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Magee v. Colvin

United States District Court, W.D. Pennsylvania

February 27, 2014

CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.




Richard Scott Magee ("plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final determination of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). 42 U.S.C. §§ 401-433, 1381-1382f. The record has been developed at the administrative level. Presently before the court are cross-motions for summary judgment. For the reasons set forth below, plaintiff's motion will be denied and Commissioner's motion will be granted.


Plaintiff filed his current application for benefits two months after his previous application was denied by the Commissioner. Plaintiff initially filed applications for DIB and SSI on October 12, 2007, alleging disability as of November 26, 2006. This claim was denied on September 9, 2008. Plaintiff's request for review was granted, and a hearing was held before Administrative Law Judge ("ALJ") Brian W. Wood on September 14, 2009. On October 7, 2009, the ALJ issued a decision denying plaintiff's application. The Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Plaintiff filed a Complaint in this court on July 2, 2010. After considering cross-motions for summary judgment, District Judge Nora Barry Fischer affirmed the ALJ's decision. See Magee v. Astrue, 2010 WL 5186726 (W.D. Pa. Dec. 15, 2010).

Plaintiff protectively filed the instant applications on December 7, 2009, alleging disability due to bipolar disorder and depression as of November 15, 2006. After the applications were denied administratively, plaintiff requested an administrative hearing and a hearing was held before ALJ John J. Porter on May 25, 2011. On June 23, 2011, the ALJ ruled against plaintiff. The Appeals Council denied plaintiff's request for review on November 20, 2012, making the ALJ's decision the final decision of the Commissioner. The instant action followed.


A. General Background

Plaintiff was born on February 20, 1961. R. 32. He was 45 years of age as of his alleged onset date. Plaintiff has a high school diploma and completed welding training in 1980. R. 53-54, 305. He has never been married and has no children. R. 305. He has been living with his aging but self-sufficient parents in their home in Butler, Pennsylvania since 2007. R. 36, 45. Although they live together and plaintiff described his parents as his only support system, plaintiff reported having little contact with his father. R. 43, 272. This is due to reported physical abuse while growing up. R. 272. Plaintiff's mother does all of his cooking, cleaning and shopping. R. 40. Plaintiff mows his parents' lawn. Id. Plaintiff testified he would likely be able to cook, clean and shop if he were living on his own, but that such activities would not occur as frequently as they do at his parents' house and he probably would not do laundry until he ran out of clean clothes. Id.

Plaintiff was working as a part-time delivery driver for Thoma's Meat Market ("Thoma's"), where he had been employed for over four years. R. 32. In this capacity he worked between five and seven hours per day, three days per week, and earned $11.35 per hour. R. 32-33. His typical work day consists of loading a delivery truck with boxes and delivering them to the proper recipients. R. 33. Over the past few years plaintiff generally has not worked more than three days per week or more than five to seven hours per day. R. 34. Plaintiff testified that he does not believe he would be able to work 40 hours per week because when he tried to do so he would stay in bed and miss work because he did not "feel like going." Id. He also reported experiencing confusion while making deliveries, resulting in driving past delivery locations and taking the wrong routes. R. 35, 49.

Plaintiff maintains a good attendance record at work. He has been absent only two days in the past two years. R. 35, 46. He attributes his good attendance to his mother, who will wake him up if he oversleeps and insist that he go to work. R. 46. Plaintiff testified he suffers from low energy and a lack of motivation to do things, which has resulted in poor attendance at previous jobs, and he would probably miss work at least once a week without his mother's influence. R. 46-47, 50-51.

Plaintiff has two supervisors at work. R. 42. One of them is his friend. Id. That supervisor was aware of plaintiff's mental health conditions before he was hired and makes accommodations for him. R. 43. Plaintiff has had conflicts with his other supervisor, his friend's partner. R. 44. There have been times when plaintiff's friend has had to intervene to mediate conflicts between the two. Id. This type of conflict is not uncommon for plaintiff. He reported having had similar problems with supervisors at other jobs and having been fired from jobs due to such problems. R. 45. He also reported having been fired from jobs due to poor attendance, which he attributes to depression. Id.

