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O'Brien v. Colvin

United States District Court, M.D. Pennsylvania

June 13, 2014

LAWRENCE G.M. O'BRIEN, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MEMORANDUM

WILLIAM J. NEALON, District Judge.

BACKGROUND

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Lawrence G.M. O'Brien's claim for social security disability insurance benefits and supplemental security income. (Doc. 1).

O'Brien filed an Application for Social Security Disability Insurance Benefits and an Application for Supplemental Security Income on October 23, 2007, alleging disability beginning on June 8, 2007.[2] Tr. 260-266.[3] On March 20, 2008, both applications were initially disapproved by the Bureau of Disability Determination[4] on March 20, 2008. Tr. 184-192. On April 4, 2008, O'Brien requested a hearing before an administrative law judge. Tr. 195-198. A hearing was held before administrative law judge, Sridhar Boinin, on May 27, 2009. Tr. 101-163. On June 10, 2009, the administrative law judge ("ALJ") issued a decision that O'Brien was not disabled. Tr. 168-178. Upon request from O'Brien made August 17, 2009, however, the Appeals Council, on January 23, 2010, remanded the matter to the ALJ for resolution of specific issues. Tr. 180-183. Specifically, the ALJ was to: (1) consider the functional impact of O'Brien's obesity; (2) determine how often O'Brien will need to change between sitting and standing; (3) adequately evaluate the treating source opinion of Dr. Saxon; and (4) clarify the date last insured. Tr. 181-182.

A second hearing was held before ALJ, Sridhar Boini, on September 8, 2010. Tr. 39-81. On September 29, 2010, the ALJ issued a decision denying O'Brien's application. Tr. 22-34. On October 29, 2010, O'Brien filed a request for review which was denied by the Appeals Council on February 17, 2012. Tr. 1-3 & 20-21. Thus, the ALJ's decision stood as the final decision of the Commissioner.

O'Brien then filed a complaint in this Court on April 20, 2012. (Doc. 1). On June 27, 2012, Defendant filed an answer and transcript of the entire record of proceedings. (Docs. 7 & 8). Supporting and opposing briefs were submitted and the appeal[5] became ripe for disposition on December 4, 2012. (Docs. 11, 14-15).

O'Brien is a thirty-five (35) year old male, born on April 29, 1979[6], whose education level is approximately thirteen (13) years of education (completion of approximately one year of college). Tr. 46-47, 67. O'Brien has never been able to hold a job for very long. TR. 64-65. Following high school, O'Brien worked at Herr's Potato Chips for approximately three (3) years. Tr. 65. O'Brien has past relevant work experience[7] as a warehouse worker (medium duty, unskilled).[8] Tr. 67. Records indicate he also worked as a "certified nurses aid" at a "skilled nursing home" at which "[he] provided personal and physical care to ill patients." Tr. 277 & 279.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured, " that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." O'Brien meets the insured status requirements of the Social Security Act through March 31, 2012. Tr. 27.

O'Brien claims that he suffers from residuals of a left foot injury, obesity, bipolar disorder, attention deficit disorder, and depression which the ALJ found to be severe. (Doc. 11, p. 3), citing Tr. 28. O'Brien maintains that the ALJ's finding, that he remained able to perform other work in the national economy based on his residual functional capacity, did not include the limitations assessed by his own consultative psychologist whose opinion was corroborated by the treating psychiatrist. (Doc. 11, p. 3), citing Tr. 385-86 & 506-09.

For the reasons set forth below, the decision of the Commissioner denying O'Brien's application for disability insurance benefits will be reversed and the matter will be remanded to the Commissioner.

