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Osterrieder v. Astrue

United States District Court, Third Circuit

September 20, 2013

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.




Plaintiff. Robert Jeffrey Osterrieder ("Plaintiff" or "Osterrieder") initiated this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the decision of the Commissioner of Social Security, Michael J. Astrue (the "Commissioner" or "Astrue") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"). See 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff protectively filed an application for DIB on May 19, 2009, and an application for SSI on July 26, 2010. R. 153-163. Plaintiff alleged disability from February 1, 2008, due to bipolar disorder, anxiety, depression, migraines, high blood pressure, a heart murmur, plantar fasciitis, panic attacks and the inability to sleep. R. 188. The applications were initially denied on January 11, 2011, and Plaintiff timely requested a hearing. R. 82-83, 103.

A hearing was held on June 27, 2011, before Administrative Law Judge John Kooser (the "ALJ"), and a Vocational Expert ("VE") and Plaintiff, who was represented by counsel, appeared and gave testimony. R. 12-27. The ALJ issued a written decision on July 15, 2011, finding that Plaintiff was not disabled under the Act because he could perform a range of unskilled, medium work, including his past relevant work. R. 19-24. Plaintiff timely requested a review of the ALJ's decision to the Appeals Council, which was denied on June 12, 2012, making the ALJ's decision the final decision for judicial review pursuant to 42 U.S.C. § 405. R. 1-3. Plaintiff subsequently filed his appeal with this Court.


Plaintiff was twenty-two (22) years old on the date of the ALJ's decision, making him a younger person under the regulations. R. 35. See 20 C.F.R. §§ 404.1563(c) & 416.963(c). Plaintiff completed the eleventh grade, quit high school two (2) months prior to the end of his senior year, and as of the date of the hearing he had not passed the GED exam. R. 38, 58. Plaintiff had earnings from 2006 through 2010, and had twelve (12) different places of employment over that time period. R. 166-170. Plaintiff earned more than $3, 000.00 at only four (4) of those employers: (1) Baierl Chevrolet, Inc. in 2007 & 2008; (2) New Wave Car Wash in 2007; (3) Team Rahal of Pittsburgh, Inc. in 2008; and (4) First Commonwealth Bank in 2009 and 2010. R. 167-168.

On an agency form completed in connection with his applications, Plaintiff indicated that he stopped working on March 31, 2010. R. 188. Plaintiff testified that he was an amateur boxer and the gym offered him a job, but he needed a college education. R. 35. The gym told plaintiff that they would hire him part-time while he attended school. R. 42. The gym offered Plaintiff a $1, 000 scholarship to attend school, and Plaintiff testified that he intended to attend the community college and study psychology. R. 36.

Plaintiff and his manager and trainer were planning to have Plaintiff turn professional in the next year. R. 36. Plaintiff reported that "[i]n about 20, 25 more fights I could sign a contract to turn professional." R. 48. Plaintiff testified that during that time he was "pretty much just working on training to get ready for that fight." R. 48. Plaintiff also testified that he worked as an assistant trainer at the gym. R. 36. Plaintiff went to the gym every day except Sundays and Fridays and spent 6.5 to 7.0 hours training. R. 47-48.

Plaintiff drove to the gym, to his parents' house, or to go shopping, but he reported having anxiety and difficulty concentrating behind the wheel. R. 37-38. During an outing to a baseball game with a group of fellow therapy patients, Plaintiff testified that he had a panic attack. R. 43. Plaintiff was able to attend the game but indicated that he just remembers sitting there and "trying to calm myself down for two and a half hours". R. 44. Plaintiff feels a different type of anxiety when boxing. R. 50. Plaintiff described it as an anxiety that motivates him, much different than the anxiety he feels when walking "into a Wal-Mart, " which is almost "debilitating." Id.

From September 2006 to April 2008, Plaintiff was treated by a psychiatrist, Suzanne Lucot, M.D. ("Dr. Lucot"). R. 234-237. Dr. Lucot diagnosed Plaintiff with anxiety, bipolar disorder, and social disorder, and assessed Plaintiff with an initial Global Assessment of Functioning ("GAF")[1] scale score of 50, which indicates serious symptoms, and subsequent GAF scores of 55, 60 and 65 which scores indicate moderate to mild functional limitations. R. 233-291.

After Plaintiff stole a car in April of 2008, Plaintiff's mother referred him to Jody Glance. M.D. for a psychiatric evaluation. R. 214. Plaintiff told Dr. Glance that he had some feelings of depression but mostly he felt anxious. Id. Dr. Glance assessed Plaintiff as follows:

[Plaintiff has a] long history of anxiety, recently diagnosed with bipolar d/o but not endorsing any current or previous symptoms of mania. It is more likely that [Plaintiff] has a combination GAD depression and ADHD given his presentation and past history... He does not show any evidence of current suicidality/lethality looking forward to getting back into therapy.

R. 215. Dr. Glance referred Plaintiff to a partial therapy program at Mercy Hospital. Id.

Plaintiff was treated at the Irene Stacy Community Mental Health Center from February 2009 until June 2010, by psychiatrists Randon Simmons, M.D., and Grace McGorrian ("Dr. Simmons" and "Dr. McGorrian"). R. 306-339. Plaintiff's initial psychiatric evaluation by Dr. Simmons in February of 2009 revealed pressured speech, clear anxiety, average intelligence, intact judgment and insight, and passive suicidal ideation. R. 317. Dr. Simmons also noted that Plaintiff "complicated the picture by self-administering steroids" for body-building purposes[2]. R. 316. During his period of treatment at Irene Stacy, Plaintiff also admitted to periods of heavy drinking. R. 326.

Plaintiff was admitted to Western Pennsylvania Hospital, Forbes Campus, in March 2009 for depression, following an overdose of Klonopin. R. 511-512 (Tr. 511-12). Plaintiff was diagnosed with major depressive disorder, GAD, and possible attention deficit disorder ("ADD"). R. 512. Plaintiff indicated that he had been using anabolic steroids for four weeks, and since stopping his mood had worsened. Id. After a regimen of medication, both mood stabilizing and anti-anxiety, Plaintiff's condition showed marked improvement.[3] R. 514.

Suzanne Houk, Ph.D. ("Dr. Houk"), evaluated Plaintiff on December 17, 2010, at the request of the Commissioner. Dr. Houk diagnosis included bipolar disorder not otherwise specified, GAD, social phobia, and history of alcohol abuse. R.486. Dr. Houk also opined that Plaintiff had a moderate to marked restriction in the ability to understand, remember, and carry out short, simple, instructions, and make judgments on simple work-related decisions; a marked to extreme restriction in the ability to understand, remember, and carry out detailed instructions; and a marked restriction in the ability to interact appropriately with the public, supervisors, and co-workers, and to respond appropriately to both changes and ...

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