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Kroh v. Colvin

United States District Court, Middle District of Pennsylvania

September 4, 2014

REBECCA KROH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM OPINION

KAROLINE MEHALCHICK, United States Magistrate Judge

This is an action brought under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying the Plaintiff’s claim for disability insurance benefits under the Social Security Act. The matter has been referred to the undersigned United States Magistrate Judge on consent of the parties, pursuant to the provisions of 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Doc. 16; Doc. 17). For the reasons expressed herein, the Commissioner’s decision shall be REVERSED and REMANDED for further proceedings.

I. Procedural History

On August 29, 2010, Plaintiff Rebecca Kroh filed an application for disability insurance benefits alleging that she became disabled on February 28, 2009, due to anxiety and severe depression. Ms. Kroh’s initial application was denied on December 23, 2010, and she timely requested a hearing before an administrative law judge (“ALJ”). On January 5, 2012, Ms. Kroh appeared with her attorney for an administrative hearing before ALJ Michele Stolls. On January 30, 2012, the ALJ denied Ms. Kroh’s application for disability insurance benefits, finding that she was capable of performing her past relevant work as a laborer in the water bottling business. Ms. Kroh requested administrative review of the ALJ’s decision by the Appeals Council of the Office of Disability Adjudication and Review, submitting approximately 300 pages of additional medical records in support of her claim for benefits. The Appeals Council denied her request for review on April 10, 2013. This makes the ALJ’s January 30, 2012, decision the “final decision” of the Commissioner subject to judicial review under 42 U.S.C. § 405(g). 20 C.F.R. § 404.981.

Ms. Kroh appealed the Commissioner’s final decision by filing the complaint in this action on June 7, 2013. (Doc. 1). The Commissioner filed her answer to the complaint on August 9, 2013. (Doc. 8). Together with her answer, the Commissioner filed a transcript of the administrative record in Ms. Kroh’s case. (Doc. 9). The matter is now fully briefed by the parties and ripe for decision. (Doc. 10; Doc. 13).

II. Standard of Review

When reviewing the denial of disability benefits, the Court’s review is limited to determining whether those findings are supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g) (sentence five); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). In an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ’s decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before the Court, therefore, is not whether Ms. Boggs is disabled, but whether the Commissioner’s finding that she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The [Commissioner]’s determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).

To receive disability benefits, a claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment[1] that makes it impossible to do his or her previous work or any other substantial gainful activity[2] that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).

The Commissioner follows a five-step sequential evaluation process in determining whether a claimant is disabled under the Social Security Act. 20 C.F.R. § 404.1520(a). Under this process, the Commissioner must determine, in sequence: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals a listed impairment;[3](4) whether the claimant is able to do past relevant work, considering his or her residual functional capacity (“RFC”);[4] and (5) whether the claimant is able to do any other work, considering his or her RFC, age, education, and work experience. 20 C.F.R. § 404.1520. The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Once the claimant has established at step four that he or she cannot do past relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f); Mason, 994 F.2d at 1064.

III. The ALJ’s Decision

In her January 30, 2012, decision, the ALJ determined that Ms. Kroh met the insured status requirement[5] of the Social Security Act through June 30, 2014. (Admin. Tr. 291, Doc. 9-4, at 60). At step one of the five-step process, the ALJ determined that Ms. Kroh did not engage in any substantial gainful activity between her alleged onset date of February 28, 2009, and the date of the ALJ’s decision. (Admin. Tr. 291, Doc. 9-4, at 60). At step two, the ALJ determined that Ms. Kroh had the following severe impairments: major depressive disorder, cyclothymic disorder, social phobia, generalized anxiety disorder, and panic disorder with agoraphobia. (Admin. Tr. 291, Doc. 9-4, at 60). The ALJ also considered several other health conditions found in the claimant’s medical history, finding each to be non-severe. (Admin. Tr. 291–92, Doc. 9-4, at 60–61). At step three, the ALJ determined that Ms. Kroh did not have an impairment, or combination of impairments, that met or medically equaled the severity of any one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 292–93, Doc. 9-4, at 61–62).

