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Whitney v. Saul

United States District Court, D. Massachusetts

August 29, 2019

ANDREW SAUL, [1]Commissioner of Social Security, Defendant.



         This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration (“Commissioner”) denying Kevin Whitney's applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Whitney asserts that the Commissioner's decision denying him such benefits - memorialized in an August 30, 2017 decision of an administrative law judge (“ALJ”) - is in error, [Docket No. 15], and the Commissioner, in turn, has moved to affirm [Docket No. 22].[2] For the following reasons, this Court remands the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further findings and/or proceedings consistent with this opinion.


         A. Procedural History

         Whitney filed an application for DIB and SSI on February 26, 2015, [3] alleging disability beginning June 15, 2013. (Administrative Record (“AR”) 218-33). His application identified a bulging disc in left side of back, C-DIFF, and lumbar and cervical degenerative issues. (AR 79, 109, 254). The Commissioner denied his application initially (AR 107-08) and on reconsideration. (AR 145-46). On March 24, 2017, Administrative Law Judge (“ALJ”) Kim K. Griswold held a hearing at which a Vocational Expert (“VE”) and Whitney, represented by counsel, appeared and testified. (AR 42-77). The ALJ issued a decision on August 30, 2017 finding that Whitney was not disabled. (AR 16-36). The Appeals Council denied Whitney's request for review on April 11, 2018, making the ALJ's decision the final decision of the Commissioner (AR 7-9). Whitney filed this action on May 23, 2018. Docket No. 1.

         B. Background

         Whitney was fifty-three years old at the time of the ALJ's decision (AR 79, 93) and was forty-nine years old on June 15, 2013, the alleged onset date. (AR 34, 93). He had past relevant work as a disc jockey and painter. (AR 90).

         C. Medical Evidence[4]

         On May 10, 2012, Whitney underwent an initial psychiatric evaluation with Bernard Szymanski, R. N.C. S., for self-reported depression. (AR 462-467). Whitney reported poor eating, sleeping, and concentration. (AR 462). He was prescribed with 20MG of Ritalin to be taken twice daily. (AR 467). At a follow-up appointment on May 31, 2012, Szymanski noted that Whitney's attention and focus were “good” and that his response to intervention was “stable.” (AR 460).

         On May 14, 2013, Szymanski saw Whitney to monitor his prescription of Ritalin. (AR 441). Whitney reported that his attention and focus were good. Id. He also noted that he was working and more organized. Id.

         On February 20, 2014, Whitney reported to Szymanski that his attention and focus were good, that he was less anxious and that he was working. (AR 438). Szymanski noted that, although Whitney's ADD was improving, his depression was worsening. (AR 434). Whitney remained on 20 mg Ritalin three times daily and .5mg Ativan twice daily. Id. Szymanski also prescribed Whitney with 20mg Lexapro once daily in order to treat his depression. Id.

         Between April 15, 2014 and June 3, 2014, Szymanski reported that Whitney was improving moderately and symptom severity was severe. (AR 428, 430, 432). On July 1, 2014, Szymanski reported that Whitney was improving significantly. (AR 426). Records from October 20, 2014 through March 9, 2015 state that Whitney was improving moderately. (AR 418, 420, 422, 424).

         Whitney met with therapist Katherine McCloskey for an initial intake examination on June 9, 2015. (AR 522-526). He sought therapy for depression because his wife of 27 years had filed for divorce and he noted having more sad days than happy ones. (AR 522). Prior to meeting with Ms. McCloskey, Whitney had seen a therapist one time and previously had experienced depression following the death of his mother. Id.

         At his initial visit, Whitney exhibited moderate impulse control, difficulty acknowledging psychological problems, and some impaired ability to make reasonable decisions. (AR 524-525). However, his thought content, memory, orientation, intellectual functioning, and affect were within normal limits. (AR 525). Ms. McCloskey assessed Whitney with ADD with hyperactivity and an unspecified adjustment reaction, and further advised him to continue therapy through his ongoing divorce in order to learn skills to cope with depression. (AR 526). She assigned Whitney a Global Assessment of Functioning (“GAF”) score of 65.[5] (AR 526).

