United States District Court, D. Delaware
C. Linarducci, LINARDUCCI & BUTLER, PA, New Castle, DE
and Karl E. Osterhout, OSTERHOUT BERGER DISABILITY LAW, LLC,
Oakmont, PA, Attorneys for Plaintiff.
C. Weiss, United States Attorney, UNITED STATES
ATTORNEY'S OFFICE FOR THE DISTRICT OF DELAWARE,
Wilmington, Delaware; Eric P. Kressman, Regional Chief
Counsel, Corey Fazekas, Assistant Regional Counsel and
Heather Benderson, Special Assistant United States Attorney,
SOCIAL SECURITY ADMINISTRATION, Philadelphia, PA, Attorneys
UNITED STATES MAGISTRATE JUDGE
Geoffrey Britton Bird ("Bird" or "Plaintiff)
appeals from a decision of Defendant Nancy A. Berryhill, the
Acting Commissioner of Social Security ("the
Commissioner" or "Defendant"), denying his
application for disability insurance benefits
("DIB") under Title II of the Social Security Act,
42 U.S.C. §§ 401-34. This Court has jurisdiction
over the matter pursuant to 42 U.S.C. § 405(g).
pending before the Court are cross-motions for summary
judgment filed by Bird and the Commissioner. (D.I. 14, 15)
Bird asks the Court to reverse the Commissioner's
decision and remand this matter to the Commissioner for a
rehearing. (D.I. 14 at 22) The Commissioner opposes that
request and asks that the Court affirm her decision. (D.I. 16
at 14) For the reasons set forth below, Bird's motion for
summary judgment will be DENIED and the Commissioner's
cross-motion for summary judgment will be GRANTED.
28, 2013, Bird filed an application for Title II and Title
XVIII, Part A Social Security benefits; he alleged disability
beginning on May 1, 2013. (D.I. 12 (hereinafter
"Tr.") at 20; id. at 208) His claim was
denied initially and then again upon reconsideration.
(Id. at 20) Bird then filed a request for a hearing.
(Id.) On September 2, 2016, a video hearing was held
before an Administrative Law Judge ("ALJ"), at
which Bird was represented by counsel. (Id.)
October 13, 2016, the ALJ issued a decision denying
Bird's request for disability benefits. (Id. at
38) Bird requested review of the ALJ's decision by the
Appeals Council and the Appeals Council later denied
Bird's request. (Id. at 1-6) Thus, the ALJ's
decision became the final decision of the Commissioner.
See 20 C.F.R. §§ 404.955, 404.981;
Sims v. Apfel, 530 U.S. 103, 106-07(2000).
December 12, 2017, Bird filed a Complaint in this Court
seeking judicial review of the ALJ's decision. (D.I. 1)
On December 21, 2017, the parties consented to the
Court's jurisdiction to conduct all proceedings in this
action, including entry of a final judgment. (D.I. 9)
11, 2018, Bird filed his motion for summary judgment. (D.I.
14) The Commissioner opposed Bird's motion and filed a
cross-motion for summary judgment on July 11, 2018. (D.I. 15)
time of the alleged onset of his disability on May 1, 2013,
Bird was 59 years old; at the time of the ALJ's decision
in October 2016, he was 63 years old. (See Tr. at
has his GED, (id. at 37, 51), and previously
attended two years of college, (id. at 51, 454). He
served in the United States Marine Corps for two years,
(id. at 51), and has past work experiences as,
inter alia, a chauffeur, a taxi-driver, a
door-to-door sales representative and a home improvements
sales representative. (Id. at 36, 52-56;
see D.I. 14 at 3)
Plaintiffs Medical History, Treatment, and Condition
alleges that he has been disabled and unable to work since
early 2013 due to his various medical conditions. (Tr. at
251, see Id. at 28) Relevant evidence of record
regarding those conditions is set out below.
Physical Medical History
alleges that he suffers from the following physical
conditions: (1) hepatitis C and liver disease; (2) fusions in
his back and neck; (3) a triple fusion in his back; (4) a
double fusion in his neck; and (5) arthritis. (Id.
regard to his hepatitis C, medical records from the
Wilmington Veterans Affairs Medical Center's (the
"WVAMC") liver clinic show that Bird had been
diagnosed with hepatitis C in 2001. (Id. at 23,
391-92) He was asymptomatic as of May 2012, (id. at
23, 392-95), and as of March 2015, he reported to a
neurologist that his hepatitis C treatment was very good,
(id. at 23). As of early/mid-2015, following
treatment with Harvoni, the virus was undetectable. (Id.;
see also Id. at 522)
Bird's back-and-neck-related pain, it first began in
1979, and reoccurred occasionally until 1983 when the pain
"increased without any clear inciting event."
