United States District Court, D. Vermont
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.
Background
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”). ...