Prior to step four, the ALJ determined Ms. Kroh’s RFC based on the evidence of record, including the claimant’s testimony, the findings and opinions of treating and examining medical sources, and the opinions of a non-examining state agency medical consultant. The ALJ determined that Ms. Kroh retained the RFC to perform the full range of work at all exertional levels defined in 20 C.F.R. § 404.1567, with certain non-exertional limitations. (Admin. Tr. 293–98, Doc. 9-4, at 62–67). Specifically, the ALJ found that:

[T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitiations: she is limited to occupations requiring no more than simple, routine tasks, not performed in a fast-paced production environment, involving only simple, work-related decisions, and in general, relatively few work place changes. The claimant is limited to occupations which require no more than occasional interaction with supervisors and coworkers, but no interaction with members of the general public[, ] although she can be in proximity to the public. She is limited to occupations which require low stress, defined as occasional decision-making required and occasional changes in work setting.

(Admin. Tr. 293, Doc. 9-4, at 62).

Pursuant to 20 C.F.R. § 404.1529(c) and Social Security Ruling 96-7p, 1996 WL 374186, the ALJ considered Ms. Kroh’s testimony and found that “the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” (Admin. Tr. 296, Doc. 9-4, at 65).

The ALJ considered the initial Disability Determination Rationale, prepared by a state agency disability examiner who was not a physician or psychologist. (Admin. Tr. 297, Doc. 9-4, at 66). On December 22, 2010, based on a review of Ms. Kroh’s medical treatment records, several medical opinions, and a third-party function report provided by Ms. Kroh’s mother, disability examiner Jillian Shambaugh found no physical impairment severe enough to limit Ms. Kroh’s physical or mental ability to perform basic work activities. (Admin. Tr. 352, Doc. 9-5, at 2). Ultimately, the ALJ afforded “no weight” to the state agency disability examiner’s opinion because it was a non-medical opinion. (Admin. Tr. 297, Doc. 9-4, at 66).

Pursuant to 20 C.F.R. § 404.1527(e) and Social Security Ruling 96-6p, 1996 WL 374180, the ALJ considered a state agency assessment of Ms. Kroh’s mental RFC, prepared by a medical consultant who is also an expert in Social Security disability programs, as the medical opinion of a non-examining medical source. (Admin. Tr. 297, Doc. 9-4, at 66). On December 15, 2010, medical consultant Mitchell Sadar, Ph.D., found that Ms. Kroh suffered from major depressive disorder and generalized anxiety disorder. (Admin. Tr. 560, Doc. 9-10, at 61; Admin. Tr. 562, Doc. 9-10, at 63; Admin. Tr. 565, Doc. 9-10, at 66; Admin. Tr. 567, Doc. 9-10, at 68). The medical consultant assessed Ms. Kroh’s limitations in four functional areas as a result of her mental disorders, finding mild limitations in her activities of daily living and her social functioning, moderate limitations in her concentration, persistence, or pace, and no episodes of decompensation. (Admin. Tr. 572, Doc. 9-10, at 73). See generally 20 C.F.R. § 404.1520a(c) (explaining functional limitation rating process for mental impairments); 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C) (explaining the four functional areas). The medical consultant further found that:

The claimant’s ability to understand and remember complex or detailed instructions is limited, however, she would be expected to understand and remember simple one and two step instructions. Her basic memory processes are intact. She can understand, retain, and follow simple job instructions, i.e., perform one and two step tasks. She can make simple decisions. Moreover, she could be expected to complete a normal workday without exacerbation of psychological symptoms. Her impulse control is adequate. Additionally, she is able to maintain socially appropriate behavior and can perform the personal care functions needed to maintain an acceptable level of personal hygiene. She is able to interact appropriately with the general public. She is capable of asking simple questions and accepting instruction. She is able to maintain socially appropriate behavior. Furthermore, she can sustain an ordinary routine without special supervision. She can function in production oriented jobs requiring little independent decision making. The limitations resulting from the impairment do not preclude the claimant from performing the basic mental demands of competitive work on a sustained basis.

(Admin. Tr. 560, Doc. 9-10, at 61).

