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Jeremy B. v. Commissioner of Social Security

United States District Court, D. Vermont

July 23, 2019

Jeremy B., Plaintiff,
Commissioner of Social Security, Defendant.

          OPINION AND ORDER (Docs. 8, 9)

          John M. Conroy United States Magistrate Judge.

         Plaintiff Jeremy B. brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, requesting review and remand of the third decision of the Commissioner of Social Security denying his application for disability insurance benefits (DIB). Pending before the Court are Plaintiff's motion to reverse the Commissioner's decision (Doc. 8), and the Commissioner's motion to affirm the same (Doc. 9). For the reasons stated below, the Court GRANTS Plaintiff's motion, DENIES the Commissioner's motion, and REMANDS for a calculation of benefits and application of the rules for trial work and reentitlement periods.


         I. Relevant Facts/Medical Records

         Plaintiff was 31 years old on his alleged disability onset date of June 13, 2009. He attended Castleton State College and has a master's degree from Antioch University in clinical mental health counseling. Plaintiff has work experience as a behavior interventionist at a residential facility for teenagers with maladaptive sexual issues, a case manager for families with a child receiving mental health services, a community therapist for boys with mental health problems, a mental health home school coordinator, a sales supervisor at Home Depot, a technician at IBM, a security manager at the Trapp Family Lodge, and a sergeant in the U.S. military. He is married and has three children.

         In the summer of 2003, Plaintiff injured his lower back while training with the Vermont National Guard. (AR 432, 440.) For the next few years, he experienced episodic flares of back pain; and in January 2006, he underwent a discectomy and fusion surgery.[1] (AR 460-66, 473.) Initially, Plaintiff's back improved after the surgery, but in October 2007, he reported moderate functional limitations due to back pain and resultant depression. (AR 524.) His functional limitations included severe limitations in trunk flexibility, moderate limitations in hamstring flexibility, and severe deficiencies in trunk strength in the lower abdominals and back extensors. (AR 524-26.) Although Plaintiff continued to work full time and live a fairly active life around that time period, he suffered from chronic back pain.

         In December 2007, Plaintiff began treating with primary care physician, Dr. Gregory Froehlich, at the White River Junction Veterans Affairs Medical Center. On August 20, 2008, Plaintiff underwent a disability examination with the Department of Veterans Affairs (VA)[2], reporting constant, chronic pain at a level of seven out of ten in the lumbosacral spine that radiated into the left leg and occasionally into the right. (AR 631.) On October 8, 2008, the VA notified Plaintiff that his “overall or combined [disability] rating” was 90%. (AR 581; see AR 70.) Plaintiff chose not to seek unemployability through the VA, however, preferring instead to have the VA pay for retraining so he could try to return to work on a part-time basis in a job that would pay enough to support his family. (AR 70.)

         In June 2009, Plaintiff's part-time job at a mental health center ended, and he did not seek other work due to the increasing chronic pain in his back and legs, including spasms in his back and a feeling of fire, ice, and needles in his legs. (AR 58-59, 64-65.) Thereafter, and for much of the relevant period, Plaintiff attended classes one day a week in pursuit of a graduate degree in clinical mental health counseling, with his goal being to help veterans with posttraumatic stress syndrome (PTSD) and substance abuse. (AR 33, 58.) He also cared for his three young children while his wife worked; and he prepared meals, did stretches to help his back, went on walks when he could, and played video games for short periods. (AR 59-61.) To reduce his back pain, Plaintiff lay down for a long period each day while his children napped and also sporadically throughout the day, to total about three hours a day. (AR 63.) He also took morphine to alleviate his pain, which left him feeling sluggish. (AR 69.)

         In December 2009, Dr. Richard Morrison of the Vermont Disability Determination Services examined Plaintiff, and determined that Plaintiff was “at a disadvantage because of [his] back and . . . lower extremities, ” which “would impede his employment in most occupations.” (AR 615.) Approximately eight months later, in August 2010, Dr. Froehlich completed a Residual Functional Capacity Questionnaire (Physical) for Plaintiff. (AR 877-81.) Dr. Froehlich reported that he had been treating Plaintiff since January 2008, and he had seen him every four to six months since then. (AR 877.) He stated that Plaintiff had chronic back pain including neuropathic pain radiating down both legs, and opined that “further improvement in functional status [wa]s unlikely, ” as Plaintiff had “reached maximum recovery.” (Id.) Noting that he had not completed a functional assessment and that his responses were thus estimates, Dr. Froehlich checked boxes indicating that Plaintiff could sit for 30 minutes at one time, stand for 15 minutes at one time, sit for about two hours total in an eight-hour workday, and stand/walk for about two hours total in an eight-hour workday with normal breaks. (AR 879.) Dr. Froehlich also checked boxes indicating that Plaintiff could occasionally lift 10 pounds, rarely lift 20 pounds, and never lift 50 pounds; could rarely twist, stoop, or crouch/squat; and could occasionally climb ladders, climb stairs, and balance. (AR 880.) Dr. Froehlich indicated that Plaintiff could use his upper extremities to reach occasionally; and could handle, finger, and feel frequently. (Id.) Noting that Plaintiff was working one day/week at the time, Dr. Froehlich opined that, if Plaintiff were to work a five-day week, he would miss work “frequently, ” meaning he would miss more than four days of work each month. (AR 881.)

