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Mockler v. Berryhill

United States District Court, D. Vermont

May 3, 2017



          William K. Sessions III District Court Judge.

         I. Introduction

         Pursuant to 42 U.S.C. § 1383(c)(3), Plaintiff Richard Mockler seeks judicial review of the final administrative decision of the Commissioner of Social Security (“Commissioner”) denying his claim for supplemental security income (“SSI”). Mr. Mockler has not held any form of employment for over 20 years, and was supported by his ex-wife until his divorce. He lives an extremely reclusive lifestyle, interacting only with his mother in person and avoiding day-time excursions from his home to escape interacting with others. Since his divorce finalized in or around 2012, Plaintiff's depression and paranoia worsened. In addition, Plaintiff is morbidly obese and suffers from various types of chronic pain. He alleges that he is unable to work due to disabling mental health and physical impairments.

         Plaintiff filed an application for SSI on January 31, 2013, alleging an onset date of April 20, 1990. His application was denied initially on May 30, 2013, and again on reconsideration. After holding a hearing on his claim, an Administrative Law Judge (“ALJ”) issued a decision on January 7, 2015 holding that Plaintiff was not eligible for SSI. On September 11, 2015, the Appeals Council denied Mr. Mockler's request for review. On October 5, 2015, Plaintiff filed a new application for SSI, alleging an onset date of January 8, 2015. That application was ultimately approved due to Plaintiff's mental health challenges.[1] On October 26, 2015, he also filed the instant appeal of the ALJ's denial. For the reasons outlined below, the Court finds that the ALJ committed legal error by failing to grant appropriate weight to the opinions of Plaintiff's treating psychologist, but affirms the ALJ's decision on the ground that this error was harmless.

         II. Factual Background

         The administrative record contains evidence of Plaintiff's self-reported symptoms and activities of daily living, as well as extensive medical evidence from Plaintiff's primary care provider, two treating psychologists and several specialists and emergency doctors. Plaintiff reports living alone in a home he co-owns with his mother, sleeping primarily during the day and staying awake at night. Administrative Record (“AR”) 50. He also stated that he had no trouble driving, that he is able to do his laundry, mow his backyard when he needs to, and primarily prepares microwave meals. AR 69-70. Nevertheless, he alleges that he has difficulty planning because his back pain is unpredictable, that he has weakness in his right hand, and that he can only walk forty to fifty feet and stand for ten to fifteen minutes.AR 53. With regard to his social and emotional life, he reports spending time with his mother and two online friends who live across the country, but otherwise having no ongoing social contacts. AR 63. At the November 25, 2014 hearing before the ALJ, Plaintiff stated that he doesn't leave town because he gets “nervous shaking, ” and that he doesn't “really go anywhere except to the store at night if [he has] to go to the store.” AR 51. He also reports that he just “[doesn't] like being around people, ” has “been like that since [he] was a teenager” and has never had any close friends. AR 51, 61-62.

         i. Physical ailments

         Plaintiff's medical records from his primary care provider, Dr. Evans, corroborate his social limitations, but suggest that his physical impairments are not particularly severe and that Plaintiff has been unmotivated in complying with treatment.[2] For example, throughout this time, Dr. Evans noted that Plaintiff reported low back pain but was relatively functional. In June 2010 he stated that “patient is able to walk without difficulty. He is able to bend at both hips to 90 degrees. He is able to stand on each leg without difficulty. There are no signs of [back] trauma. No tenderness to palpation.” AR 360. In November 2010, Plaintiff complained about increased discomfort with pinprick along the lateral distal left leg, but Dr. Evans noted “no signs of trauma, no tenderness to palpation, deep tendon reflexes of the knees and ankles, no muscular atrophy or loss of strength, ” and stated that Plaintiff was able to walk without difficulty. AR 367. In December 2010, he noted that Plaintiff's back pain was “dramatically improved though still an issue from time to time.” Id. In November 2013, Plaintiff again reported low back pain, but Dr. Evans noted that he was “able to walk without obvious defect” and that “there is some palpable tenderness along the posterior proximal left leg reproducing [a] cramping sensation.” AR 431. The doctor prescribed pain medication. In May 2014, Dr. Evans reported sciatic notch tenderness in the left buttocks with palpation, but his assessment was that the Plaintiff's challenges were “primarily emotional issues.” AR 451. In August 2014, Plaintiff again requested narcotics for his back pain. Although Plaintiff's physical exam results again include sciatic notch tenderness in the left buttocks, Dr. Evans denied the request for pain medication. AR 490-93.