         On June 16, 2015, Whitney continued to exhibit signs of depression related to his divorce but had normal affect and thought process. (AR 520). On June 26, 2015, Whitney reported to Ms. McCloskey that he felt “physically sick, nauseas [sic], overwhelmed and [had] trouble breathing” as a result of text confrontations with his wife. (AR 517). He recently had been prescribed a new anxiety medication. Id. Ms. McCloskey counseled Whitney on grief and advised him on therapeutic interventions like reflective listening and reframing. Id.

         A few weeks later, on July 17, 2015, Whitney described his wife's continued verbal attacks via text message and feelings of anger and irritability at speaking with her. (AR 512). Whitney was receptive to Ms. McCloskey's recommendation that he set limits with his wife. Id. In a subsequent visit on July 24, 2015, Whitney described “crying a lot” in anticipation of visiting his old home and acknowledged that he spent much time at home sleeping and dwelling on the end of his marriage. (AR 510).

         Between July and September 2015, Whitney visited Ms. McCloskey weekly and continued to report ups and downs with his wife. (AR 502, 504, 506, 508). On September 16, 2015, Whitney reported that his divorce had been granted on the day prior and afterwards he had experienced a “breakdown” and became physically ill with grief. (AR 497). He told Ms. McCloskey that he realized his marriage was truly over and that there was no chance of reconciliation. Id. Ms. McCloskey helped him manage the loss. Id. Whitney reported that he was working a few nights a week and that doing so improved his mood. Id.

         In a session on October 14, 2015, Whitney identified that he frequently was “snapping” at his roommate. (AR 609). Ms. McCloskey indicated that he was projecting his anger towards his ex-wife at his roommate. Id. Ms. McCloskey discussed anger management strategies. Id.

         On November 6, 2015, Whitney reported that he had entered the “anger” stage of his divorce. (AR 605). Ms. McCloskey mentally prepared Whitney for an upcoming dinner with his ex-wife, which he ultimately did not attend. (AR 605, 601).

         Whitney saw Szymanski on November 10, 2015 for a check-up. (AR 603). Szymanski documented Whitney's depression as moderate severity but control status improving moderately. Id. Whitney exhibited normal speech, logical thought processes and reasoning, intact judgment, and normal mood and affect. Id. Whitney was prescribed with 20mg Ritalin to be taken four times daily. Id.

         On November 12, 2015, during an appointment with Ms. McCloskey, Whitney expressed confusion at a text from his ex-wife and continued hurt at her decision to divorce him. (AR 601). Ms. McCloskey noted that Whitney's emotional state was irritable and depressed. Id.

         On January 4, 2016, Ms. McCloskey met with Whitney upon his return from a month-long trip to Florida to visit his ailing father. (AR 596). Whitney relayed that his visit was positive but identified that he has experiencing withdrawal symptoms from tapering off Methadone. Id. Whitney thereafter was prescribed Suboxone to aid the withdrawal but reported feeling physically ill for several days. (AR 586).

         In a later visit on February 1, 2016, Whitney discussed “the significance of finding purpose in his life” and voiced a desire to be more active. Id. Ms. McCloskey advised him on various agencies that could help him find work or enroll in school. Id. Whitney felt “ready to rejoin the world.” Id.

         On February 22, 2016, Whitney stated that he felt better physically but was more depressed and irritable towards his roommate. (AR 578). Ms. McCloskey helped Whitney connect his mood to isolation and too much time spent at home. Id. They explored options for more socialization, which Whitney acknowledged helped him feel better. Id.

         During his following visit on March 7, 2016, Whitney reported that he was trying to improve his relationship with his roommate and recently had supported her following her brother's passing. (AR 574). In sessions between March and the end of April, Whitney discussed increased contact with his ex-wife and expressed confusion and anxiety over their relationship. (AR 560, 562).

         On April 25, 2016, Whitney reported that he had stopped taking his medication the week prior because he felt that he did not need it. (AR 555). He stated that within twelve hours his depression was significant. Id. Three days later, Whitney began taking the medication again, realizing its importance to his wellbeing. Id.

         In a follow-up appointment with Szymanski on July 27, 2016, Whitney stated that he was “fine.” (AR 551). Szymanski continued to report that Whitney's depression was moderate in severity but improving moderately. Id. Whitney similarly reported that he was “fine” at an appointment with ...

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