STANDARD OF REVIEW AND SEQUENTIAL EVALUATION PROCESS

Under 42 U.S.C. § 405(g) and relevant case law, the court is limited to reviewing the administrative record to determine whether the decision of the Commissioner is supported by substantial evidence. Counsel for the parties are familiar with the five-step sequential evaluation process that the Commissioner utilizes and the substantial evidence standard of review.[9]

MEDICAL RECORDS AND OTHER EVIDENCE[10]

On October 3, 2007, O'Brien treated at Community Counseling Services of Northeastern Pennsylvania ("CCS") and complained of a short attention span irritability, and explosivity. Tr. 536-37. On November 1, 2007 he also complained of a explosive personality. Tr. 534. On December 24, 2007, Mark Puffenberger, M.D. noted O'Brien still complained of explosivity and he was prescribed medication. Tr. 439.

The Medical Source Statement of Toni J. Parmelee, D.O., from February 13, 2008, noted that O'Brien can frequently lift and carry up to 25 pounds and can occasionally lift up to 50 pounds, can stand for less than an hour, has unlimited sitting, and pushing and pulling akin to the noted lifting limitations. Tr. 351. O'Brien complained of mood issues, panic attacks, sleep disturbances, suicidal ideations, racing thoughts or hallucinations and poor concentration with ADD was noted. Tr. 355. O'Brien was taking an antidepressant. Tr. 355.

On February 27, 2008, O'Brien was treated for a dog bite by Mark Puffenberger, M.D. who noted that O'Brien made no complaint of depression, anxiety or anger. Tr. 439.

On March 6, 2008, a psychiatric review was conducted by Carl Sebastianelli, MA, and O'Brien reported trouble completing tasks, concentrating, following written and spoken directions and getting along with others. Tr. 371. Dr. Sebastianelli diagnosed O'Brien with ADHD and Adjustment Disorder with Depressive Mood but noted no psychotic disorders, anxiety related disorders, or personality disorders. Tr. 360-68, 374. Dr. Sebastianelli rated O'Brien's functional limitations as mostly mild with one moderate indication for maintaining concentration. Tr. 369. In a mental residual functional capacity assessment, Dr. Sebastianelli noted no significant limitation in most categories and moderate limitation in some categories. Tr. 372-73. Dr. Sebastianelli noted that O'Brien's ADD and irritability "do not significantly interfere with his mental status, self-care or activities of daily living" and that O'Brien was "able to meet the basic mental demands of competitive work on a sustained basis." Tr. 374.

On April 24, 2008, O'Brien was treated at Community Counseling Services of Northeastern Pennsylvania ("CCS) and diagnosed with "Bi-Polar Disorder, NOS" with a GAF[11] score of 53 by Dr. Solgama. Tr. 387. O'Brien complained of depression, mood swings, racing thoughts, anxiety, paranoia, anger management issues, and suicidal thoughts. Tr. 388-92. O'Brien stated a history of taking Tofranil and Ritalin. Tr. 399. O'Brien's mental status examination noted that O'Brien had good appearance, hygiene, rapport and behavior, but was depressed; that his speech, orientation, intellect, thought process and memory were normal but that he was paranoid; and that he had fair insight, judgment, and impulse control. Tr. 401-02. He was prescribed Risperdal and Trazodone and the Tofranil was discontinued.

O'Brien treated at CCS on May 27, 2008, June 23, 2008, June 25, 2008, July 21, 2008, July 32, 2008, August 6, 2008, August 19, 2008. Tr. 424-427.

On April 6, 2009, O'Brien again treated at CCS with Dr. Saxon and was assessed with a GAF score of 53. Tr. 405-06. O'Brien complained of mood swings, depression, irritability, anxiety, anger management issues, and lack of family support and requested a prescription for Seroquel. Tr. 405-06. O'Brien's mental status examination noted that he had good appearance, hygiene, rapport, mood and behavior; that his speech, orientation, thought process and memory were normal but that his intellect was below average; and that he had fair insight, judgment, and impulse control. Tr. 416-418. He was prescribed Seroquel ER. Tr. 419.

