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Marbury v. Astrue

August 12, 2010


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronically Filed



Plaintiff, Thomas Marbury, Jr., ("Marbury") brings this action pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial review of the final determination of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI respectively of the Social Security Act ("Act"). 42 U.S.C. §§ 1381-1383f, §§ 401-434. The parties have filed cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56, and the record has been developed at the administrative level. For the reasons that follow, the decision of the Commissioner will be affirmed.


Marbury protectively applied for SSI and DIB benefits on December 5, 2005. Record of Marbury v. Astrue ("R.") 15. Plaintiff initially asserted an onset date of December 31, 2001, but later amended the date to December 5, 2005. R. 656-57. Marbury's last date insured for DIB was December 31, 2006. R. 34.

The initial application was administratively denied and Marbury filed a timely response requesting an administrative hearing. On June 19, 2007, a hearing was held before Administrative Law Judge Douglas Cohen ("ALJ Cohen"). R. 646-657. Marbury, who was represented by counsel, appeared and testified. Id. On July 7, 2007, ALJ Cohen issued a determination that was partially favorable to Marbury, finding that there was a limited period following his date last insured during which Marbury was disabled due to severe physical impairments that limited him to sedentary work. R. 42-46. ALJ Cohen found that Marbury's mental impairments were "non-severe". R. 41. In an Amended Decision dated August 20, 2007, ALJ Cohen clarified that since Marbury was determined to be disabled by physical impairments only after his last date insured for DIB, only SSI benefits would be available. R. 34.

Marbury appealed ALJ Cohen's decision to the Appeals Council contesting the onset date assigned to his physical disabilities. R. 72. The Appeals Council granted Marbury's request for review and vacated ALJ Cohen's decision. R. 69. This case was remanded as "it was not clear from the record, why the claimant was limited to sedentary work." R. 69.

On July 1, 2008, a hearing was held before ALJ William E. Kenworthy ("ALJ"). R. 642. Marbury was not present at the hearing due to a recent hospitalization. R. 642. Marbury's counsel appeared and in light of Marbury's recent testimony at the hearing before ALJ Cohen, the hearing proceeded without objection. R. 663. Phillip Balk, M.D., an independent medical expert, and Charles M. Cohen, Ph.D., an impartial vocational expert testified. R. 15. ALJ Kenworthy listened to Marbury's prior testimony in front of ALJ Cohen. R. 15. In a decision dated July 2, 2008, ALJ Kenworthy determined that Marbury was not "disabled" within the meaning of the Act because his physical impairments did not prevent him returning to his past relevant work as a cleaner and custodian. R. 21, 39-46.

The Appeals Council denied Marbury's request for review on January 29, 2009, thereby making the ALJ's decision the final decision of the Commissioner. R. 6-8. Marbury commenced the present action on March 10, 2009, seeking judicial review of the Commissioner's decision. Doc. No. 1. Marbury contests the ALJ's finding that his mental health impairment were not severe and does not challenge the ALJ's decision regarding his physical impairments. Doc. No. 11. Therefore, this opinion essentially will focus on Marbury's mental impairments.


Marbury was 61 years of age at the time of the hearing before ALJ Kenworthy. R. 106. He completed the tenth grade and is able to read and write English. R. 647. From 1992 until December 13, 2001, when he took early retirement, Marbury worked as a custodian at a local university. R. 106, 112. The documentary record indicates that Marbury suffers from multiple mental and physical impairments. In his claim for benefits, Marbury submitted evidence of physical impairments including, leg pain, diabetes mellitus, obesity, mild carpal tunnel and hypertension and claimed to be suffering from mental impairments. R. 667-68.

The first record of Marbury's mental health impairment is in Dr. Thomas Painter's treatment notes from November 15, 2002. R. 251. Dr. Painter saw Marbury as his primary care physician at the Veterans Administration. Dr. Painter noted: "I believe he does have an element of anxiety/depression and I plan to treat him with Celexa." R. 251.

The first medical evidence of mental health issues after the alleged onset date is January 10, 2006, when Marbury complained of trouble sleeping and "feeling depressed". R. 161. Dr. Painter wrote on June 20, 2006, that "the patient returned today to follow up on his diabetes, hypertension and with a new complaint of depression. He has been depressed for about two months. He denies any anxiety, but feels general sense of fatigue and difficulty sleeping. . . . This patient is doing generally well today. His lungs are clear. He is interested in psychological counseling for his depression." R. 341-42.