The medical consultant noted that his assessment was based in part on the prior assessment of examining psychologist David O’Connell, but that it rejected Dr. O’Connell’s assessment to the extent that O’Connell found marked limitations to Ms. Kroh’s social functioning, as that rating was not supported by Dr. O’Connell’s narrative report. (Admin. Tr. 560–61, Doc. 9-10, at 61–62). Ultimately, the ALJ afforded “great weight” to the state agency medical consultant’s opinion, but included additional limitations in Ms. Kroh’s RFC determination based on unspecified objective medical evidence of record. (Admin. Tr. 297, Doc. 9-4, at 66).

Pursuant to 20 C.F.R. § 404.1527(c), the ALJ considered the medical opinion of David F. O’Connell, Ph.D., a psychologist and consultative examiner for the same state agency. (Admin. Tr. 297, Doc. 9-4, at 66). On November 30, 2010, Dr. O’Connell examined Ms. Kroh and provided an assessment of her mental status and resultant functional impairments. (Admin. Tr. 550–57, Doc. 9-10, at 51–58). Dr. O’Connell’s report provided a review of Ms. Kroh’s medical, personal, and vocational history, apparently self-reported by the claimant. (Admin. Tr. 554–56, Doc. 9-10, at 55–57). Dr. O’Connell then provided an assessment of Ms. Kroh’s mental status, based on his personal observations as well as self-reported information:

The claimant presents herself cooperatively. Affect was appropriate to ideation with a constricted range and blunted in its expression. Mood was one of profound depression and anxiety. She showed moderate psychomotor slowness. She reports a response to medications, but never a full remission and, over time, shows diminished response to medications and her symptoms appear to come back to initial levels.
She denied current suicidal, parasuicidal, homicidal thoughts, feelings, plans, or impulses. Intelligence is judged to be in at least the average range. There [are] no dysregulations in moods or affects. There were no obvious cognitive perceptual speech or language disturbances.
Sensorium was clear. She had a good fund of knowledge. Abstract response to proverbs such as “People who live in glass houses shouldn’t throw stones, ” she states, “You should not judge people, especially if you are doing the same thing they are.” She could repeat six digits forward. She was an accurate calculator. Comprehension was intact. She was able to describe how a house made of stone was better than one made of wood.
Judgment was sound. She would mail an envelope she found in the street and call 911 if her neighbor’s house was on fire.
Recent, immediate, and remote memory were grossly intact. She was alert, coherent, and oriented in all spheres.
Impulse control was sound. She seems a reliable source of information about herself.

(Admin. Tr. 556, Doc. 9-10, at 57).

Based on his examination, Dr. O’Connell provided a clinical diagnosis of Ms. Kroh as suffering from: major depressive disorder, continuous without psychotic features; generalized anxiety disorder; and panic disorder without agoraphobia. (Admin. Tr. 556, Doc. 9-10, at 57). He further diagnosed Ms. Kroh with avoidant and obsessive compulsive personality features. (Admin. Tr. 557, Doc. 9-10, at 58). Dr. O’Connell identified Ms. Kroh’s history of irritable bowel syndrome and migraine headaches as physical medical conditions that may affect her mental disorder. (Admin. Tr. 557, Doc. 9-10, at 58). He identified Ms. Kroh’s unemployment, her financial problems, her chronic medical problems, and her chronic psychiatric problems as environmental or psychosocial problems that affect the care of her mental disorder.[6] (Admin. Tr. 557, Doc. 9-10, at 58). Dr. O’Connell assessed Ms. Kroh’s overall function, assigning her a current Global Assessment Function (“GAF”) score of 30.[7] (Admin. Tr. 557, Doc. 9-10, at 58). Dr. O’Connell concluded that Ms. Kroh’s prognosis was “[g]uarded-to-poor.” (Admin. Tr. 557, Doc. 9-10, at 58).

