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Monariti v. Berryhill

United States District Court, S.D. Texas, Houston Division

September 15, 2017

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


          Dena Hanovice Palermo United States Magistrate Judge

         Plaintiff Dominic M. Monariti seeks judicial review of a final decision of the Acting Commissioner of the Social Security Administration ("the Commissioner") denying his application for Social Security disability insurance benefits. The Parties consented to have this Court conduct all proceedings in this matter pursuant to 28 U.S.C. § 636(c) and filed cross-motions for summary judgment. ECF Nos. 5, 7-9. For the reasons given below, the Court GRANTS Plaintiffs motion, DENIES the Commissioner's motion, REVERSES the ALJ's non-disability finding, and REMANDS the case to the Commissioner for the immediate calculation and award of benefits.

         I. BACKGROUND

         A. Procedural Background

         On August 9, 2011, Plaintiff applied for disability insurance benefits and supplemental security income ("SSI") benefits under Titles II and XVI of the Social Security Act ("the Act"). R. 236-48.[1]The Social Security Administration ("SSA") denied his application initially and upon reconsideration. R. 131-41. Pursuant to Plaintiffs request, a hearing was held on October 3, 2012 before Administrative Law Judge Patricia C. Henry ("the ALJ"). R. 65-95. Plaintiff, who was represented by counsel, testified at the hearing, as did a vocational expert. On October 26, 2012, the ALJ issued an unfavorable decision, concluding that Plaintiff was not disabled during the relevant period and therefore not entitled to the benefits for which he applied. R. 104-120. Plaintiff appealed the ALJ's decision to the SSA's Appeals Council. On April 26, 2013, the Appeals Council granted Plaintiffs request for review, vacated the ALJ's decision, and remanded the case for the ALJ to provide "[a] more comprehensive discussion of the impact of [Plaintiffs] mental limitations on [his] residual functional capacity" and "further evaluation" of the opinion of Dr. Syed V. Ahmed, M.D., a consultative examiner. R. 126-30. The ALJ held a second hearing on April 9, 2014. Plaintiff, who was represented by counsel, again testified at this hearing, as did a vocational expert. On August 15, 2014, the ALJ issued a written decision in which she once more found Plaintiff not disabled within the meaning of the Act. Plaintiff timely appealed to the Appeals Council, which denied his request for review. R. 1-4.

         Plaintiff then filed his complaint in this case, seeking judicial review of the Commissioner's denial of his Title II and Title XVI claims for benefits. Plaintiff argues that the ALJ erred in (1) relying on the medical opinions non-examining physicians issued in 2011, and (2) failing to adequately explain why she did not accept the medical opinions examining physicians issued in 2013. PL's Compl., ECF No. 1.

         B. Factual Background

         Plaintiff asserts that he suffers from both physical and mental disabilities. In his applications for disability benefits, Plaintiff stated that he had been disabled since January 1, 2007. R. 240. Between 2003 and 2010, Plaintiff asserts that he previously received disability benefits. R. 34-35, 77.

         1. Plaintiffs Work History

         Plaintiff was born on December 30, 1969. R. 645. He completed his education through the ninth grade; he subsequently received a GED. Plaintiff completed two years of coursework at Houston Community College, where he studied criminal justice. R. 645-46. Until 2003, Plaintiff had been employed "since [he] was 12, " when he began selling newspapers. He stated that he "worked for the Houston Chronicle and for the Houston Post most of [his] life." R. 70. From 1982 to 1993, he worked as a crew manager for a newspaper. Between 1993 and 1996, Plaintiff worked as an assistant manager at a car wash. In 1996, he began working as a door-to-door sales representative. R. 292-95. In 1999, after he "got hurt at work, " Plaintiff began experiencing chronic pain. R. 73. Even so, Plaintiff continued to work as a sales representative until 2003, when he suffered from antifreeze poisoning and spent one month in a coma. Describing his work duties at the time of this incident, Plaintiff stated that he went "door to door, business to business demonstrating products and dropping off magazines and stuff." R. 68. In 2003, the year in which Plaintiff was poisoned, he earned only $5, 701.15.[2] R. 267.

