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Laveau v. Colvin

United States District Court, D. Minnesota

January 27, 2015

Lawrence John Laveau, Plaintiff,
v.
Carolyn Colvin, Acting Commissioner of Social Security, Defendant.

Sean M. Quinn, Esq., Falsani Balmer Peterson Quinn & Beyer, for Plaintiff.

Ann M. Bildtsen, Esq., Office of the United States Attorney, for Defendant.

AMENDED REPORT & RECOMMENDATION[1]

STEVEN E. RAU, Magistrate Judge.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Lawrence John Laveau ("Laveau") seeks review of the Acting Commissioner of Social Security's ("Commissioner") denial of his applications for a period of disability and disability insurance benefits ("DIB"). See (Compl.) [Doc. No. 1]. The parties filed cross-motions for summary judgment [Doc. Nos. 10, 14]. For the reasons set forth below, the Court recommends denying Laveau's Motion for Summary Judgment and granting the Commissioner's Motion for Summary Judgment.

I. BACKGROUND

A. Procedural History

Laveau filed his first application for DIB on April 17, 2006, with an alleged onset date ("AOD") of December 31, 2005. (Admin. R.) [Doc. Nos. 8, 9 at 59]. On February 18, 2009, administrative law judge ("ALJ") Roger W. Thomas ("ALJ Thomas") denied Laveau's claim. ( Id. at 68). The Social Security Administration ("SSA") Appeals Council denied review of the ALJ decision. Laveau v. Astrue, Civil No. 11-505 (SRN/LIB), 2012 WL 983630, at *1 (D. Minn. Mar. 22, 2012) (" Laveau I Order "). Laveau sued in federal court, and the Honorable Susan Richard Nelson, adopting the Honorable Leo I. Brisbois's report and recommendation, denied Laveau's motion for summary judgment and granted the Commissioner's motion for summary judgment. Id. at *5; see also Laveau v. Astrue, Civil No. 11-505 (SRN/LIB), 2012 WL 983598 (D. Minn. Feb. 14, 2012) (" Laveau I R&R ").

Laveau protectively filed his current application for DIB on July 16, 2010, alleging disability due to depression, anxiety, a skin disorder, and hearing loss.[2] (Admin. R. at 70, 88, 166-67, 188). Laveau's alleged onset date was February 13, 2009, but ALJ David B. Washington ("ALJ Washington")-the ALJ determining Laveau's second claim that is now before the Court-found this date was "a clerical error transmission as the decision issued by [ALJ Thomas] was on February 18, 2009." ( Id. at 11); see also ( id. at 70). Therefore, Laveau's disability onset date was amended to February 19, 2009. ( Id. at 11). Laveau listed his date last insured ("DLI") as December 31, 2010. ( Id. at 70). His application was denied initially on January 11, 2011, and again upon reconsideration on May 2, 2011.[3] ( Id. at 70, 72-78, 85-88, 92). ALJ Washington heard the matter on August 22, 2012. ( Id. at 32-55). He returned a ruling unfavorable to Laveau on September 21, 2012, and specified that he was not reopening ALJ Thomas's unfavorable decision. ( Id. at 11, 25). On October 24, 2013, the SSA Appeals Council denied review, rendering the ALJ's decision final. ( Id. at 1-6); see 20 C.F.R. § 404.981. Laveau then sued in federal court. (Compl.) [Doc. No. 1].

B. Laveau's Background and Testimony

At the AOD, Laveau was 58 years old, making him an individual of advanced age. (Admin. R. at 24, 70). He had a high school education and previously worked in construction and as a security supervisor at an Air National Guard base. ( Id. at 35, 50-52, 189). He also served in the military during the Gulf War era. ( Id. at 131).

Laveau's testimony largely focused on his social anxiety and memory problems, and he implied that both of them inhibited his ability to work. Specifically, he testified that being around people made him "very nervous and upset, " resulting in mistakes in his work. ( Id. at 35). When asked by the ALJ, however, Laveau testified that he might be able to do a simple custodial job where he did not have to work much with others.[4] ( Id. at 44-45). He testified that he did not leave the house very often, but he did some household chores and enjoyed woodworking. ( Id. at 36-37). Laveau testified that he saw a social worker every month and a half to two months and was on medication for depression and anxiety. ( Id. at 37). He also testified that in general, the only people he saw besides his wife were his two friends-though they visited only occasionally-and that at family events, he would try to avoid conversation. ( Id. at 36, 38-39). According to him, tasks he performed for many years now took much longer; he became distracted easily and made "rookie mistakes." ( Id. at 40). He sustained a serious injury to his hand while working with a table saw; this injury resulted in some clumsiness with his hand, and he agreed that this was a mistake that he should have known better about. ( Id. 43-44). He also reported significant memory problems: sleeping for twelve to fourteen hours and, upon awakening, having no memory of the past few days. ( Id. at 41). According to Laveau, in those situations, he had to rely on his wife to tell him what he had done. ( Id. ).

