United States District Court, D. Vermont
MEMORANDUM AND ORDER (DOCS. 12, 15)
GARVAN MURTHA UNITED STATES DISTRICT JUDGE.
Robert Rockwood (Rockwood) brings this action under 42 U.S.C.
§ 1383(c)(3) of the Social Security Act, requesting
review and reversal of the Commissioner of Social
Security's (Commissioner) denial of his application for
supplemental security income. Pending before the Court are
Rockwood's motion seeking an order reversing the
Commissioner's decision (Doc. 12 (Doc. 12-1 Memorandum)),
and the Commissioner's motion seeking an order affirming
her decision (Doc. 15). For the reasons set forth below,
Rockwood's motion to reverse is denied and the
Commissioner's motion to affirm is granted.
3, 2013, Rockwood filed an application for disability
insurance benefits and supplemental security income, alleging
he became disabled as of January 1, 2003. (A.R. 263-73.) On
July 2, 2013, his applications were denied, id. at
176-84, and on January 7, 2014, were denied again on
reconsideration, id. at 190-207. Rockwood filed a
timely request for an administrative hearing, id. at
208-09, which was held by Administrative Law Judge
(“ALJ”) Matthew Levin on May 19, 2015,
id. at 1-33. Rockwood appeared with an attorney at
the hearing and testified. Id. On June 18, 2015, the
ALJ issued a decision concluding Rockwood was not disabled
from the amended alleged disability onset date of April 1,
2013. Id. at 34-62. The Appeals Council denied his
timely request for review on December 18, 2015, and the
ALJ's decision became the final decision of the
Commissioner. Id. at 70-72.
February 2016, Rockwood timely filed this action. (Docs.
1-3.) He raises three challenges to the ALJ's decision:
(1) the ALJ erred in evaluating the medical opinions of his
treating physicians;(2) the ALJ erred in his determination of
Rockwood's residual functional capacity
(“RFC”); and (3) the ALJ erred in relying on the
vocational expert's testimony. (Doc. 12-1.)
was born April 18, 1963. (A.R. 265.) He has a high school
education and past relevant work as a painter helper and
drywall finisher. Id. at 5, 25, 53, 357. In 1987,
Rockwood was injured in a high speed motor vehicle accident,
suffering a loss of consciousness, and he thereafter suffered
multiple head injuries that resulted in a loss of
consciousness. Id. at 811. He also has HIV and
untreated hepatitis C. Id. at 2129. He was
incarcerated until early January 2013, and again from March
2014 until January 2015. Id. at 1200, 1636.
January 2006 x-ray of Rockwood's spine revealed a
compression fracture and evidence of degenerative disc
disease and mild spondylosis in the lower lumbar spine. (A.R.
904.) An April 2009 MRI of his lumbar spine revealed a small
central left disc herniation at ¶ 5-S1; mild to moderate
spinal stenosis at ¶ 2-L3; and a slightly increased
bulge at the L3-L4 level. Id. at 1620-21.
March and May 2013, Rockwood saw Dr. Raiel Barlow, upon
referral by his infectious disease doctor, Dr. Mary Ramundo,
for his history of head injuries. (A.R. 930-45.) She listed
his current diagnoses as HIV positive, chronic pain, chronic
hepatitis C, mixed anxiety depressive disorder, traumatic
brain injury, and memory loss. Id. at 931, 935. At
both visits, his range of motion was normal, he was alert
with normal strength, coordination and gait, and, while he
had a normal mood and affect in March, in May he was anxious
and restless. Id. at 932, 936. Dr. Barlow
recommended counseling, referring Rockwood to a psychologist,
and for his chronic pain recommended physical therapy and
prescribed Cymbalta. Id. at 933. She noted he was
“not likely to be able to be successful at occupational
functioning.” Id. at 930.
March 29, 2013, Rockwood saw Matthew Kraybill, Ph.D., upon
referral by Dr. Barlow, for a neuropsychological evaluation.
(A.R. 811-18.) Dr. Kraybill administered multiple tests. He
listed diagnoses as concussion with loss of consciousness,
major depressive disorder recurrent episode, and anxiety
disorder. Id. at 818. His diagnostic interpretation
included: “overall psychometric intellectual abilities
are within the Moderately Impaired range;” “he is
able to follow simple commands;” he “appears to
do relatively well on non-verbal tasks that utilize his
visual-spatial skills;” and “[b]asic motor speed
and grip strength were  within broad normal limits.”
