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Verge v. Saul

United States District Court, D. Vermont

July 15, 2019

EDWARD V, Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.[1]


          Christina Reiss, Judge

         Plaintiff Edward Verge is a claimant for Disability Insurance Benefits ("DIB") 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 March 26, 2018, Plaintiff filed his motion to reverse. (Doc. 9.) The Commissioner filed her motion to affirm on May 25, 2018, at which time the court took the pending motions under advisement. (Doc. 11.)

         Plaintiff is represented by James Torrisi, Esq. The Commissioner is represented by Special Assistant United States Attorneys David B. Myers and Jason P. Peck.

         Plaintiff raises the following issues on appeal: (1) the Administrative Law Judge ("ALJ") improperly weighed the Veterans Administration's ("VA") disability rating; (2) the ALJ improperly weighed Plaintiffs treating physician's opinion in determining Plaintiffs Residual Function Capacity ("RFC") and failed to accord that opinion controlling weight; and (3) the ALJ's determination that Plaintiffs substance abuse was material to his disability was not supported by substantial evidence.

         I. Procedural Background.

         On December 12, 2013, Plaintiff filed a Title II application for DIB alleging a disability onset date of January 1, 2009. The Commissioner denied Plaintiffs application on February 27, 2014, and upon reconsideration on July 3, 2014. Plaintiff filed a timely request for a hearing on July 16, 2014.

         On December 15, 2015, ALJ Matthew G. Levin held a video conference at which Plaintiff and Vocational Expert ("VE") Christine Spaulding testified. Plaintiffs alleged onset date was amended at the hearing to August 31, 2013. On May 10, 2016, after receiving new evidence from Marcus Anderson, M.D., a non-examining state psychiatrist, the ALJ held a second video conference at which VE Elizabeth C. LaFlamme, Dr. Anderson, and Plaintiff testified.

         On May 24, 2016, ALJ Levin issued a written decision finding Plaintiff not disabled. Plaintiff requested review by the Social Security Administration's Office of Disability Adjudication and Review Appeals Council, which denied his request on August 24, 2017, making the ALJ's decision the final determination of the Commissioner.

         II. Factual Background.

         Plaintiff was born in 1963 and has a General Education Diploma. He joined the military at age seventeen and served until he was honorably discharged in 1983. From 1998 to 2008, he was a supervisor for underground utilities at Eustis Cable. From 2010 to 2013, Plaintiff periodically worked as a prep cook. He also performed seasonal work between 2008 and 2010 for Burke Mountain Ski Resort maintaining snow guns. Plaintiff alleges disability due to bilateral shoulder tendinopathy, degenerative disc disease of the spine, major depressive disorder, posttraumatic stress disorder ("PTSD"), polysubstance abuse disorder (alcohol and marijuana), "status-post right carpal tunnel release surgery[, ]" "status-post left hand tendon transfer surgery[, ]" and insomnia. (Doc. 9-1 at 1.)

         A. Plaintiffs Medical History.

         In September 2010, VA staff psychologist Gail Isenberg, Ph.D. performed a compensation and pension examination of Plaintiff to determine whether he had PTSD. At the time, Plaintiff had participated in weekly therapy sessions with Benjamin Welch, a VA mental health counselor, for a year and was prescribed paroxetine, an antidepressant, which he ceased taking due to its side effect of nausea. While therapy had helped Plaintiff understand why he was depressed, it had not significantly addressed his symptoms. Dr. Isenberg noted that Plaintiff also suffered from tinnitus; bilateral sensorineural hearing loss; gastroesophageal reflux disease ("GERD"); tennis elbow; alcohol abuse; and cannabis dependence, which was in remission. She stated that there were no problematic effects related to his alcohol use and that he was not engaged in any other substance abuse.

         In the course of the examination, Plaintiff reported difficulty leaving his home, including for activities which he previously enjoyed. Dr. Isenberg recorded that Plaintiff had a few friends whom he rarely saw and that he was in an unsuccessful romantic relationship. She noted that Plaintiffs psychosocial functioning was poor and that he was initially anxious during the evaluation but was able to relax "somewhat" as it progressed. (AR 656.) She recorded that his affect was constricted, he had intact attention and orientation to person, time, and place, and his thought process was rambling. Memory testing yielded normal results.