Laveau testified about a couple of physical impairments. Specifically, he testified to a coughing problem that caused him to pass out, a hearing problem that was improved with aids, and a skin problem that was aggravated by heat and sun but that medication and a particular kind of soap alleviated. ( Id. at 41-43).

C. Relevant Medical Record Evidence

Certain records in the Administrative Record concern impairments and illnesses that neither of the parties nor the ALJ base their analysis on, and therefore are not relevant-such medical records will not be summarized. Additionally, Laveau's medical records prior to the AOD at issue here were summarized in his past federal case. See Laveau I R&R, 2012 WL 983598, at *1-7 (summarizing medical records through January 6, 2009). The Court will not summarize them again.

1. After February 19, 2009

a. Mental Health Records

On March 17, 2009, Susanne W. Cohen, PhD ("Dr. Cohen"), a licensed psychologist, performed a neuropsychological evaluation of Laveau's memory. (Admin. R. at 1368). He reported memory problems for the previous six to seven months, and that his memory was worse in the last three to four months. ( Id. ). He also reported severe anxiety and thoughts of suicide, although he had no plan or intent to harm himself. ( Id. ). Laveau said he first had work problems three years ago and was fired for poor concentration, but also reported successfully completing a home project. ( Id. at 1368-69). Laveau reported forgetting to shave on occasion but never when he had to be somewhere. ( Id. at 1369). He reported forgetting where he puts things, forgetting to clean his ears, and forgetting to remove a turkey roll from the freezer. ( Id. ). Laveau reported leaving a stove burner on once, and also forgot to close the handle of the wood stove after adjusting the fire once. ( Id. ). He reported successfully using a medication manager for his pills, and because he gets nervous and lost, and panics easily, he drives only on a limited basis. ( Id. ). His wife manages their finances. ( Id. ).

Laveau reported a skin rash which has "largely resolved" using medication and a prescription topical agent. ( Id. ). He has hearing loss, but "good hearing with the use of his aids." ( Id. ). He has high cholesterol and wears glasses, which adequately correct his vision. ( Id. ). He lost his balance once, but was not treated for the fall, and it has not happened again. ( Id. ) His medications at that time were: trazodone, sertraline, gabapentin, bupropion, and simvastatin.[5] ( Id. ).

Laveau was appropriately dressed for the appointment with Dr. Cohen and cooperative. ( Id. at 1371). Laveau reported his mood as "moody, down, blue" and admitted to thoughts of suicide, but had no plan or intent to act on those thoughts. ( Id. at 1369). He prefers to keep his mind busy with projects, which elevates his mood. ( Id. ). He has increased anxiety in public, which keeps him in the house, and can only grocery shop with his wife for fifteen to twenty minutes before needing to leave the store. ( Id. ). He reported that he feels like he does not know what is bothering him, but can also identify the source of his heightened anxiety. ( Id. ). He reported that nervousness at work lead to "blocked thoughts, " but he had less "anxiety[-]related thinking problems" at home compared to at work. ( Id. ). Laveau reported that he sees Danny L. Correll, MSW, LCSW ("Correll"), for individual therapy and Patricia Michals, RN, CNS ("Michals"), for medication management. ( Id. at 1370). Although he has a history of chemical dependency, he has not used alcohol or smoked since 2008. ( Id. ).

Laveau is currently married and has four children from previous marriages. ( Id. ). He is not in contact with his daughter but reports having a great relationship with his sons. ( Id. ). Laveau reported increased anxiety "related to his fears of meeting work deadlines and making mistakes." ( Id. ). He was terminated from his last construction job in 2008 for "making too many mistakes." ( Id. ).[6]

Prior to the appointment, Laveau completed a computer-administered psychological test, the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2"). ( Id. at 1371-72); see also ( id. at 1374) (note of psychological testing). The results were considered invalid due to "likely exaggeration of psychological symptomatology." ( Id. at 1371). Specifically, Dr. Cohen noted,

Review of [Laveau's] responses indicates evidence for exaggeration of psychiatric symptoms, such that Mr. Laveau's endorsement of symptoms was greater than psychiatric samples in an inpatient setting. Moreover, Mr. Laveau endorsed a pattern of items rarely endorsed even by verified psychiatric or cognitively impaired samples, and suggests over endorsement of items in an indiscriminate fashion. It should be noted that [Laveau]'s responses were highly consistent across the test, indicating that confusion or attention problems are not the likely source of the elevated, invalid profile.

