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Shearer v. Colvin

United States District Court, M.D. Pennsylvania

September 15, 2014

BRENDA K. SHEARER, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM TO DENY PLAINTIFF'S APPEAL Docs. 8, 11, 12, 16

GERALD B. COHN, Magistrate Judge.

I. Procedural History

On May 12, 2010 and May 14, 2010, Brenda K. Shearer ("Plaintiff") protectively filed an application for Title II Social Security Disability benefits ("DIB"), and also filed a Title XVI application for Supplemental Security Income ("SSI"), with an onset date of September 16, 2009. (Tr. 156, 158).

This application was denied, and on November 17, 2011 and January 31, 2012, a hearing was held before an Administrative Law Judge ("ALJ"), where Plaintiff testified and waived the right to counsel. (Tr. 41, 59). On February 6, 2012, the ALJ issued a decision finding that Plaintiff was not entitled to DIB or SSI because Plaintiff could perform less than a full range of unskilled light work with extra breaks and only occasional interaction with the public (Tr. 31). On September 20, 2012, the Appeals Council denied Plaintiff's request for review, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1).

On October 26, 2012, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3), to appeal the decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1. On March 8, 2013, Commissioner filed an answer and administrative transcript of proceedings. Docs. 7, 8. In May and June 2013, the parties filed briefs in support. Docs. 11, 12. On May 1, 2014, the Court referred this case to the undersigned Magistrate Judge. On May 13, 2014, the Court issued an order providing Plaintiff the opportunity to file a reply brief and notifying the parties of the option to consent to Magistrate Judge jurisdiction. Doc. 13. On May 21, 2014, the parties consented to Magistrate Judge jurisdiction. Doc. 14. On June 3, 2014. Plaintiff filed a reply brief in accordance with the Court's order. Doc. 16.

II. Standard of Review

When reviewing the denial of disability benefits, we must determine whether the denial is supported by substantial evidence. Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of Social Sec. 529 F.3d 198 , 200 (3d Cir. 2008). 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, 564 (1988); Hartranft v. Apfel , 181 F.3d 358, 360. (3d Cir. 1999); Johnson , 529 F.3d at 200.

This is a deferential standard of review. See Jones v. Barnhart , 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence is satisfied without a large quantity of evidence; it requires only "more than a mere scintilla" of evidence. Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir.1999). It may be less than a preponderance. Jones , 364 F.3d at 503. Thus, if a reasonable mind might accept the relevant evidence as adequate to support the conclusion reached by the Acting Commissioner, then the Acting Commissioner's determination is supported by substantial evidence and stands. Monsour Med. Ctr. v. Heckler , 806 F.2d 1185, 1190 (3d Cir. 1986).

To receive disability or supplemental security benefits, Plaintiff 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); 42 U.S.C. § 1382c(a)(3)(A).

Moreover, the Act requires further that a claimant for disability benefits must show that he has a physical or mental impairment of such a severity that: "he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

III. Relevant Facts in the Record

A. Background

Plaintiff is a forty-six year old female who was forty-four years old at the time of the first hearing which is classified as a younger individual (20 C.F.R. § 404.1563). Plaintiff has a high school education (Tr. 34) and past relevant work as a pharmacy technician, classified as semi-skilled and light with the skills being filling prescriptions, typing labels, working with customers, processing records and taking calls (Tr. 49).

At the first hearing in this matter, the ALJ reviewed the medical evidence on file, and asked Plaintiff whether she had other medical treatment and where so that the ALJ could obtain that information (Tr. 61-65). The ALJ further discussed Plaintiff's medications, medical conditions, and medical treatment extensively with Plaintiff, and asked Plaintiff to describe a typical day (Tr. 87-93).

The Administrative Law Judge found the Plaintiff had severe impairments of Restless Leg Syndrome and Depression but her High Blood Pressure, Cervical Nelgalasia, Gastroesophageal Reflux Disease and Obstructive Sleep Apnea were found to be non-severe (Tr. 28-29).

B. Relevant Medical Evidence

1. Treatment with Sadler Health Center

Plaintiff obtained primary healthcare treatment with Sadler Health Center in 2010 and 2011 (Tr. 361-86, 637-745). In May 2010, Plaintiff was assessed, in pertinent part, with depression and prescribed Prozac (Tr. 377, 382). By June 2010, Plaintiff reported that Prozac was "helping 50-60%" but that she was still having trouble sleeping due to restless leg syndrome (Tr. 665).

