Colleen P. v. Kijakazi

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COLLEEN P.^[1], Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMIN., Defendant.

No. 3:21-CV-1606 (MPS) (RMS)

United States District Court, D. Connecticut

January 20, 2023

RECOMMENDED RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER, OR, IN THE ALTERNATIVE, FOR REMAND FOR A HEARING, AND ON THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

Robert M. Spector, United States Magistrate Judge

The plaintiff brings this administrative appeal under § 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), seeking review of a final decision by the Commissioner of Social Security (the “Commissioner”) denying the plaintiff's application for disability insurance benefits (“DIB”). The plaintiff moves to reverse the Commissioner's decision, or in the alternative, to remand for a re-hearing on the ground that her alleged symptoms of brain fog and fatigue were not properly considered. (Doc. No 12). The Commissioner has opposed this motion and seeks to affirm the Commissioner's decision. (Doc. No. 14).

For the reasons discussed below, the Court respectfully recommends that the plaintiff's motion to reverse (Doc. No. 12) be DENIED, and the Commissioner's motion to affirm (Doc. No. 14) be GRANTED.

I. ADMINISTRATIVE PROCEEDINGS

On September 11, 2018, the plaintiff filed an application for DIB pursuant to Title II of the Act, alleging disability beginning August 22, 2010. (Doc. No. 6, Certified Transcript of Administrative Proceedings, dated January 13, 2022 [“Tr.”] 339). The plaintiff's application was administratively denied at the initial and reconsideration levels in 2019. (Tr. 121-139, 140, 141159).

Administrative Law Judge (“ALJ”) Deirdre Horton held two telephonic hearings and rendered to two unfavorable decisions.^[2] The first hearing was held on May 13, 2020. (Tr. 38-77). The plaintiff, represented by counsel, and a vocational expert (“VE”) both testified. (See id.). The ALJ then issued an unfavorable decision on May 29, 2020. (Tr. 160-179).

On October 29, 2020, the Appeals Council issued an order remanding the case back to the ALJ. (Tr. 180-186). In its order, the Appeals Council identified two issues with the ALJ's May 29, 2020, decision warranting remand. First, “[w]hile the Hearing Decision discussed the claimant's [post-traumatic stress disorder (“PTSD”),] . . . the Administrative Law Judge did not determine whether the claimant's medically determinable PTSD was a severe impairment, and/or analyze it under Listing 12.15. Therefore, further consideration of the nature, severity, and effects of the claimant's PTSD is needed.” (Tr. 182 (internal citation omitted)). Second,

The Administrative Law Judge found that the claimant had moderate limitations in interacting with others [], which is supported by the State agency psychiatric review technique (PRT) at both the initial and reconsideration levels[]. However, the Administrative Law Judge found the claimant is limited to simple and routine tasks and she is able to relate appropriately with others for simple, routine tasks. []The Appeals Council [found] that the claimant's mental residual functional capacity does not adequately account for moderate limitations in interacting with others. Interacting with others refers to the abilities to relate to and work with supervisors, co-workers, and the public. Listing 12.00E2 list the following examples: cooperating with others; asking for help when needed; handling conflicts with others; stating own point of view; initiating or sustaining conversation; understanding and responding to social cues (physical, verbal, emotional); responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness. Further consideration of the claimant's limitations in interaction with others, and her mental residual functional capacity, is needed.

(Id. (internal citations omitted)).

On remand, the Appeals Council directed the ALJ to: (1) “[f]urther evaluate the claimant's medically determinable PTSD in accordance with the special technique described in 20 CFR 404.1520”; (2) give further and appropriate reconsideration of the plaintiff's residual functioning capacity (“RFC”) and specifically “determine the claimant's limitations in interacting with others”; and, (3) “[i]f warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base....” (Tr. 183).

ALJ Horton held a second hearing on February 3, 2021. (Tr. 78-120). The hearing primarily focused on the plaintiff's anxiety and PTSD, as directed by the Appeals Council.^[3](See Tr. 81). Another VE also testified. (Tr. 104-120). On March 16, 2021, ALJ Horton issued another unfavorable decision. (Tr. 18-31). On March 16, 2021, the plaintiff requested review of the second decision by the Appeals Council. (Tr. 335). The Appeals Council denied review of the second decision on October 8, 2021, rendering the March 16, 2021, decision as the final decision of the Commissioner. (Tr. 1). This appeal followed on December 3, 2021, (Doc. No. 1), and, absent consent, the case was referred to the undersigned on February 15, 2022, for a recommended ruling. (Doc. No. 9).