On November 10, 2009, O'Brien treated at CCS with Dr. Solgama and it was noted that he had passive suicidal ideas and his mental status examination noted that O'Brien had good appearance, hygiene, rapport, and behavior but that his mood was irritable; that his speech, orientation, thought process, intellect and memory were normal; and that he had poor insight, but fair judgment, and impulse control. Tr. 484-93.

Progress notes from November 12, 2009 through July 2, 2010 showed normal progress with bipolar disorder. Tr. 494-503.

On August 23, 2010, O'Brien was examined by Dr. Jeffrey Fremont who concluded O'Brien was "not able to manage benefits in his own best interest." Tr. 509. Dr. Fremont diagnosed O'Brien with "bipolar depression by history" and assessed a GAF score of 50. Tr. 508. Dr. Fremont opined that Plaintiff had fair ability to follow work rules; use judgment; maintain attention and concentration; understand, remember, and carry out simple job instructions; and maintain personal appearance. Tr. 509. Dr. Fremont observed, inter alia, that O'Brien's mood was within normal limits, his general appearance was within normal limits, and that O'Brien noted he heard his dead uncle's footsteps while sleeping at his mother's house. Tr. 507. Dr. Fremont further opined that O'Brien had poor ability to: (1) understand, remember, and carry out complex job instructions, as well as detailed, not complex job instructions; (2) behave in an emotionally stable manner; and (3) relate predictably in social situations. Tr. 509. Dr. Fremont believed Plaintiff had no ability to relate to coworkers, deal with the public, interact with supervisors, and deal with work stresses. Tr. 509.

DISCUSSION

In his September 29, 2010 decision, the ALJ held, and neither party disputes, that O'Brien met the insured status requirements of the Social Security Act and had acquired sufficient quarters of coverage to remain insured through March 31, 2012, and that O'Brien has not engaged in substantial gainful employment since April 1, 2008. Tr. 27. The ALJ found that O'Brien had the following severe impairments: "residuals of left foot injury, obesity, bipolar disorder, attention deficit disorder, and depression." Tr. 28. The ALJ specifically noted that "[t]he impairments have more than a de minimis effect on the claimant's ability to perform basic work activities" and "are severe' as defined in SSR 85-28."[12] Id . However, the ALJ determined that O'Brien's impairment or combination of impairments "do not satisfy the requisite neurological, laboratory, clinical or diagnostic requirements for listing level severity." Id.

In setting his residual functional capacity, the ALJ noted specific physical limitations and held that O'Brien "should not be involved with direct in-person contact with members of the general public on no more than an incidental or occasional basis to the point of primarily precluding customer service type jobs." Tr. 29. With regard to O'Brien's mental impairments, the ALJ considered his "moderate" GAF scores, the treating notes, opinion evidence, his functionality, and his credibility. Tr. 32-33.

Based on his determination of O'Brien's residual functional capacity and the testimony of the vocational expert, the ALJ concluded that O'Brien could not perform the past relevant unskilled, medium exertional level work as a warehouse worker, but that there are jobs that exist in significant numbers in the national economy that O'Brien could perform such as surveillance system monitor, label printer and type-copy examiner. Tr. 33-34. Accordingly, the ALJ determined that O'Brien is not disabled under the Social Security Act. Tr. 34.

In his brief, O'Brien alleges the ALJ erred by: (1) failing to address or explain the weight he assigned to the opinion of the consultative psychologist, Jeffrey Fremont, Ph.D., and in turn, failed to present all of O'Brien's limitations to the vocational expert; and (2) making erroneous credibility determinations regarding O'Brien's testimony and making no credibility determinations regarding the testimony of O'Brien's mother. (Doc. 11, pp. 5-16). Based upon the testimony of the vocational expert, O'Brien maintains that if the August 23, 2010 functional assessment of Dr. Fremont is credited, he would be unable to perform work of any kind and thus be disabled. (Doc. 11, p. 6), citing Tr. 74-75. O'Brien argues that the ALJ provided no reason for his failure to credit Dr. Fremont's assessment and failed to address it altogether. (Doc. 11, p. 8). Based on his failure to credit Dr. Fremont, O'Brien argues, the ALJ erred by not propounding a hypothetical to the vocational expert containing all of O'Brien's credibly established limitations. (Doc. 11, p. 10). O'Brien submits the ALJ erred in his credibility assessment of O'Brien calling the discrepancies noted by the ALJ "very slender reeds" that don't amount to "glaring differences" that affect O'Brien's credibility. (Doc. 11, p. 13). Lastly, O'Brien argues the ALJ erred by making no credibility finding regarding his mother and failed to consider her testimony which supported Plaintiff's own statements. (Doc. 11, pp. 15-16).

