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Sigerseth v. Berryhill

United States District Court, D. Minnesota

July 31, 2017

John Richard Sigerseth, Plaintiff,
v.
Nancy A. Berryhill,[1] Acting Commissioner of Social Security, Defendant.

          REPORT & RECOMMENDATION

          TONY N. LEUNG UNITED STATES MAGISTRATE JUDGE

         Paul A. Livgard and Sonja R. Oritz, Livgard & Lloyd, PLLP, 2520 University Avenue Southeast, Suite 202, Minneapolis, MN 55414 (for Plaintiff); and

         Gregory G. Brooker, Acting United States Attorney, and Bahram Samie, Assistant United States Attorney, United States Attorney's Office, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415 (for Defendant).

         I. INTRODUCTION

         Plaintiff John Richard Sigerseth brings the present case, contesting Defendant Commissioner of Social Security's denial of his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. This matter is before the undersigned United States Magistrate Judge on cross motions for summary judgment, Plaintiff's Motion for Summary Judgment (ECF No. 12) and the Commissioner's Motion for Summary Judgment (ECF No. 16). These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable John R. Tunheim, Chief District Judge for the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.

         Based upon the record, memoranda, and the proceedings herein, IT IS HEREBY RECOMMENDED that Plaintiff's Motion for Summary Judgment (ECF No. 12) be DENIED and the Commissioner's Motion for Summary Judgment (ECF No. 16) be GRANTED.

         II. PROCEDURAL HISTORY

         Plaintiff applied for DIB in July 2013, asserting that he has been disabled since February 2, 2011, due to posttraumatic stress disorder, major depressive disorder, and anxiety.[2] (Tr. 10, 47, 58, 60, 72, 124-25, 169.) Plaintiff's application for DIB was denied initially and again upon reconsideration. (Tr. 10, 56, 57, 58, 69, 71, 72; see Tr. 78-80, 83-85.) Plaintiff appealed the reconsideration of his DIB determination by requesting a hearing before an administrative law judge (“ALJ”). (Tr. 10, 86-87; see Tr. 88-91.)

         The ALJ held a hearing in June 2015. (Tr. 10, 34, 36; see Tr. 95-114, 118-21. After receiving an unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council, which denied his request for review. (Tr. 1-5, 7-25, 32.) Plaintiff then filed the instant action, challenging the ALJ's decision. (Compl., ECF No. 1.) The parties have filed cross motions for summary judgment. (ECF Nos. 12, 16.) This matter is fully briefed and ready for a determination on the papers.

         III. RELEVANT MEDICAL HISTORY

         In order to be entitled to DIB, Plaintiff must establish that he was disabled before his insurance expired. Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009) (citing Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006)). It is undisputed that Plaintiff's date last insured was September 30, 2011. (Tr. 10, 47, 58, 60, 63, 72; Pl.'s Mem. in Supp. at 4, ECF No. 14; Comm'r's Mem. in Supp. at 2, ECF No. 17.) Thus, Plaintiff must prove that he was disabled before September 30, 2011. Accordingly, the period presently at issue is February 2, 2011, the alleged onset date, through September 30, 2011, the date last insured. Nevertheless, “[e]vidence from outside the insured period can be used in helping to elucidate a medical condition during the time for which benefits might be rewarded.” Cox, 471 F.3d at 907 (quotation omitted).

         A. Medical Records up to Date Last Insured

         Plaintiff is a veteran of the United States Army and Navy. (Tr. 336; see Tr. 245.) Plaintiff served in the United States Army for 3 years and in the United States Navy for 17 years.[3] (Tr. 245.) Since 2000, Plaintiff has been seen at the Veterans Affairs Medical Center for posttraumatic stress disorder and depression. (Tr. 336; see Tr. 385.) Plaintiff has received individual psychotherapy from Bridget M. Hegeman, Ph.D., L.P., since 2004. (Tr. 336.) Plaintiff's medications have been managed by Gihyun Yoon, M.D. (Tr. 336.)

         In December 2010, Plaintiff underwent a compensation and pension examination related to posttraumatic stress disorder, anxiety, and depression for service-connected disability through the Department of Veterans Affairs (“VA”). (Tr. 244.) The psychological examination was performed by Wayne Siegel, Ph.D., ABPP. (Tr. 244.) During the examination, Plaintiff reported “long-standing difficulties with depression that is fairly constant, ” rating his current depression at 5 on 1-to-10 scale with 1 being the worst. (Tr. 245.) Plaintiff reported that this was “typical of most days.” (Tr. 245.) Plaintiff “described his depression as ‘being very serious and not deriving much pleasure from things.'” (Tr. 245.) Plaintiff also reported “significant problems with early and middle insomnia, ” having difficulties falling asleep and then waking up due to nightmares or noise. (Tr. 245-46.)