After the June 20, 2006, appointment Dr. Painter referred Marbury to the Western Psychiatric Institute and Clinic ("WPIC"). Marbury initially was evaluated by a social worker at WPIC who noted that he had no past psychiatric history; his cognitive function was intact; his insight was good; and he was cooperative. R. 376. Marbury was assessed with a Global Assessment of Functioning ("GAF") score of 61.*fn1 R. 376. A score of 61 falls in the "mild symptoms" range, where the individual is "generally functioning pretty well." DSM IV-TR at 34.

On July 27, 2006, Marbury underwent a psychiatric evaluation with WPIC psychiatrist, Edward Friedman, M.D. R. 373. Dr. Friedman noted that Marbury reported feeling depressed and "state[d] he feels helpless. He attributes his problems to his financial situation. He reports he retired too early." Id. Following the evaluation, Dr. Friedman diagnosed Marbury with "major depressive disorder; single episode; mild." Id.

On October 16, 2006, Marbury met with Philip Buttenfield, a licensed social worker at WPIC. R. 363. Mr. Buttenfield also noted that Marbury's depression stemmed from financial difficulties. Id. Mr. Buttenfield noted that Marbury "describe[d] his financial problems as the sole contributing factor to his current depression." R. 365. Marbury expressed that he would attempt to "set some limits on his daughter, who has prevailed upon him to provide day care for her son for the past couple of years, so that he can go out and find some work." R. 362. Marbury was "taken to make an appointment to see a psychiatrist [for] medical evaluation. He will prevail upon his PCP to supply medications in the interim." R. 362.

On November 7, 2006, Marbury saw Dr. Julie Garbutt, a WPIC psychiatrist. R. 356. Dr. Garbutt noted that although Marbury reported a history of depression over the last year, including sad mood, poor sleep, poor energy and concentration, diminished interest and feelings of anxiety or agitation, "he has not had antidepressant therapy previously and no other psychiatric treatment" besides recently beginning therapy at Bellefield Clinic. R. 359. Marbury was diagnosed with major depression, single episode, mild. Id. Dr. Garbutt prescribed 100 mg. of Trazodone for sleep issues and 100 mg. of Zoloft for depression. Id.

On November 28, 2006, Marbury met with Mr. Buttenfield again and reported improved sleep since beginning medication and that he was "pursuing other gainful employment." R. 355. Later that same day Marbury saw Dr. Garbutt for a medication management checkup. Marbury reported improved sleep without medication side effects, but indicated only minimal improvement in mood. R. 355. After questioning Marbury about his compliance with the prescription, Dr. Garbutt instructed Marbury to increase his Zoloft to 100mg daily, rather than the 50mg he had been taking. R. 356. Dr. Garbutt also noted that Marbury continued to watch his three year old grandson. Id. His memory was intact, thought form was logical. Marbury's "cognitive functions appeared to be at baseline and without existing deficits." Id. His insight and judgment were good. Id. Marbury's GAF score as of October 16, 2006 was 61. R. 358.

Dr. Garbutt saw Marbury again on April 2, 2007, at which time Marbury reported "sustained mood improvement" and that he "thinks he is nearly back to baseline." R. 349. Dr. Garbutt did not change Marbury's medication regimen and noted she intended to follow-up in three months. R. 351.

In a letter also dated April 2, 2007, Dr. Painter wrote, "Mr. Marbury has multiple medical problems including diabetes, poorly controlled hypertension, and most importantly depression and anxiety. He is seeing psychiatrist Dr. Garber (sic) who would be able to explain the disability related to his anxiety and depression but this seems to be the limiting factor in his ability to work." R. 313. Dr. Painter identified Marbury's symptoms as including fatigue; general malaise; extremity pain and numbness; difficulty thinking/concentrating; and psychological problems. R. 314.

Following his April 2, 2007, appointment, Marbury did not return to see Dr. Garbutt until March 10, 2008, at which time he reported good stability of mood and good sleep. R. 499. Dr. Garbutt noted he had been compliant with his medications and was regularly seeing a case manager instead of attending therapy. R. 499.

Marbury began contact with Melissa Carr, the case manager assigned to follow him from WPIC, in January 11, 2008. R. 508. Ms. Carr's case management progress notes include Marbury's verbal reports on his progress. In January 23, 2008, Marbury reported "he was doing well the past month". R. 506. Similar positive reports were taken on February 20, 2008, March 5, 2008 and March 10, 2008. R. 503-505. On March 13, 2008, Marbury reported that he was doing well and "has not taken his psychiatric medication in a couple of months" because they make him feel "loopy". R. 497. Marbury also reported that because he ...

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