( Id. at 1372). Laveau's academic achievement level was average, and his intellectual functioning was at the high end of the low-average range. ( Id. at 1372).

Laveau continued to perform within the average to high average range across memory tasks. Immediate and delayed memory for paragraph length verbal information was above average, with better than average retention of the story material across time. Recall of geometric figures was above average immediately, and average after a delay. Recognition memory for the figures was above average.

( Id. at 1372). Dr. Cohen noted that there was "no evidence of impairment or measurable decline from two previous [memory] assessments." ( Id. at 1373). Laveau's performance on timesensitive tasks declined. ( Id. at 1372).

Dr. Cohen noted the following DSM-IV diagnosis: Axis I: cognitive disorder, NOS; Axis II: deferred; Axis III: none; Axis IV: unemployed, financial and marital stress; Axis V: "GAF = by report 50-55."[7] ( Id. at 1373).

Dr. Cohen's summary noted the following:

This pattern of continued intact memory with evidence for decline in intellectual functions is highly atypical.... [T]here continues to be no evidence of true memory impairment. [Laveau's] report of variable attentional and memory difficulties dependent upon context, and associated with heightened anxiety certainly suggests [the] possibility that cognitive functioning is diminished under anxious conditions. However, psychological testing was invalid at this time due to evidence for exaggerated symptom endorsement and it is not possible to make a formal psychiatric diagnosis or render an impression as to the extent to which psychiatric symptoms (anxiety and/or depression) may be contributing to cognitive functioning because of this invalid data.

( Id. ).

On August 25, 2009, Dr. Othmane M. Alami ("Dr. Alami") saw Laveau for his yearly psychiatric evaluation. ( Id. at 1333-34). Laveau reported doing well on his medications, and said that he did not feel sad, have a low energy level, or low motivation, and that he did not feel hopelessness or helplessness. ( Id. at 1333). His mood was "euthymic" and his affect was "full, fluid, and appropriate." ( Id. at 1334). Dr. Alami described Laveau's memory and concentration as "good, " but suggested that Laveau should have a sleep-medicine consult. ( Id. ).

Throughout the relevant time period, meaning from the AOD to DLI, Laveau saw Correll for sixteen acceptance and commitment therapy ("ACT") appointments between February 24, 2009, and December 2, 2010.[8] Correll consistently described Laveau as alert and oriented with a mild mood disturbance related to various personal circumstances. See ( id. at 625, 1273, 1282, 1290, 1319-20, 1331-32, 1340-42, 1351, 1364, 1487-88, 1507, 1594, 1625, 1673-74, 1856, 2095). The majority of Correll's treatment notes discuss specific exercises and Laveau's responses to those exercises. The details of the treatment and exercises are not relevant to the ALJ's disability determination. Correll also assigned Laveau GAF scores in the range of 60 to 63. ( Id. at 1283, 1287, 1320, 1329, 1342, 1365, 1488, 1626, 1674, 2095). Notably, on September 3, 2010, Laveau called Correll to say that he left his last appointment "feeling so great, " that he's never felt "so good and so less burdened[, ]" and he's "so at ease and so relaxed." ( Id. at 1609).

Laveau had ten appointments with Michals for medication management and brief psychotherapy. Michals's notes for each appointment largely consist of a form that she filled out based on Laveau's reports and her own assessments, and contain only a brief narrative. Therefore, for each relevant appointment, when available, the Court describes Laveau's selfreported rating of depression, anxiety, and concentration on a scale from 1 to 10, where 10 was a severe or constant experience of the symptom or feeling. See, e.g., ( id. at 1359). The Court also describes Michals's overall impressions of Laveau's mood, and any medication adjustments made.

On March 18, 2009, Jason D. Nelson, NS CSS ("Nelson"), a psychiatric nurse practitioner student who worked with Michals, described Laveau's mood as "blunted and depressed, " and that he had "psychomotor agitation." ( Id. at 1365-67). Laveau was also "very anxious." ( Id. 1367). Nelson noted that Laveau's memory was "intact." ( Id. at 1366). Nelson noted the following DSM-IV diagnosis: "Axis I: Depressive Dis[order]; Axis II: deferred; Axis III: Chest Pain, Dyspnea, [Hyperlipidemia, Mixed]; Axis IV: social situations, hyper arousal/startle response, concentration; Axis V: 45."[9] ( Id. at 1367).

