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Bird v. Berryhill

United States District Court, D. Delaware

April 11, 2019

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

          Gary C. Linarducci, LINARDUCCI & BUTLER, PA, New Castle, DE and Karl E. Osterhout, OSTERHOUT BERGER DISABILITY LAW, LLC, Oakmont, PA, Attorneys for Plaintiff.

          David 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 for Defendant.



         Plaintiff 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).

         Presently 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.

         I. BACKGROUND

         A. Procedural Background

         On May 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.)

         On 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).

         On 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)

         On June 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)

         B. Factual Background

         At the 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.[1] (See Tr. at 37, 208)

         Bird 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)

         1. Plaintiffs Medical History, Treatment, and Condition

         Bird 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.

         a. Physical Medical History[2]

         Bird 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. at 23)

         With 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)

         As for 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)

         b. Mental Health-related Medical History

         Bird alleges that he suffers from depression. (Id. at 23)

         The 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.)

         Bird's 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"))

         On 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.)

         On the 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 all. (Id.)

         On 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. (Id.)

         Bird 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.)

         On 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.)

         On 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)

         In 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 walk-in." (Id.)

         In 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.)

         In 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 affect. (Id.)

         In April 2016, Bird had a walk-in appointment at WVAMC and was seen by Dr. Castillo. (Id. at 625)[3] 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. (Id.)

         In June 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. (Id.)

         In 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.)

         At the 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.[4] (Id. at 653-54) He found Bird to be "[s]eriously limited" in his ability to perform 15 listed functions.[5] (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.[6] (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 month. (Id.)

         2. The Administrative Hearing

         At the 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)

         a. Bird's Testimony

         At the 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)

         Eventually 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[.]" (Id.)

         Bird 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) ...

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