his fall from a ladder while in the Navy. He asserted that the pain causes him to walk "funny" which then causes other joints to hurt. (AR 523.) He stated that Motrin eased the pain. An x-ray of his knees was unremarkable.

         During a February 2010 primary care session, Plaintiff complained of joint pain stemming from his "crooked" walk to accommodate pain in his left knee. (AR 518.) Plaintiff stated that he was never pain free and that Ibuprofen 800mg six times per day was ineffective to control his pain. Plaintiff was advised to try other over-the-counter medications with the option of a knee injection if his pain persisted. The following month, however, Plaintiff reported that the pain in his right knee had increased significantly. Plaintiff walked with a limp, and his right knee was observed as tender but stable. Plaintiff was prescribed a small dose of Percocet, provided with a brace and cane, and scheduled for an MRI the following month, which revealed the presence of fluid in his knee but no damage.

         In September of 2010, after complaining of continued pain in his right knee, Plaintiff was prescribed Salsalate and referred to Philip Hershberger, M.D. for an orthopedic consultation. Plaintiff reported to Dr. Hershberger that his knee pain increased with prolonged walking and use of stairs, that he hears popping noises in his knee, and has occasional swelling. Plaintiff also indicated that the pain medication was helping. Dr. Hershberger observed that Plaintiffs gait was satisfactory, that he was able to heel and toe walk, and that he exhibited mild loss of sensation in some of his toes. Dr. Hershberger assessed Plaintiff as having some degenerative changes and recommended Plaintiff continue with pain medication and avoid aggravating factors.

         Two months later, in December of 2010, Plaintiff told his primary care provider that "everything hurts from his low back to his hips to his knees." (AR 466.) Plaintiff requested medication because the pain was interfering with his work.

         In March of 2011, Plaintiff met with Dr. Hershberger and reported that his knee pain was worse after a full day of work. He noted he was taking Ibuprofen for pain and the use of a brace was helping. Dr. Hershberger assessed Plaintiffs gait as satisfactory, but described it as slow and deliberate. Plaintiff was still able to perform a heel and toe walk, his decreased sensation in his toes was still present, and his range of movement in his hips was satisfactory. An MRI of his knees revealed no significant degenerative changes. The next month, Plaintiff was referred to physical therapy after he complained that he was unable to stand on his own power while at work. Plaintiff was assessed as having a herniated lumbar disc and provided with a program of stretching. An MRI of Plaintiffs back from April of 2011 showed "mild-broad based disc bulge, bilateral facet arthropathy and ligament flavum hypertrophy, causing mild narrowing of the central canal and bilateral neuroforamina" at the L5-S1 level. (AR 1211.) It was noted that the "L5 nerve root within the neural foramen is not well-seen and may be impinged by the adjacent facet arthropathy." Id. Clinical correlation was requested.

         On November 28, 2011, Plaintiff reported to Dr. Hershberger that he continued to experience knee and back pain and that he had to quit his job because it involved repetitive kneeling activities. Dr. Hershberger observed that Plaintiffs gait remained satisfactory, that he was still able to heel and toe walk, and that other than decreased sensitivity in some of his toes, his sensation to touch was satisfactory.

         In October of 2012, Plaintiff reported that his back pain would not stop and that he could "no longer take it." (AR 1064.) He stated that he had tried several varieties of pain medication to no avail and felt that he could no longer be active out of fear that significant pain would follow. He reported that the stretching routines he learned at physical therapy helped with flexibility but not pain. He was observed as having an antalgic gait and prescribed Flexeril and Vicodin. The following month Plaintiff described his pain as continuing but stated that the Vicodin helped ease the pain.

         In 2013, Plaintiffs knee pain continued to worsen but his back pain appeared stable. In April and June, Plaintiff reported experiencing pain and popping in his knee while working on his motorcycle and described his knee pain as worse than his back pain. Dr. Hershberger assessed Plaintiffs gait as "fairly good" in August. (AR 1403.) In September, Plaintiff reported falling twice after his knee unexpectedly popped, that he had difficulty getting up without the use of his arms, and that when he kneels it "feels like kneeling [on] a rock or gravel." (AR 1393.) Plaintiff reported redness and swelling in his knees after long bike rides or raking the lawn. Dr. Hershberger described Plaintiffs gait as "satisfactory" in December. (AR 1375.) MRIs taken throughout 2013 showed that Plaintiffs left knee had mild degenerative changes, but were otherwise unremarkable and revealed normal joint spaces with no effusion.

