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Hamel v. Berryhill

United States District Court, N.D. Illinois, Western Division

October 27, 2017

Timothy Shane Hamel Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston United States Magistrate Judge.

         Timothy Shane Hamel was in the Marines from 1988 until 1992, and spent seven months in combat in the First Gulf War. While there, as he would later tell a doctor, he saw “dead men, women & children” and “survived many IED, RPG, Mortar attacks.” R. 988. This experience led to post-traumatic stress disorder (“PTSD”), a condition he has suffered from, in varying degrees, since then. This ailment is the primary basis for claiming Social Security disability benefits now.

         This simple A-causes-B narrative is complicated by plaintiff's post-military work record. For many years, he was able to work full-time despite his PTSD, with his longest stint being a flight attendant for United Airlines. This job required him to work in close quarters and interact with diverse people. Plaintiff eventually quit this job because he was missing too many days. After working a series of other jobs, plaintiff applied for disability benefits from the Veterans Administration (“VA”). In early 2010, a VA doctor concluded that plaintiff was 100% disabled based on his flashbacks of “dead bodies [he] saw littering the streets in the Gulf War, ” his hypervigilance, and his poor concentration. R. 305. Plaintiff began receiving a monthly payment of $2, 673. R. 298.

         After this time, which was his low point, plaintiff began to improve somewhat. Various theories, discussed below, have been offered to explain the improvement. In August 2013, over three years after the VA's determination, plaintiff applied for Social Security disability benefits, alleging that mental and physical problems still prevented him from working. One of his main arguments for being found disabled by the SSA was that the VA had already done so. After two hearings, an administrative law judge (“ALJ”) found that plaintiff could work full-time subject to restrictions designed to accommodate his PTSD. Disagreeing with this decision, plaintiff filed this appeal. Everyone agrees that plaintiff has PTSD and that it causes problems from time to time. The nub of the dispute is how much plaintiff improved after 2010 and specifically whether this improvement would last if plaintiff went back to work. Numerous medical experts over the course of this case have grappled with this core question.

         BACKGROUND

         At the first hearing, held in early 2015, plaintiff's attorney gave an opening statement laying out plaintiff's theories and also indirectly revealing a few weak points in his case. Counsel began by stating that it was “notable” that the VA “deemed that this gentleman was entitled to service-connected disability.” R. 80. Although acknowledging that the VA “utilizes a different standard, ” counsel argued that the VA doctors were “uniquely suited and trained to deal with” PTSD. Id. Counsel then offered a second cause for plaintiff's PTSD, which was the 9/11 terrorist attack. Counsel explained as follows:

[T]here was [a] secondary exacerbating factor that did emerge subsequent, when the Claimant did attempt to rejoin society among other things. He attempted to be a flight attendant, and he did that for several years. In this case he had the unfortunate set of coincidences whereby he requested a transfer off of a route that he'd been on for eight years, recently getting that transfer, and then very shortly thereafter September 11th, 2001, the very route that he'd been on for many years, was the route that was the second plane that hit the Twin Towers. We don't offer that gratuitously. We don't offer that for anything other than that that's something that he has noted and he has what seems to be some substantial amount of survivor's guilt as a result of.

R. 81. Counsel explained that, after working a series of jobs, plaintiff filed for VA benefits and then engaged in “a regular therapy regime.” R. 82. Counsel offered several other “exacerbating factors, ” including plaintiff's divorce from his first wife and “substantial amounts of domestic strife” with his second wife and her daughter. Counsel finally offered yet another factor, stating that the flashbacks had “become more pronounced in recent months with the protracted increase in the strife and violence that we see in the Middle East.” R. 83. Overall, counsel described the 20-year period as a “pretty clear trajectory, ” a story “that makes a lot of sense.”[2]

         Dr. Kathleen O'Brien, a clinical psychologist, then testified as the impartial medical expert. R. 190. She stated that plaintiff, after receiving VA benefits, “did struggle a good deal with the PTSD” for four or five months, but that his mental status eventually improved by August 2010. R. 85. She stated that he had “some issues of non-compliance with treatment, ” but overall had only mild limitations in activities of daily living, moderate limitations in social functioning, and mild limitations in concentration. Id. Plaintiff's counsel cross-examined Dr. O'Brien at some length. Dr. O'Brien stated that she had worked with war veterans who had PTSD and acknowledged that symptoms can wax and wane. She observed that, even though plaintiff had some family difficulties in the last two years, she did not see anything that “would suggest that the decompensation would occur simply because he was in a setting where he was doing simple tasks.” R. 87. Counsel asked what was “missing” to find plaintiff disabled, and Dr. O'Brien stated as follows:

We should expect to see that he would have participated in an intense kind of group therapy, which is in many ways the gold standard of treatment for PTSD. He was enrolled in March 2010 in such group. He attended once and then stopped attending because he reported that he was working. There's no evidence that he ever picked up again and did this. He could be in an intensive outpatient program where he worked with other veterans again on issues [] of readjustment into the environment. I would expect to see much more intensive records of ongoing contact that was addressing the severity that you're alluding to.