Dr. O’Connell’s narrative report addressed Ms. Kroh’s limitations in three out of the four functional areas identified by the Social Security regulations. See generally 20 C.F.R. § 404.1520a(c); 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C). With respect to activities of daily living, he found that Ms. Kroh could “shop, cook, clean, take care of personal hygiene, and take care of her household.” (Admin. Tr. 557, Doc. 9-10, at 58). With respect to her social functioning, he found that Ms. Kroh “shows some tendency to social[] withdrawal and avoidance, but [she] can conduct herself appropriately with family, friends, neighbors, the general public and, in the past, with co-workers and supervisors.” (Admin. Tr. 557, Doc. 9-10, at 58). With respect to her concentration, persistence, or pace, he found that Ms. Kroh “is anxious and has some problems with attention and focus, but can listen to the radio, watch television, read the newspaper, and cook a light meal.” (Admin. Tr. 557, Doc. 9-10, at 58).

Dr. O’Connell’s narrative report was accompanied by a checkbox form in which he further addressed Ms. Kroh’s limitations with respect to social functioning and concentration, persistence, or pace. (Admin. Tr. 550, Doc. 9-10, at 51). On this form, Dr. O’Connell indicated that Ms. Kroh had no limitations to her ability to understand, remember and carry out short, simple instructions, that she had slight limitations to her ability to understand and remember detailed instructions, and that she had moderate limitations to her ability to carry out detailed instructions, and make judgments on simple work-related decisions. (Admin. Tr. 550, Doc. 9-10, at 51). Dr. O’Connell further indicated that Ms. Kroh had no limitations to her ability to interact appropriately with the public, her supervisors, or her co-workers, but that she had marked limitations with respect to her ability to respond appropriately to work pressures in a usual work setting or to changes in a routine work setting. (Admin. Tr. 550, Doc. 9-10, at 51). When prompted to provide any “medical/clinical finding(s) [that] support this assessment” in a space below each set of checkboxes, Dr. O’Connell left a blank space. (Admin. Tr. 550, Doc. 9-10, at 51).

Ultimately, the ALJ afforded “little weight” to Dr. O’Connell’s opinion, finding that “it is a self-reported snapshot and it is internally inconsistent.” (Admin. Tr. 297, Doc. 9-4, at 66). The ALJ noted that Dr. O’Connell “gave moderate limitations regarding detailed instructions[, ] yet he also gave mild limitations regarding simple instructions when one would expect marked limitations regarding detailed instructions.” (Admin. Tr. 297, Doc. 9-4, at 66). The ALJ specifically noted that she gave “little weight” to the marked limitations found by Dr. O’Connell with respect to Ms. Kroh’s ability to respond appropriately to work pressures or to changes in her work setting because they were “not supported by his own examination or the balance of the record.” (Admin. Tr. 297, Doc. 9-4, at 66)

Pursuant to 20 C.F.R. § 404.1527(c), the ALJ considered the medical opinion of Randon Welton, M.D., a psychiatrist who treated Ms. Kroh when admitted for a three-day stay at a psychiatric hospital. (Admin. Tr. 297, Doc. 9-4, at 66). Ms. Kroh was admitted to the Pennsylvania Psychiatric Institute for inpatient treatment on July 5, 2011, and she was discharged for further outpatient care on July 8, 2011. (Admin. Tr. 612–21, Doc. 9-10, at 113–22). The medical records documenting this hospital stay do not detail Ms. Kroh’s status upon admission or during treatment there, but they include a discharge instruction sheet by Dr. Welton setting forth a working diagnosis of cyclothymic disorder with a possible diagnosis of type two bipolar disorder to be ruled out, and an additional diagnosis of social phobia. (Admin. Tr. 612, Doc. 9-10, at 113). Dr. Welton further identified Ms. Kroh’s history of irritable bowel syndrome as a physical medical condition that may affect her mental disorder. (Admin. Tr. 612, Doc. 9-10, at 113). He identified unspecified “problems with medication” as an environmental or psychosocial problem that affects the care of her mental disorder.[8] (Admin. Tr. 612, Doc. 9-10, at 113). Dr. Welton assessed Ms. Kroh’s overall function, assigning her a GAF score of 61–70.[9] (Admin. Tr. 612, Doc. 9-10, at 113). Dr. Welton’s opinion did not include any narrative observations or findings, and the medical records for this hospital stay include no treatment notes that might provide any further supporting details. It does appear, however, that her medications were adjusted during this period of inpatient treatment. (Admin. Tr. 618–21, Doc. 9-10, at 119–22). Ultimately, the ALJ afforded “great weight” to Dr. Welton’s opinion that Ms. Kroh had a GAF score of 61–70 upon discharge, indicating that this assessment was supported by an unspecified report by Ms. Kroh to her primary care provider.[10] (Admin. Tr. 297, Doc. 9-4, at 66).

