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Flynn v. Berryhill

United States District Court, D. Vermont

April 10, 2017

SHAWN FLYNN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          CHRISTINA REISS, United States District Court Chief Judge

         Plaintiff Shawn Flynn is a claimant for Social Security Disability Insurance ("SSDI") benefits under the Social Security Act. 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.[1] On November 7, 2016, Plaintiff filed his motion to reverse, seeking a remand for an order of benefits (Doc. 8). On January 4, 2017, the Commissioner moved to affirm (Doc. 11). On January 19, 2017, the court took the pending motions under advisement.

         Plaintiff identifies the following errors in the Commissioner's decision: (1) Administrative Law Judge ("ALJ") Matthew Levin failed to adhere to the treating physician rule in evaluating the opinions of Plaintiff s treatment providers; (2) the ALJ improperly evaluated Plaintiffs alcohol use; and (3) the ALJ's credibility determination was not supported by substantial evidence.

         James Torrisi, Esq. represents Plaintiff. Special Assistant United States Attorney Rebecca H. Estelle represents the Commissioner.

         I. Procedural History.

         Plaintiff applied for SSDI benefits on January 31, 2007, alleging a disability onset date of October 31, 2006. The Commissioner initially denied Plaintiffs claims on June 15, 2007, and, upon reconsideration, on July 9, 2008. Plaintiff thereafter filed a timely written request for a hearing before an ALJ. Following an August 5, 2009 hearing at which Plaintiff testified, ALJ Thomas Merrill issued an unfavorable decision on August 20, 2009, which the Decision Review Board remanded on November 23, 2009.

         ALJ Merrill held a second hearing on October 15, 2010 at which Plaintiff, impartial medical expert Alfred Jonas, M.D., and vocational expert ("VE") Richard Paul testified. On October 29, 2010, ALJ Merrill again issued an unfavorable decision. Plaintiff appealed that decision to this court, which on December 23, 2011, granted the Commissioner's motion for remand and ordered that a newly-assigned ALJ further develop the record and issue a new decision.

         On April 4, 2013, ALJ Levin held a video hearing at which Plaintiff and VE Christine Spaulding testified. On April 9, 2013, he issued an unfavorable decision to which Plaintiff filed a timely written exception. Thereafter, the Appeals Council remanded the case to ALJ Levin with the following instructions:

[D]etermine whether the claimant engaged in substantial gainful activity, further consider the claimant's severe impairments, obtain additional evidence, further evaluat[e] the claimant's mental impairments, further consider the claimant's maximum residual functional capacity, obtain supplemental evidence from a vocational expert if warranted, and obtain evidence from a new medical expert[.]

(AR 1268.)

         On January 7, 2016, ALJ Levin held a fourth hearing at which Plaintiff, impartial medical expert John R Ruggiano, M.D., and VE Elizabeth C. LaFlamme testified. In a decision dated February 18, 2016, ALJ Levin found that Plaintiff did not establish that he was disabled within the meaning of the Social Security Act, and thus was not entitled to SSDI benefits. Plaintiff did not file exceptions with the Appeals Council within sixty days of the Notice of Decision. As a result, ALJ Levin's February 18, 2016 decision stands as the Commissioner's final decision.

         II. Factual Background.

         Plaintiff is a male with a high school education born in 1966. He worked for approximately eighteen months during 2011-12 as a cook, and prior to that period, last worked on October 15, 2006 in that same occupation. All of Plaintiff s prior work experience is in the culinary field. Plaintiff alleges he is disabled on the basis of bipolar disorder.

         A. Plaintiffs Mental Health.

         According to his February 16, 2007 treatment notes, Plaintiffs primary care physician Robert Wood, M.D. "agree[d] with disability on psychiatric basis" after he had treated Plaintiff for approximately eight months. (AR 283.) Plaintiff was prescribed Lexapro which he did not find effective. With Dr. Wood's support, he then sought counseling.

