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Marquez v. Berryhill

United States District Court, D. Vermont

April 2, 2018

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



         Plaintiff Francisco Marquez is a claimant for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") 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. On August 16, 2017, Plaintiff filed his motion to reverse. (Doc. 9.) On October 16, 2017, the Commissioner filed her motion to affirm, at which point the court took the pending motions under advisement.

         Plaintiff is represented by D. Lance Tillinghast, Esq. The Commissioner is represented by Special Assistant United States Attorney Graham C. Morrison.

         On appeal, Plaintiff raises the following issues: (1) whether Administrative Law Judge ("ALJ") Joshua Menard erred in finding Plaintiff constructively waived his right to appear at a hearing; (2) whether the ALJ's RFC determination properly considered Plaintiffs mental health limitations; and (3) whether the ALJ erred by not addressing a report prepared by a counselor from the State of Vermont's Division of Vocational Rehabilitation.

         I. Procedural Background.

         On May 18, 2015, Plaintiff filed DIB and SSI applications, alleging that he was disabled as of October 7, 2010. He later amended his alleged onset date to November 19, 2012. The Commissioner denied Plaintiffs applications initially on August 19, 2015 and on reconsideration on January 15, 2016. Thereafter, Plaintiff filed a written request for a hearing on February 2, 2016. On July 26, 2016, ALJ Menard held a hearing at which Plaintiff did not appear. Plaintiffs former counsel, Phyllis Rubenstein, Esq., represented him at the hearing, and Louis A. Laplante, a vocational expert ("VE"), testified. On August 3, 2016, ALJ Menard issued a decision denying Plaintiffs request to schedule another hearing and concluding that he was not disabled. The Appeals Council denied Plaintiffs request for review on December 13, 2016. As a result, ALJ Menard's decision stands as the Commissioner's final decision.

         II. Factual Background.

         Plaintiff is a fifty-five-year-old man who was fifty-years old at the time of his alleged disability onset date, as amended. He has two children and is married, although he has been separated from his wife since August 2015. Plaintiff has a high school education and previous work experience in construction, as a prep cook, and dishwasher.

         A. Plaintiffs Relevant Medical History.

         On August 11, 2011, J. Paul Coates, M.A., a counselor for the State of Vermont's Division of Vocational Rehabilitation, met with Plaintiff and completed a certification of eligibility for benefits. Mr. Coates noted that Plaintiffs primary disability was alcoholism and identified no other disabilities. For the certification of eligibility form, he indicated that Plaintiffs alcoholism "results in a substantial impediment to employment[, ]" finding Plaintiff eligible for vocational rehabilitation services. (AR 321.)

         Mr. Coates concluded that Plaintiff had chronic functional loss in self-care, self-direction, and interpersonal skills. He also noted mobility limitations caused by multiple DWI convictions. In support of these findings, Mr. Coates checked boxes indicating that Plaintiff required guidance with personal finances, needed a process to review decisions and judgments before acting, and experienced hospitalization or in-patient rehabilitation for his condition. He further indicated that Plaintiff had limitations in self-direction and needed support with initiation and follow-through, guidance to understand his impact on the work environment, and assistance in adjusting to new situations. Regarding limitations with interpersonal skills, Mr. Coates found that Plaintiff needed support for successful social integration and guidance in interpreting social cues and that his past actions have adversely affected others. In completing the form, however, Mr. Coates did not check boxes suggesting that Plaintiff had limitations in work skills. He did not indicate whether Plaintiff would take longer to complete a task, require specialized supervision or support to remain on-schedule, be sensitive to constructive feedback, or need concrete and repeated demonstrations.

         Plaintiffs treatment records also reveal a history of back pain. On November 29, 2011, he was admitted to the emergency department at Central Vermont Hospital for a back injury with pain and swelling. Plaintiff reported that he had suffered low back pain for six days after bending down and picking up a laundry basket. He was prescribed medication and discharged. On December 8, 2011, Justine Gadd, P.A. evaluated Plaintiffs lower back pain, noting that he moved slowly from a chair to the exam table and had decreased range of motion and tenderness in his lower back. Thomas Churchin, M.D. met with Plaintiff on December 16, 2011 and referred him to physical therapy. An x-ray performed on February 16, 2012 found "mild thoracolumbar scoliosis[]" and "mild narrowing of the left sacroiliac joint, with findings raising the suspicion for subchondral bone resorption[]" and "asymmetric left sided [sacroiliitis]." (AR 452.)

         On February 10, 2012, Joseph Brock, M.D. began treating Plaintiff primarily for his back pain. On June 1, 2015, Plaintiff generally appeared to be in "no acute distress[]" due to his lower back though he was "somewhat uncomfortable." (AR 328.) After a June 29, 2015 appointment, Dr. Brock assessed that Plaintiff "has been stable on his current opioids for chronic low back pain for years[]" and, although Plaintiff has an "occasional flare" of pain, he "tries to walk daily [for] several miles and he is out looking for work." (AR 324.) Dr. Brock concluded that Plaintiff "is disabled with his low back pain[] [and] lumbar degenerative disc disease." Id. Similarly, on October 7, 2015, Dr. Brock opined that Plaintiff could not work.