         Plaintiff reported that he had difficulty sleeping, was often wakened by nightmares, and slept approximately five hours per day. He experienced two to three panic attacks per week, depending on his level of stress, which ranged in severity from mild to severe. Plaintiff described a severe attack as feeling as though he was having a heart attack. He noted that taking a cold shower or getting fresh air sometimes helped address his symptoms. Dr. Isenberg recorded that Plaintiff was "teary during the interview specifically when discussing his trauma event/stressors." (AR 657.) She also described him as "apt to respond to a perceived slight from others in a verbal manner" but noted he "exhibited greater impulse control since being in therapy." Id.

         With regard to Plaintiffs PTSD, Dr. Isenberg opined that Plaintiffs symptoms were chronic, without remission, and ranged from mild to severe. She further found that Plaintiff reexperienced his traumatic, triggering events through images, thoughts, perceptions, dreams, and intense psychological distress when exposed to internal and external cues that "symbolize or resemble an aspect of the traumatic event" (AR 659), and experienced physiological reactivity on exposure to internal or external cues. She observed that Plaintiff reported avoiding stimuli associated with his trauma, had persistent symptoms of increased arousal, and experienced clinically significant distress or impairment in social and occupational functioning.

         Dr. Isenberg opined that Plaintiff met the criteria for a diagnosis of PTSD with anxiety as well as a diagnosis of alcohol abuse and cannabis dependence. He was able to manage his own finances, he did not require the assistance of a social worker, and his current unemployment was not caused by his mental disorders. She nonetheless observed that Plaintiffs "quality of psychosocial functioning [is] directly related to symptoms of anxiety which are secondary to PTSD" (AR 661), and found Plaintiffs prognosis was "fair to good" provided he remained in individual therapy, addressed his substance abuse issues, and attained meaningful employment. Id. She opined that his "[p]rognosis [was] poor unless he achieve[d] sobriety[, ]" id., and that he did not have "total" occupational and social impairment due to his PTSD. (AR 662.)

         On December 8, 2010, Plaintiff met with Scott D. Rebhun, M.D., a psychiatrist, to discuss his panic attacks after he discontinued prescribed medications to address those attacks because of the medications' side effects. Dr. Rebhun advised that alternative medications which would be most effective in treating his symptoms were addictive and therefore not appropriate for him. Plaintiff reported he drank five to six beers every few weeks, but rarely drank as many as five or six at one time, and that he regularly smoked marijuana as a coping mechanism. Dr. Rebhun opined that Plaintiff had PTSD, panic disorder, and cannabis dependence. He also opined that Plaintiffs major depressive disorder was in remission.

         On June 21, 2012, the VA increased Plaintiffs disability rating from fifty percent to seventy percent based on his PTSD with anxiety, alcohol abuse, and cannabis dependence. The VA attributed the increased rating to Plaintiffs intermittent inability to perform activities of daily living, impaired impulse control, suicidal ideation, occupational and social impairment with reduced reliability and productivity, difficulty establishing and maintaining effective work and social relationships, disturbances of motivation and mood, impaired judgment, panic attacks more than once a week, anxiety, chronic sleeping impairment, depressed mood, mild memory loss, and suspiciousness. (AR 387-88.) Plaintiff was assessed a General Assessment of Functioning ("GAF") score of fifty-one, which indicates "moderate symptoms; or any moderate difficulty in social, occupational, or school functioning." (AR 388.)[2]

         On August 10, 2012, Dr. Isenberg provided a medical opinion related to Plaintiffs VA disability application in which she opined that:

[i]t is difficult to determine whether or not his PTSD prevents him from working given his current use of cannabis. It may be that the Veteran's anxiety is enhanced by his abusive consumption of Marijuana. What is certain is that the combined diagnoses of PTSD and Cannabis abuse has contributed significantly in impairing the ability to acquire and maintain either physical or sedentary employment.

(AR 518.)

         Plaintiff was examined by Rachel Katherine Dahl, an audiologist at the VA facility in White River Junction, Vermont, on November 28, 2012, with regard to his hearing loss and tinnitus. Plaintiff was assessed to have sensorineural hearing loss in both ears for frequencies between 500-4000 hertz and above 6000 hertz. It was also determined that Plaintiff had service-connected tinnitus that rendered him ten percent disabled.