         Plaintiff “described his energy level as low, ” but was “able to force himself to do things that he needs to, ” particularly with respect to caring for his significant other. (Tr. 246.) Plaintiff also “indicated some difficulties with feelings of helplessness and hopelessness” and “described some anhedonia.” (Tr. 246.) Plaintiff “denied problems with suicidal thoughts or attention/concentration.” (Tr. 246.)

         Plaintiff “enjoy[ed] doing crossword puzzles and reading novels for a least an hour per day, ” but “sometimes . . . g[o]t distracted after a while and will then move on to something else.” (Tr. 246.) Plaintiff “reported that the only thing that he derives significant pleasure from is gardening which he only does in the warmer months.” Plaintiff reported “get[ting] some pleasure out of reading history and spending time with his . . . [significant other]” of 14 years. (Tr. 245, 250.)

         Siegel noted that Plaintiff's significant other has multiple sclerosis and uses an electric wheelchair. (Tr. 249.) Plaintiff “has to do a lot of basic functions in terms of cleaning and cooking that she is unable to do.” (Tr. 249.) Plaintiff stated that “being with her makes his life better in that he would be less likely to take care of himself if he were not.” (Tr. 249.) Siegel noted, however, that “records indicate that the relationship is more problematic tha[n] . . . [Plaintiff] described and it may be a significant contributing factor [in] his life difficulties.” (Tr. 250.)

         Plaintiff reported “feel[ing] anxious a lot, ” particularly in crowds. (Tr. 246.) Plaintiff could to go to stores “but avoids large malls and very large crowds.” (Tr. 246.) Plaintiff also “d[id] not like a lot of noise, ” which also caused him to avoid large crowds. (Tr. 246.) Plaintiff reported that he avoids newscasts about war and war movies. (Tr. 246.) Additionally, Plaintiff reported “a long history of panic with classic physiologic symptoms occurring weekly in the past but once per month or so in the past several months.” (Tr. 246.) Plaintiff reported that “there are not clear precipitants other than when he gets very frustrated or angry.” (Tr. 246.)

         Plaintiff was polite and cooperative during the examination. (Tr. 244.) He was alert and oriented and his gross memory and cognitive functions were intact. (Tr. 246.) Plaintiff's speech was logical and goal-directed, and he spoke at a normal rate. (Tr. 246.) Plaintiff “displayed no evidence of a thought disorder or other overt psychotic processes.” (Tr. 246.) Plaintiff's “[m]ood was dysthymic to depressed” and he became tearful when discussing military efforts in Iraq and Afghanistan, the death of a friend, and his awareness that his significant other will pass away “at some point in the not too distant future” due to multiple sclerosis. (Tr. 246-47.) Plaintiff “did not evidence significant problems with concentration.” (Tr. 248.)

         Siegel determined that Plaintiff met the criteria for posttraumatic stress disorder. (Tr. 247-48, 251.) Plaintiff experienced a number of traumatic events, including the unexpected death of a friend “for no apparent reason”; being assaulted while serving in the Army; surveying bomb damage during the Gulf War; assisting with search-and-rescue efforts following the 1989 earthquake in San Francisco, California; and witnessing a Navy training accident “where a sailor's skull was crushed by the boat's prop.” (Tr. 247.)

         While Plaintiff did not re-experience these events while awake, he reported dreaming about them approximately three times per week. (Tr. 247.) Plaintiff reported that, in previous years, he dreamed about them nightly. (Tr. 247.) Plaintiff reported that “when he encounters things such as war movies or newscasts about the war he will think about these events, ” and they will “consume his thoughts making it hard to focus on what he was doing.” (Tr. 247.) Plaintiff “did not describe them as significantly distressing but rather distracting.” (Tr. 247.) Plaintiff did not like to talk about these events and was “pretty successful in keeping them out of his day-to-day consciousness while awake.” (Tr. 247-48.)

