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Conway v. Berryhill

United States District Court, D. Massachusetts

October 4, 2018

JEAN CONWAY, Plaintiff,
NANCY BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.



         The Plaintiff, Jean Conway, seeks reversal of the decision by the Defendant, the Commissioner of the Social Security Administration (“the Commissioner”), denying her Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).[1] Docket No. 16. The Commissioner seeks an order affirming the decision. Docket No. 18. Plaintiff has submitted a response opposing Defendant's motion to affirm and in further support of her motion for reversal. Docket. No. 20. In accordance with both 28 U.S.C. § 636(c) and Rule 73(b) of the Federal Rules of Civil Procedure, the parties consented to have me conduct all further proceedings in this matter. Docket No. 11. The above motions are ripe for adjudication.

         For the reasons that follow, this Court GRANTS Plaintiff's motion for an order reversing the decision of the Commissioner (Docket No. 16), DENIES Defendant's motion for an order of affirmance (Docket No. 18), and ORDERS that the case be remanded for further administrative proceedings.

         I. BACKGROUND

         A. Procedural History

         Conway filed applications for DIB as well as SSI on March 6, 2012 and March 26, 2012, respectively. (Tr. 211-222). In both applications, Conway alleged disability beginning on October 3, 2008. (Id.). The applications were denied initially and upon reconsideration. (Tr. 79-132, 150- 155). Conway requested a hearing on July 8, 2013, (Tr. 156), and a hearing was held before an ALJ on May 22, 2014, at which Conway both appeared and testified (Tr. 53-75). Conway waived her right to representation at the hearing. (Tr. 32, 54). On August 6, 2014, the ALJ issued a decision finding that Conway was not disabled. (Tr. 29-45).

         On June 19, 2015, the Appeals Council denied Conway's request for review, making the ALJ's August 6, 2014 decision final and ripe for judicial review. (Tr. 19-21; see also 42 U.S.C. § 405(g)). After a series of requests for an extensions of time, the Appeals Council wrote to Conway on April 17, 2017 to further extend the time within which Conway could file a civil action challenging the Administration's decision. (Tr. 1). Having pursued and exhausted her administrative remedies before the Commissioner, Conway filed a complaint in this Court on May 8, 2017, pursuant to 42 U.S.C. § 405(g). Docket No. 1. On September 8, 2017, Conway filed a motion for an order reversing the decision of the Commissioner (Docket No. 16), and on October 6, 2017 the Commissioner filed a motion for affirmance (Docket No. 18). Conway has filed a response to the Commissioner's motion and in further support of her own motion. Docket No. 20.

         B. Personal History

         At the time she claims she became disabled, Conway was 52 years old. (Tr. 79). Conway is an Army veteran, has obtained a General Educational Development diploma, and has taken some college courses. (Tr. 541, 56). She has been living alone in Massachusetts since June 2012. (Tr. 37, 41). She is able to cook for herself, drive, food shop, and walk her dog. (Tr. 37, 61-62). For seven years until February 2012, she worked as a personal care aide for an elderly patient. (Tr. 56, 85). This job required Conway to work twenty-five to thirty hours per week. (Tr. 57). In addition, Conway worked for several months in 2010 as a supervisor for the United States Census Bureau. (Tr. 58-59). This job required Conway to work twenty to forty hours per week. (Tr. 59).

         C. Medical History

         On November 18, 2010, Conway saw clinical psychiatric pharmacist Joy R. Miller at the Veterans Administration in Corpus Christi, Texas (“Corpus Christi VA”). (Tr. 429). Dr. Miller noted that Conway had been on medication to help Conway with sleeplessness, depression, anxiety, and pain. (Tr. 428). Conway reported working part-time at the same job for five years, an apparent reference to her ongoing employment as a personal care aide. (Tr. 430). She reported increased anxiety, and lack of motivation and energy. (Id.). Conway also reported having no side effects from current medication, but reported smoking marijuana daily. (Id.). Dr. Miller diagnosed Conway with residual depression, and prescribed a new medication-citalopram-while advising Conway to maintain the current medication and therapy, and discontinue marijuana use. (Tr. 431).

         On April 8, 2011, Conway received mental health treatment at the Corpus Christi VA from Doris Alvarez, LCSW. (Tr. 418). Conway had been seeing Ms. Alvarez for counseling since 2009. (Tr. 540). Ms. Alvarez reported Conway's overall mood seemed more stable and that Conway was working and able to provide for her financial needs. (Tr. 418). She also reported that Conway's appetite and sleep had improved. (Id.). Conway told Ms. Alvarez that she had passive suicidal thoughts but would never act on them. (Id.). The session ended prematurely when Conway expressed significant pain. (Id.).