(Id. at 453) Bird managed his pain through
chiropractic care until 1991, when he was diagnosed with
severe disk damage; years later, Bird underwent both cervical
and lumbar fusions. (Id.) Once the back and neck
pain returned in 2012, Bird began using pain medication
(including methadone and Oxycodone) on a regular basis.
(Id. at 29, 453) In 2013, physical examinations
showed that Bird had decreased range of motion, decreased
mobility, and poor flexion and extension related to his
spine. (Id. at 29-30) An MRI in December 2013 showed
that Bird had status post fusion from L2 through L5, mild
disc narrowing at L1/L2, conus medullaris terminating at
¶ 12/L1, and mild broad-based disc bulging.
(Id. at 31) Although his physical condition did not
appear to change, Bird complained of worsening pain in 2014
and continued to treat it with pain medication.
(Id.) After a series of physical therapy treatments
from late 2014 through early 2015, Bird's pain and
mobility improved. (Id.) By July 2015, it was noted
that Bird's pain was under control and well-managed
through medication; Bird then self-reported that he was doing
"exceptionally well." (Id. at 32)
Mental Health-related Medical History
alleges that he suffers from depression. (Id. at 23)
first record of Bird seeking treatment for mental health
issues is in January 2003, when Bird was referred for
evaluation to help with the management of his pain due to
arthritis in his neck and back. (Id. at 657) In
April 2003, he began taking Sertraline for an adjustment
disorder with anxiety, though soon after, he stopped going to
the WVAMC mental health clinic. (Id.) After a
four-year hiatus, in 2007, Bird returned to the clinic
because he began experiencing panic attacks in his new sales
job; at that time, Bird began taking Zoloft. (Id.)
In August 2007, Bird first met Dr. Mario Castillo, M.D. at
the clinic, and Dr. Castillo prescribed him medication for
panic attacks. By May 2008, Bird had stopped visiting the
clinic and he did not go back until March 2010. In
early-to-mid-2010, Bird expressed that he was experiencing
depression and was having back and neck pain, which impacted
his ability to work. (Id.)
mental health treatment records pick up again in 2012. In
March 2012, Bird requested a mental health referral from
WVAMC because of a panic disorder; records indicate he wished
to start taking Zoloft again and that a physician renewed a
prescription of Zoloft for him. (Id. at 435-36) One
month later, in April 2012, Bird was evaluated at the WVAMC
by a licensed clinical social worker ("LCSW").
(Id. at 428-34) During that appointment, Bird
explained that he had '"just life's
problems'" and '"a bad back.'"
(Id. at 429) His appearance was deemed good and
appropriate for the weather and he was "cooperative and
engaged." (Id. at 432) Bird exhibited good
judgment during the visit, he was focused and engaged, his
memory was fine and intact, his thought process was logical
and goal directed, he had good insight and judgment, his
concentration had improved and he exhibited no problematic
behaviors. (Id. at 432-33) The LCSW noted that Bird
was suffering from an "adjustment disorder" and
depression as a result of the difficulties in finding work
due to his back pain. (Id. at 432-33 (noting that
Bird reported "powerless moods"))
October 2, 2013, Bird was seen by a licensed psychologist,
Dr. Pedro Saez, Ph.D. during a Commissioner-sponsored
consultative evaluation; the evaluation was completed in
order to determine the "level of functional problems for
disability determination purposes[.]" (Id. at
445; see also D.I. 14 at 4) Dr. Saez noted that Bird
had taken medication for anxiety since the 1990s and had been
engaged in outpatient psychotherapy in brief intervals. (Tr.
at 445) Bird reported that he had recently been having
nightmares, difficulty sleeping and reduced self-esteem.
(Id.) He confirmed that he was capable of
independently taking care of all of his activities of daily
living and the majority of the instrumental activities of
daily living, such as transportation, medication and money
management (though he received assistance with some
activities, like housekeeping, shopping or meal preparation).
(Id. at 446) Dr. Saez observed that Bird was
"well-groomed" and that, although Bird seemed
"somewhat distressed," he "laughed and offered
humorous remarks easily indicating a full range of
affect." (Id. at 447) While Bird did score a
borderline result on the global cognitive functioning test,
Dr. Saez found that some portions of Bird's performance
were "quite poor suggesting symptoms
magnification." (Id.) Dr. Saez observed that
Bird "appeared pleasant and polite with adequate social
comportment." (Id.) Dr. Saez also concluded
that Bird's back pain was likely the most significant
issue Bird faced at the time, since Bird's "current
depression and anxiety reactive to pain and stress [were]
relatively mild." (Id.) The report noted that
Bird had previously been capable of working while managing
any episode of depression or anxiety. (Id. at
447-48) And lastly, Dr. Saez added that Bird had a
"[g]ood" prognosis and "would benefit from
ongoing pain management to address back pain issues."
(Id. at 448) He suggested that Bird engage in
vocational rehabilitation services to help him find a job.
