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Levenson v. Colvin

United States District Court, Third Circuit

December 16, 2013

BARTON P. LEVENSON, Plaintiff
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER OF COURT

TERRENCE F. McVERRY, District Judge.

I. Introduction

Barton P. Levenson ("Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final determination of the Commissioner of Social Security ("Commissioner"), which denied his application for disability insurance benefits("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 1381-1383(f).

II. Background

A. Facts

Plaintiff was born on May 9, 1960. (R. 35). He is a college graduate with a bachelor's degree in physics and computer programming. (R. 46). He has past relevant work experience as an information associate (classified as semi-skilled, light-exertional work), electronic technical journal developer (classified as semi-skilled, sedentary work), web site developer (classified as semi-skilled, sedentary work) and computer programmer (classified as skilled, sedentary work). (R. 100).

Plaintiff alleges disability as of May 30, 2009, due to severe fatigue caused by a combination of Crohn's disease, sleep apnea, dysthemia, schizotypal disorder, and depression (R. 33, 34). The record reflects that Plaintiff has not engaged in substantial gainful work activity since his alleged onset date. (R. 50).

Plaintiff first met with David Binion, M.D. on July 14, 2008, with a chief complaint of severe fatigue. (R. 694). Dr. Binion diagnosed Plaintiff with sleep apnea, for which he was later treated with a CPAP device. (R. 695). On October 24, 2008, Plaintiff was examined by David Hall, M.D. and complained about fatigue. (R. 642). During a November 18, 2008 follow-up appointment with Dr. Binion, Plaintiff reported feeling better but was still fatigued. (R. 699). On December 11, 2008, Plaintiff underwent a surgical resection to treat active Crohn's disease and a resulting intestinal fistula. At the time of his discharge, his pain was being treated with medication and managed. (R. 500, 538).

On January 5, 2009, Plaintiff was diagnosed as having Dysthymic Disorder for which he was prescribed Risperidone and Wellbutrin by Dr. Ronald Garbutt. His GAF[2] was rated at 55 and he was diagnosed as having Dysthymic Disorder. (R. 788, 857-859, 855). In July 2009, he was diagnosed by Dr. Garbutt with possible obsessive-compulsive disorder. (R. 849). During a follow-up visit in September 2009, he communicated that he was making compulsive popping' sounds. (R. 847).

On January 26, 2009, Plaintiff was again examined by Dr. Binion and stated that his abdominal symptoms had ameliorated and Dr. Binion took note of his overall improvement. Dr. Binion concluded that Plaintiff's Crohn's disease was moderate in severity although the fistulating nature of the disease was found to be moderate to severe. (R. 701). During a May 4, 2009 exam, Dr. Binion noted that Plaintiff's GI status was stable and that his Crohn's disease had improved. (R. 707-08).

Dr. Binion composed a letter on May 29, 2009 stating that Plaintiff was suffering from severe fatigue due to the combined effect of his physical and mental ailments and, consequently, would not be able to complete a full workday. (R. 685). On June 30, 2009, Dr. Hall wrote in response to a Sleep Disorder Impairment Questionnaire that Plaintiff should avoid certain work-related functions, such as climbing and heights, using power machines, and frequent operation of motor vehicles. (R. 929). In addition, limitations on Plaintiff's work schedule such as breaks at unpredictable intervals and carrying 25 pounds at a maximum were also suggested. (R. 930). Later, on October 5, 2009, Dr. Hall opined that Plaintiff would not be able to successfully work due to his fatigue. (R. 732).

When Dr. Asim Roy completed a Sleep Disorders Impairment Questionnaire on October 8, 2009, he mentioned that Plaintiff's prognosis was "fair" due to other medical conditions, such as Crohn's disease and depression, which adversely affected his sleep. (R. 803). However, he also believed that Plaintiff would periodically need one to two breaks to rest. (R. 803). On October 12, 2009, Plaintiff had another follow-up visit with Dr. Garbutt and he stated that the compulsive popping' sounds had ceased until two days prior to his appointment. (R. 841-845).