Plaintiff was assessed with crepitus and knee pain in both knees in June, 2010 (Tr. 664). June 2010 x-rays of Plaintiff's left knee revealed no fracture or other abnormality in the bone, joint, or soft tissue, and no effusion (Tr. 682). In July 2010, nursing staff assessed Plaintiff with chondromalacia patella of the left knee2 and Plaintiff was referred to physical therapy at the Drayer Physical Therapy Institute for knee pain (Tr. 658-59, 742-44, 746-49). In August 2010, however, Plaintiff's physical therapist contacted Sadler, reporting that objective findings did not support Plaintiff's reporting of 10/10 pain (Tr. 666). The physical therapist noted that "[Plaintiff] doesn't grimace, or limp, and is able to perform [activities of daily living] [without] difficulty. [Plaintiff] appears okay when [she] is unaware of being observed" (Tr. 666).

In an October 2010 treatment note, Plaintiff's physical therapist again noted that "[Plaintiff] would benefit from [follow up] at this time as objective measures are inconsistent [with] subjective complaints" (Tr. 742). In addition, Plaintiff had met most of her objectively tested physical therapy goals by October 2010 (Tr. 743).

Plaintiff sought paperwork to support her disability claim in August 2011 (Tr. 639, 641). Her gait and station, range of motion, stability, and muscle strength and tone were assessed as normal (Tr. 639). Louis Hieb, D.O., noted that he was not certain Plaintiff had cervical cancer, and that she reported she was doing "fairly well" with regard to her bipolar disorder (Tr. 641). Dr. Hieb's examination revealed that Plaintiff was in no acute distress, had no tenderness in her left calf, but was tender in her left Achilles tendon, and malleoli, and had pitting edema around the left ankle (Tr. 641).

2. Restless Leg Treatment with Salim Qazizadeh, M.D.

Plaintiff treated with Salim Qazizadeh, M.D., for her restless leg syndrome beginning in December 2010 (Tr. 425). Dr. Qazizadeh also referred Plaintiff for sleep studies, which she underwent in January 2011 (Tr. 702-37), and which revealed that Plaintiff had obstructive sleep apnea, however, Plaintiff's apnea responded well to CPAP therapy, resulting in her sleeping better (Tr. 421-24). During a May 2011 examination, Dr. Qazizadeh found that Plaintiff was in no apparent distress, was awake, alert, and oriented, and had normal language, attention span, concentration, and memory (Tr.422). Based on blood tests, Dr. Qazizadeh opined that Plaintiff's fatigue and restless leg syndrome (in part) related to her low ferritin, and vitamins D, B-12 and folic acid levels (Tr. 422, 427-28). Dr. Qazizadeh increased Plaintiff's Requip dosage to address her restless leg syndrome and strongly recommended that she stop smoking (Tr. 422).

3. Medical Source Statement of Robert Goeltsch, M.D.

Robert Goeltsch, M.D., opined in June 2010 that Plaintiff had no limitation with regard to lifting or carrying, standing and walking, sitting, or pushing or pulling (Tr. 341). He further opined that Plaintiff had no postural limitations, other physical function limitations, or environmental restrictions (Tr. 342).

4. Mental Health Treatment with Franklin Family Services

Plaintiff saw Kim Cuff, M.Ed., and psychiatrist J. Scott Trayer, D.O., for psychological treatment at Franklin Family Services from August 2010 to June 2012 (Tr. 477-532, 534-56, 563-634, 780-813). At Plaintiff's initial assessment in August 2010, a mental status examination revealed that she had a normal appearance, clear speech, normal affect, and good mood (Tr. 489). Plaintiff's thought process and content were clear, her orientation was good, and her intelligence was average (Tr. 489). Plaintiff's concentration, judgment, and insight were good (Tr. 489). She reported that she had a boyfriend (Tr. 489). Ms. Cuff assessed Plaintiff with depressive disorder, not otherwise specified (diagnostic code 311.00), and assigned a GAF score of 70 (Tr. 490).

