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Ereina Covington v. Michael J. Astrue

April 22, 2010


The opinion of the court was delivered by: Baylson, J.


Plaintiff, Ereina Covington, seeks judicial review of the decision by the Commissioner of the Social Security Administration (the "Commissioner") denying her application for Social Security Disability Insurance Benefits ("SSDI") under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 1381-83(c) (2000). Jurisdiction is established under § 1383(c)(3), which incorporates § 405(g) of the Act. 42 U.S.C. §§ 405(g). After careful and independent consideration of the matter, and for the following reasons, the Court will grant Covington's request for review, vacate the decision of the Administrative Law Judge (the "ALJ"), and remand for further proceedings.

I. Factual and Procedural History

Covington applied for social security and disability benefits on April 3, 2007. R. 23.

Born on September 15, 1966, Covington was forty years old on March 6, 2007, the onset date of her alleged impairment, and forty-two years old at the time of the administrative hearing, defining her as a "younger individual," pursuant to 20 C.F.R. § 404.1563. R. 18. Covington was placed in special education programs at school until she dropped out in the tenth grade, returning to finish her high school education at age 26. R. 133, 165, 209, 124, 133, 214. She then attended two semesters at the Business Institute of Philadelphia, but dropped out due to sickle cell anemia.

R. 133, 214. Covington communicates in English. R. 18. She and Michael Clemens, her second husband, have legal custody of her 3-, 5-, and 7-year-old grandchildren, and lives with her husband; Covington's grandchildren; Covington's 19-year-old son; and Clemens's sons, age 10 and 14. R. 26-7, 28-29, 30, 43-4.

Covington's prior work experience was for the New Jersey Department of Motor Vehicles ("NJ DMV"), where she was a clerk for eight years. R. 15-18, 46, 129, 199. Covington reported in the Function Report submitted with her SSDI application that her employer was not aware of her anxiety or learning disorders until the NJ DMV audited Covington's section and discovered that Covington was responsible for "all of the filing errors." R. 147. Covington experienced her first anxiety attack at that time and, in 2005, her employer sent her to an inpatient treatment facility for two months as a result of stress and depression. Id.; see also R. 25-26; 209. Her employer tried to provide her with job coach upon her return, but Covington's anxiety persisted and it was suggested to her that she resign before being terminated. Id. Her last date insured for the purpose of this application is December 31, 2012. R. 126.

Covington alleges disability due to multiple severe impairments including anxiety, panic disorder without agoraphobia, major depression, impaired intellectual functioning, and learning disorder, as well as obesity and degenerative changes of the first metatarsophalangeal joint of the right foot.*fn1 R. 199-200, 208-20, 247, 252, 255, 261-64, 273-74, 281-95, 349-58.

A. Medical Evidence of Covington's Mental Impairments

On January 21, 2006, Covington underwent a psychological evaluation by Joseph Wieliczko, Psy.D., of the Trenton Division of Vocational Rehabilitation Services (DVRS).*fn2 R. 208-13. Covington reported to Dr. Wieliczko that she sought DVR services for "help with [her] learning disability." R. 208. She related that she "had reading and spelling difficulties all her life;" that she had been placed in special education classes from third grade throughout the end of her schooling; and that her reading difficulties interfered with her abilities to "do her job at work, do paperwork at home, read[] street signs and every other task requiring reading." R. 208-10. She told the evaluator that she had panic attacks every couple of weeks, which often arose out of her inability to "comprehend[.]" R. 210.

Dr. Wieliczko assessed Covington's reading and spelling levels at a third grade level and her arithmetic at a fifth grade level using the Wide Range Achievement Test III ("WRAT-III").

R. 208, 211. Weschsler Adult Intelligence Scale III ("WAIS-R") testing measured Covington with a full scale I.Q. of 72, a verbal I.Q. of 71, and a performance I.Q. of 78. R. 210-11. Dr. Wieliczko's diagnostic impressions included findings of intellectual functioning in the borderline range, learning disorder NOS, and anxiety disorder. R. 212. Dr. Wieliczko recommended that Covington seek therapy for management of the "anxiety, anger, and stress" related to her "low academic achievement levels," and that she not pursue work which would "emphasize reading and spelling skills," but would benefit from guidance as to appropriate work R. 212.