         The same day, Conway saw Dr. Miller and reported that the citalopram medication targeting residual depression was helping a lot. (Tr. 421). In addition to decreased depression, Conway reported reduction in anxiety, a healthy appetite, and adequate sleep. (Id.). Conway also reported to Dr. Miller that she was still working part-time at the same job she had for five years and that she recently “picked up a new client.” (Id.). In addition, Conway demonstrated increases in motivation and energy, and was regularly taking her dog to the beach and park. (Id.). Dr. Miller observed that Conway was friendly, cooperative, appropriately dressed and groomed, and had “a much brighter affect” than in previous appointments. (Tr. 422). Dr. Miller further noted that Conway's psychiatric condition was significantly improving. (Id.).

         On June 6, 2011, pursuant to a referral from Doris Alvarez, Conway met with Dr. Melissa Pinson at the Corpus Christi VA. (Tr. 540). Dr. Pinson observed that Conway was alert, oriented, and defensive, and had a low activity level but appropriate appearance. (Tr. 543). Conway informed Dr. Pinson that she was experiencing depression and anxiety since 2008 due to the end of a thirty-year relationship in 2008. (Id.). Conway reported first seeking mental health treatment in 2003 following a car accident, and informed Dr. Pinson that her mother committed suicide in 1978. (Id.). Conway reported having PTSD symptoms as a result of the car accident, but that these symptoms were relieved with counseling and that she “has not been experiencing any re-experiencing of this event or avoidance related to this incident.” (Id.). Conway also stated that she was raped while in the military but that “she is not bothered by [it] at this time.” (Tr. 542). She reported that she was employed as a home health aide but that she was living below the poverty line. (Id.). Dr. Pinson offered to refer Conway for financial counseling, but Conway declined. (Id.). Conway reported loss of interest and enjoyment of activities, and having ongoing legal issues surrounding the property she shared with her long-term ex-partner. (Id.). She also reported daily use of marijuana. (Tr. 543). Dr. Pinson advised Conway to quit marijuana use because of its negative mood effects, and Conway told Dr. Pinson that she realized she should quit. (Id.). Conway denied current suicidal ideation or intent and her judgment seemed adequate. (Tr. 544). Dr. Pinson diagnosed major depressive disorder and moderate anxiety, and assessed a Global Assessment of Functioning (“GAF”) score of 55.[2] (Id.).

         On July 11, 2011, Conway again met with Dr. Pinson. (Tr. 535). Dr. Pinson noted that Conway was dressed and groomed appropriately but appeared depressed and irritable. (Id.). Conway reported that her symptoms of anxiety and depression were the same as the previous month. (Id.). She appeared to be “maintaining coping with symptoms.” (Tr. 536). Conway was concerned about losing her job if her home health patient passed away and not being able to find another job in the same field since she now had a “psychiatric record.” (Tr. 535). Dr. Pinson helped Conway identify evidence that does not support these anxious beliefs. (Id.). Conway declined Dr. Pinson's offer for employment counseling. (Id.). Dr. Pinson reiterated Conway's diagnoses and GAF score of 55. (Tr. 536). These diagnoses and GAF score were approved by supervising and cosigning psychologist Dr. Armando Berumen. (Tr. 535-36).

         In August and September 2011, Conway failed to attend scheduled appointments with Dr. Pinson. (Tr. 530, 533). On October 26, 2011, Conway met for seventy minutes with Dr. Pinson, who observed that Conway appeared depressed, but oriented, appropriately dressed and groomed, and without hostility that Conway exhibited in past meetings. (Tr. 526). Conway reported that her symptoms of depression and anxiety were “the same.” (Id.). Dr. Pinson also noted that Conway brought with her “The Dialectical Behavior Therapy Workbook, ” which a friend had given her. (Id.). Conway stated that she has been sleeping roughly sixteen hours per day to avoid depression, and that she feels socially isolated. (Id.). In addition, Conway reported that she sometimes experiences brief suicidal ideation but that this ideation has not increased in frequency since 2008. (Tr. 526-27). Dr. Pinson reiterated Conway's diagnoses and GAF score of 55. (Tr. 527). These diagnoses and GAF score were approved by supervising and cosigning psychologist Dr. Jennifer A. Wood. (Tr. 526).

