United States District Court, D. New Hampshire
ORDER No. 2014 DNH 201.
JOSEPH A. DiCLERICO, Jr., District Judge.
Brian Caswell seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of the Social Security Administration, denying his application for disability insurance benefits. In support of reversing the decision, Caswell contends that the Administrative Law Judge ("ALJ") failed to identify sleep apnea and obesity as limiting impairments and improperly ignored the opinions of treating medical sources, which resulted in errors in the residual functional capacity assessment. The Acting Commissioner moves to affirm the decision.
Standard of Review
In reviewing the final decision of the Acting Commissioner in a social security case, the court "is limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence." Nguyen v. Chater , 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart , 276 F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ's factual findings as long as they are supported by substantial evidence. § 405(g). "Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Astralis Condo. Ass'n v. Sec'y Dep't of Housing & Urban Dev. , 620 F.3d 62, 66 (1st Cir. 2010). Substantial evidence, however, "does not approach the preponderance-of-the-evidence standard normally found in civil cases." Truczinskas v. Dir., Office of Workers' Compensation Programs , 699 F.3d 672, 677 (1st Cir. 2012).
Brian Caswell applied for disability insurance benefits and supplemental security income on March 4, 2011, alleging that he had been disabled since September 30, 2009. He was thirty-four years old at the time he alleged his disability began, and he had a sixth-grade education. His past work experience included jobs as a window cleaner, paper loader, and a production line worker.
A. Medical History
Caswell's medical history begins in September of 2010 when he was treated at a hospital emergency room for chest tightness, shortness of breath, and coughing. Caswell reported smoking one to two packs of cigarettes a day and drinking thirty to sixty beers per week. He denied illegal drug use. Examination and testing showed bronchitis but no acute abnormalities.
In October of 2010, Caswell met with Nurse Practitioner Katherine Furber at Manchester Community Health Center for chest pains and shortness of breath. Caswell told N.P. Furber that he drank eighteen beers several times a week, to get drunk, and smoked two packs of cigarettes a day. N.P. Furber noted that Caswell was wheezing, recommended a pulmonary exam, and advised Caswell to stop smoking and drinking. A pulmonary exam done in December of 2010 showed mild to moderate chronic pulmonary obstructive disorder ("COPD"). Caswell continued to report breathing problems and coughing.
N.P. Furber referred Caswell to Dr. Peggy Simon at Elliott Pulmonary Medicine. Caswell met with Dr. Simon on February 21, 2011, and reported respiratory symptoms, his COPD diagnosis, that he lived with pets, that he smoked more than a pack of cigarettes and two joints of marijuana daily, and that he used cocaine once a month. Dr. Simon found that Caswell had normal respiratory effort and no musculoskeletal or neurological abnormalities. Dr. Simon started Caswell on allergy and bronchial medications.
In August and September of 2011, Caswell had sleep studies done to address his complaints of snoring, waking because of shortness of breath, and daytime sleepiness. Jeanetta C. Rains, Ph.D., signed the paperwork from the Center for Sleep Evaluation that noted that Caswell was obese and diagnosed central and obstructive sleep apnea. Dr. Gregory Fanaras recommended a CPAP machine, weight loss, proper sleep hygiene, and avoiding alcohol.
On September 2, 2011, N.P. Furber told Caswell to go to the emergency room when he reported suicidal thoughts. He also told N.P. Furber that he was drinking more, using a lot of crack cocaine, and was feeling angry. At the emergency room, Caswell was oriented and in no acute distress but was depressed and was expressing suicidal thoughts. He was referred to the Mental Health Center of Greater Manchester.
Caswell began treatment at the Mental Health Center on October 11, 2011. Caswell reported, among other things, aggressive and assaultive behavior, paranoia, destructive behavior, panic attacks, and heavy substance abuse. He said he was then using alcohol, cigarettes, Percocet, and crack cocaine. He said that when drunk he abused his girlfriend, which included hitting, choking, and threatening her with a knife. He was fired from his last job because he directed obscenities at his boss when he was told not to smoke while working. Caswell was diagnosed with depressive disorder, not otherwise specified, and personality disorder, not otherwise specified, and with physical dependence on cocaine, cannabis, and alcohol. The intake clinician recommended substance abuse therapy along with case management and psychiatric services.
Caswell began counseling sessions with Rebecca Farver, APRN, and Jeff Stratton, LCHMC. By January 3, 2012, Caswell told Farver that he was feeling better after decreasing alcohol and crack cocaine use. On January 31, Stratton described Caswell as irritable, agitated, and "snappy" because of his continued alcohol and crack cocaine use. In February, Caswell was still drinking and using crack cocaine although he claimed to be drinking less. Despite mild improvement in February, Caswell was again drinking heavily by May and was having related personal problems. He reported sobriety in June followed by a drinking binge. In July, Caswell reported feeling better because he was drinking less. After a fight in August that occurred while Caswell was intoxicated, he was sober for several weeks and had no angry outbursts while sober.
B. Opinion Evidence
A consultative psychologist, Dr. Janet Levenson, evaluated Caswell for the New Hampshire Disability Determination Service on May 11, 2011. Caswell told Dr. Levenson that he had smoked marijuana just before their appointment, that he smoked marijuana several times each day, that he drank eighteen beers every other day, and that he used crack cocaine. He also said that he was very abusive when he was drunk, that he had been charged with domestic violence, and that he had spent time in jail for breaking a "no contact" order. He reported that his life was focused on obtaining drugs and beer.
In Dr. Levenson's opinion, Caswell's substance abuse and depression about his situation prevented him from attending to basic life activities and from interacting with people in a productive and appropriate way. Caswell's substance abuse interfered with his understanding and memory but did not preclude him from maintaining attention and completing tasks. Dr. Levenson diagnosed tobacco, alcohol, marijuana, and cocaine dependence; adjustment disorder with depressed mood and anxiety; and antisocial personality disorder. Levenson expressed "great doubt" about Caswell's ability to tolerate treatment.
On May 16, 2011, state agency psychologist, Dr. Laura Landerman, reviewed Caswell's records and concluded that Caswell had severe affective, personality, and substance abuse disorders that were not expected to last for twelve months if Caswell obtained treatment for substance abuse. With substance abuse, however, Caswell had moderate limitations in activities of daily living and marked limitations in social functioning and concentration, ...