A March 17, 2006 DVRS psychological evaluation by Perry Shaw, M.D., also identified "problems with thought processing" and stated that "it would appear that any short term help in reading would probably not prove significantly helpful[,]" given that Covington has not made progress up until this time. R. 215. Dr. Shaw echoed Dr. Wieliczko's findings regarding Covington's need to find "more appropriate work" due to "cognitive impairment." R. 215. A DVRS Individualized Plan for Employment, issued on March 18, 2006, identified "data entry clerk" as an "employment outcome" for Covington. R. 161. However, the report stated that Covington was "eligible for vocational rehabilitation services because [she] has a disability, which limits [her] ability to work [and that she would] need vocational rehabilitation services to achieve [this] employment outcome." R. 161.

A state consultative examiner, Mark Wagner, Ph.D., evaluated Covington on July 6, 2007. R. 216-23. Dr. Wagner reported Covington's mental health history as "rather vague," but diagnosed her with Panic Disorder without Agoraphobia and Major Depressive Disorder. R. 217, 219. Dr. Wagner also observed that Covington's abstract reasoning skills and range of information were somewhat restricted. R. 218-19. Dr. Wagner found Covington to have marked deficiencies in the ability to understand, remember, and carry out detailed instructions and moderate deficiencies in every area of social functioning. R. 222. Dr. Wagner concluded by stating that Covington was not able to "manage benefits in [her] own best interest" and "need[ed] support of others." R. 223.

The state agency psychological consultant, John Chiampi, Ph.D., completed a Psychiatric Review Technique ("PRT") Report on July 11, 2007. R. 228-41. The limitations assessed by Dr. Chiampi in the Mental Residual Functional Capacity ("RFC") Assessment mirrored those identified by Dr. Wagner, but added moderate limitations in the ability to travel. R. 225. Dr. Chiampi's diagnoses were also consistent with Dr. Wagner's, but additionally identified Covington as having a medically determinable impairment of "borderline intellectual functioning." R. 232. Dr. Chiampi concluded that Covington "is able to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from her impairments." R. 227.*fn1

B. Social Security Hearing

The Social Security Administration denied Covington's application on July 11, 2007, and Covington timely filed a request for a hearing by an ALJ. R. 23. ALJ Suanne Strauss held a hearing on November 25, 2008. R. 21-50.

At the hearing, Covington testified that she had previously filed for disability retirement with the State of New Jersey, which was denied because her supervisor had already slated her tobe fired when Covington resigned. R. 25. Covington testified to problems with depression, suicidal thoughts, lack of concentration, and racing thoughts. R. 34-35. Covington described in detail the panic attacks experienced at the NJ DMV. R. 29-30, 37, 38-39. She stated, I would have racing thoughts, and then when try to get it together, then I go into a panic attack. And I never knew what my problem was, and so I just took it as . . . I'm a single parent [prior to a second marriage at the end of 2005]. I'm doing a lot. And then it got worse, and as I went into the working field, I was trying to cope. I had a co-worker there . . . and she knew I had a learning disability. And she knew something was wrong with me, so she helped me. That's how I lasted so long on my job, but it was days where I couldn't even go to work. That's when I would go into my anxiety. . . . And then when I would hear voices, and nobody understood me. And I was trying to talk it out and couldn't. But they would call me crazy, and . . . I didn't know what to do. And then I couldn't breathe, and when I couldn't breathe, I was trying to tell [my co-worker] what was wrong with me. And she couldn't understand, so she took me home.

R. 29-30.

Covington also testified that her panic attacks sometimes require her to seek refuge while in public, by going into the "fetal position" in a public bathroom. R. 29-30, 37. She stated that she tried to secure new employment as a bus driver, but "panicked behind the wheel at a school bus." R. 38-39. She also testified to hearing "voices," but acknowledged that she has not been placed on antipsychotic medication, although her physician has prescribed Xanax and Remeron, as well as medication to aid in sleeping. R. 32-33; 35.

Covington's husband Michael Clemens testified about Covington's depression and panic disorder, stating that on "several occasions" he has had to take her to a "private place" when they are in public, so she recover by going into a fetal position. R. 40-43. Clemens testified that Covington participates with him in cooking for and care of the children, but requires his direction. R. 43-44. Clemens portrayed his wife's mental health issues as tied to events in her distant past that she needs to get "off her chest," and noted that she "finds comfort in the people that she's talking to," meaning, presumably, her counselors. R. 42, 44-45.

