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Rockwood v. Berryhill

United States District Court, D. Vermont

April 17, 2017

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

          MEMORANDUM AND ORDER (DOCS. 12, 15)


         I. Introduction

         Plaintiff 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.

         II. Background

         A. Procedural

         On May 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.

         In 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.)

         B. Medical History

         Rockwood 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.

         A 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.

         In 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.

         On 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.

         Accordingly, 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 thinking. Id.

         On June 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.

         In 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.

         On July 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.

         During 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.

         Also in 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, 2066.

         In 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 ...

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