         2. Mental Impairment Treatment History.

         Plaintiff first sought treatment for mental health issues in January of 2011 at a VA medical facility in Vermont after an argument with his girlfriend. At that time, Benjamin Wood, M.D. preliminarily assessed Plaintiff as having anxiety disorder with agoraphobia, PTSD, panic disorder, obsessive compulsive disorder ("OCD") or obsessive compulsive personality disorder ("OCPD"), and depression. Dr. Wood noted that further evaluation would be required before a conclusive diagnosis could be made. Since that time, Plaintiff has remained in continuous treatment and has been diagnosed with general anxiety disorder ("GAD"), OCD, depressive disorder, personality disorder, and PTSD. He has participated in both individual and group counseling sessions and is on prescription medication, including Vicodin, Naproxen, Flexeril, and Tylenol with Codeine.

         From 2011 through March of 2014, Plaintiff had regular appointments with various treating physicians, psychologists, nurses, and social workers, including Dr. Wood, William Tobey Horn, M.D., Ann Kraybill, LICSW, psychologists Sarah Kohl and Fred Elliott, and advanced practice registered nurse Deborah Collins. Treatment records from these sources indicate that Plaintiffs counseling sessions focused mainly on his GAD, OCD/OCPD, and PTSD diagnoses, and reveal that Plaintiff has anger issues, obsessive compulsions, and panic attacks. Plaintiff also experiences flashbacks, intrusive thoughts, and hypervigilance related to a helicopter crash involving his friends during his military service. Additionally, Plaintiff suffers from a number of phobias, including fear of drowning and of heights, xenophobia, agoraphobia, claustrophobia, and social phobia.

         B. VA Assessments of Plaintiffs Physical and Psychological Impairments.

         In 2010, Plaintiff sought an increase in his 20% VA disability rating (10% for back strain; 10% for limited flexion of knee) stemming from his physical impairments. On October 26, 2010, the VA requested that Brian Carney, M.D. review Plaintiffs medical records and meet with Plaintiff for a physical examination. In mid-November of 2010, Dr. Carney reviewed Plaintiffs medical records and performed a physical evaluation to assess Plaintiffs claims of pain in both knees, and pain in his right ankle and hip. Following this assessment, Plaintiffs VA disability rating for his back (vertebral fracture or dislocation) was adjusted to 20%; Plaintiffs knee remained at 10%. Plaintiff reported no trauma to any of his other joints. He was observed as walking with an antalgic gait and it was recorded that his right shoe showed increased wear on the outside edge of the heel.

         Dr. Carney's review of Plaintiff s medical history revealed that Plaintiff had a limitation on standing to thirty minutes, a functional limitation on walking to eighty yards, and that Plaintiff always used a cane and a brace for assistance. In his physical examination, Dr. Carney noted that Plaintiff exhibited tenderness, instability, and guarding of movement in his right knee. Dr. Carney described the instability as "moderate, " but observed no grinding or other noises. (AR 316.) Dr. Carney concluded that Plaintiffs right knee injury had a significant impact on Plaintiffs "usual occupation" as a mechanic, including: decreased mobility, problems with lifting and carrying, difficulty reaching, a lack of stamina, weakness or fatigue, decreased strength, and pain in his lower extremities. (AR319.)

         With regard to Plaintiffs left knee, Dr. Carney observed tenderness without instability. No grinding noises were noted. He recorded that there was "objective evidence of pain [in Plaintiffs left knee] with active motion on the right side." (AR 317) (capitalization omitted). Dr. Carney concluded that Plaintiffs left knee pain would have the same impact on Plaintiffs work as a mechanic as his right knee pain. Dr. Carney noted that although there was no objective evidence of pain with active motion on the left side of Plaintiff s hip, there was after repetitive motion on his right side. He assessed a decreased range of motion in both of Plaintiff s hips.

         Dr. Carney opined that Plaintiffs left knee, right ankle, and right hip pain were all either caused by or more likely than not caused by the strain stemming from Plaintiffs altered gait due to his right knee pain. Dr. Carney explained that Plaintiffs altered gait was a "plausible biological mechanism" by which Plaintiffs other joint pain would occur and would increase the likelihood of strain and degenerative changes in Plaintiffs other joints. (AR327.)[1]

         On March 13, 2012, Plaintiff was evaluated by psychologist Gail Isenberg, Ph.D. at the request of the VA after Plaintiff applied for an increase in his disability rating following his PTSD diagnosis. Dr. Isenberg's evaluation resulted in an increase in Plaintiffs VA disability rating for PTSD to 70%. In addition to PTSD, Dr. Isenberg noted that Plaintiff had also been diagnosed with a personality disorder and alcohol abuse. Plaintiff was found to have "[occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, " but she recorded that it was not possible to differentiate which portion of these impairments was caused by Plaintiffs mental health diagnosis as opposed to his personality disorder. (AR 740.)