         Beginning on July 13, 2006, Plaintiff engaged in counseling with psychiatric nurse William R. Cote, A.P.R.N. on a regular basis. In a November 17, 2007 letter to Plaintiff, Mr. Cote stated that he did "not believe that [Plaintiff is] able to work or to pursue a training program at this time nor [is Plaintiff] able to engage in a training program" and that he expected this condition to last "indefinitely." (AR 460.) Mr. Cote recorded that Plaintiff had a primary diagnosis of bipolar disorder and a secondary diagnosis of alcohol dependence, in partial remission. Mr. Cote characterized Plaintiffs prognosis as "guarded" and stated that "the medications are helpful in controlling the most troublesome symptoms but there is no known cure for this condition." (AR 458-59.) Mr. Cote rendered substantially the same opinions regarding Plaintiffs ability to pursue employment on September 4, 2008, July 29, 2009, and October 29, 2009. In his July 29, 2009 opinion, Mr. Cote stated that Plaintiff had "abstained from alcohol as far as I know for many months." (AR453.)

         In addition to Mr. Cote's mental health treatment, from August 1, 2006 through March 31, 2011, Plaintiff engaged in counseling with Gretchen Lewis, L.C.M.H.C, a licensed psychotherapist. On August 15, 2006, Ms. Lewis noted that Plaintiffs alcohol use "border[ed] on abusive at times" (AR 289). She documented several instances of outbursts of anger by Plaintiff and noted that she was working with Plaintiff to improve his coping skills. On May 9, 2007, Ms. Lewis recorded that Plaintiff had been doing a lot of work on his house.

         On April 7, 2008, Ms. Lewis opined that Plaintiffs diagnosis, "made in conjunction with Bill Cote, Psych. N.P.[, ]" was bipolar disorder (AR 455), which caused "marked" limitation in social functioning and ability to maintain concentration, persistence or pace, and "moderate" restrictions in his activities of daily living. (AR 456.) Ms. Lewis opined that Plaintiff had experienced one or two episodes of decompensation.

         On July 10, 2009, Ms. Lewis completed an Assessment of Ability to Do Work-Related Activities (Mental) ("Mental Assessment"), determining that Plaintiff had "marked" difficulties in relating to co-workers, dealing with the public, interacting with supervisors, coping with work stresses, and maintaining attention and concentration. She observed that Plaintiff "continues to spend the majority of his time at home due to the fact that he finds himself easily dysregulated and frustrated despite ongoing medication management and counseling." (AR 450.) Ms. Lewis concluded that Plaintiff "has a low tolerance for making any kind of mistake and will usually sabotage a whole project over something like this." (AR 451.) She opined that Plaintiff was "still emotionally unstable and unpredictable in social situations, but has made progress in terms of decreasing the intensity of his emotional upheavals." Id. She further assessed that Plaintiff would be expected to miss at least four work days per month due to his mental impairments, depending on "what kind of mood he will be in on any given day and his mood continues to fluctuate regularly in a month's period." (AR 452.) Ms. Lewis responded "NA" in response to a question regarding Plaintiffs alcohol use. Id. Overall, Ms. Lewis determined that Plaintiff was "quite a ways off from where we would like to see his baseline functioning." (AR 449.)

         On October 26, 2009, Ms. Lewis recorded that Plaintiff had a "rough month" (AR 526) as both his grandmother and grandfather had passed away within a ten-day period. The next month, Ms. Lewis noted that Plaintiff "has really been enjoying work on projects in his wood shop" (AR 527) and on January 19, 2010 stated that Plaintiff "seems to be doing really well" with "less expansive" moods (AR 528).

         On April 7, 2010, Dr. Wood recorded that Plaintiff "[a]dmit[ted] to drinking at least 2 beers daily" (AR 463) and reported that his depression had grown significantly worse. Dr. Wood recommended "acute intervention . .. either through the [N]ortheast [K]ingdom mental-health or through the Emergency Ward[.]" (AR 464.) The next day, Plaintiff was brought to the Northeast Kingdom Human Services Care Bed (the "Care Bed") where he reported to the attending physician: "I thought I was doing alright but then I tried to slit my wrists because I don't want to see tomorrow or any tomorrow." (AR492.)