(Id.) In Dr. Saez's opinion, Bird
"possesse[d] capacity for performing various job
functions including: understanding, carrying out and
remembering instructions, responding appropriately to
supervision, co-workers, and work pressures in a work setting
on a psychological basis." (Id.)
same date (October 2, 2013), Dr. Saez filled out a two-page
Psychological Functional Capacities Evaluation Form.
(Id. at 449-50) The form required Dr. Saez to circle
various options in order to articulate the extent to which
Bird's various abilities were impaired. (Id.)
There were two areas where Dr. Saez found Bird to have a
"moderate" degree of impairment (meaning that it
was an impairment that affects but does not preclude the
ability to function): "[restriction of daily
activities" and "[s]ustain work performance &
attendance in a normal work-setting[.]" (Id.)
For all other functional aspects, Dr. Saez found Bird to have
either a "mild" degree of impairment (meaning that
it was an impairment of "slight importance" that
does not affect the ability to function) or no impairment at
November 11, 2013, state agency physician Dr. Alex Siegel,
Ph.D provided an opinion regarding Bird's depression and
his ability to work. (Id. at 91-102) Dr. Siegel
concluded that there was nothing in Bird's medical record
"to indicate that [Bird's] mental impairment [was]
so severe as to prevent the claimant from working."
(Id. at 96) In support, Dr. Siegel cited to the fact
that Bird had not then been prescribed any psychotropic
medications, that Bird attributed his functional limitations
to his physical impairments and that Dr. Saez had recently
described Bird's depression and anxiety as relatively
"mild" compared to Bird's back pain.
returned to the WVAMC mental health clinic in February 2014.
(Id. at 657) He began to be followed by Dr. Gaber
Yacoub, M.D, a psychiatrist. (Id.)
March 24, 2014, state agency physician Dr. Jessy Sadovinik,
Psy.D. also provided an opinion regarding Bird's
depression and its impact on his ability to work. Dr.
Sadovinik concluded that there was nothing in Bird's
medical record to indicate that Bird's "mental
impairment [was] so severe as to prevent [him] from
working." (Id. at 111) Dr. Sadovinik relied
largely on the same evidence that Dr. Siegel had cited in
support of this conclusion. (Id.)
August 20, 2014, at the direction of Bird's counsel, Dr.
Yacoub completed a mental impairment questionnaire regarding
Bird. (Id. at 505-11) Dr. Yacoub wrote that Bird
felt anxious and irritable and had a "fair"
prognosis. (Id. at 506) He found that Bird was not
"[s]eriously limited" (i.e., that his ability was
reduced by 20-33%) or "[p]oor" (i.e., that his
ability was reduced by 34-66%) in his ability to perform any
mental functions. (Id. at 508-09) Dr. Yacoub found
that Bird was "[l]imited" (i.e., that his ability
was reduced by 11-19%) in his ability to perform 17 different
functions, and "[u]nlimited" or "[v]ery
[g]ood" (i.e., his ability was reduced by 0-10%) in his
ability to perform eight other functions. (Id.) Dr.
Yacoub found that Bird had moderate functional limitations,
that he had a complete inability to function independently
outside the home and that his impairments would cause him to
miss about one day a month of work. (Id. at 510)
November 2014, Bird spoke with a WVAMC nurse regarding the
fact that Bird had recently missed an appointment with his
psychiatrist. (Id. at 568) Bird reported that he was
"doing well and [did] not need to be seen as a
December 2014, a WVAMC LCSW saw Bird in relation to his
depression. (Id. at 556) It was noted that Bird had
a normal mood, a restless posture, made good eye contact, was
well-groomed and had the appropriate intensity and affect.
(Id. at 560) His thought content was appropriate,
his thought processes were coherent, his affect and intensity
were appropriate, his range was restricted, and he showed
average intellect and exercised good judgment. (Id.
at 561) The LCSW wrote that Bird had "depression due to
medical condition[.]" (Id.)
February 2015, Dr. Yacoub met with Bird at the WVAMC mental
health clinic. (Id. at 543) During that examination,
Dr. Yacoub found that Bird had "[generalized anxiety
reaction[.]" (Id. at 544) He also noted that
Bird was dressed appropriately, made good eye contact, was
cooperative, had a full range of affect, intact memory and
had no psychomotor agitation. (Id. at 545) Bird was
directed to continue taking Zoloft. (Id. at 546) A
few months later, at a follow-up appointment in May 2015, Dr.