         Effective as of August 31, 2013, the VA determined Plaintiff was "unable to function in most areas of [his] life" and was "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." (AR 362.) The VA therefore granted him full benefits when he appealed its initial denial of his request for an increase in his disability rating.

         Three days later, Plaintiff met with Kevin Cole, M.Ed., a VA psychotherapist, who noted that Plaintiff might benefit from a medication change, was resistant to treatment for his Military Sexual Trauma ("MST"), and was in chronic pain. Mr. Cole observed that Plaintiff was irritable, guarded, had a limited range of affect, and appeared anxious and depressed. Although Plaintiff denied suicidal ideation, he endorsed frequent passive ideations of "what is the point[?]" (AR 1155-56.) Ten days later, Mr. Cole again met with Plaintiff who reported increased panic attacks with shortness of breath, sweats, and fear that he was dying, although he was conflicted about going to the hospital. Although Plaintiff previously found clonazepam helpful in managing his symptoms, at this appointment he indicated it was alprazolam he found effective. Mr. Cole recommended Plaintiff meet with his primary care physician to create a medication treatment plan and stated "[it is] clear [Plaintiff] experiences high anxiety and does not abuse medications, writer would support medication change." (AR 555.) Mr. Cole opined that Plaintiff was "chronically miserable," had a blunted and irritable mood, and was experiencing sleep disturbance. Id. (internal quotation marks omitted).

         At an October 3, 2013 counseling appointment, Mr. Cole recorded that Plaintiff complained about tinnitus, stomach pain, chronic pain, and the poor quality of life which included no heat in his home and financial difficulties. Mr. Cole again recommended Plaintiff seek a medication change in light of his chronic anxiety and panic attacks. Mr. Cole described Plaintiff as irritable with a limited range of affect, anxious, and depressed. Although Mr. Cole found Plaintiff resistant to psychotherapeutic change, he noted that he appeared to have more physical than psychiatric complaints.

         On October 10, 2013, Hyunsoon E. Park, M.D., a VA contract psychiatrist, evaluated Plaintiff at an outpatient mental health appointment. Plaintiff reported that he had been prescribed clonazepam to treat his PTSD and depression but had experienced no benefit from the medication and therefore ceased taking it. Dr. Park indicated Plaintiff was hesitant to try any psychotropic medications but agreed to try trazodone to treat his mood disorder and sleeplessness. Plaintiff "admitted to smoking several joints daily and drinking 6 pack[s a] couple times a week." (AR 550.) Dr. Park assessed Plaintiff to have a low to moderate risk of suicide due to his access to firearms and history of substance abuse. Dr. Park observed Plaintiff was dressed in casual attire with adequate grooming and hygiene and that he initially gave terse responses but "was more cooperative as the interview progressed." (AR 551.)

         Dr. Park opined that Plaintiffs thought process and association were productive and coherent with "fairly tight associations." Id. Plaintiff avoided eye contact throughout the interview and exhibited a depressed and irritable mood, as well as "defensive mechanisms[, "] and minimization of his addictions. (AR 551.) Dr. Park opined that Plaintiff had a seventy percent disability rating for service-related PTSD, a depressive disorder, cannabis dependence, and alcohol abuse and assessed a GAF score of forty-five. He informed Plaintiff of "the negative consequences associated with the continued use of alcohol or cannabis while on psychotropic med[ication]s and recommended decreased use." (AR 552.) He further offered to refer Plaintiff to substance abuse treatment, which Plaintiff declined. Dr. Park also recommended psychotherapy to address Plaintiffs social isolation and cognitive behavioral therapy, which Plaintiff also declined. Finally, Dr. Park advised Plaintiff to consult with his primary care physician regarding his chronic pain.

         Plaintiff was evaluated by Jeffrey Kowaleski, M.D., on October 29, 2013, at the VA hospital after Plaintiff experienced an episode of feeling like he was unable to breathe. At that time, Plaintiff reported daily marijuana smoking.