         Plaintiff described “symptoms of avoidance and numbing.” (Tr. 247.) Plaintiff “generally fe[lt] disconnected from others” and “indicated that he has no real friends and does not have a close relationship with anyone.” (Tr. 248.) Plaintiff also “described feeling on guard and alert and having to walk the perimeter around his house, particularly when he wakes up from a nightmare.” (Tr. 248.) To some extent, Plaintiff felt like he was always on duty. (Tr. 248.) Plaintiff further reported “overreacting to loud noises.” (Tr. 248.)

         In addition, Plaintiff “described several examples of irritability and increased anger.” (Tr. 248.)

He has had difficulty interpersonally with others and on the job. He has been fired from several positions since his discharge from the service. He talked about how his . . . [significant other's] friends do not like being around him because he is irritable, and angry, and they feel he is scary at times.

(Tr. 248.) Plaintiff reported being terminated from previous employment due to conflicts with other employees and supervisors. (Tr. 250.) Plaintiff was currently supporting himself with his pension and “occasional temporary work.” (Tr. 250.)

         Siegel noted that Plaintiff first had contact with mental-health professionals in 2000 and had been followed by Hegeman “on a fairly regular basis” since 2004 for posttraumatic stress disorder and depression. (Tr. 248.) Siegel also noted that Plaintiff was currently prescribed bupropion, [4] citalopram, [5] and hydroxyzine[6] by Dr. Yoon. (Tr. 248.) Plaintiff reported that his sessions with Hegeman were helpful and his medications were “somewhat helpful in that they keep him calmer.” (Tr. 248.) Siegel noted that Plaintiff “made it clear that he still struggles with the depression and anxiety.” (Tr. 248-49.)

         Plaintiff's Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”) results produced a valid profile, reflecting “very significant levels of psychological/emotional distress.” (Tr. 244, 250.) Siegel noted that Plaintiff was “quite unhappy with his current life situation and feels there is little he can do to infect change.” (Tr. 250.) Plaintiff's profile was “notable for significant depressive symptoms and a general lack of interest or pleasure in day-to-day activities.” (Tr. 250.) Plaintiff's profile also contained “indications of significant anxiety, tension/nervousness.” (Tr. 251.) Siegel noted that Plaintiff “likely tends to over focus on physical/somatic symptoms and there is a tendency to cope with psychological/emotional difficulties with physical symptomology.” (Tr. 251.) Siegel noted that “[s]imilar individuals tend to feel uncomfortable and awkward in social/interpersonal situations and invest considerable effort into avoiding such.” (Tr. 251.)

         Siegel diagnosed Plaintiff with posttraumatic stress disorder and major depressive disorder and gave him a GAF score[7] of 60. (Tr. 251.) Siegel found that Plaintiff “evidences significant depressive symptoms that appear to be at least partially related to his [posttraumatic stress disorder], ” but were “also likely at least partially attributable to the stress of his current life situation, ” citing Plaintiff's role as a caretaker for his significant other and unemployment. (Tr. 251.) Siegel determined that Plaintiff “appears to have experienced moderate social and occupational impairment” as a result of his posttraumatic stress disorder and depression. (Tr. 252.) Siegel concluded that “it is, as likely as not, that [Plaintiff] meets diagnostic criteria for [posttraumatic stress disorder] related to traumatic events he encountered while [on] active duty” and it was as likely as not that Plaintiff's depression met the diagnostic criteria and was “at least in part related to his military service.” (Tr. 252.)

         At the end of January 2011, the VA granted Plaintiff 50% service-connected disability for his posttraumatic stress disorder, depression, and anxiety, for a combined rating of 60%. (Tr. 37, 155, 159.) There are no mental-health treatment records from February through September 2011. (See Comm'r's Mem. in Supp. at 7.)

         B. Medical Records from October through December 2011

         In October 2011, Hegeman noted that Plaintiff “continues to exhibit some irritability, low frustration tolerance, mild depressive symptoms and sleep disturbance.” (Tr. 336.) Hegeman identified Plaintiff's role as a caretaker for his significant other with “moderate to severe” multiple sclerosis, “their ongoing relationship problems, ” “deaths of several family members in the last few years, ” and financial stressors as areas of concern McDermott v. Astrue, No. 11-cv-2409 (PJS/AJB), 2012 WL 3202946, at *2 n. 2 (D. Minn. June 13, 2012), adopting report and recommendation, 2012 WL 3156003 (D. Minn. Aug. 3, 2012).for Plaintiff. (Tr. 336; see Tr. 335.) Hegeman noted that Plaintiff “has been unable to maintain steady employment since his discharge, ” but was “recently awarded an increase in his service connection [benefits], which has reduced . . . [his financial] stressors significantly.” (Tr. 336-37.) Hegeman also noted that Plaintiff and his significant other participated in six months of couples' counseling. (Tr. 335.)