         Plaintiff also complained about left knee pain during this timeframe. In June 2012, Dr. Evans noted a tender medial aspect, but stated that his range of motion and stability was “ok, ” and assessed his knee pain as “chronic but stable” with intermittent narcotic use. AR 358-361. He reiterated these concerns in December 2012, but Dr. Evans' physical exam noted that his hip, knee and ankle stability were normal, that there was no joint or limb tenderness to palpation and no edema (swelling). He also noted that Plaintiff would rather have intermittent narcotics than return to the orthopedic surgeon for his knee, but “he knows this cannot be an ongoing prescription.” AR 348-350.

         In addition, Plaintiff complained about hand pain. In September 2012, Dr. Evans found Plaintiff's light touch sensation was reduced in the left finger, but noted that Plaintiff's range of motion of fingers and strength was normal. AR 354-357. In February 2013, Plaintiff pulled his hand, and Dr. Evans noted “some tenderness of the right third finger” with some mild swelling and “slight impairment” in right third finger's range of motion with flexion, but non-tender wrist and normal shoulder, elbow and wrist joint stability. AR 343. In May 2013, Plaintiff complained of right wrist pain, and Dr. Evans noted that a prior X-ray had shown some shortening of the ulnar bone, but otherwise no abnormalities. AR 402.

         Plaintiff's final physical complaint involved breathing difficulties. When he reported chest pain in June 2010, Dr. Evans noted that “Plaintiff admits that his obesity is a contributing factor, ” that the pain “is not disabling, ” that he “has no heart palpitations” and “does okay at rest.” AR 369. He ordered a cardio exercise stress test, an echocardiogram and chest x-ray. Id. In August 2013, Dr. Evans noted that Plaintiff had a history of restrictive airway disease with no response to bronchodilator. He noted that “patient simply feels winded with any type of exertion, ” but noted no cyanosis, no chest pain, no sputum production or coughing.” His physical respiratoy exam was normal. Dr. Evans prescribed Spiriva and ordered a chest X-ray “to rule out other possibilities, ” although he surmised that age, obesity and hot weather were responsible for his breathing troubles. AR 408-411. Fifteen days later, he noted that Plaintiff was happy about improvements to his breathing on Spiriva, and in November, he stated that Plaintiff's breathing was “relatively stable” on that medication. AR 433. Finally, over the years that Dr. Evans treated Plaintiff, he repeatedly recommended that Plaintiff get a sleep apnea study, but Plaintiff consistently failed to follow through. AR 370; 354-57; 428; 438.

         In addition to Dr. Evans' notes from Plaintiff's regular visits, the administrative record contains the results of a number of specialists' records concerning his physical ailments. With respect to Plaintiff's chest pain, Dr. Newcomer performed pulmonary function studies and found mild restriction in volumes and flows without post bronchodilator improvement, but reported normal range lung capacity and diffusion. AR 323, 328. A cardiolyte stress test showed normal cardiac results, and an echocardiography showed no distinct regional wall motion abnormalities, but “mildly dilated left atrium and right atrium, ” and “probable concentric left ventricular hypertrophy with preserved lv systolic function.” AR 343. A later 2010 chest x-ray showed “no acute change or active process, ” AR 379, and 2013 and 2014 x-rays showed no evidence for active cardiopulmonary disease. AR 412; 480. Other cardiac tests performed in 2014 also showed normal results. AR 485; 476-80.