         At a January 22, 2014 primary care visit, Plaintiff was examined by Alexandra Grossman, M.D., for complaints of chronic pain in his neck, stomach, arms, and shoulder as well as his sciatic nerve. Plaintiff reported this pain often woke him during the night and was not addressed by ibuprofen or Tylenol. He stated that he was "miserable," and "fe[lt] angry[.]" (AR 522.) When questioned regarding his MST, Plaintiff acknowledged the attack, which occurred when he was seventeen, but did not provide details. Dr. Grossman observed that when discussing the MST Plaintiff "became tearful" and quiet but was open to considering addressing his MST in the future. Id. Plaintiff reported smoking marijuana several times per week and drinking one to two alcoholic beverages on a monthly basis, but stated he had never drunk six or more drinks on a single occasion in the past year. He was taking gabapentin, ketoconazole, omeprazole, and tamsulosin to address his pain, fungal infection, GERD, and enlarged prostate, respectively.

         On March 11, 2014, Plaintiff visited the VA pain clinic to address his physical pain and reported as having "an extensive history of lumbar spine pain requiring surgery, bilateral shoulder pain requiring surgery and injections, bilateral wrist and arm pain, as well as hip pain." (AR 1060.) It was noted that an MRI report from October 2013 revealed bilateral moderate to severe spinal stenosis. Plaintiff displayed a depressed mood and affect at this visit. Shane M. Huch, D.O. prescribed gabapentin and recommended Plaintiff continue meloxicam and mental health treatment and take prescribed medications for his depression and mood which she opined may also offer pain relief.

         The following month, on April 3, 2014, Plaintiff saw Evan S. McCord, M.D., a VA psychiatrist. At the time, Plaintiffs medical providers had discontinued amitriptyline because it was too sedating, and he had been prescribed hydroxyzine (which he had not yet taken) to address his sleep issues and diazepam for his anxiety. Dr. McCord opined that Plaintiff had chronic, unremitting PTSD symptoms and was struggling to fall and stay asleep. Plaintiff reported frequent nightmares, irritability, struggles with interactions with others, and chronic suicidal ideation without intent or plan. Plaintiff reported he had not drunk any alcohol in the past month but acknowledged intermittent binge drinking in the past, including occasionally drinking a bottle of whiskey in a single night. Plaintiff also acknowledged smoking tobacco and marijuana daily, although he had recently reduced the amount of marijuana. Plaintiff rated both his anxiety and depression as between a seven and eight out often.

         At a May 9, 2014 appointment with Dr. McCord, Plaintiff reported significant depression and anxiety, irritability, unwanted recollections of past events, feelings of detachment, frustration with physical symptoms, and increasing isolative tendencies. Dr. McCord noted that Plaintiff had attempted suicide in 1982 following his MST. He observed that Plaintiff made poor eye contact, had a blunted affect, appeared depressed, and needed to be redirected from a tangential thought process although he was generally cooperative. Plaintiff s judgment and insight were rated poor to fair; his attention was fair. Dr. McCord opined that Plaintiff was suffering from PTSD; chronic, moderate cannabis use disorder; and alcohol use disorder which was in partial remission. He recommended that Plaintiff continue with diazepam and try hydroxyzine for his sleeplessness. Plaintiff was cautioned against using alprazolam to treat his anxiety as it had not been prescribed.

         In connection with Plaintiffs application for VA disability benefits, Mr. Cole provided a medical opinion dated July 23, 2014 to the Board of Veterans Appeals. Mr.

         Cole indicated that he had worked with Plaintiff from March 2010 to January 2014 and "ha[d] come to realize the prognosis for significant improvement [was] poor." (AR 1269.) Mr. Cole further noted that Plaintiff had been diagnosed with PTSD which resulted in a seventy percent service-related disability rating, major depression, anxiety, and acute stress. He opined that:

[Plaintiff] is totally and permanently disabled due to PTSD and [MST]. He is completely disabled emotionally, occupationally, and socially. He is extremely avoidant, angry, isolative and mistrusting. He has developed somatic problems resulting in chronic severe pain. Although [Plaintiff] is currently working with another psychotherapist it is the opinion of this writer that [Plaintiff] is unemployable and totally disabled by his Service Connected condition of PTSD.

(AR 1268.)

         In August 2014, Plaintiff was admitted to the VA hospital's psychiatric unit after making "concerning suicidal statements." (AR 929.) While hospitalized, he reported he found prescribed medications and group therapy helpful, although he continued to have nightmares. Plaintiff requested Xanax to address his anxiety, sleep disturbances, and nightmares. He informed the medical team that marijuana addressed his nausea, anxiety, attitude, sleep disturbances, and nightmares. Psychiatrist Paul Holztheimer opined that Plaintiff had a history of MST-related PTSD, chronic pain, and severe depression. During his stay, Plaintiff played cribbage with another veteran, worked on a puzzle, watched television, and did his own laundry. He was discharged on August 29, 2014.