On May 19, 2009, Laveau rated his depression as a 6, anxiety as a 7, and concentration as a 1. ( Id. at 1359). Laveau reported having trouble with his memory and concentration, which may be associated with taking gabapentin. ( Id. at 1359-60). Michals noted that his "[m]emory showed no major change since [the] last appointment." ( Id. at 1360). His overall mood was moderately depressed. ( Id. ).

On June 22, 2009, Laveau rated his depression as a 5, anxiety as a 6, and concentration as a 3. ( Id. at 1347-48). He reported having nightmares "constantly, " and Michals labeled his overall mood as moderately depressed. ( Id. at 1348-49).

On August 12, 2009, Laveau rated his depression as a 5-6, anxiety as a 5, and concentration as a 4. ( Id. at 1337). Michals noted his memory did not show any major changes. ( Id. at 1338). Laveau reported that gabapentin helped his anxiety and irritability during the day, and helped him sleep at night. ( Id. at 1339). Michals described his overall mood as depressed, but did not specify the severity. ( Id. at 1338).

Laveau rated his depression as a 4 and concentration as a 5 on September 25, 2009. ( Id. at 1326-27). Laveau did not rate his anxiety but stated, "[N]ot as bad as long as I stay on all of my meds." ( Id. at 1326). His memory showed no major change, and he was mildly depressed. ( Id. at 1327). Michals noted that Laveau was "back to baseline [and] doing well with current medication regimen." ( Id. at 1328).

On December 15, 2009, Michals noted that Laveau had no major memory change. ( Id. at 1314). Laveau rated his depression as a 4, stating "the medicine is working so great, " and rated his anxiety as a 5. ( Id. at 1313). With respect to concentration, Laveau noted, "I still wander off. I start doing one thing and all of a sudden I am doing 3 things but goes [sic] back to finishing all. I would like to stay and complete one thing at a time." ( Id. ). Michals's overall assessment was that Laveau was "stable, without serious functional impairment or serious symptoms." ( Id. at 1315). Michals noted that he was overall doing "quite well, " and was "having more restful sleep now that he is adjusted to the CPAP."[10] ( Id. at 1315).

On May 25, 2010, Laveau rated both his depression and anxiety as a 4. ( Id. at 1463-64). He rated his concentration as a 4, stating, "This is not so swell. Remembering is not so good either." ( Id. at 1464). Michals noted that Laveau's overall mood was mildly depressed, and his mental health as "stable, no major changes; has chronic symptoms/dysfunction." ( Id. at 1465-66).

On July 6, 2010, Laveau rated his depression and anxiety at 8. ( Id. at 1629). With respect to concentration, Laveau stated "I am good for [three] minutes then wander off." ( Id. at 1629). He reported his memory as "terrible." ( Id. at 1629). Michals reported that Laveau stopped using trazodone, and that she would increase his zolpidem prescription to 12.5 mg.[11] ( Id. at 1631). Michals described Laveau's overall mood as moderately depressed and his mental health as "altered & medication(s) adjusted to aid coping/symptoms." ( Id. at 1630-31).

On August 24, 2010, Laveau described his anxiety and depression both at 8. ( Id. at 1438). Laveau described his concentration at level 4, "on a good day." ( Id. ). Laveau's overall mood was moderately depressed, he showed no major change in memory since his last appointment, and his overall mental health status was "altered & medication(s) adjusted to aid coping/symptoms." ( Id. at 1440). Laveau believed his increase in symptoms was due to not getting enough sleep, and Michals added trazodone to help with sleeping. ( Id. at 1441).

On October 21, 2010, Laveau reported a 6 (moderate) for depression, and a 5 (moderate) for anxiety. ( Id. at 1602-03). His concentration was rated 8, which is severe, but was also found to be adequate for daily living. ( Id. at 1603). There was no change to his memory, and Michals noted his overall mood as moderately depressed. ( Id. at 1603-04). Michals marked that Laveau's overall mental health was "stable, no major changes; has chronic symptoms/dysfunction." ( Id. at 1605). She assigned him a GAF score of 63. ( Id. at 1606).

b. Other Medical Records

i. Sleep Apnea

On October 15, 2009, Laveau had a sleep study, and was diagnosed with mild obstructive sleep apnea.[12] ( Id. at 1323). He was trained on using a CPAP unit, and reported "sleeping much better" about a week later. ( Id. at 1321-22).