         Since his coma in 2003, Plaintiff has been employed sporadically. In 2005, after spending a year on dialysis, he worked for "a very short period of time" selling newspaper subscriptions. In 2006, he again tried to sell newspaper subscriptions. R. 70-71. He explained: "I think I went-I tried to go back twice. But it's just too strenuous to climb up and down the stairs because you have to work apartment complexes and go all the way up to the third floor and all the way back down to the first floor and all the way back up to the third floor." R. 70. In 2009, Plaintiff "worked at a car wash for like a week or two." He was unable to continue working at this job, stating: "I can't even wash a car now. I used to be able to wash 100 or something cars." R. 37. Plaintiff explained that his physical and mental impairments made working at a car wash very difficult: "I couldn't take care of the clients first of all the way I used to. And then second it was too much pain to wash cars." R. 38. In 2009, he also briefly worked as a realtor. R. 277. Plaintiff stated that although he had a real estate license, this venture was unsuccessful. R. 87. After October 2009, Plaintiff did not seek further employment. R. 276. His income in 2009 was $479. R. 267.

         2. Plaintiffs Medical History

         In 1999, after an accident at work, Plaintiff developed chronic pain in his left shoulder. R. 428. In 2003, an ex-partner poisoned Plaintiff with antifreeze. Plaintiff spent one month in a coma. He suffered renal failure, and after waking from the coma, he was on dialysis for about one year. R. 68-69. In 2014, more than a decade later, Plaintiff described his kidneys as "barely functioning." R. 53. After the coma, he had to "[re]learn to walk and talk and everything." Plaintiffs chronic pain worsened "after the coma." R. 73. He stated that he had "never been the same since." R. 336. Plaintiff also experienced cognitive difficulties following the coma, explaining: "After the coma I have a really bad memory." R. 70. He stated that he could not "think straight" since the coma. R. 285.

         Since 2003, Plaintiff has sought treatment from many doctors. On October 21, 2004, Dr. Cheng-Ti Judy Dai, M.D. ("Dr. Dai") diagnosed Plaintiff with neck pain, degenerative disc disease of the cervical spine, and cervical radiculopathy.[3] Dr. Dai performed epidural steroid injections on Plaintiff. R. 454-55. In 2005, Plaintiff was diagnosed with HIV. He clarified that he had contracted HIV from "a different partner" and his diagnosis was "unrelated to the poisoning." R. 81.

         On March 25, 2007, after catching his neck and shoulder in the door jamb of his car, Plaintiff first sought medical treatment from Dr. Everton A. Edmundson, M.D. ("Dr. Edmundson"). He described his pain, in his "wrist, leg, ankles, [and] back, " as "depressing" and "miserable." R. 453. The following day, on March 26, 2007, Plaintiff again told Dr. Edmundson that he was experiencing pain in his shoulder, low back, wrist, left leg, and both ankles. While his pain began following a work accident in 1999, Plaintiff explained, it "became worse gradually" and was now "constant, stabbing, [and] throbbing." Plaintiffs pain was "aggravated by movement, " although it was alleviated by "massage and showering." R. 428. Dr. Edmundson diagnosed Plaintiff with fibromyalgia.[4] R. 432. During a follow up visit on April 24, 2007, Plaintiff told Dr. Edmundson that he "ache[d] all over, " especially in his wrists and shoulder. R. 466. Dr. Edmundson prescribed Neurontin, an anticonvulsant used to treat nerve pain, and Norco, a narcotic pain reliever. R. 467. On July 16, 2007, Dr. Edmundson additionally diagnosed Plaintiff with cervical radiculopathy and prescribed Valtrex, an antiviral drug. R. 465. On October 3, 2007, Plaintiff told Dr. Edmundson that he still "[hurt] all over." R. 462. Dr. Edmundson then prescribed Lyrica, an anticonvulsant used to treat nerve pain. R. 463. On February 12, 2008, Plaintiff sought further treatment from Dr. Edmundson. Plaintiff reported that he could not "get relief from his pain. Dr. Edmundson, who noted that Plaintiff appeared to have an "opiate dependence, " instructed Plaintiff to continue taking Neurontin. He additionally prescribed Tofranil, an antidepressant. R. 461.

         On August 30, 2008, Plaintiff fell and fractured his wrist. He sought treatment from Dr. Edmundson for this injury on September 3, 2008. Dr. Edmundson noted that Plaintiff had also sustained contusions to his chest and ribs. R. 458-59. During a follow up visit on December 31, 2008, Dr. Edmundson reported that Plaintiffs wrist had collapsed, leading to "a wrist deformity and significant pain." R. 456.