         On the same day, Conway saw Dr. Miller. (Tr. 524). Conway told Dr .Miller that she has been anxious over the past few months due to job insecurity, “but this has resolved.” (Id.). She also reported increased sleep, weight gain, and increased appetite as a result of one of her prescribed medications. (Id.). Conway further reported continued marijuana use but only one-half joint per day. (Id.). Dr. Miller noted that Conway denied having any suicidal ideation, intent, or plan, that Conway is controlled on her current therapy regimen, and that she has shown decreases in depression and anxiety. (Tr. 525). Dr. Miller continued Conway on her current medication treatment plan except for clonazepam, which Dr. Miller discontinued due to marijuana abuse. (Id.). Dr. Miller told Conway that she would restart clonazepam if Conway passed a drug test the following month and continued to pass drug tests thereafter. (Id.).

         On February 1, 2012, Conway met with Dr. Miller. (Tr. 517). Conway reported additional weight gain, cigarette cessation, and walking two miles a day with her dog. (Id.). She also noted that she has not been eating healthy foods because she has no motivation to cook even though she purchases healthy foods. (Id.). Conway also reported that within the year she would like to go home to New England, where she has friends and family. (Tr. 517). Dr. Miller did not restart clonazepam treatment due to continued marijuana abuse, but continued Conway's current medication program. (Tr. 517-18).

         On February 21, 2012, Dr. Pinson and Conway had a telephone conversation, during which Conway advised Dr. Pinson that the woman Conway had been caring for had just died. (Tr. 516). Conway also noted that the decedent's family asked Conway to continue work caring for decedent's husband. (Id.). Conway expressed concern with this proposal and Dr. Pinson discussed reasons with Conway for continuing to work. (Id.).

         On February 23, 2012, Conway called Dr. Pinson and expressed feelings of heightened depression. (Tr. 514). Conway stated that she was still not sure if she wished to continue to work for the family of her deceased patient. (Id.). Conway also reported some suicidal thoughts but stated she would not carry through with them because of her family. (Id.). Dr. Pinson provided supportive listening and addressed possible hospitalization, which Conway declined. (Id.). On February 27, 2012, Dr. Pinson received another call from Conway, who advised Dr. Pinson that she was going to sell her trailer and that she is temporarily living with a friend. (Tr. 512). Dr. Pinson advised Conway of services available to homeless veterans for which Conway expressed interest. (Id.). Dr. Pinson requested that social worker Rosa Balderas discuss community resources with Conway. (Id.).

         On March 2, 2012, Conway met with Dr. Pinson. (Tr. 510). Dr. Pinson noted that Conway's affect appeared depressed but that she was appropriately dressed and groomed, and oriented. (Id.). Conway reported that she has been coping much better lately and that she discontinued marijuana use three weeks prior. (Id.). She stated that she was feeling “back together” and planned to move to Massachusetts to be near family. (Id.). Dr. Pinson reiterated Conway's diagnoses and assessed a GAF score of 60. (Tr. 511). These diagnoses and GAF score were approved by supervising and cosigning psychologist Dr. Armando Berumen. (Tr. 510-11).

         On the same day, Conway also saw Rosa Balderas, LCSW. (Tr. 508-09). Conway reported that she no longer had an offer to work for the family of her former patient. (Tr. 508). Conway expressed the desire to return to Massachusetts to be near family if she could not find another job in Texas. (Id.). Conway was also concerned about having to find a place to live since she had decided to sell her trailer. (Id.).

         On March 6, 2012, Conway reported to Dr. Pinson via telephone experiencing panic while completing job applications and noted that she planned to attend her scheduled therapy session the following week. (Tr. 507). Conway again telephoned Dr. Pinson on March 12, 2012 to express difficulty working on her to-do list. (Tr. 506). Dr. Pinson observed that Conway did not sound distressed and encouraged Conway to attend her next therapy session. (Id.).

         At the scheduled session on March 16, 2012, Dr. Pinson observed that Conway appeared depressed but improved from previous sessions, was appropriately dressed and groomed, oriented, and polite. (Tr. 504). Conway reported that she did not believe she could work and wanted to leave Texas soon. (Id.). Conway also reported that she did not want to return to Massachusetts because of difficulties with her sisters. (Id.). She instead noted the desire to travel to Florida because she had a friend there who offered to her a condo with low rent. (Id.). Dr. Pinson reiterated Conway's diagnoses and GAF score of 60. (Tr. 505). These diagnoses and GAF score were approved by supervising and cosigning psychologist Dr. Armando Berumen. (Id.).