         During Dr. Isenberg's evaluation, Plaintiff described his childhood as happy and reported that he had several close friends and enjoyed social activities, including boy scouts, hunting and fishing, working on cars, and team sports. Dr. Isenberg noted that this description varied from therapy records from 2011 which revealed that Plaintiff had a history of being bullied as a child. In the Navy, Plaintiff had many friends "that he felt were like family, " but noted that he preferred to be alone on occasion. (AR 742.)

         Following his discharge from the Navy, Plaintiff was married twice. At the time of the evaluation, Plaintiff had been in a relationship with his then-girlfriend for three years and had custody of one of his children. Dr. Isenberg observed that a psychotherapy note from 2011 stated that Plaintiff had reported being "in the process of contesting paternity" with regard to one of his children. Id. Plaintiff reported having approximately four friends in the community whom he met through work. He enjoyed activities with his friends, including "riding motorcycles, watching movies, going to the gun range, and getting together for fun." Id. Plaintiff was not involved in any service, spiritual, or civic organizations.

         Plaintiff reported that in 1990, while still in the Navy, he was stationed aboard a ship with helicopters and there was an accident in which a helicopter crashed into the ocean. Plaintiff reported that for "[t]he next several days they retrieved parts of machine and sailors" and that Plaintiff felt that the men had "died for nothing." (AR 744) (internal quotation marks omitted). Plaintiff described that "[t]he brains looked like sushi." Id. Thereafter, Plaintiff reported that he was in shock and wanted to be left alone and felt "pissed off and sad. (AR 745) (internal quotation marks omitted). Plaintiff further reported experiencing nightmares of helicopter and airplane crashes and reported that his then-girlfriend would sleep in another room because he would re-enact these events in his sleep. Since that time, he has avoided helicopters and airplanes.

         Dr. Isenberg concluded that the helicopter-crash experience was sufficient to support a diagnosis of PTSD, with symptoms of anxiety, chronic sleep impairment, difficulty in adapting to stressful circumstances (including work or a work-like setting), and "[t]eariness." (AR 747.) She cautioned that this diagnosis was based on Plaintiffs self-report of the helicopter crash and his subsequent symptoms.[2] In a subsequent consultation one month later, Dr. Isenberg wrote that "[w]hile [Plaintiffs] PTSD impacts his ability to work with others, he has the skills and ability to work in environments that allow for autonomy." (AR 694-95.) Dr. Isenberg also noted that Plaintiffs "long history of conflicts with authority existed prior to the military and are, in part, consistent with his [personality disorder]." (AR 695.)

         C. November 2012 Non-Examining State Consultants' Assessments.

         On November 16, 2012, State Agency Medical Consultant Elizabeth White, M.D. conducted a physical RFC assessment. Dr. White noted that: (1) Plaintiffs medical records from November of 2010 through July of 2011 showed that Plaintiffs gait was described as normal or satisfactory; (2) x-rays of Plaintiff s knees showed early degenerative joint disease; (3) Plaintiff had mild crepitation but no instability in his knees; and (4) Plaintiff was able to toe and heel walk.

         Dr. White opined that Plaintiff could lift ten pounds occasionally and less than ten pounds frequently; could stand and/or walk about four hours during an eight hour work day; could sit a total of six hours during an eight hour work day; had limited ability to push and/or pull in his lower right extremities; could occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl; could never climb ladders, ropes, or scaffolds; and had no limitations as to balance. Dr. White noted that, due to Plaintiffs "severe pulmonary insufficiency, " he must avoid all exposure to fumes, odors, dusts, gases, and poorly ventilated areas. (AR 90.) She also stated that Plaintiff must avoid even moderate exposure to hazards such as machinery and heights and that, due to his right knee impairments, walking on uneven surfaces should be limited.

         On November 22, 2012, State Agency Medical Consultant Ellen Atkins, M.D. conducted a psychiatric review technique ("PRT") assessment and a mental RFC assessment, based on her review of Plaintiff s medical records. In conducting the PRT assessment, Dr. Atkins found that the totality of the evidence supported Plaintiffs allegations of anxiety, depression, OCD, and PTSD, but that he nonetheless retained significant residual capacities. Dr. Atkins indicated Plaintiff had "severe" mental impairments of anxiety disorder, affective disorder, and personality disorder. (AR 86.) Dr. Atkins concluded that Plaintiffs anxiety and affective disorders imposed "mild" restrictions on his activities of daily living, and that he suffered from "moderate" ...

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