On the days he is not working, plaintiff usually sits at home, watches television and plays on the computer. R. 43. He spends the vast majority of his time alone in his bedroom, sometimes emerging only for dinner. R. 48. Plaintiff will spend entire days in bed. Id. Plaintiff is a member of a nine-hole league and goes golfing once a week. R. 41. Plaintiff used to go bowling twice a week, but gave it up due to lack of continued interest. Id. Plaintiff abused alcohol and cocaine in his early 20s. R. 38-39. He presently consumes small amounts of alcohol and has ceased using cocaine. R. 39-40.

B. Mental Health Background

1. Butler Memorial Hospital Treatment Notes dated February 19, 2007 to February 22, 2007

On February 19, 2007, plaintiff sought inpatient mental health treatment at Butler Memorial Hospital ("Butler Memorial"). R. 270. He presented with "increasing depression in the context of being unable to afford his medications for his bipolar illness and multiple psychosocial issues." Id.

John Soffietti, M.D., completed plaintiff's initial neuropsychiatric evaluation. R. 272. On examination Dr. Soffietti described plaintiff as being alert, fluent, and sad, and noted that plaintiff had a slowed psychomotor. R. 273. Plaintiff denied flight of ideas or psychotic symptoms and did not manifest any thought disorder, but did report feeling helpless and hopeless. Id.

Dr. Soffietti further noted that plaintiff had been diagnosed with bipolar disorder during previous outpatient sessions. Id. He initially had been treated with lithium, [2] but could not afford the extensive blood work associated with that treatment. Id. Physicians then prescribed Paxil[3] in conjunction with Lamictal.[4] Id. Although he had doubts about the efficacy of the combination therapy, plaintiff noted that those around him agreed that his condition improved because of it. Id. Plaintiff discontinued the combination therapy due to financial limitations. Id.

Dr. Soffietti placed plaintiff on lithium and Lamictal, which he tolerated without difficulty or adverse effects. Id. Treatment notes indicate that by the time of his discharge, plaintiff's mood had improved, and he was less depressed, more hopeful, had increased energy levels and decreased anhedonia. R. 270. Following a diagnosis of Bipolar II Disorder, depressed, without psychotic features, plaintiff was discharged to his home as medically and psychiatrically stable with a recommendation that he follow up at Irene Stacy Community Mental Health Center ("Irene Stacy"). R. 270-271.

2. Outpatient Treatment at Irene Stacy Community Mental Health Center

Plaintiff followed-up with outpatient mental health treatment at Irene Stacy. He testified that he attended all scheduled appointments, was truthful about his symptoms, and adhered to the medication regimen prescribed by treating clinicians. R. 36.

On August 24, 2007, a clinician at Irene Stacy completed an Employability Re-Assessment Form ("ERAF") for the Pennsylvania Department of Public Welfare. R. 330. The ERAF indicated that plaintiff previously had provided an Employability Assessment Form documenting that he could not work due to a temporary disability, and that he was now requesting a continuation of assistance, an exemption from work requirements, or had reapplied for assistance. Id. The ERAF directed the clinician to assess whether plaintiff remained disabled due to a temporary or permanent condition and whether the disability temporarily or permanently precluded any gainful employment. Id. Based on a review of medical records, the clinician noted that plaintiff continued to be disabled temporarily because of depressive symptoms, and that the temporary disability began on September 12, 2007 and was expected to last until September 12, 2008. Id.