On October 29, 2009, a physical residual functional capacity (RFC) assessment was conducted by Mary Ellen Wyszomierski, M.D. (R. 881). The RFC detailed Plaintiff's ability to occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, stand/walk for four hours in an eight-hour day, and sit about 6 hours each day. (R. 882). On occasion, Plaintiff had the ability to use stairs and ramps, balance, stoop, kneel, crouch, and crawl. (R. 883). Furthermore, no manipulative, visual, or communicative limitations suffered by Plaintiff were noted in the assessment. (R. 883-84). The RFC also stated that Plaintiff should avoid concentrated exposure to vibrations and moderate exposure to hazards. (R. 884). Plaintiff's Crohn's disease was found to be stable with no ongoing symptoms. (R. 887).

On November 9, 2009, Plaintiff was examined by Linda Rockey, Psy.D., a state agency examining psychologist. (R. 888-889). Dr. Rockey observed that Plaintiff suffered from depression and had a low energy level. (R. 890-891) Plaintiff also described symptoms of paranoia and could only complete five serial digits backward. (R. 891) The Axis I diagnoses were Major Depressive Disorder, history of Schizotypal Disorder, and history of Dysthemia with a GAF index score of 58. (R. 892). However, despite these diagnoses, Dr. Rockey noted that Plaintiff made good eye contact; had normal speech patterns; had coherent, logical, and goal-oriented thoughts; and was overall pleasant and cooperative. His social reasoning skills were found to be only slightly reduced, his memory was intact, he was fully oriented, and he experienced only a small reduction in concentration. Furthermore, Dr. Rockey opined that Plaintiff's ability to understand and remember detailed instructions and to make judgments on simple work-related decisions was only mildly impaired and not significant. Plaintiff was also only moderately impaired in terms of his ability to interact with coworkers and to respond effectively to work-related issues. (R. 895).

On December 11, 2009, an RFC assessment on the basis of Plaintiff's medical records was conducted by John Rohar, Ph.D. (R. 897). Dr. Rohar found that Plaintiff's Major Depressive Disorder, Dysthymia, and Schizotypal Disorder mildly restricted his daily living, moderately affected his social functioning, and created moderate difficulties in his ability to concentrate and work at an acceptable pace. Dr. Rohar also completed a Mental RFC Assessment which evaluated Plaintiff's ability to successfully complete several key work-related functions. Based upon this assessment, Plaintiff was found to experience only moderate difficulties with respect to his ability to understand and respond to instructions, work alongside others, interact effectively with members of the general public, appropriately respond to alterations in work-setting, and make routine workplace decisions. (R. 897-898).

On March 6, 2011, Plaintiff underwent a full psychiatric evaluation by Dr. Julie Garbutt following an incident during which he tried to strangle his mother. This was considered abnormal behavior for him. Plaintiff's mood was sad/anxious and his affect was constricted on a mental status examination and he agreed to have more intensive outpatient care. (R. 1002-1003).

During a March 18, 2011 appointment with therapist James Kania, Plaintiff reported feeling increasingly angry, irritable and impulsive during the previous 3-6 months. Axis I diagnoses were dysthemic disorder and rule out OCD, and Axis II diagnosis was schizotypal personality disorder. In addition, his GAF score was 45-indicative of serious difficulties in occupational or social functioning. (R. 996-998; DSM-IV-TR at 34).

On March 29, 2011, Plaintiff met with Mr. Kania and rated his depression at 3/10 and also complained of feelings of worthlessness, concentration difficulties, and fatigue. Dr. Rohar treated Plaintiff on the same day and Plaintiff communicated that he recently helped his mother move. A mental status exam determined that Plaintiff was clean, cooperative, alert; had normal affect; intact memory, attention, and concentration; fair insight and judgment; ...


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