         Plaintiff's current medications included bupropion, venlafaxine, [8] and hydroxyzine. (Tr. 336; see Tr. 332.) Hegeman noted that Plaintiff “has made progress in managing some of his anxiety and frustration, but still exhibits limitations especially when stressed with other issues, ” and “does have difficulty recognizing a need for help.” (Tr. 337.) Plaintiff's psychotherapy sessions focused on these issues as well as stress management and self-care. (Tr. 337.) Plaintiff's strengths were his sense of humor, family support, pursuit of employment, and willingness to participate in therapy. (Tr. 335.) Hegeman felt that Plaintiff would benefit from attending therapy more often, but this was not possible “due to his availability limitations.” (Tr. 337.) Hegeman gave Plaintiff a GAF score of 55 and described Plaintiff's level of care as one hour or less per month. (Tr. 333, 334.)

         In mid-November 2011, Plaintiff and his significant other were discharged from couples' therapy. (Tr. 328.) The couple reported that “things have remained the same.” (Tr. 329.) The therapist noted that “[t]hey did not try to incorporate any of the behavior changes we discussed (having meetings to discuss household chores, using communication skills, etc[.]), ” and “[b]oth acknowledged that they had intentions to do so, but did not.” (Tr. 329.) Plaintiff and his significant other requested a referral to a new therapist and the therapist noted that they “would benefit from further couples therapy if they are able to demonstrate efforts to practice skills/do ‘work' at home.” (Tr. 329.) In the interim, the therapist encouraged the couple “to begin incorporating new behaviors immediately rather than waiting for a new therapist.” (Tr. 329.)

         Around the same time, Plaintiff saw Dr. Yoon for a medication management appointment. (Tr. 330.) Plaintiff reported “having less anxiety and more depression (lack of motivation) for the past month.” (Tr. 330.) Plaintiff's stressors included the worsening of his significant other's medical condition and unemployment. (Tr. 330.) Plaintiff also reported that he “stopped looking for a job as ‘they reject me all the time.'” (Tr. 330.) Plaintiff's mood was depressed, but he was cooperative without psychomotor agitation or retardation; his speech was coherent, relevant, and fluent with normal rate and volume; his affect was appropriate; his thought process was goal-oriented without abnormal content; his memory and cognition were grossly intact; and his insight and judgment were fair. (Tr. 331.) Dr. Yoon switched Plaintiff from Celexa[9] to venlafaxine, and directed him to return in four months. (Tr. 332. But see Tr. 336.) Approximately one month later, Plaintiff called Dr. Yoon and stated that the venlafaxine “has helped a little” but he “would like to increase the dose.” (Tr. 332; see Tr. 333.) Dr. Yoon increased Plaintiff's venlafaxine dose and instructed Plaintiff to continue taking Wellbutrin.[10] (Tr. 333.)

         C. Medical Records From 2012 and 2013

         Towards the end of March 2012, Plaintiff had a medication management appointment with Dr. Yoon in connection with his posttraumatic stress disorder, depression, insomnia, and nightmares. (Tr. 306.) Dr. Yoon noted that Plaintiff's relationship was causing him stress. (Tr. 306.) Upon examination, Dr. Yoon observed Plaintiff to be cooperative and tearful with no psychomotor movement. (Tr. 307.) Plaintiff's speech was coherent, relevant, and fluent and had normal rate and volume. (Tr. 308.) Plaintiff's mood was anxious and depressed and his affect was appropriate. (Tr. 308.) Plaintiff's thought process was goal-oriented, his memory and cognition were grossly intact, and his insight and judgment were fair. (Tr. 308.) Dr. Yoon added two medications: trazodone[11] to improve Plaintiff's sleep and Klonopin[12] to help with Plaintiff's anxiety. (Tr. 306, 308.)

         Plaintiff continued to meet periodically with Hegeman between 2012 and 2013. Between mid-October 2012 and mid-February 2013 and mid-October 2013 and mid-December 2013, Plaintiff saw Hegeman approximately every two weeks. (Tr. 261, 262, 265, 267, 271, 273, 279, 283, 366, 370, 371, 372.) Otherwise, their sessions were months apart. (Tr. 252, 257, 261, 283, 296.) In April 2012, Hegeman gave Plaintiff a GAF score of 55 and noted that he needed between two and eight hours of therapy per month. (Tr. 296, 297.) Plaintiff reported that he “c[a]me to the conclusion that he will not pursue competitive employment as he recognizes that he is not capable of maintaining this successfully.” (Tr. 300.) Hegeman noted that, with continued participation in “insight-oriented therapy, ” Plaintiff “has exhibited greater awareness of his internal experience” and was “making slow but generally steady progress.” (Tr. 300.)