On September 24, 2008, Debbie Lovewell, C.S.W., plaintiff's treating therapist at Irene Stacy, completed a questionnaire regarding his mental health. R. 311-315. According to Lovewell, plaintiff was not able to sustain full-time employment because he often becomes depressed with poor sleep pattern and experiences anhedonia, anergia, low motivation and fatigue. R. 312. Lovewell also confirmed the pervasive loss of interest in almost all activities, appetite disturbance with change in weight, sleep disturbance, psychomotor agitation or retardation, feelings of guilt or worthlessness, difficulty concentrating or thinking and flight of ideas. R. 313-314. She found moderate degrees of limitation in the activities of daily living and maintaining social functioning; frequent deficiencies of concentration, persistence, or pace resulting in the failure to complete tasks in a timely manner (in work settings or elsewhere); and repeated (three or more) episodes of deterioration or decompensation, each of extended duration. R. 315. Plaintiff's treating psychiatrist at Irene Stacey, Randon Simmons, M.D., signed off on Lovewell's questionnaire on September 25, 2008. Id.

At an outpatient visit on November 3, 2008, plaintiff rated his mood at five out of ten. R. 262. He testified at the administrative hearing that a five out of ten means "an average, like I'll feel sluggish but I'll still be able to function but I still [am] not full functional. I still don't do things. I still don't feel like them but I'll do them because I have to do them." R. 48-49. Treatment notes indicate that plaintiff's irritability had improved but that sleep continued to be problematic. Id. No changes in plaintiff's medication regimen were ordered. Id.

During an outpatient visit on February 3, 2009, plaintiff rated his mood at five-and-a-half to six-and-a-half out of ten. R. 261. Treatment notes indicate that plaintiff was looking forward to better weather and had been enjoying his parents being away in Florida for three months. Id. Treatment notes further indicate that plaintiff had been working full-time at Thoma's from Thanksgiving to the date of his appointment, but he planned to return to three days per week. Id. Notably, plaintiff's clinician denoted a brighter affect. Id. No changes in plaintiff's medication regimen were ordered. Id.

On July 15, 2009, plaintiff reported his mood to be six out of ten. R. 260. Plaintiff testified that a six out of ten means "a much better day. I'd wake up, want to go to work, [want] to go do something after work maybe but not too often, I mean, I just go back home after work and turn the T.V. on and sit there and either stare at it or watch it." R. 49. Treatment notes indicate that plaintiff was still playing golf and his sleep continued to be "on and off." R. 260. No changes in medication were ordered. Id.

On September 9, 2009, Dr. Simmons completed another ERAF. R. 328. Based on a review of medical records and clinical history, Dr. Simmons noted that plaintiff continued to be disabled temporarily because of symptoms of Bipolar II Disorder, and that the temporary disability began on September 10, 2009 and was expected to last until September 10, 2010. Id.

On January 11, 2010, plaintiff rated his mood at five out of ten. R. 258. Treatment notes indicate that plaintiff spent time watching television, had been working three days per week and went bowling one night a week. R. 258. Plaintiff also stated that he did not enjoy the holidays, but that he had resolved some stress in the prior year and was sleeping better. Id. No changes in medication were ordered. Id.

On April 20, 2010, plaintiff rated his mood at five to five-and-a-half out of ten. R. 337. He reported that golf and bowling "no longer holds a thrill" for him. Id. He also indicated that his medication had not improved his condition. Id. Dr. Simmons prescribed Abilify, [5] to be discontinued if no improvement was noted in two weeks. Id.

On September 14, 2010, plaintiff rated his mood at five out of ten and still felt sluggish. R. 335. He reported no noticeable difference on Abilify, low energy levels and stated he was bowling and golfing less. Id. No changes in his medication regimen were ordered. Id.

On December 29, 2010, plaintiff conveyed that he was moody, irritable, snapping at people and felt like he was "back to where I was three years ago when I started coming [to Irene Stacy]." R. 334. He rated his mood at four to five out of ten, noting a loss of interest in doing things and being around people. Id. He recently quit bowling due to lack of continued interest, and had an argument with his boss which caused him to almost ...

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