         Thereafter, Plaintiff received treatment from psychiatrist Richard Edelstein, M.D., who completed a psychiatric evaluation of Plaintiff on May 19 and June 8, 2010. Dr. Edelstein noted that Plaintiffs chief complaint was that "[l]ife sucks" and that Plaintiff "fe[lt] like there is a cloud over him, fe[lt] cut off from the world" and "tend[ed] to isolate self, and feel[] anxious, especially in crowds." (AR 1049.) Dr. Edelstein pointed to Plaintiffs history of alcohol abuse, including that two months prior, he drank "a case of beer per night for a period of 3 weeks prior to admission to Care Bed" but since that time, he had only consumed three beers. (AR 1050.) Dr. Edelstein's mental status examination revealed that Plaintiff was "pleasant, friendly, calm, and cooperative. Affect is in full range. Mood is neutral. Speech is coherent. Thought content is without distortions of reality testing. No acute suicidal ideation." (AR 1051.) On August 20, 2010, Dr. Edelstein recorded that Plaintiff reported having "a rough time a few nights ago and scratched his wrist several times 'as practice.'" (AR 1044.) Dr. Edelstein assessed that Plaintiff was "[m]ildly anxious . . ., not grossly depressed, some joking, no acute S[uicidal] I[deation]." Id.

         In a September 21, 2010 Questionnaire, Dr. Edelstein diagnosed Plaintiff with bipolar disorder and found "moderate" restrictions in Plaintiffs activities of daily living and "marked" difficulties in his ability to maintain social functioning and concentration, persistence or pace. (AR 504.) That same day, Dr. Edelstein also completed a Mental Assessment and opined that Plaintiff had "extreme" difficulties dealing with the public; "marked" difficulties responding appropriately to usual work situations, to changes in routine work settings, and in maintaining concentration; "moderate" difficulties responding appropriately to co-workers, dealing with work stresses, and functioning independently; and "slight" difficulty responding appropriately to supervision. (AR 506.) He opined that Plaintiff would be expected to miss at least two days of work per month due to his impairments which he characterized as "ongoing and chronic." (AR 508.) Regarding whether Plaintiffs alcohol use contributed to his limitations, Dr. Edelstein responded: "NA currently." Id.

         In an October 10, 2010 Mental Assessment, Ms. Lewis observed that Plaintiff had a "[d]epressed mood most of the day [and] markedly diminished interest or pleasure in almost all activities." (AR 517.) She noted that Plaintiff exhibited "marked" difficulties in his ability to deal with work-related stress and to respond appropriately to usual work situations, supervision, co-workers, and changes in a routine work setting. Id. She further opined that Plaintiff suffered from a "[d]epressed mood .. ., feelings of worthlessness or excessive guilt[.]" (AR 518.) She reiterated her assessment that Plaintiff would be expected to miss several days of work per month due to his mental impairments and did "not believe that [Plaintiff] would be able to maintain 8 hrs/day - 40 hrs/week without decompensating or having some sort of mishap at work occur." (AR 519.) Regarding the relationship between Plaintiffs alcohol use and these limitations, Ms. Lewis stated that Plaintiff "may have used alcohol to try to control his illness, [but] now that we have medication on board, this is no longer an issue." Id.

         After Plaintiffs SSDI application was denied in the fall of 2010, he resumed work as a part-time cook, and then began working nearly full-time in April 2011. He continued to work as a cook until November 2012 and earned approximately $25, 000 during an eighteen-month period in that position. On August 4, 2011, Dr. Edelstein noted that Plaintiff had become "overly busy[, ] working a lot of hours, trying to keep up with a very large garden" and that "[o]verall, [his] mood has been good[.]" (AR 1035.) On September 1, 2011, Dr. Edelstein recorded that Plaintiff was "working long hours (35 hrs/week)" but reported no new stressors. (AR 1034.)

         Although Plaintiff had already been working nearly full-time, Dr. Edelstein opined on September 22, 2011 that Plaintiff "is ready to return to work up to but no more than four days a week." (AR 1033.) From October 27, 2011 to November 8, 2012, Dr. Edelstein recorded that Plaintiff was either working part-time or nearly full-time at various restaurants and handling both his work schedule and illness well, with only mild variations in his mood.

         On November 26, 2012, Plaintiff sought treatment at the North Country Hospital, stating that he "took between 75-100 tylenol yesterday (500 mg)." (AR 1209.) Plaintiffs admission record states that he attempted suicide, but recorded that he "[a]ppears in no apparent distress." (AR 1188.) Plaintiff was then transported to Dartmouth-Hitchcock for further treatment and observation. According to the November 27, 2012 treatment notes of psychiatrist Frances S. Shin, M.D., Plaintiff was regretful about his actions and "endorse[d] suicidal ideation for the past week and continues to feel like he wants to 'just end it."' (AR 1073.) Dr. Shin recorded a prior suicide attempt two and a half years prior in which Plaintiff slit his wrist in a manner that did not require sutures. Dr. Shin further documented that Plaintiff endorsed "depressive symptoms (sadness, hopelessness, anhedonia, poor energy, poor concentration . . . poor sleep) for the past month" and that Plaintiff "drank 3-4 beers on night prior to admission (11/25)[.]" (AR 1073-74.)