         Plaintiff's treatment goals centered on improving his relationship with his significant other, managing his anger, and utilizing coping skills. (Tr. 271, 298.) Their sessions frequently focused on stress resulting from and conflict within Plaintiff's relationship. (Tr. 262-63, 265, 271, 279, 283.) They also talked about Plaintiff's avoidance of emotional interactions and emotions in general as well as ways to improve communication. (Tr. 262-63, 265, 267-68, 271, 273.)

         Hegeman described Plaintiff as casually dressed and fully engaged with a logical and coherent thought process and good eye contact. (Tr. 266, 268, 271-72, 274, 280, 283, 367, 371, 372, 373.) Often, Plaintiff's mood was initially angry and irritated becoming more subdued during the session. (Tr. 274, 280, 283.) Otherwise, his mood was generally euthymic or neutral. (Tr. 253, 258, 261, 266, 268, 271-72, 354, 367, 371, 372, 373.) Plaintiff's affect was congruent with the topics discussed. (Tr. 253, 258, 367, 371, 372, 373.) Hegeman also noted that Plaintiff tended to shift away from difficult topics and unpleasant emotions, although this improved somewhat over the course of their sessions. (Tr. 253, 258, 261, 367, 371, 372, 373.)

         At one point, Plaintiff “ultimately commented that he needs to learn different ways of thinking about . . . [certain] issues because his anger becomes so intense and it is not helpful for him.” (Tr. 274.) Hegeman described this insight as “significant progress for . . . [Plaintiff] as historically he has always justified his anger as being completely appropriate.” (Tr. 274.) In another session, Hegeman noted that Plaintiff was “[s]pontaneously identifying unhelpful thoughts and attitudes, as well as coping strategies he has been using.” (Tr. 268.)

         Between mid-October 2012 and mid-February 2013, Plaintiff and his significant other attended couples therapy with Martina L. Rodgers, Ph.D., L.P., roughly every two weeks. (Tr. 259, 261, 264, 266, 269, 270, 272, 280, 282, 284; see Tr. 353.) Rodgers worked with the couple on communication and active listening skills. (Tr. 264, 266, 269, 273, 281; see Tr. 259, 262, 270, 285.) Rodgers encouraged Plaintiff and his significant other to take breaks when discussions turned heated and return to the topic after they had cooled down. (Tr. 285.) Plaintiff and his significant other frequently argued with each other during the sessions, interrupting one another. (Tr. 254, 262, 272, 280-81.) Rodgers gave Plaintiff and his significant other communications exercises to practice at home, but they did not do them. (Tr. 259, 261, 264, 266, 269, 270, 272, 280-81.) In February, Rodgers asked the couple to consider whether they wanted to stay together, and, towards the end of February, Plaintiff and his significant other decided to take a break from therapy. (Tr. 259, 262.)

         Similar to Hegeman, Rodgers noted that Plaintiff was casually dressed with appropriate hygiene and had a logical and coherent thought process. (Tr. 259-60, 262, 265, 267, 269, 270, 273, 281, 282, 285.) While Plaintiff's speech had a normal rate and rhythm, he frequently became irritated with his significant other, speaking intensely at times. (Tr. 259-60, 262, 265, 267, 269, 270, 273, 281, 282.)

         In March 2013, Plaintiff began participating in a research study using mindfulness and meditation to address anxiety. (See Tr. 265, 267.) Plaintiff's sessions with Hegeman were reduced to accommodate his participation in the study. (Tr. 265.) When Hegeman saw Plaintiff in April, Plaintiff reported that he greatly enjoyed participating in the study and noted significant improvement in his ability to function. (Tr. 258.) Plaintiff was handling his emotions better and had better communication and less conflict with his significant other. (Tr. 258.)

         Around the end of April, Plaintiff had an acute anxiety attack while participating in his meditation group, becoming “very upset by some of the discussion” and crying uncontrollably. (Tr. 257.) Plaintiff was seen in the emergency room and reported that if he had hydroxyzine with him he would have taken it because it usually helps him. ...


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