         With respect to Plaintiff's knee pain, an October 2010 exam showed “minimal degenerative changes at the medial joint compartment and at the patellofemoral articulation.” AR 377. With regard to his back pain, a spine lumbosacral x-ray from October 2010 showed “probable degenerative disc disease L4-L5” and “asymmetric soft tissue density in the left paraspinous region.” AR 374; 378. A later computerized tomography showed “abnormality primarily from L3-L5 in the form of calcified posterior spurs, ” as well as mild stenosis and slight asymmetry in muscles. AR 375-76. Finally, in regard to Plaintiff's hand pain, a March 2013 x- ray showed basically normal results except ulner minus variance at the wrist and chronic deformity in one joint in the little finger. AR 425. In addition, Plaintiff saw Dr. McLarney, an orthopedic surgeon, for his knee and hand pain in October 2010 and May 2013. On the first occasion, he found mild degenerative joint disease and an ACL deficient knee of six years out, and prescribed an ACL brace and strengthening. AR 323-34. On the second occasion, he found no ecchymosis in right wrist and no point tenderness at the lateral or medial epicondyles, but slight dorsal swelling, pain to palpation, and increased pain with resisted extension. AR 405. He recommended resting, icing and anti-inflammatory medication, as well as occupational therapy. AR 406.

         Finally, the record contains two evaluations of Plaintiff's functional capacity, one conducted by Occupational Therapist Joan Van Saun and another conducted by Doctor Luther Emerson. With regard to his hands, Dr. Emerson stated that Plaintiff exhibited normal hand dexterity, fair grip strength, and no atrophy of the hands. In terms of his other pains, Plaintiff was tender on the medial aspect of his left knee as well as diffusely in the lumbar area on both sides. However, he exhibited only a slightly awkward gait due to his weight, poor balance, the ability to tandem walk about four steps, positive straight leg raises up to 60 degrees on each side and a fairly normal range of motion. Dr. Emerson diagnosed back pain and injury, asthma, obesity and depression, but noted that, “clearly, the depression is the major issue.” AR 391. He noted that Plaintiff's asthma and obesity imposed mild limitations on his activities of daily living.

         Ms. Van Saun performed a functional capacity evaluation in October 2014, and filled out a social security form in November 2014. AR 508; 511-519. She reported that Plaintiff was able to sit for up to half hour, stand for up to 15 minutes at one time, and walk for 4 minutes, but could sit 4 hours, walk 30 minutes and stand 1 hour over the course of an 8-hour work day. She described additional postural, lifting and manipulative limitations. His present work capacity was described as “below sedentary.” Finally, state agency consultant Dr. Leslie Abramson reviewed Plaintiff's records and provided an opinion on his residual functional capacity on May 16, 2013, before Ms. Van Saun's exam took place. AR 103-05; 108. She found that Plaintiff could perform work at the sedentary level, and generally found Plaintiff's standing, walking and sitting capacities to be less limited than Ms. Van Saun did.

         ii. Mental health challenges

         In addition, Dr. Evans' records provide an ongoing assessment of Plaintiff's mental health disorders, demonstrating worsening symptoms over time. In 2010, Plaintiff was described as “doing quite well” with his chronic depression, with no increase in symptoms. AR 367-70. In April 2011, Dr. Evans noted that Plaintiff had been more depressed in recent months and had felt less able to bounce back, but that his anxiety remained under control with medication. After that dip, his depression improved and stabilized. AR 364, 365. Dr. Evans noted that Plaintiff had “a lot of marital problems, ” went through a mid-life crisis when he turned 40 and was never able to reconcile with his wife. AR 362. In the middle of 2012, his depression was described as mild and well-controlled by medication. AR 358-61; 354-57. He expressed resistance about starting talk therapy because he was previously rejected by a counselor. AR 352. Dr. Evans spent time discussing “his grieving process, ” and Plaintiff “finally did admit that he needed to” start therapy. AR 353. In December of 2012 and January 2013, Dr. Evans continued to encourage him to start therapy, but Plaintiff failed to do so. In February 2013, his major depressive disorder was listed as “moderate, ” and Plaintiff had scheduled a therapy appointment. Dr. Evans stated that “although [Plaintiff was] still feeling down, he is functional.” AR 343.

         By May of 2013, however, he had abandoned the therapy he briefly began in February. AR 403. He continued to “suffer[] from lack of socialization “ and remained “significantly depressed” in August of 2013. By 2014, Plaintiff began to exhibit signs of paranoia and was “completely clos[ed] to getting any talk therapy.” AR 441. His major depressive disorder was still listed as “moderate, ” however. AR 445. Although Plaintiff continued to interact primarily with his mother, Dr. Evans' notes indicate that that this relationship was far from a healthy social influence. Rather, Plaintiff's mother appeared to be manipulative and abusive, and Dr. Evans reports speaking to Plaintiff about setting boundaries with her repeatedly. In June 2014, Dr. Evans reported having “a very frank conversation” with Plaintiff about his lack of engagement in therapy. AR 500-502. Plaintiff began treatment at Brattleboro Retreat shortly thereafter.