         Despite these conclusions, ALJ Menard found that Plaintiff could perform light work, determining that the "evidence of record does not support the full extent of limitations identified by Dr. Brock." (AR 41.) On appeal, Plaintiff does not contend that ALJ Menard erred in analyzing the functional limitations caused by his back pain.

         Three years later, during a September 21, 2015 appointment, Dr. Brock diagnosed Plaintiff with "major depressive disorder, single episode, severe without psychotic features[.]" (AR 373.) Dr. Brock noted that Plaintiffs wife left him the month prior to the appointment and that Plaintiff reported that he had "[l]ittle interest or pleasure in doing things" and was "[f]eeling down, depressed, [and] hopeless[.]" (AR 372.) He admitted to having thoughts that he "would be better off dead or of hurting [himself] in some way" for several days. Id. Dr. Brock described Plaintiffs mood as irritable and angry and reported that Plaintiff experienced sleep disturbance. He prescribed Plaintiff two antidepressants: Fluoxetine and Trazodone.

         On October 19, 2015, Plaintiff met with Dr. Brock and reported that he was stressed by the possibility of losing his house and becoming homeless in the next thirty days due to his lack of income. Dr. Brock noted Plaintiffs stress and sleep disturbance in subsequent appointments on November 23, 2015 and December 17, 2015.

         On January 28, 2016, Dr. Brock found Plaintiffs depression was "worsening" (AR 484) but "[situational" due to the potential of "losing his residence soon[.]" (AR 486.) He also noted that Plaintiff had no barriers to learning. On March 23, 2016, Dr. Brock conducted a mental status exam, reporting that Plaintiff had appropriate appearance, coherent thought processes, normal speech, good judgment, and normal cognition. He recorded that Plaintiff had no suicidal ideation or delusions, but had blunted affect and a depressed mood.

         On July 8, 2016, Dr. Brock completed a medical source statement with regard to Plaintiffs depression. He concluded that depression did not affect Plaintiffs ability to understand, remember, or carry out instructions or inhibit his ability to interact appropriately with supervisors, co-workers, or the public, as well as respond to changes in a routine work setting, noting that Plaintiffs "social skills are intact[.]" (AR 539.)[1]Dr. Brock indicated that Plaintiff was mildly limited in making judgments for simple work-related decisions, but moderately limited in making judgments for complex work-related decisions. He also opined that Plaintiff was moderately limited in understanding, remembering, and carrying out complex instructions. He reported that no other capabilities were affected by Plaintiffs depression.

         On August 30, 2016, Dr. Brock submitted a letter opining that Plaintiff was physically disabled due to his lumbar degenerative disc disease and chronic low back pain. He also concluded that Plaintiff was "mentally disabled from work with severe major depression (unipolar)[]" that is "treatment resistant." (AR 19.)

         On November 19, 2015, Benjamin C. Welsh, LICSW, LADC began treating Plaintiff on a weekly basis for his mental health conditions. After the initial interview, Mr. Welsh found Plaintiff met the criteria for post-traumatic stress disorder ("PTSD") and anxiety and had symptoms of depression. He noted Plaintiffs well-groomed appearance, appropriate behavior and affect, cooperative attitude, and normal mood and speech. He also recorded that Plaintiff had good judgment and insight and intact short-and long-term memory. Plaintiff informed Mr. Welsh that he feels "hyper-alert around groups of people[]" (AR 458) and that he had "a lot [of] difficulty concentrating when he is alone." (AR 456.) He stated that he was worried about losing his apartment and becoming homeless and acknowledged that his wife had recently moved out.

         On March 4, 2016, Mr. Welsh authored a treatment report in which he recorded that Plaintiff was "under a lot of stress and anxiety as it relates to his housing and his overall security." (AR 503.) He noted that Plaintiff recently experienced the "retriggering of his PTSD symptoms [which] includes a reoccurrence of hyper-vigilant behavior at home as well as in public." Id. He further indicated that Plaintiff suffered from a significant reduction in sleep and that Plaintiff felt "hopeless" about his situation. Id. In Mr. Welsh's opinion, Plaintiff "is not able to work due [to] his mental health status and has very limited resources to make ends meet." (AR 504) Mr. Welsh reached this same conclusion in a report authored on May 25, 2016.

         In a July 22, 2016 letter, Mr. Welsh summarized a recent appointment with Plaintiff wherein he observed an increase in Plaintiffs anxiety and PTSD symptoms and concluded that Plaintiff "seems to be close to a break down." (AR 544.) Mr. Welsh noted that Plaintiff "seems to be having a difficult time being [able] to cope with everyday situations and tasks." Id. During the appointment, Plaintiff "stated that he feels like he is [barely] ...

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