Yacoub noted that Bird reported that he was doing
"ok" and had stopped taking Zoloft (in order to try
to cut down the use of other medication while he was taking a
new medication for his hepatitis C). (Id. at 517)
Bird had a good general appearance, was dressed
appropriately, was cooperative and exhibited full range of
April 2016, Bird had a walk-in appointment at WVAMC and was
seen by Dr. Castillo. (Id. at 625) Bird reported
that he had previously been taking Sertraline, but then
"was doing much better" and so he had stopped
taking it. (Id.) Bird asked to re-start the
medication, due to some new stressors in his life, including
health issues and unemployment. (Id.) Dr. Castillo
noted that Bird was groomed and neat, cooperative and polite,
had a constricted affect, linear thought process, logical and
relevant thought content, was oriented, was interested in
getting better, was cooperative and had good impulse control.
(Id. at 626) Bird reported no thoughts of suicide.
(Id.) Dr. Castillo re-prescribed Sertraline to Bird.
2016, Bird again sought treatment from Dr. Castillo, as
Bird's mother had just passed away and he was having
difficulties with sleeping. (Id. at 609) Bird was
again prescribed Sertraline. (Id.) During the visit,
Dr. Castillo noted that Bird was appropriately attired,
well-groomed and neat in appearance. (Id. at 610)
Although he looked tired and showed poor memory, Bird made
good eye contact and was cooperative, had a fair range of
affect, was organized and coherent, was alert and oriented,
showed fair judgment, was insightful and had good impulse
control. (Id.) Bird reported no thoughts of suicide.
August 2016, Dr. Castillo again met with Bird during an
office visit. (Id. at 657) Dr. Castillo wrote that
when he started seeing Bird back in 2014, Bird's symptoms
were "more of panic attacks but his anxiety and
depression from his back problems continue [and] he has had
more stressors in his personal life compared to when he was
first seen." (Id. at 658) Dr. Castillo also
noted that during this visit, Bird's appearance was
groomed and neat, that he was cooperative, his speech was
normal, his mood was anxious and worried, his affect showed
constricted range, his thought process was organized, his
thought content was logical and coherent, his memory and
concentration were poor, his judgment was compliant with
treatment and his impulse control was good. (Id.)
According to Dr. Castillo's treatment notes, Bird
reported no thoughts of suicide. (Id.)
direction of Bird's counsel, Dr. Castillo also completed
a mental impairment questionnaire in August 2016. Dr.
Castillo wrote therein that Bird continued to be
significantly anxious and depressed over being unable to
work; he also wrote that Bird had "had thoughts of
suicide." (Id. at 651) Bird's prognosis was
listed as "guarded" since Bird's "life
stressors remain[, ] including employment as a result of back
problem." (Id.) Dr. Castillo found Bird to be
"[p]oor" at his ability to perform five listed
functions. (Id. at 653-54) He found Bird
to be "[s]eriously limited" in his ability to
perform 15 listed functions. (Id.) And he
found Bird to be "[l]imited" in his ability to
perform five other functions, while being "[u]nlimited
or [v]ery [g]ood" in no functions. (Id.) Dr.
Castillo found that Bird had "marked" functional
limitations (meaning that they seriously interfered with
Bird's ability to function independently, appropriately,
effectively and on a sustained basis) in the areas of
maintaining social functioning, maintaining concentration,
persistence or pace and episodes of decomposition.
(Id. at 655) He found that Bird's impairments
would cause him to miss more than four days of work per
The Administrative Hearing
administrative hearing held via videoconference on September
2, 2016, the ALJ heard the testimony of Bird and Edith
Edwards, an impartial Vocational Expert ("VE").
(Id. at 46-89)
hearing, Bird provided some basic personal information to
start and then began to discuss his last 15 years of work
history. (Id. at 48-51) Bird confirmed that he
previously worked from 2011 to 2013 as a limo driver-the type
that primarily chauffeured people and carried or handled
light baggage (up to approximately 20 pounds). (Id.
at 52-53) Before that, he worked in a similar role but for an
airport shuttle company where he handled heavier bags.
(Id. at 53-54) From 1998 to 2011, Bird was
self-employed in the home improvement sales sector.
(Id. at 54) Other work experiences in the 2000s
included cable communications door-to-door sales and
concrete/paving services sales. (Id. at 54-56)
questioning turned to Bird's mental health issues. Bird
testified that he was being treated for depression, panic
attacks and "not wanting to leave his house"
(agoraphobia). (Id. at 62) He explained that Dr.
Yacoub had previously treated him and that he was then being
treated by Dr. Castillo. (Id. at 62) Bird described
his depression and how taking Zoloft had helped ease the
symptoms. (Id. at 63) He also testified that he
experienced difficulties with concentrating and that his
"memory and stuff was fine until recently[.]"
testified that he can no longer perform the jobs that he
previously held. When Bird's counsel asked if Bird could
return to being a limo driver, Bird responded that he could
not because he "couldn't take it."
(Id. at 63-64) He then elaborated that driving in
that type of job, would be painful and that he could not
concentrate. (Id. at 64, 66, 68-69) Bird testified
that he stopped driving when he filed his claim for benefits.
(Id. at 65) ...