Id. at 817. He opined: “Mr. Rockwood is
demonstrating diffuse low scores across multiple domains of
cognitive functioning . . . likely reflect[ing] longstanding
difficulties related in part to his history of multiple head
injuries as well as the deleterious effects of long-term
polysubstance abuse, HIV, and HCV.” Id. He
concluded the “results of this evaluation suggest that
despite good effort, Mr. Rockwood has mild to moderate
neurocognitive deficits that would likely make successful
occupational functioning very difficult or impossible.”
Id. at 818. He noted Rockwood was “emotionally
overwhelmed” with transitioning to life out of prison.
Id. Dr. Kraybill recommended therapy to manage his
symptoms of depression and anxiety. Id.
in May, Rockwood saw Robertus Theisen, Ph.D., for
psychotherapy. (A.R. 1363-64.) Dr. Theisen diagnosed
adjustment disorder, mixed depression and anxiety, and
history of polysubstance dependence. He noted Rockwood was
dressed neatly and casually, distressed, and cooperative,
with fair judgment, impaired recall and memory, and logical
6, 2013, Rockwood saw Dr. Ramundo, who had been treating him
since at least 2000 for HIV. (A.R. at 962-67, 2129.) He
complained of back pain and reported the Cymbalta helped
initially but he had no further improvement. He stated he did
not think he was depressed, and she noted his affect did not
appear to be depressed and he was taking an antidepressant.
On June 19, he saw Linda Perry, a licensed social worker, and
complained he was having difficulty sleeping and of a rash he
believed he may have gotten from helping a friend move.
Id. at 1111.
June, Rockwood also attended physical therapy. (A.R. 1075-81,
1117-19, 1124-26, 1136-37.) At evaluation, Rockwood had
impaired strength, range of motion, and gait. Id. at
1137. The therapist noted he attended five sessions of
therapeutic exercise, manual therapy, and aquatics. He
appeared to have a slight improvement in pain and movement
after three land therapy sessions but found two aquatic
therapy sessions painful. Id. at 1136. Rockwood
voluntarily ceased attending physical therapy because he was
in too much pain. Id.
2, Rockwood went to the police station threatening to resort
to street drugs unless something was done to relieve his back
pain and stress. (A.R. 1048.) The police took him to the
emergency department where he saw Dr. Jon Sheeser. Rockwood
stated he voluntarily ceased taking Cymbalta because of a
rash but it could have been from mosquito bites suffered
while camping. Id. Dr. Sheeser noted back pain,
stiffness, and gait abnormalities but he could bear weight,
stand and walk normally, and was fully oriented. Id.
at 1049-50. He prescribed Atarax and Ambien and instructed
him to restart Cymbalta. Id. at 1051.
June, July, and August, Rockwood saw Dr. Theisen for
continued psychotherapy. Dr. Theisen noted he was
cooperative, alert and fully oriented with some memory
problems but fair judgment. (A.R. 1351, 1357.) He
occasionally expressed paranoid thinking and appeared one day
early for one appointment. Id. at 1347. In August,
he reported stabilized pain and agitation though he had to
frequently stand during the session. Id. at 1335.
July and August, as well as September, Rockwood saw Dr.
Barlow and reported “significant improvement” in
his back pain with Percocet and was able to help a friend on
a construction project. (A.R. 1162.) She noted normal range
of motion, movement, coordination and gait and he was alert
with a brighter affect. Id. at 1161, 1164, 2064. He
was sleeping better and had no more episodes of severe
anxiety or anger. He continued to work on a friend's home
renovation and was working on cars. Id. at 1159,
September 2013, Rockwood continued psychotherapy with Dr.
Theisen and saw an occupational therapist. Dr. Theisen noted
his complaints were depression, anxiety, and paranoia and
observed he was calmer and less agitated, not exhibiting
paranoid behaviors, and had well-controlled pain. (A.R.
1330.) The occupational therapist noted no problems with his
neuromusculoskeletal and movement related functions; though
he was limited in some physical activity, it was related to
chronic back pain. She stated he had no problems with basic
activities of daily ...