R.87.[3]

         Plaintiff then testified. The ALJ asked why he stopped working. Plaintiff answered as follows: “I was finding it hard to deal with certain situations. As a flight attendant I stopped because I just couldn't deal with the fact that, you know, I just lost my friends and it was just very irritating to me.” R. 89. However, the ALJ then noted that plaintiff only quit the flight attendant job in 2003 (i.e. he continued to work after the 9/11 incident), and plaintiff responded vaguely as follows: “Yes, but if you need to go back and reflect, I am not hirable by United Airlines due to my attendance.” R. 90. Plaintiff then described his jobs after United Airlines. One was an assembly line job, but attendance “was a big problem because [he] would [] get really sick, ” and he also had “battles” with a coworker. Plaintiff stated that he would “get chest pains” and “throw up” and that he had “bouts of depression.” R. 91. Another job was as a delivery driver. This job was short-lived because plaintiff and the manager were “butting heads quite a bit.” Id. Plaintiff attributed these problems to the fact that “[t]here's still so much of the Marine in [him] that it's hard to make that transition between military and civilian.” R. 92.

         The ALJ then asked plaintiff to respond to the assertion that his records show that “things are pretty stable.” R. 94. Plaintiff answered that he still had “day-to-day battles” and only left the house two to three times a week and those trips were “basically just to run to the grocery store.” R. 94-95. The ALJ asked why he “didn't always go” to therapy, and plaintiff stated that he was “making every excuse not to go.” R. 96. Asked what triggered PTSD symptoms, he identified the smell of oil from road construction, fireworks, and crowds. R. 97.

         Plaintiff's wife testified that she and plaintiff had been married since July 6, 2002 and that things seemed “good in the beginning.” Plaintiff was then working for United Airlines and would call in sick each month because of fatigue and vomiting which she thought was from acid reflux. She stated that he sometimes yelled. R. 104 (“When he's frustrated or having mood swings [] he'll just yell, and he's angry, and it kind of just doesn't matter what you do, [you] don't want to be in the line of fire.”). She described an incident when he got in a yelling match in the checkout line at a Walmart while shopping during the Christmas season. When asked why plaintiff did not always go to therapy, she referred vaguely to “pivotal points in [their] marriage” which they did not “like to talk about much.” R. 107. She stated that plaintiff sometimes was irritated with therapists but noted that he had been seeing a therapist named Mike since 2010 and that they had “quite a strong bond.” R. 109.

         Apparently not satisfied with the first hearing, the ALJ called a second one, which took place six months later. Plaintiff was again represented by counsel, albeit a different attorney. This attorney also made an opening statement, stating that the “theory here remains that [plaintiff] is totally and permanently disabled due to [PTSD] related to his time in combat.” R. 46. Counsel again emphasized the VA's earlier decision. Counsel anticipated that his client might come off as “very pleasant, very articulate” and could “explain things well” but argued that, like many people with PTSD, he has “his triggers.” Id. Counsel acknowledged that Dr. O'Brien had opined that plaintiff improved after 2010. Id. (“I understand some of the testimony from the experts at the last hearing that there was a notion of this improvement and that things were going relatively well for him.”). Counsel then offered the following explanation:

Your Honor, our position is that [the improvement is] because Mr. Hamel is no longer in a situation where he's in unfamiliar like workplace dealing with stressors. He's been able to confine himself as he needs to which is almost entirely at home. He doesn't maintain hypervigilance. He'll explain today that he has bells affixed to the doorknobs in the house so he can hear if someone is coming in. He does still have great struggles with startle response and whether he's awake or sleeping, if someone comes in and he's not expected it, he's bound to try to strike someone. He's securing his perimeter when he's at home. [] But really what this comes [to] is his ability to sustain in the workplace setting. Even with minimal stress, we believe that he would be triggered in a way that he could not be vocationally reliable without having interference from his symptoms.

R. 46-47.

         Dr. Michael Cremerius testified as an impartial medical expert. After reviewing the evidence, he opined that plaintiff could work certain jobs. As discussed below, plaintiff's counsel cross-examined Dr. Cremerius at some length and tried to get him to agree that plaintiff would decompensate if he returned to full-time work.[4]

         On January 15, 2016, the ALJ found that plaintiff had the residual functional capacity (“RFC”) to do light work subject to certain restrictions, including the following: “The claimant could understand, remember, and carry out simple instructions and perform simple tasks and occasionally interact with the public, co-workers, and supervisors.” R. 27.

         DISCUSSION

         Plaintiff raises four major arguments for remand. The first two are the most extensive while the final two are briefer, focusing on ...


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