         Between 2009 and 2011, Dr. Edmundson continued to treat Plaintiff. On May 4, 2009, Dr. Edmundson diagnosed Plaintiff with restless legs syndrome.[5] R. 447. On May 11, 2010, Dr. Edmundson referred Plaintiff to Dr. Stephen B. Chiang, M.D. ("Dr. Chiang"), citing an "unspecified polyarthropathy or polyarthritis involving multiple sites." R. 408.[6] After conducting a bone scan, Dr. Chiang confirmed that Plaintiff had "mild degenerative uptake ... in the shoulders, spine, and knees." R. 403.[7] Dr. Edmundson prescribed a variety of medications to treat Plaintiffs chronic pain. On September 28, 2010, for example, when Dr. Edmundson treated Plaintiff for fibromyalgia and restless legs syndrome, Plaintiff was taking Norco, Ibuprofen (a nonsteroidal anti-inflammatory drug), Trazadone (a sedative and tetracyclic antidepressant), Soma (a muscle relaxant), Tramadol (a narcotic pain reliever), and Neurontin. R. 398, 435. On March 22, 2011, Dr. Edmundson noted that Plaintiff was additionally suffering from myalgia and peripheral neuropathy due to "anti-freeze poisoning, which also caused renal failure." R. 468.[8]

         On May 26, 2011, Plaintiff was in a motor vehicle accident. He visited the emergency room at Methodist West Houston Hospital several weeks later. There, Dr. Darnell Pettway, M.D. ("Dr. Pettway") diagnosed Plaintiff with "back and neck pain." Dr. Pettway prescribed Toradol and Mobic, both nonsteroidal anti-inflammatory drugs. R. 479, 584-85. During a follow up visit with Dr. Edmundson on July 18, 2011, Plaintiff presented with "polyarthritis, whiplash injury, headache, and lower back pain." He told Dr. Edmundson that his chronic pain had worsened since his recent accident. R. 471. Dr. Edmundson instructed Plaintiff to continue his "current analgesic program, " referring to the medications Dr. Pettway prescribed. R. 479.

         After July 2011, Plaintiff no longer sought treatment from Dr. Edmundson because, even though the trigger point injections helped his pain, he could not afford it once he lost his Medicare benefits. R. 80-81. Instead, Plaintiff sought treatment at "county facilities [and] the Legacy [Community] Health Clinic." R. 80.

         Plaintiff had previously visited Legacy Community Health ("Legacy") for mental health treatment. Since 2005, he stated, "four or five different mental professionals at Legacy" treated him. R. 85. During a June 25, 2009 visit to Legacy, Dr. Natalie N. Vanek, M.D. ("Dr. Vanek") treated Plaintiff for depression and chronic pain. Dr. Vanek, who noted that Plaintiff exhibited "blunted" affect, "average range" intelligence, "fair" insight, and "fair" judgment, diagnosed him with depression, HIV, and chronic pain. While Dr. Vanek also diagnosed Plaintiff with an opioid dependence, she characterized this dependence as iatrogenic, or the unintended result of Plaintiffs medical treatment for chronic pain. R. 491-92. Plaintiff was assessed as having a Global Assessment of Functioning ("GAF") score of 50, indicating a serious impairment. Dr. Vanek prescribed Pristiq, an antidepressant. R. 493. During a subsequent visit to Legacy on October 20, 2010, Plaintiff complained of continuing depression and "angry outbursts." A clinician, who diagnosed Plaintiff with depression, opioid and sedative dependence, HIV, and chronic pain, prescribed Cymbalta, an antidepressant, and Risperdal, an antipsychotic medicine used to treat mood disorders and irritability. R. 490.

         When Plaintiff returned to Legacy for a follow up visit on November 11, 2010, a clinician observed that he had "improved in every sector." The clinician instructed Plaintiff to continue taking Cymbalta and Risperdal and "wean [off of] opioids as tolerated." R. 494. However, Plaintiff was unable to discontinue his use of opioids. On February 10, 2011, when Plaintiff returned to Legacy, a clinician described him as "wired [and] drug-seeking" and "focused primarily on seeking opioids." The clinician told Plaintiff that Legacy would not prescribe opioids. Plaintiff "became verbally aggressive" and "threatening, profane, [and] physically intimidating." R. 497. During a subsequent visit to Legacy on August 20, 2011, a clinician reported that Plaintiff had continued to take opioids for chronic pain and fibromyalgia. R. 495-96. On August 30, 2012, Dr. Vanek reported that Plaintiff "asked for [her] to write [a prescription for] pain meds." She "refused." R. 596.