         During this same time period, Plaintiff was seen by psychiatrist Donald A. West, M.D., who opined that electroconvulsive therapy ("ECT") "may be the best option considering [Plaintiffs] history." (AR 1079.) Thereafter, Plaintiff underwent multiple rounds of ECT and was discharged on December 18, 2012. The discharge summary completed by Hee-Jun Ahn, M.D. and Dr. West stated that "[o]n the day of discharge, the patient denied thoughts of suicide, homicide, or violence. Given patient's positive and notable response to ECT in terms of depression compared to admission, outpatient maintenance ECT was not deemed necessary at this point[.]" (AR 1084.) The summary also noted that "it may be beneficial for patient to take a short leave from work until he could effectively manage the stress[.]" Id.

         In a December 19, 2012 letter to Attorney Torrisi, Dr. Edelstein stated that he had not changed his opinion regarding Plaintiffs disability since September 21, 2010, but because Plaintiff had been hospitalized since his last contact with him on November 8, 2012, his opinion "may change to some extent" after an opportunity to treat Plaintiff further and review his inpatient records from Dartmouth-Hitchcock. (AR 1062.) After reviewing those records, on March 20, 2013, Dr. Edelstein updated his opinion as follows:

[Plaintiffs] depression is a disabling condition. I can attest to the fact that he has tried to work at a variety of chef/cooking jobs over the past few years. He has experienced an upsurge in anxiety and depressive symptoms in each position. He worked at his latest position for months, continuing even as some of his symptoms worsened. Ultimately, he became suicidal and after a suicide attempt was hospitalized, where he was treated with electro-convulsive therapy. I believe that the stress of his work contributed to his depression. He is better now than when hospitalized, but still too anxious and down to return to the job. I do not recommend that he return to employment at this time.


         Throughout 2014, Dr. Edelstein continued to record Plaintiffs depressed mood, but noted that his speech was coherent and logical and his memory, concentration and judgment were intact. On July 29, 2014, Dr. Edelstein observed that Plaintiff "report[ed] better energy, motivation, and increased activity, but still gets down at times, and even had a recent vague SI, without plans." (AR 1231.) Dr. Edelstein recorded that Plaintiff had gone camping with family that month and was planning to go kayaking with his niece the following day.

         By September of 2014, Dr. Edelstein detected "fidgetiness" in Plaintiffs demeanor but also noted a "euthymic" mood and normal speech, memory and concentration. (AR 1235.) On November 5, 2014, Plaintiff recounted to Dr. Edelstein that he engaged in several "shouting matches with wife and strangers, got drunk and drove around the woods for several hours, then went to the ER when he told his wife he was suicidal." (AR 1237.) Plaintiff appeared "mildly anxious" with "sometimes impaired" judgment, but had normal mood, affect, speech, memory, and concentration. (AR 1238.)

         In the spring and summer of 2015, Dr. Edelstein recorded that Plaintiff continued to have a depressed mood with irritability but no suicidal ideation. During the same time period, Plaintiff exhibited normal speech, memory, and concentration. In several 2015 treatment notes, Dr. Edelstein diagnosed Plaintiff with "EtOH dependence, in current remission." (AR 1242, 1247, 1257.)

         In a December 28, 2015 letter to Attorney Torrisi, Dr. Edelstein stated that his opinion "ha[d] not changed since" his September 21, 2010 and March 20, 2013 opinions. (AR 1264.) He further stated that Plaintiff is "disabled due to his mood disorder and anxiety. Regarding the contribution, if any, of alcohol abuse to his disability, it is my opinion that alcohol has been associated with a few, but by no means all, of his episodes of severe illness. I do not regard alcohol as a primary causative factor in his illness." Id.

         B. State Consultants' Assessments.

         1. Dr. Schwartzreich's June ...

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