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Schneider v. Colvin

United States District Court, E.D. California

March 23, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SHEILA K. OBERTO, Magistrate Judge.


Plaintiff Donald Alan Schneider ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for Disability Insurance Benefits ("DIB") benefits pursuant to Title II of the Social Security Act. 42 U.S.C. ยง 405(g). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.[1]


Plaintiff filed an application for DIB on August 31, 2007, alleging disability beginning on August 31, 2007, due to Dysthymic Disorder, Posttraumatic Stress Disorder ("PTSD"), Personality Disorder, substance abuse, in remission, a pain disorder, left shoulder cuff impingement, and chronic neck and shoulder pain. Plaintiff has a 12th grade education and served on activity duty in the United States Marines from 1978 until 1984 when he was honorably discharged. (AR 574, 1182.) Plaintiff worked as a mail clerk for the Internal Revenue Service ("IRS") from 1991 to 2007, when he resigned due to what Plaintiff described as a hostile work environment and a director Plaintiff did not like. (AR 156, 587.)

A. Relevant Medical Background

Clinical psychiatrist A. A. Howsepian, M.D., Ph.D., began treating Plaintiff at the Veterans Administration Central California Health, Mental Health Clinic ("VA") in 2003. (AR 579, 812.) Plaintiff saw multiple medical professionals at the VA facility, the reports of whom are contained in his health summary records from the VA.

On August 29, 2007, Thomas J. O'Rourke, an addiction therapist at VA, noted Plaintiff was easily stressed, slow at tasks, and did not sleep well. (AR 245.) O'Rourke indicated Plaintiff was depressed, angry, irritable, explosive, dysphoric, anxious, and feeling hopeless. (AR 245.) Plaintiff indicated he and his wife were about to lose their home, and his wife was angry with him. (AR245.) Although O'Rourke and Plaintiff discussed multiple possible options for employment, O'Rourke noted Plaintiff was not suitable for any of them. (AR 245.)

On September 11, 2007, Dr. Howsepian drafted a letter to the Civil Service Retirement System ("CSRS") regarding Plaintiff's condition. (AR 244.)

[Plaintiff] has been under my outpatient psychiatric care at the [VA] since 7 July 2003. He is being treated with both psychotherapy and pharmacotherapy for depression and anxiety whose primary source has been employment (Internal Revenue Service) related stressors. His current primary diagnoses are Dysthmyic Disorder (with significant adjustment overlay), Anxiety Disorder NOS, Learning Disorder NOS, Pain Disorder, and Obstructive Sleep Apnea. He also has a history of Cannabis and Alcohol Dependence that have been in Full Sustained Remission. His current psychiatric medications include mirtazapine 7.5 mgs at bedtime, hydroxyzine 25 mgs at bedtime, venlafaxine SA 375 mgs every morning, buspirone 20 mgs tid, and modafanil 400 mgs every morning.
[Plaintiff's] psychiatric condition has worsened appreciably over the past 4 years, in spite of intensified efforts to treat him. He has attempted, on multiple occasions, unsuccessfully, to return to work. He is exquisitely sensitive to stress, exhibiting both somatic symptoms (tachycardia and hypertension) and myriad psychiatric symptoms in the face of occupational stressors (perceived repeated har[]assment resulting in a hostile work environment). [Plaintiff's] symptoms include the following: depression, anxiety, dysphoria, hopelessness, helplessness, anger, irritability, explosivity (with episodes of violent behavioral dyscontrol), psychomotor retardation, frustration, tearfulness, pessimism, fatigue, sleep disturbance, multiple pain complaints, numbness of left hand, and marital discord. On multiple occasions he has lost control of himself and has violently broken multiple items in his home.
The protracted exacerbation of [Plaintiff's] anxiety and depressive disorders are, in my professional opinion, clearly causally linked to stresses at the IRS caused by repeated instances of harassment resulting in a perceived hostile work environment

(AR 244.)

In January 2008, Plaintiff was seen by Steven C. Swanson, Ph.D., for a consultative psychiatric examination. (AR 387-93.) Dr. Swanson opined Plaintiff was

able to maintain concentration or relate appropriate to others in a work setting. He would be able to handle funds in his own best interests. He is expected to understand, carry out, and remember simple instructions. He is judged as able to respond appropriately to usual work situations, such as attendance, safety, and the like. Changes in routine would not be very problematic for him. There do not appear to be substantial restrictions in daily activities.

(AR 393.) J. Levinson, Ph.D., also reviewed Plaintiff's records in January 2008 and determined that Plaintiff's mental conditions caused him only mild limitation in the area of social functioning and in maintaining concentration, persistence, or pace. (AR 405.) He opined Plaintiff's mental status appeared to have normalized after he resigned from his position at the IRS. (AR 407.) Although Plaintiff continued to have some financial stressors, Dr. Levinson opined that Plaintiff did not have any evident functional limitations and his mental condition was "non-severe." (AR 407.)