In November 2010, Kim Cuff, M.Ed., assessed Plaintiff with current and prior GAF scores of 70, an assessment that Dr. Trayer agreed with (Tr. 478, 603-04). During a January 2011 examination Dr. Trayer noted that Plaintiff's mood was euthymic, and that Plaintiff reported her mood being "good" (Tr. 491). Plaintiff's affect was appropriate, her speech was spontaneous, thought process was clear and appropriate, associative thinking was intact, and Plaintiff had no delusions, hallucinations, obsessions, preoccupations, or somatic thoughts (Tr. 491). Dr. Trayer further assessed Plaintiff's memory, attention span, concentration, judgment, and insight as intact (Tr. 491). Plaintiff's sleep was assessed as normal (Tr. 491).

In January and late February 2011, Dr. Trayer assessed Plaintiff with unimpaired speech, clear and appropriate thought process, and intact associative thinking (Tr. 520, 535, 537). He further assessed that Plaintiff's memory, attention span, concentration, judgment, and insight were intact (Tr. 520, 535, 537).

In a February 2011 session, Ms. Cuff noted that "[Plaintiff's] romantic relationship appears to be going well, " that Plaintiff was a "mother figure" to her boyfriend's adult son, working with him on a daily basis, and that Plaintiff spent time with a small circle of relatives, thus reducing her anxiety and stress (Tr. 504). Ms. Cuff also noted that Plaintiff made arts and crafts daily (Tr. 504). Ms. Cuff assessed Plaintiff's anxiety, mood and attention at a level "8, " but at the following session noted improvement, with mood at "4, " and anxiety and attention at "3" (Tr. 504-05).[1] Ms. Cuff's assessments of Plaintiff fluctuated over March and April 2011, ranging from scores of 4 to 10 in the various categories of assessment (Tr. 506-08).

By late March 2011, Dr. Trayer assessed Plaintiff with a GAF score of 58, and again found that her memory, attention span, concentration, judgment, and insight were grossly intact, that her speech was normal, and that her thought process was clear and appropriate (Tr. 518). During a contemporaneous therapy session, Plaintiff reported that she was essentially acting as live in nursing staff for her stepson and his biological father, taking care of both men (Tr. 595). Ms. Cuff assessed Plaintiff's mood, anxiety, and attention at "9" (Tr. 595).

In an April 2011 treatment plan, Ms. Cuff noted that Plaintiff had achieved some of her treatment goals and was continuing to work on others; under strengths, Ms. Cuff noted that Plaintiff made friends easily, had a sense of humor, a positive attitude, positive parenting skills, got along with her family and had age appropriate social interests (Tr. 480, 530). During April 2011 treatment sessions, Ms. Cuff assessed Plaintiff with a 3 in attention level, 4 in her anxiety level, and 5 and 9 in her mood level (Tr. 531). She also noted that Plaintiff "continues to take care of her son on a daily basis" and that "[Plaintiff] is doing a great job taking care of him" (Tr. 531-32). Ms. Cuff noted in May 2011 that Plaintiff was doing well after having major oral surgery, and assessed her mood, anxiety and attention at level 5 (Tr. 529). Plaintiff's diagnoses were bipolar disorder and depressive disorder not elsewhere specified (Tr. 482). By May 2011, Dr. Trayer assessed Plaintiff's mood as fair/okay, with a serious affect (Tr. 493). Plaintiff's speech was normal, and her memory, attention span, judgment, and insight were all intact (Tr. 493). Dr. Trayer diagnosed Plaintiff with bipolar disorder and assigned Plaintiff a GAF score of 58 (Tr. 493).

During a June 2, 2011 assessment, Ms. Cuff noted that Plaintiff had been "doing much better" with her anxiety and depression, stating "[Plaintiff's] depression is associated mainly with lack of money and not knowing when her SSI will come through" (Tr. 495). Although Plaintiff's anxiety increased by her next visit (Tr. 497), it improved again later that month, assessed along with Plaintiff's mood, and attention span at a 4 (Tr. 496). Ms. Cuff again noted that Plaintiff was "down because of her SSI not coming through" but that Plaintiff's mood was otherwise "good" (Tr. 496). By the end of June 2011, Plaintiff was again assessed with 4s in all categories, and Ms. Cuff noted that Plaintiff was doing very well managing her stress and anxiety (Tr. 498). On June 20, 2011, Dr. Trayer assessed Plaintiff's thought process as clear and appropriate, with intact associative thinking, memory, attention span, concentration, judgment, and insight (Tr. 516). Dr. Trayer assigned a GAF score of 62 at that time (Tr. 516).