ii. VA Disability Determination

On July 28, 2009, the Department of Veterans Affairs (the "VA") issued a decision based on its reconsideration of one of its earlier decisions, which Laveau appealed. (Admin. R. at 131). The VA reviewed several documents, but its decision largely rested on Dr. Cohen's neuropsychological exam on March 17, 2009.[13] ( Id. at 132). The decision states that Laveau is "totally disabled due to [his] service connected mental health condition and skins condition [sic]."[14] ( Id. at 132). A letter from the VA dated July 31, 2009, states that Laveau's entitlement rate is 100% because he is "unable to work due to [his] service-connected disabilities." ( Id. at 159-60).

iii. Speech Pathology

On January 15, 2010, Laveau had an appointment with David J. Schafer, MS, CCC-SLP ("Schafer"), a speech pathologist. ( Id. at 1492). Laveau reported that his wife says he sometimes has distorted speech when he is anxious, but said it was not a "functional communication problem." ( Id. at 1492). He reported misinterpreting what he hears, and cannot stay interested in reading, although he used to be an avid reader. ( Id. at 1492). His handwriting has become significantly worse. ( Id. at 1492-93). Laveau stated that his ability to pay attention is poor and that he has reduced concentration. ( Id. at 1493). It sometimes takes him three times longer than usual to finish a familiar task, and he misses his medication about 10% of the time due to his poor memory. ( Id. ).

Schafer explained that a personal data assistant ("PDA") may be used to assist Laveau and he expressed an interest in trying it. ( Id. ). Schafer set three individual therapy sessions to assist Laveau with using a PDA. ( Id. at 1494). Schafer used a functional independence measure ("FIM") to assess five categories of cognition. ( Id. at 1494). On a scale of 1 to 7, 1 is "total assistance, " and 7 is "complete independence." ( Id. ) Schafer assigned a 5 in the category of memory, and a 7 each of the following categories: comprehension, expression, social interaction, and problem solving. ( Id. ). Laveau was trained on the PDA on January 19, 2010, and reported that it was working well the following day. ( Id. at 1488, 1674). Laveau's FIM scores were the same as they were at the previous appointment. ( Id. at 1489).

On February 11, 2010, Laveau again saw Schafer for assistance with his PDA. Laveau received training on setting up alarms for his medications, and stated that "he could manage use of the device more effectively following this training." ( Id. at 1478). No further appointments were scheduled. ( Id. at 1479).

iii. Head Injury

On May 6, 2010, Laveau went to the emergency room at Community Memorial Hospital after suffering a head injury two days earlier while building a false wall. ( Id. at 1213). His CT scan was normal.[15] ( Id. at 1990).

2. After December 10, 2010

Laveau continued appointments with Correll through July 2012, and with Michals through August 2012. See ( id. at 1846, 2010, 2012, 2030, 2045, 2070, 2125, 2133, 2192) (appointments with Correll from January 21, 2011, through July 31, 2012); ( id. at 1839, 1848, 2000, 2018, 2039, 2116, 2185) (appointments with Michals from January 21, 2011, through August 1, 2012).

On April 11, 2012, Laveau cut four fingers on his right hand while working with a table saw. ( Id. at 2139). He had surgery the same day and had ten physical therapy appointments between April 26, 2012, and August 6, 2012. ( Id. at 2151, 2153, 2155, 2157, 2159, 2161, 2163, 2165, 2167, 2172, 2178).

3. Mental Consultative Examination[16]

On December 18, 2010, Dr. Lyle W. Wagner, PhD, LP ("Dr. Wagner"), examined Laveau's mental status. ( Id. at 1751). Dr. Wagner summarized:

Regarding his ability to concentrate on and remember instructions, it would appear that [Laveau] is capable of concentrating on and remembering moderately complex instructions. Regarding his ability to understand such instructions, it would appear that he is capable of understanding moderately complex instructions.
Regarding his ability to persist at a reasonable pace to complete a particular task, he may have some difficulty in this area due to his current level of depression/anxiety, which appears to be mild, but not to the extent that employment would be precluded. Regarding his ability to tolerate co-workers, the public, and to handle supervision, by self-report, when [Laveau] has worked, he has gotten along fair with co-workers and good with supervisors, except his last supervisor. [Laveau] related well with this psychologist.
Regarding his ability to manage stress and pressure in a work setting, he may have some difficulty in this area, due to his current level of depression/anxiety, but not to ...

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