         About a year later, in July 2011, Dr. Froehlich reported that Plaintiff's functional capacity had not changed since his initial assessment, and that Plaintiff continued to have back pain that was “generally stable” but with “occasional exacerbations with excessive lifting.” (AR 933.) Dr. Froehlich opined that Plaintiff could perform a moderately stressful job but not a highly stressful job because of his history of depression and the potential for stress to exacerbate his chronic pain. (Id.)

         In January 2012, while Plaintiff was attending classes towards his masters degree including a one-day per week internship, he considered discontinuing the use of narcotic medication because he did not like the idea of taking narcotics while working in substance abuse counseling, and because he felt ill if he was unable to refill his prescriptions in a timely manner. (AR 989.) After examining Plaintiff, however, Dr. Froehlich recommend that he continue with his current regimen, as he had “benefitted markedly” from it, allowing him to “improve[] [his] functional status in multiple domains.” (AR 990.) In August 2012, Plaintiff reported to Dr. Froehlich that he was working part time three or four days per week at a subclinical level, and he had extended the number of days he attended classes at school. (AR 967.) His pain was adequately controlled, but he still wanted to get off the morphine. (Id.)

         In May 2013, Plaintiff graduated from his master's program. (AR 33, 1743.) In the same month, he testified at a hearing on this claim that he would soon start working as a mental health clinician at Central Vermont Substance Abuse Services (CVSAS) for 24 hours per week, and that CVSAS was “mak[ing] quite a few accommodations for [him]” so that he could perform the job despite his limitations. (AR 33.) Also in May 2013, Dr. Froehlich recorded in a Medical Update form that Plaintiff's functional capacity had not changed since he gave his opinions in August 2010 and July 2011, and that Plaintiff had exacerbations of pain when he lifted while twisting or lifted more than 25 pounds. (AR 1015.)

         II. Procedural History

         Plaintiff filed his DIB application approximately ten years ago, in August 2009, alleging that he has been unable to work since June 13, 2009 due to lower back pain and depression. (AR 245.) Plaintiff stated that, since his January 2006 back surgery, he has been unable to complete his daily activities without pain, and he has been in pain “everyday and every minute, ” which has caused him to be depressed. (Id.) He explained that he has pain while sitting, lifting, and carrying things; he cannot sit or stand for long periods due to pain; and he is “very tired” from both the pain itself and the medication he takes to treat the pain. (Id.)

         Plaintiff's application was denied initially and upon reconsideration, and he timely requested an administrative hearing. On July 22, 2011, Administrative Law Judge (ALJ) Thomas Merrill conducted the first hearing on the claim (AR 52-80), resulting in a denial on August 10, 2011 (AR 90-96). Plaintiff appealed, and on September 14, 2012, the Appeals Council remanded the claim with instructions. (AR 103-04.) On May 6, 2013, ALJ Merrill conducted a second administrative hearing (AR 28-51), and issued a second decision denying the claim approximately three weeks later (AR 10-21). Plaintiff again requested reconsideration to the Appeals Council; and on January 12, 2015, the Appeals Council denied the request, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-5.)

         Having exhausted his administrative remedies, Plaintiff filed his first civil action on his DIB claim in this Court in March 2015. (AR 1110.) On May 10, 2017, United States District Judge William K. Sessions III issued a 31-page “Memorandum Opinion and Order” vacating the decision of ALJ Merrill and remanding the claim back to the Commissioner with instructions. (AR 1106-36.) Of particular relevance here, the Court's Order states: “Dr. Froehlich's opinions are consistent [with the record, ] and . . . the ALJ should have followed the treating physician rule and given controlling weight to [them].” (AR 1132.) A few pages later, the Order reiterates: “[T]his court has found that the ALJ should have given controlling weight to Dr. Froehlich's opinion[s].” (AR 1136.) The Appeals Council then remanded the claim to an ALJ “for further proceedings consistent with the order of the court.” (AR 1139.)

         On June 12, 2018, a new ALJ, Joshua Menard, held the third administrative hearing on Plaintiff's claim. (AR 1043-1136.) Plaintiff appeared, represented by counsel, and a vocational expert (VE) testified. In addition, a non-examining medical expert, Dr. John Kwock, testified at the hearing, opining that, based on his review of the record, Plaintiff could perform work at “a light work exertional level.” (AR 1053.) On cross examination, Dr. Kwock acknowledged Plaintiff's pain and stated that pain as a symptom “var[ies] markedly with individuals.” (AR 1055.) A few weeks later, on July 5, 2018, ALJ Menard issued a decision-the third ALJ decision in the case-denying Plaintiff's claim. (AR 1019-29.) Of note, the ALJ opted not to follow this Court's instruction to give “controlling weight” to the opinions of Dr. Froehlich. (See AR 1019, 1025-28.)

         Having once again exhausted his administrative remedies, on October 2, 2018, Plaintiff filed his second Complaint in this Court. (Doc. 1.)

         ALJ Decision

         The Commissioner uses a five-step sequential process to evaluate disability claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step requires the ALJ to determine whether the claimant is presently engaging in “substantial gainful activity” (SGA). 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so engaged, step two requires the ALJ to determine whether the claimant has a “severe impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant has a severe impairment, the third step requires the ALJ to make a determination as to whether that impairment “meets or equals” an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). ...

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