On April 20, 2022, the plaintiff filed her Motion to Reverse the Decision of the Commissioner (Doc. No. 12) with a Statement of Material Facts (Doc. No. 12-2) and a brief in support. (Doc. No. 12-1). On June 9, 2022, the Commissioner filed her Motion to Affirm (Doc. No. 14), with a responding Statement of Material Facts (Doc. No. 14-2) and a brief in support. (Doc. No. 14-1). The plaintiff filed a reply on July 8, 2022. (Doc. No. 17).

II. FACTUAL BACKGROUND

The Court presumes the parties' familiarity with the plaintiff's medical history, which is thoroughly discussed in the parties' respective statements of material facts. (Doc. Nos. 12-2; 142). The Court cites only the portions of the record that are necessary to explain this decision. The plaintiff's date of last insured (“DLI”) was December 31, 2015. (See Tr. 122). Therefore, the operative time for determining whether the plaintiff was disabled is between August 22, 2010, and December 31, 2015. See 42 U.S.C. § 416(i), 423(c); Monette v. Astrue, 269 Fed.Appx. 109, 111 (2d Cir. 2008).

A. The Plaintiff's May 13, 2020, Hearing Testimony

The plaintiff testified that, at the time of the hearing, she was 57 years old and had been living alone for one month as her husband had recently moved out and was in the process of getting a divorce. (Tr. 46). She testified that she had completed an associate degree in molecular biology and had two adult children. (Tr. 48, 47).

The plaintiff testified that, though she had a driver's license, she would drive only as needed for medical appointments and groceries. (Tr. 48). She attributed her limited driving to feeling “shaky with brain fog” which started after she stopped working in 2010. (Id.). This feeling got progressively worse. (Id.).

She testified that she had left her job in 2010 and that her husband had supported her financially prior to when he moved out. (Tr. 50, 51). She explained that she currently had no income as his “money moved out with him,” and she had been unable to find a job. (Tr. 50, 52). She also indicated that she had brought a workers' compensation claim and ended up with a small settlement of $16,000 after taxes but received no additional funds from any sort of work after that money was spent. (Tr. 55). She denied any prior involvement with law enforcement and problems with drugs or alcohol. (Tr. 50-51).

Upon examination by her attorney, the plaintiff explained that her delay in seeking benefits was due to the fact she had loved her career and had hoped that someday she would return to work after resting and going to physical therapy. (Tr. 51). She recounted that she was promoted eleven times in eleven years. (Tr. 52). The plaintiff then testified that issues with her cervical spine were among the first impairments that contributed to her inability to work. (Id.). The plaintiff stated that she worked on a lab bench “looking down, doing repetitive motions,” and that, at some point in 2010, she started having “horrible headaches” and “discovered that it was [an] injury to [her] neck.” (Tr. 53). She tried, among other things, raising her lab bench but “nothing helped” so she ended up leaving her job. (Id.). She testified that she was also subsequently diagnosed with fibromyalgia, psoriatic arthritis, two curves in her spine, sleep apnea, “jackhammer esophagus,” gastroparesis, irritable bowel syndrome (“IBS”), and gastroesophageal reflux disease (“GERD”). (Tr 53, 55-56). She attributed her psoriatic arthritis, in part, to her repetitive neck injury. (Tr. 56). She also explained that her IBS and GERD occurred prior to 2010 and that her jackhammer esophagus and gastroparesis started after 2010, so it was the progressive accumulation of her conditions that ultimately prevented her from working. (Tr. 56-57).

Additionally, the plaintiff testified that she saw her therapist, Dr. Laura Radin, weekly since 2013 to help her cope with the loss of her job, health, marriage as well as brain fog. (Tr. 53-54).

The plaintiff claimed she suffered pain which would reach an eight on a ten-point scale and never fell below a six. (Tr 57). Her “eight days” would outnumber her “six days.” (Tr. 57). The plaintiff later clarified that some days were indeed better than others allowing her to do marginally more activities but only by a “little bit.” (Tr. 67). Her pain was very disruptive to her sleep patterns and would cause her to only get...