         Plaintiff made clear that his pain negatively impacted his mental health. On July 16, 2012, Plaintiff told a clinician at Legacy that his "daily chronic pain" contributed to his bad mood. R. 599. The following month, on August 27, 2012, he again stated that his chronic pain "cause[d] him to be depressed." The clinician characterized Plaintiffs opioid dependence as "stable, " and instructed him to continue taking Cymbalta, Ambien (a sedative), and Abilify (an atypical antipsychotic). R. 597.

         In the fall of 2012, Plaintiff briefly sought treatment for his chronic pain from Dr. Joseph Segel, M.D. ("Dr. Segel"). During a visit to Dr. Segel on September 12, 2012, Plaintiff complained of pain in his shoulders and "knees on down." He described his pain as "aching, continuous, sharp, nagging, stabbing, penetrating, shooting, unbearable, throbbing, burning, pulsing, and cramping." At that time, Plaintiff was taking Norco, Soma, and Xanax. R. 614. During a follow up visit to Dr. Segel on November 21, 2012, Plaintiff complained of "aching, constant, and sharp" pain. Importantly, Dr. Segel did not observe any "potential aberrant drug related behavior" from Plaintiff, and noted his "overall impression" that opioids were benefiting Plaintiff. R. 615. On December 24, 2012, Plaintiff told Dr. Segel that without pain medication his pain was "horrible, " while pain medication made his pain better. R. 616.

         Although Dr. Segel was of the opinion that prescribed opioids were benefiting Plaintiff, other physicians expressed concern regarding Plaintiffs opioid dependence. On January 14, 2013, Dr. Ken Masters, M.D. ("Dr. Masters") at Legacy characterized Plaintiff as having a "[history] of opioid abuse." R. 622-23. On March 6, 2013, Dr. Masters described Plaintiff as "blunted in affect with monotone voice." Plaintiff told Dr. Masters that he was "hanging in there, " but "things [had] gone from bad to worse." R. 625. Dr. Masters, who described Plaintiff as "anxious [and] depressed, " prescribed Celexa, an antidepressant, and Clonazepam, a benzodiazepine and sedative. R. 626. Dr. Masters emphasized that, if Plaintiff took more Clonazepam than prescribed, his prescription would not be continued. However, Plaintiff denied abusing benzodiazepines. R. 625. During follow up visits on September 10, 2013 and April 8, 2014, moreover, Dr. Masters reported that Plaintiff had only a "remote [history] of opioid abuse." R. 729, 768.

         3. Plaintiffs Testimony

         At the 2014 hearing, Plaintiff testified that he lived with a partner. He had no personal income, so "[his] mom mainly" supported him financially. R. 38. Plaintiffs daily activities were limited. He "tr[ied] to get up at like 10:00 [in the morning]." Plaintiff did not "typically shower every day, " although he reported being physically able to do so. R. 39. Plaintiff did "not really" sleep through the night, reporting that he "had to take [his] medication to sleep through the night." Id. Light housekeeping tasks were "too strenuous" for him. R. 41. Plaintiff did not prepare meals, wash dishes, fill the dishwasher, do laundry, take out the trash, go grocery shopping, or mow the lawn, although he did drive locally. R. 40-41. He explained: "I'm sure if I tried [to perform household tasks] I could but it would hurt." R. 52.[9]

         Plaintiffs physical and cognitive impairments similarly limited his leisure activities. He "sometimes" watched television. R. 41.[10] Plaintiff testified that he "just check[ed] emails" on the computer because more prolonged computer usage "hurt [his] shoulder." R. 41-42. Plaintiff did not "read newspapers, books, [or] magazines." R. 42. He explained that reading was difficult because of his cognitive impairment: "I can't because I'll get through one sentence and I don't know what the sentence was." R. 48.[11] Plaintiff stated that he frequently forgot his passwords. He explained: "I forget my pass codes [sic], passwords. For example, for Yahoo I have to call them and act like an idiot . . . Even if I write them down I'll lose where I write them down." Moreover, Plaintiff often got lost: "I just got lost today five times getting here." Id. He described the impact of his cognitive impairment in the following terms: "I forget people's names. I forget what I did. I forget yesterday. I forget the day before yesterday." R. 52.