On February 11, 2008, Dr. Howsepian noted Plaintiff had resumed "going to Temple, " and wanted to rebuild his relationship with God. (AR 801.) Plaintiff was angry that no one from the Temple had called him to "see how he was doing." (AR 801.) He noted he was appealing his social security claim, and he talked with Dr. Howsepian about "possible PTSD, " trauma of bombing in Lebanon, that his wife had lost her job, and that he had interviews that day and the next. (AR 801.) Plaintiff complained that he had no friends and he was not able to make them; he "entertained the idea that, perhaps, he himself is a barrier to this." (AR 801.) He had had surgery, he was no longer using a continuous positive airway pressure ("CPAP") machine, was sleeping well, and his facial appearance was "different." (AR 801.) Overall, Dr. Howsepian reported Plaintiff to be "resigned, somewhat depressed[, ] less angry, irritable, and anxious." (AR 801.)

On April 10, 2008, Plaintiff started mood disorder group therapy, which was led by Jack H. Papzian, Ph.D. (AR 779.) On April 29, 2008, Plaintiff was noted by Dr. Howsepian to be "distraught, frustrated, tired. No SI." (AR 769.) On June 9, 2008, Dr. Howsepian noted Plaintiff's mother had died, and he had arrived at her hospital too late to see her before she passed away which was very upsetting to Plaintiff. (AR 749.) Dr. Howsepian reiterated his "firm professional opinion" that Plaintiff could not return to work at the IRS. (AR 749.) Plaintiff noted an opening at VA in refrigeration maintenance, but he had no experience or skill in this area. (AR 749.) Plaintiff reported he had no income coming in, and he was at risk of losing his home. (AR 749.) Dr. Howsepian noted Plaintiff was tearful when talking about his mother's death, and he was frustrated and angry about his work and financial situation. (AR 749.) Dr. Howsepian noted a dysphoric restricted affect, and that Plaintiff appeared to have lost some weight. (AR 749.) He diagnosed Plaintiff with dysthymic disorder, PTSD, adjustment disorder with anxiety and depression, and a pain disorder. (AR 749.)

On June 10, 2008, Dr. Howsepian drafted another letter to the Disability, Reconsideration and Appeals Group of the United States Office of Personnel Management ("OPM") in response an April 2008 letter from OPM indicating Plaintiff was not disabled within the meaning of retirement law. (AR 745.) Dr. Howsepian's letter, in relevant part, explained that

[Plaintiff's] symptoms of depression, anxiety, irritability, dysphoria, explosivity (including behavior dyscontrol resulting in his overturning furniture and breaking things), his shutting down emotionally, his exquisite sensitivity to stress, his substantial elevation in his blood pressure (up to 180/100) as a result of stress and anxiety, and his having days when he scarcely gets out of bed certainly qualifies as a disabling, serious psychiatric disturbance with significant deterioration from a prior level of functioning that can clearly causally be traced to stressors at the IRS... I have written MULTIPLE letters to the IRS stating that, due to profound psychiatric reactions to stress in that context, Mr. Schneider is wholly and completely disabled from employment at that institution and, therefore, that he should be provided medical leave (which he has been provided, with multiple extensions)....

(AR 746.)

On July 29, 2008, Plaintiff again saw Dr. Howsepian who noted that Plaintiff was "profoundly dysphoric, tearful, on the verge of decompensating." (AR 727.) Dr. Howsepian reported that there was no "movement in any direction in his situation, except that he is now wholly out of money and on the verge of losing his home." Plaintiff reported his wife was out of work due to sciatica. Dr. Howsepian found Plaintiff to be "profoundly frustrated and hopeless, angry to the point of being rageful, " and at significant risk for further decompensation. (AR 727.)

On August 19, 2008, Plaintiff again saw Dr. Howsepian who noted that Plaintiff remained dysphoric, pessimistic, and saw no way out. (AR 722.) Plaintiff reported that he would lose his house, and his wife's situation had not improved. (AR 722.) Dr. Howsepian reported Plaintiff appeared angry, dysphoric, and pessimistic; Plaintiff denied any suicidal or homicidal ideation; and, although, there was no disorganization in thought, there were long periods of silence. (AR 722.) Plaintiff was noted to be upset, tearful, and felt no one cared about him. (AR 722.)

On September 29, 2008, Plaintiff was noted by Dr. Howsepian to be dysphoric, upset about his situation, and became especially angry when any discussion of his returning to work was broached, "claiming that he would be fired after he call[ed] in sick, [and he was] unable to work." (AR 714.) Plaintiff continued to hold out hope for disability, but the relationship with his wife remained strained. (AR 714.) Plaintiff reported he had missed his mortgage payment that month and believed he would lose his home. (AR 714.) Dr. Howsepian reported Plaintiff was "[d]ysphoric, angry, upset, depressed, hopeless, helpless. Repeatedly states that no one is helping him, veterans, that he has no options, that he is f***ed no matter what he does." (AR 714.)

