United States District Court, D. Vermont
GEORGE K. HOLSTEIN, JR. Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
AN ORDER REVERSING THE COMMISSIONER'S DECISION AND
GRANTING THE COMMISSIONER'S MOTION TO AFFIRM (DOCS. 12
Christina Reiss, Chief Judge United States District Court.
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.
is represented by John C. Mabie, Esq. The Commissioner is
represented by Special Assistant United States Attorney
Sandra M. Grossfeld.
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
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.
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.
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
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.
Knee and Back Pain Treatment History.
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.
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.
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.
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.
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
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.
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.
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
Mental Impairment Treatment History.
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.
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.
VA Assessments of Plaintiffs Physical and Psychological
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.
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
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.
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.
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.)
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.)
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
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.
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. 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.)
November 2012 Non-Examining State Consultants'
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.
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.
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" ...