Finally, the ALJ heard from the vocational expert, Daniel Rapucci. The vocational expert identified Covington's position at the NJ DMV as encompassing the work of general, data, and information clerks, as defined by the Department of Labor's Dictionary of Occupational Titles ("DOT"), which each require a minimum of grades five to seven. R. 46. See DOT code 209.562-010; DOT code 209.587-010; DOT 237.367-022. The ALJ then presented a hypothetical to the expert, inquiring whether an individual with the nonextertional limitations described in Dr. Wagner's report would be able to perform unskilled work. R. 46. The expert answered, "yes." Id. When asked by the ALJ whether Covington could perform unskilled work based on the limitations defined by Dr. Kron, the expert stated "absolutely not." R. 47. In response to questions from Covington's attorney, the expert testified that Covington's work would be affected by panic attacks as Covington has described them and that her reading disability as assessed by the DVRS would have "impacted her ability" to perform past work. Id.

C. ALJ's Opinion

The ALJ denied Covington's claim in a written decision of January 8, 2009, holding that Covington is not disabled under the Act. R.13-20. At steps one and two, the ALJ determined Covington had not engaged in any substantial gainful activity since her onset date and suffered from severe impairments including major depressive disorder, learning disorder, and panic disorder. R. 15.

At step three, the ALJ found Covington to have "mild limitations in performing activities in daily living, moderate limitations in social functioning, moderate limitations in concentration and has had one decompensation" in 2005. R. 16. The ALJ did not find Covington's impairments to meet or medically equal one of the Listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. R. 16, including Listing 12.05C.*fn1

In assessing Covington's RFC, the ALJ noted that Covington testified about "mental health problems secondary to job stress." R. 17. The ALJ found the medical evidence to show that Covington had "work stress and stress from her teenage son" that required hospitalization in 2005, as well as "intensive outpatient treatment." Id. Nevertheless, the ALJ found that "after this one episode, there is little evidence that [Covington] is unable to perform all work activity." Id.

In coming to this conclusion, the ALJ credited Clemens's testimony, but declined to credit Covington's own testimony regarding the severity of her symptoms or to the extent her testimony contradicted the ALJ's RFC assessment. R. 17. In her credibility determination, the ALJ relied on (a) Covington's testimony that she had not been prescribed anti-psychotic medication, despite stating that she heard voices; (b) the ALJ's interpretation of a statement by the vocational expert that Covington would not have been able to sustain her past work at the assessed reading level; and (c) the suggestion by DVRS that was Covington capable of performing data entry work, a career path the ALJ found "incompatible with her allegations of borderline intelligence and a near total inability to read." R. 18. The ALJ concluded that "there is little evidence that [Covington] is unable to perform all work activity," pointing to (a) her role in caring for her home and the children, (b) a foot injury sustained while dancing, and (c) her ability to make all scheduled mental health appointments. R. 16-18. The ALJ found that Covington has the residual functional capacity ("RFC") to perform a "full range of unskilled work," despite her "borderline I.Q. scores and an inability to read." R. 18.

The ALJ additionally found Covington to have "at least a high school education" and the ability to communicate in English, but did not mention Covington's placement in special education classes. R. 18.

At step five, the ALJ determined that Covington could not perform her past relevant work because it was "light and sedentary, semiskilled[.]" R. 18. The ALJ relied on the testimony of the vocational expert to find that jobs exist in significant numbers in the national economy for an individual with Covington's age, education, work experience, and RFC. R. 19. The ALJ determined the testimony of the vocational expert to be "consistent with the information contained in the [DOT]." R. 19. The ALJ concluded that considering Covington's age, education, work experience, and RFC, Covington is capable of making a successful adjustment to other work that exists in significant numbers in the national economy and found a finding of "not disabled" to be appropriate pursuant to the Act. R. 19.

Covington timely requested, but was denied, review by the Appeals Council, making the ALJ's decision final on March 11, 2010. R. 1-5, 8-9, 168-170. On May 18, 2010, Covington filed this action requesting review of the denial ...

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