         In the month following Plaintiffs hospitalization, the VA denied Plaintiffs request for an increased disability rating for his PTSD-related headaches on the grounds that they were not frequent enough and because an evaluation of one hundred percent disability "is not warranted unless the evidence shows total occupational and social impairment" and "[s]ince there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination." (AR 369.) After an appeal of the September 2014 decision, the VA issued a new disability rating decision, finding Plaintiff was entitled to individual unemploy ability because he was "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities" as of August 31, 2013. (AR 362.) Plaintiff was found to be seventy percent disabled based on his PTSD. The decision letter stated the "examiner indicates that your prognosis is unclear at this time. However, with treatment bumped to a higher level, with abstinence from marijuana and with reevaluation of medications, you may be able to get to a higher level of functioning." Id. It also stated: "[Plaintiffs] current functioning is worse tha[n] it was in [his] most recent VA examination. [He is] unable to work and to function in most areas of [his] life. Therefore, the grant of individual unemployability is granted but not considered permanent." Id.

         On November 12, 2015, Plaintiff had his first mental health counseling appointment with Dr. William Burch, M.D., Ph.D., a VA staff psychiatrist, to whom he reported problems initiating and maintaining sleep and was "rather persistent on wanting [V]alium for his insomnia." (AR 1529.) He also reported that he did not drink alcohol, could not recall when he last had alcohol, denied any issues with alcohol in the past, and stated he used marijuana daily. Plaintiff described significant trauma from MST and being molested as a child. He indicated he experienced frequent panic attacks, nightmares, flashbacks, hypervigilance, and social isolation. Dr. Burch noted it was unclear "how reliable a historian [Plaintiff] is" and "[Plaintiff] did not appear to me to be forthright about his history of alcohol problems" as records suggested alcohol dependency. (AR 1530-31.) Dr. Burch opined that Plaintiff appeared to have PTSD but did not appear depressed, manic, or psychotic.

         On March 23, 2016, Plaintiff was evaluated by Brian Shiner, M.D., a VA staff psychiatrist, who was providing coverage for Dr. Burch. Plaintiff reported symptoms of stress, tinnitus, and lack of sleep. Dr. Shiner was unable to build a rapport with Plaintiff as he conducted several mental health assessments. Dr. Shiner found that Plaintiff did well on a cognitive assessment but "[o]n his PTSD assessment, he met all symptom clusters and scored especially highly on avoidance and numbing items." (AR 1680.) Plaintiff had apparent psychomotor retardation, reported depressed mood and sleep difficulties, and exhibited a closed posture; a monotone, colorless, low-volume voice; a blunted thought process; and difficulty providing specific details. Dr. Shiner recorded that Dr. Burch had prescribed gabapentin and Ambien which Plaintiff reported taking inconsistently. Dr. Shiner observed that Plaintiffs most severe PTSD symptoms overlapped with his depression and were moderate to severe.

         Seven days later, Plaintiff met with Dr. Burch and reported that he was not taking his prescribed medications and that he was feeling stressed because his brother had asked him to move out. He further reported that he was experiencing chronic suicidal ideations without a plan. He denied alcohol and drug use and acknowledged that gabapentin had been helpful for his pain in the past and he was unsure why he ceased taking it. Dr. Burch recorded that Plaintiff had "excellent eye contact" but was difficult to engage and provided terse answers to his questions. (AR 1671.)

         On April 29, 2016, Dr. Burch provided a medical opinion in connection with Plaintiffs DIB application in which he recounted that he had treated Plaintiff for PTSD, panic disorder, alcohol use disorder, and cannabis use disorder since November 12, 2015 and that the "significant nature of [Plaintiffs] mental illness precludes his ability to work or maintain employment." (AR 1781.) Dr. Burch opined that Plaintiffs anxiety-related disorders were so severe that the social security listing criteria were met. He further opined that:

[Plaintiffs] sobriety from cannabis would have little impact on his ability to work. He has reported to me periods of time when he has not used cannabis and yet still reported significant PTSD symptoms and mental health issues which would likely make it impossible for him to work and hold a job. I am writing this ...

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