         To alleviate his pain, Plaintiff "soak[ed] in the bathtub" and "[sat] in a massage chair." R. 42.[12]In a typical day, Plaintiff "[took] his medication and wait[ed] to die." R. 41. While Plaintiffs treating physicians had tried for years to treat his pain without resorting to medication, their efforts had been largely unsuccessful. At the 2012 hearing, he explained: "They've done bone scans. They've done MRIs. They've done injections. They've done everything they can possibly do. I went to a neurosurgeon and he said the discs weren't separated enough to be operated upon ... So basically they're just treating me with lots of medications." R. 72. However, his medication caused "side effects like drowsiness" and magnified his cognitive impairment. Plaintiff explained that his prescribed medications "kind of scramble[d] [his] mind a little bit." R. 38-39.[13] Moreover, pain medication did not provide Plaintiff with complete relief of his physical symptoms. Narcotics, such as Hydrocodone, were "like a band aid." Although they provided some pain relief, Plaintiff explained, the pain "still [bled] through." R. 50.

         4. Assessments of Plaintiffs Physical and Mental Impairments

         Before the 2012 and the 2014 hearings, Plaintiff was examined for his mental and physical condition. In each instance, the examination was performed at the request and expense of the Department of Assistive and Rehabilitative Services ("DARS"). These assessments revealed that Plaintiffs overall condition had worsened over time.

         a. Examining Consultative Physicians' Assessments Before the 2012 Hearing

         In advance of the 2012 hearing, at the request and expense of the DARS, two medical experts examined Plaintiff. On October 12, 2011, Dr. Frank A. Fee, Ph.D. ("Dr. Fee") performed a psychological evaluation of Plaintiff at Propsych Testing. Plaintiff, who was "on psychotropic medication" during the evaluation, told Dr. Fee that he "experienced health problems at birth, " as well as childhood physical and sexual abuse. R. 530-31. As a child, Plaintiff stated, he fell on rocks at a lake and lost consciousness. At the age of twelve, Plaintiff was hit by a car and confined to a wheelchair for three months. R. 31. Plaintiff described his current pain as "a full body migraine." Id. Plaintiff remarked: "I'm in so much pain I asked the doctor, where is Dr. Kevorkian when you need him." R. 533. Plaintiff described the impact of his cognitive impairments on his daily life and leisure activities, explaining: "I can't pay attention even to a movie; it's depressing. Others will be laughing and I don't even know what's going on." R. 532. Dr. Fee assessed Plaintiff as having "fair" short-term and long-term memory and "somewhat impaired" concentration. Plaintiff was "unable to correctly complete simple arithmetic problems in his mind beyond addition and subtraction" and "unable to spell the word 'world' backwards on two separate attempts." R. 533. Dr. Fee diagnosed Plaintiff with a pain disorder, not otherwise specified ("NOS") and a mood disorder NOS. R. 534.[14]

         On October 20, 2011, Dr. Syed Ahmed ("Dr. Ahmed") conducted a physical examination of Plaintiff. He reported a "history of frequent bronchitis, chest infections, [and] cough, " as well as "shortness of breath and wheezing even at rest." Plaintiff also reported "poor energy level all day." Plaintiff told Dr. Ahmed that he had been "involved in [a] motor vehicle accident about five times." He was in "pain all the time" and "all over [his] wrists, head, shoulder, knees, and legs." R. 541. X-rays showed degenerative changes involving the acromioclavicular joint, including narrowing of the intervertebral disc space and marginal osteophyte formation. R. 537.[15] Dr. Ahmed assessed Plaintiff as having "clinically moderately severe low back pain" with a "possible degenerative etiology, " "moderately severe disease of the bilateral shoulder joints, likely due to arthritis and/or tendinitis, " "moderately severe neck pain, probably due to disc disease, " "headache...probably due to cervical spine disease, " and "mild to moderate" fibromyalgia. Plaintiff could sit for long periods of time only if he was allowed to stand and stretch periodically. He could stand for a "moderate length of time" and walk a "moderate distance." Plaintiff could "handle light weights" only if he did not have to bend his back. R. 543.

         b. Non-Examining Consultative Physicians' Assessments ...

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