United States District Court, S.D. Texas, Houston Division
DOMINIC M. MONARITI, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
Hanovice Palermo United States Magistrate Judge
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
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.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.
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.
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.
Plaintiffs Work History
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. R. 267.
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.
Plaintiffs Medical History
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.
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. 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.
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. 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.
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.
2009 and 2011, Dr. Edmundson continued to treat Plaintiff. On
May 4, 2009, Dr. Edmundson diagnosed Plaintiff with restless
legs syndrome. 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.
After conducting a bone scan, Dr. Chiang confirmed that
Plaintiff had "mild degenerative uptake ... in the
shoulders, spine, and knees." R. 403. 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.
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.
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.
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.
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."
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.
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.
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,
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.
physical and cognitive impairments similarly limited his
leisure activities. He "sometimes" watched
television. R. 41. 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. 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.
alleviate his pain, Plaintiff "soak[ed] in the
bathtub" and "[sat] in a massage chair." R.
42.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. 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.
Assessments of Plaintiffs Physical and Mental
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.
Examining Consultative Physicians' Assessments Before the
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.
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. 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.
Non-Examining Consultative Physicians' Assessments ...