         Moreover, Plaintiff received limited, intermittent treatment from two mental health providers: Licensed Clinical Mental Health Counselor Gail Peach and Sandra Campbell, Ph.D. The administrative record contains notes and opinions from each of these, as well as intake notes from Brattleboro Retreat, where Plaintiff received outpatient treatment from Dr. Campbell. Ms. Peach saw Plaintiff once in February and once in March of 2013. She diagnosed him with moderate major depression, adjustment disorder (related to his divorce finalization), generalized anxiety with agoraphobia, and tentatively noted PTSD and panic disorder as diagnoses that would need to be ruled out. She reported that Plaintiff has “occasional panic attacks when he perseverates [regarding] being with people, ” that he “spends the majority of his time sitting alone at home and crying at this point, ” and that “in session he is tearful, feeling hopeless, and expressed anger at his family for discounting him.” AR 381. She noted a score of 55 on the Global Assessment of Functioning (“GAF”) scale, signaling moderate symptoms or difficulties in functioning.

         A Brattleboro Retreat intake clinician, Dr. Murphy, assessed Plaintiff with depression and anxiety, and indicated that he was “reclusive much of the time” and exhibited “some delusional content.” AR 470. She noted that Plaintiff's father was a diagnosed schizophrenic, and referred him to Dr. Campbell for therapy. AR 468. Dr. Campbell had evaluated Plaintiff once in 2013, and began therapy with him in the fall of 2014. In May 2013, she diagnosed him with social anxiety, and tentatively noted depressive disorder as a diagnosis that would need to be ruled out. She also indicated a score of 55 on the Global Assessment of Functioning (“GAF”) scale. AR 397-400. In September of 2014, she stated on a social security form that Plaintiff “suffers from a longstanding, but increasingly debilitating, anxiety disorder (generalized anxiety disorder) along with avoidant personality disorder, both of which produce extreme discomfort in situations where he has to deal with people or any type of social situation. Any sort of change, or new situation, exacerbates his anxiety. It appears that he has become more reclusive in recent years, since his wife sought a divorce.” AR 473. She reported marked limitations in Plaintiff's ability to make judgments on simple work-related decisions; extreme limitations to understanding and remembering complex instructions, carrying out complex instructions, and making judgements on complex work-related decisions; moderate limitations in understanding and remembering simple instructions and in carrying out simple instructions; “marked” inability to interact appropriately with supervisors, co-workers, and the public and “extreme” inability to changes in a routine work setting. AR 473-74. Her progress notes from that period are consistent with this assessment. AR 503-06. Finally, Dr. Campbell responded to a set of interrogatories consistently, finding severe functional limitations due to Plaintiff's mental health. AR 92-94; AR 520-522.[3]

         Finally, state agency consultant Dr. Edward Hurley reviewed Plaintiff's records on May 28, 2013, before Plaintiff showed signs of paranoia and prior to his treatment at Brattleboro Retreat. AR 105-107. Dr. Hurley found that Plaintiff was limited “for consistent 4 step instructions” but “retains the memory/comprehension for 1-3 step” instructions. AR 106. He also stated that Plaintiff “can be disrupted by increases in depressive/anxiety [symptoms] but he is responsive to meds and, with social restrictions, he retains the [concentration, persistence and pace] for 1-3 step tasks for 2 hours over an 8 hour period throughout a week.” Id. His ability to interact appropriately with the general public was described as “markedly limited, ” and his ability to accept instructions and respond appropriately to criticism from supervisors was “moderately limited.” Id. He also had a moderately limited ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Dr. Hurley wrote that Plaintiff was “limited for most public contact, ” “for intense and/or frequent interactions, ” but retained “the social capacity for brief, routine interactions with supervisors and coworkers.” AR 107.

         III. ALJ Decision

         The ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. In reaching his decision, the ALJ applied the five-step sequential evaluation process established by the Social Security Act to determine whether an individual is disabled. 20 C.F.R. § ...

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