In response, Defendant maintains that the ALJ considered but properly rejected the assessment of Dr. Fremont based upon that assessment being inconsistent with Dr. Fremont's own findings at examination and the treatment notes from CCS including GAF scores which demonstrate the "moderateness" of O'Brien's mental impairment. (Doc. 14, pp. 10-12). Defendant argues that the ALJ is charged with making credibility determinations and "considered all of the evidence, including the objective clinical signs and laboratory findings, medications, opinions of Plaintiff's treating and examining physicians, and Plaintiff's testimony, before concluding that Plaintiff's statements concerning the nature and severity of his symptoms were not fully credible." (Doc. 14, p. 13), citing (Tr. 32). Defendant contends that the ALJ, by adopting his prior decision, adequately analyzed and rejected the testimony of O'Brien's mother. (Doc. 14, p. 13, n.6).

In reply, O'Brien enumerates Dr. Fremont's opinions which were not discussed in the ALJ's decision and argues the ALJ's failure to provide an explanation as to why he rejected the expert opinions was "patent reversible error under three decades of Third Circuit precedent." (Doc. 15, p. 2). O'Brien submits that Defendant's efforts to supply his own rational for rejection of Dr. Fremont's assessment is unavailing and what is germane is the ALJ's complete failure to address Dr. Fremont's assessment. (Doc. 15, p. 3). O'Brien believes that Defendant did not even attempt to defend the ALJ's specific reasoning for rejecting O'Brien's credibility and that Defendant's attempts to rely on the prior decision for the ALJ's credibility determinations regarding O'Brien's mother is "transparently inaccurate." (Doc. 15, p. 5).

On August 23, 2010, O'Brien was evaluated by Jeffrey Fremont, Ph.D., who concluded O'Brien was "not able to manage benefits in his own best interest." Tr. 509. Dr. Fremont diagnosed O'Brien with "bipolar depression by history" and assessed a GAF score of 50. Tr. 508. Dr. Fremont opined that Plaintiff had fair ability to follow work rules; use judgment; maintain attention and concentration; understand, remember, and carry out simple job instructions; and maintain personal appearance. Tr. 509. Dr. Fremont observed, inter alia, that O'Brien's mood was within normal limits, his general appearance was within normal limits, and that O'Brien noted he heard his dead uncle's footsteps while sleeping at his mother's house. Tr. 507. Dr. Fremont further opined that O'Brien had poor ability to understand, remember, and carry out complex job instructions, as well as detailed, not complex job instructions; behave in an emotionally stable manner; and relate predictably in social situations. Tr. 509. Dr. Fremont believed Plaintiff had no[13] ability to relate to coworkers, deal with the public, interact with supervisors, and deal with work stresses. Tr. 509.

Utilizing these limitations as assessed by Dr. Freemont, the vocational expert, Josephine Doherty, testified that O'Brien would not be capable of performing any kind of competitive work activity. Tr. 75. Doherty elaborated stating that "Based upon Dr. Fremont's evaluation there would be no competitive employment simply because the employee would be unable to relate to co-workers in any capacity, and even in an independent job which is unskilled an individual would need to have some communication." Tr. 75. The ALJ clarified that "where there was findings of poor capacity, they would be total exclusion of competitive employment individually" which the vocation expert confirmed. Tr. 75.