         During a March 22, 2012 session, Dr. Pinson noted that Conway appeared depressed, that her affect had improved, and that she was appropriately dressed and groomed. (Tr. 498). Conway informed Dr. Pinson that she had sold her trailer and planned to move either to Florida or Massachusetts, or apply for housing in Texas. (Id.). She expressed feeling manic, and having difficulty making life-changing decisions. (Id.). Conway stated that since 2008 she has had daily thoughts of harming herself. (Id.) Dr. Pinson further explored this statement because it was inconsistent with Conway's prior reports of the frequency of suicidal ideation. (Id.). Conway strongly denied intent or plan, and declined hospitalization. (Id.). Dr. Pinson reiterated Conway's diagnoses and GAF score of 60. (Tr. 499). These diagnoses and GAF score were approved by supervising and cosigning psychologist Dr. Armando Berumen. (Tr. 500). Five days later, Conway called Dr. Pinson to explain that she moved to Florida and would establish treatment services at the local VA. (Tr. 496).

         On March 29, 2012, Conway visited the VA in West Palm Beach, Florida (“Florida VA”). (Tr. 633). She reported that she was on her way to Massachusetts when she ran out of money in Florida. (Id.). Conway reported non-service related PTSD and requested placement, clothing, food, mental and medical health services, a referral to vocational rehabilitation, and information about benefits. (Id.). Conway recounted a detailed plan to harm herself while in Texas. (Id.). She appeared to have a bipolar disorder. (Id.).

         On April 26, 2012, Conway met with psychiatrist Elsa Zayas, M.D. at the Florida VA. (Tr. 621-26). Conway discussed her mother's death, the car accident in 2004, and her long-term relationship that ended in 2008. (Tr. 622-23). She stated that she experienced chronic depression. (Tr. 622). Dr. Zayas diagnosed Conway with PTSD and depression, and assessed a GAF score of 45.[3] (Tr. 624). Dr. Zayas placed Conway on a fourteen-day prescription plan discontinuing one medication, adding one, and otherwise continuing Conway's former regimen. (Tr. 624).

         In early May, Conway presented to Dr. Linda Welkovitch at the Florida VA. (Tr. 613). Dr. Welkovitch observed that Conway was alert, oriented, and cooperative. (Tr. 614). Conway reported that she was feeling more balanced than usual. (Id.). Dr. Welkovitch noted that Conway's mood was depressed and anxious. (Id.). She assessed a GAF score of 45. (Tr. 615).

         On May 15, 2012, Janis Hoewing, LCSW, met with Conway at the Florida VA. (Tr. 600). Conway reported having moved into an apartment. (Id.). She stated she was a “lot less depressed” and “not having any real highs or lows.” (Id.). Ms. Hoewing reported that Conway seemed mildly depressed and anxious. (Id.). That same day, Conway called her assigned social worker and told her that she was enjoying her new apartment, and had been making friends. (Id.). She reported reconnecting with a childhood acquaintance and socializing. (Id.).

         Three days later, Conway informed Ms. Hoewing that she felt depressed and anxious because of sexual advances by two men. (Tr. 595). Ms. Hoewing noted that Conway exhibited a high level of anxiety, and decreased concentration and focus. (Tr. 596). Conway's GAF score of 45 was reaffirmed. (Id.).

         On May 22, 2012, Ms. Hoewing observed that Conway still seemed dysphoric and anxious with low energy and fatigue. (Tr. 561). Conway also presented to the mental health crisis clinic on the same day, requesting an evaluation for depression and anxiety. (Tr. 556). She was observed as casually dressed and groomed, but tearful, anxious, and verbose. (Tr. 557).

         Conway traveled to Massachusetts, where she began to receive housing and other social services from the Boston VA. (Tr. 645-75). Clinical psychologist David Chick, Ph.D. of the Central Western Massachusetts VA conducted an initial mental health evaluation. (Tr. 731). Dr. Chick noted that Conway was mildly depressed and anxious to return to self-sufficiency. (Id.). He assessed major depression, PTSD, and a GAF score of 50. (Id.). One week later, Conway reported feeling better and more stable. (Tr. 730). She reported that she was approved for a housing voucher looked forward to establishing residency. (Tr. ...

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