On October 27, 2008, Plaintiff attended his group therapy session and appeared sad and resigned about his pending and apparent separation and divorce from his spouse. (AR 706.) Plaintiff was staying with a friend, and he interacted with his peers after the group. Plaintiff reported that he was in a deep depression about losing his home, and his attorney had informed him the statute of limitations had expired on his discrimination claim against the IRS. (AR 706.) Plaintiff was able to tolerate feedback from his peers "and responded in kind." (AR 706.) Plaintiff was reasonable and responsive with the group as well as appropriate and cooperative with the staff. (AR 707.)

On December 15, 2008, Plaintiff was again seen by Dr. Howsepian who noted that Plaintiff was relatively stable despite multiple stressors. (AR 684.) Plaintiff was in the process of divorcing his wife, his wife was taking the dogs that he loves, and Plaintiff was living with a gentleman in a senior living community and if anyone found out Plaintiff would be displaced. (AR 684.) Dr. Howsepian noted Plaintiff had no disorganization, and was "[l]ess angry, depressed, and on edge than I have seen him in quite a while." (AR 684.)

On January 21, 2009, Plaintiff reported living with a friend who was not charging him any rent, and in return Plaintiff was helping his friend in various ways. (AR 677.) Plaintiff reported going to AA meetings and "CD aftercare" at the VA. (AR 677.) Plaintiff had surgery scheduled for his shoulder; he was worried he might be displaced from his friend's house, and repeatedly asked why someone "does not have the courage to put him on disability." (AR 677.) Plaintiff expressed that he was willing to do what he needed to do to either "get back to work or show that he cannot." (AR 677.) Dr. Howsepian noted Plaintiff presented as angry, frustrated, and depressed. (AR 677.) Plaintiff showed no aggression towards his wife, had no disorganization of thought, and maintained fair eye contact. (AR 677.)

On February 2, 2009, Plaintiff participated in group therapy. (AR 675.) The therapy note indicates Plaintiff had to leave his current living situation with his friend, and he was now living with his younger brother who had addiction issues. (AR 675.) Plaintiff indicated he was having to sleep "in a roach-infested environ[ment]." (AR 675.)

On February 6, 2009, an orthopedic outpatient surgery note indicated that in discussing his shoulder surgery, Plaintiff became agitated and accusatory and stated he was forced to have the shoulder surgery because otherwise social security would "cut [him] off" for refusing. (AR 672.) His physician, Dr. Kwock, indicated he would perform the surgery, but Plaintiff did not "seem to be receptive, [and his] rather hostile demeanor continued." (AR 672.) Plaintiff's conversation with Dr. Kwock appeared to escalate and Plaintiff left the room "stating this is only a waste of his time." (AR 672.) It was noted that the consultation would not be rescheduled for the elective surgery, and that Plaintiff "would likely benefit from social work consult for housing/financial assistance during this time." (AR 672.)

Plaintiff was seen by therapist O'Rourke on February 23, 2009, who noted Plaintiff was angry about not having a bed in the VA homeless program and stated he was "going to have to go do something to get some help around here." (AR 656.) Upon exiting, Plaintiff slammed the door, walked away, and would not respond to several phone calls from O'Rourke. (AR 656.) When O'Rourke reached Plaintiff over the telephone, Plaintiff stated that he was going to drink some alcohol and that this "possibly would help him to get a bed in some way. He used obscenities and stated that staff did not care." (AR 656.) He was counseled to come to group therapy and discuss his concerns, but Plaintiff "expressed zero interest in this plan, " and he hung up on O'Rourke. (AR 656.)

On February 24, 2009, Plaintiff visited the Healthcare for Homeless Veterans Program ("HCHV") office seeking placement in a program bed. (AR 654.) The social worker noted he was angry he had not been placed in a bed upon his demand. (AR 654.) Plaintiff implied that if was not placed in a program bed he might hurt himself or "go out and drink, " but he specifically denied any suicidal or homicidal intentions when asked directly. (AR 654.) Plaintiff was described by the social worker as non-compliant with appointments, manipulative, and verbally aggressive when his demands were not satisfied. (AR 655.) Later in the afternoon, Plaintiff returned to the HCHV office on a walk-in basis and presented as "angry and verbally confrontive to the volunteer who was sitting at the desk, because [the] worker did not see him when he arrived." (AR 655.) Plaintiff was advised that he would be seen, but he would have to wait; before the worker could "get to him[, Plaintiff] threw his telephone cards and the referral information at the volunteer and stomped out the door, slamming it as he exited." (AR 655.)

On March 3, 2009, Plaintiff left a phone message for O'Rourke apologizing for his behavior on February 23. (AR 652.) Plaintiff stated he had been under stress and had gone to be with his sister for a week. (AR 652.) He had returned to Fresno and had obtained housing with someone he did not care to discuss. (AR 652.)

On March 4, 2009, Plaintiff returned to the HCHV program office to again inquire about possible housing. (AR 651.) He was described as much more reasonable during this interview. (AR 651.) He explained that he had been in counseling for anger in the past and he admitted he did not listen well and was not open to what was being taught. (AR 651.) He also reported he had been living in a van that he owns, and his only ...

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