It is clear from the record that Dr. Fremont made specific findings about O'Brien's total inability[14] to relate to co-workers, the public, and supervisors based on his mental impairments, and those limitations would have been decisive to the vocational experts ultimate conclusion. Tr. 75 & 509. "A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time.'" Grogan v. Comm'r of Soc. Sec. , 459 Fed.Appx. 132, 137 (3d Cir. 2012) citing Morales v. Apfel , 225 F.3d 310, 317 (3d Cir. 2000) (quoting Plummer v. Apfel , 186 F.3d 422, 429 (3d Cir. 1999). "However, [t]he law is clear... that the opinion of a treating physician does not bind the ALJ on the issue of functional capacity.'" Grogan , 459 Fed.Appx. at 137, citing Brown v. Astrue , 649 F.3d 193, 197 n.2 (3d Cir. 2011). "A treating physician's opinion on the nature and severity of a claimant's impairment is only given controlling weight when it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the [claimant's] case record.'" Grogan , 459 Fed.Appx. at 137, citing Fargnoli v. Halter , 247 F.3d 34, 43 (3d Cir. 2001) (alteration in original) (quoting 20 C.F.R. § 404.1527(d)(2)). An ALJ may determine, after weighing the evidence, that a treating physician's assessment should not be followed. Townsend v. Sec'y United States Dep't of HHS, 553 Fed.Appx. 166 (3d Cir. 2014), citing Jones v. Sullivan , 954 F.2d 125, 128-29 (3d Cir. 1991). However, an ALJ must provide "good reasons" for discounting the treating physician's report. Townsend, 533 Fed. Appx at 166, citing 20 C.F.R. § 404.1527(c)(2); see also Punzio v. Astrue , 630 F.3d 704, 710 (7th Cir. 2011) ("[W]henever an ALJ does reject a treating source's opinion, a sound explanation must be given for that decision.").

Here, the ALJ does summarize the August 23, 2010 report, and does accurately conclude, based on the whole report, that Dr. Fremont considers O'Brien's mental impairment to be moderate. Tr. 31 & 506-09. The ALJ sets a residual functional capacity assessment to include the following regarding O'Brien's mental impairments:

The claimant is further limited to simple unskilled tasks with no more than occasional work setting changes and involving no independent judgment beyond notifying team leaders or supervisors of any issues concerning the workplace. The claimant should not be involved with direct in-person contact with members of the general public on no more than incidental or occasional basis to the point of primarily precluding costumer service type jobs. Lastly, the occupations should be of moderate production pace.

Tr. 29. The Undersigned feels that this assessment is not inconsistent with Dr. Fremont's report as a whole. However, the ALJ does not specifically address every conclusion and limitation made by Dr. Fremont, for example, that O'Brien has no ability to interact with supervisors, coworkers or the public, or deal with work stresses. See Tr. 31 & 509. Further, it was those limitations which were the gravamen of the vocational expert's determination. Tr. 75. Because the ALJ did not specifically address and give a sound explanation or good reason for rejecting the limitations assessed by Dr. Fremont, the matter must be remanded for the ALJ to specifically address the limitations assessed by Dr. Fremont on the final page of his August 23, 2010 evaluation report. See Tr. 509.

Although this Court did not reach the second issue raised by O'Brien regarding the credibility of O'Brien and his mother, the ALJ is advised on remand to accept or reject O'Brien's claimed limitations and make specific credibility determinations supported by substantial evidence. See 20 C.F.R. § 404.1529(b); see also Social Security Ruling 96-7p, 1996 SSR LEXIS 4.

CONCLUSION

The Court's review of the administrative record reveals that the ALJ did not specifically set forth good reasons why he was rejecting specific functional limitations assessed by Dr. Fremont as required by law. Therefore, pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner will be vacated and the case will be remanded to the Commissioner for further proceedings.

An appropriate order will be entered.


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