Pursuant to 20 C.F.R. § 404.1527(c), the ALJ considered the medical opinion of Aditya Joshi, M.D., a psychiatrist who treated Ms. Kroh when admitted for a second stay at the Pennsylvania Psychiatric Institute. (Admin. Tr. 297, Doc. 9-4, at 66). Ms. Kroh was admitted to the psychiatric hospital for inpatient treatment on August 10, 2011, due to “[i]ncreasing depressed mood with suicidal thoughts/plan to overdose on medication.” (Admin. Tr. 623, Doc. 9-4, at 124). She was discharged nine days later on August 19, 2011. (Admin. Tr. 623–24, Doc. 9-4, at 124–25). Her treatment records indicate that Dr. Joshi diagnosed her as suffering from cyclothymic disorder, panic disorder without agoraphobia, and social phobia. (Admin. Tr. 624, Doc. 9-4, at 125; see also Admin. Tr. 627, Doc. 9-4, at 128 (initial diagnosis of cyclothymic disorder and panic disorder upon admission)). Dr. Joshi further identified hypothyroidism and irritable bowel syndrome as physical medical conditions that may affect Ms. Kroh’s mental disorder. (Admin. Tr. 627, Doc. 9-4, at 128). Dr. Joshi identified “chronic mental health illness” as an environmental or psychosocial problem that affects the care of her mental disorder. (Admin. Tr. 624, Doc. 9-4, at 125; Admin. Tr. 627, Doc. 9-4, at 128). Dr. Joshi assessed Ms. Kroh’s overall function upon admission and discharge, assigning her a GAF score of 20 upon admission, [11] and 55 upon discharge after nine days of treatment.[12] (Admin. Tr. 624, Doc. 9-4, at 125). Dr. Joshi’s opinion did not include any narrative observations or findings, and the medical records for this hospital stay include no treatment notes that might provide any further supporting details. It does appear, however, that her medications were adjusted once again. (Admin. Tr. 623, Doc. 9-10, at 124). Ultimately, the ALJ afforded “little weight” to Dr. Joshi’s opinion that Ms. Kroh had a GAF score of 20 upon admission, explaining that the basis for her admission “was not a suicide attempt, but only a wish to be dead with a nebulous plan to overdose on medication and a depressed mood. The GAF score is too low for functionality . . . .” (Admin. Tr. 297, Doc. 9-4, at 66). At the same time, the ALJ afforded “great weight” to Dr. Joshi’s opinion, rendered nine days later, that Ms. Kroh had a GAF score of 55 upon discharge, explaining that, unlike the lower admission GAF score, Dr. Joshi’s discharge GAF score was supported by unspecified objective medical evidence of record.[13] (Admin. Tr. 297, Doc. 9-4, at 66).

Pursuant to 20 C.F.R. § 404.1527(c), the ALJ considered the medical opinion of Jeffrey A. Okamoto, M.D., a psychiatrist who treated Ms. Kroh as an outpatient in late 2009.[14] (Admin. Tr. 297, Doc. 9-4, at 66). On September 30, 2009, presented for a psychiatric evaluation, complaining of depression and anxiety. (Admin. Tr. 498, Doc. 9-9, at 41). Dr. Okamoto’s written evaluation provided a review of Ms. Kroh’s medical, personal, and vocational history, apparently self-reported by the claimant. (Admin. Tr. 498– 99, Doc. 9-9, at 41–42). Dr. Okamoto documented his personal observations on Ms. Kroh’s mental status:

The patient was casually dressed and cooperative during the interview. Speech was logical and relevant. Mood and affect were depressed. Thought content was nonpsychotic. The patient denied any suicidal or homicidal ideation. The patient was oriented [to place, time, and identity] with good recent and remote memory, [ability to calculate] serial sevens, ...

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