In July 2011, Ms. Cuff's assessment scores fluctuated from 7s to 3s (Tr. 500, 577). Dr. Trayer examined Plaintiff in July 2011, and assessed Plaintiff's thought process as clear and appropriate, her associative thinking as intact, her memory, attention span, and concentration intact, and her speech as normal (Tr. 514). Plaintiff's judgment was assessed as fair and impulsive and Dr. Trayer assigned her a GAF score of 60 (Tr. 514).

By early August 2011, Ms. Cuff described Plaintiff's mood as "upbeat, " stating that Plaintiff "continues to do well and achieve her treatment plan goals and three objectives" but rating her mood and anxiety at 7, and her attention at 3 (Tr. 499). She assessed Plaintiff with 6s at the following session, and 2s through 7s in the various categories throughout August and September 2011 sessions (Tr. 501, 525-28). In mid-August and September, 2011, Dr. Trayer opined that Plaintiff's memory, attention span, and concentration were intact and that she had a clear and appropriate thought process, and unimpaired speech; he found that Plaintiff's judgment was fair and impulsive, and her insight was limited (Tr. 509, 512). In August, Dr. Trayer assessed Plaintiff a GAF score of 62 and, in September he assessed a GAF score of 58 (Tr. 509).

In an October 2011 treatment plan, Ms. Cuff noted that Plaintiff and her companion took care of Plaintiff's stepson's medical needs, which involved 24-hour per day care (Tr. 483). At that time, Ms. Cuff assigned Plaintiff a GAF score of 407 (Tr. 485). Later that month, an examination of Plaintiff by Dr. Trayer revealed that Plaintiff's mood was good and sad, her thought process was clear and appropriate, and her memory, attention span, concentration, judgment, and insight were intact (Tr. 502, 550). Plaintiff reported to Dr. Trayer that she was sleeping well with Gabapentin and, although she had some restless leg, she had less leg pain (Tr. 550). Dr. Trayer assigned Plaintiff a GAF score of 60 (Tr. 502, 550).

During November 2011 sessions, Ms. Cuff again attributed Plaintiff's stress to the fact that she had "not received her SSI checks yet" and assessed her mood, anxiety, and attention at "7" (Tr. 522-23). She also noted that Plaintiff was the full time care giver of her son (Tr. 523). Ms. Cuff assessed Plaintiff's mood, anxiety and attention at 6s and 7s throughout November and December 2011 (Tr. 563-65, 794).

In February 2012 sessions, Ms. Cuff assessed Plaintiff as severely depressed and anxious, rating her mood, attention and anxiety levels at 7 (Tr. 791-93). In her treatment plan, Ms. Cuff assigned a GAF score of 35 to Plaintiff, noting that she was still caring for her son and companion "24/7" but stating that Plaintiff could make friends easily, was articulate and had a sense of humor, was motivated to improve, and had a positive attitude (Tr. 801-03). By March 2012, Plaintiff reported that she was still caring for her stepson, which was "great" as it promoted her moving around and being "mobile throughout the day" (Tr. 789) and her primary stressors were financial (Tr. 788-89). Plaintiff's mood ranged from 6 to 7 during this time, and anxiety was rated at 7, with scores of 7 in April as well (Tr. 787-89). By early May, Plaintiff's mood and anxiety assessment had improved to scores of 5 and her attention was assessed at 4, with Ms. Cuff noting that Plaintiff was fishing to relax (Tr. 786). Ms. Cuff's assessment of Plaintiff's mood and anxiety fluctuated from May through July, with Ms. Cuff noting the primary stressor for Plaintiff was not receiving SSI benefits and having financial difficulties (Tr. 780-85).

In June of 2012, Dr. Trayer examined Plaintiff, noting that she reported her mood as good and sad, and assessing her with a brighter but calm affect (Tr. 812). Dr. Trayer opined that Plaintiff's thought process was clear and appropriate, and that her associative thinking was intact (Tr. 812). As with prior examinations, Dr. Trayer assessed Plaintiff's memory, attention span, judgment and insight as intact (Tr. 812). He assigned Plaintiff a GAF score of 62 (Tr. 812).

Ms. Cuff submitted a medical source statement dated August 1, 2012, where she assessed Plaintiff with extreme limitations in every assessment category (Tr. 776-78). In her statement Ms. Cuff assigned a GAF score of 35 to Plaintiff (Tr. 776).

5. Consultative Evaluation with Christopher Royer, Psy. D.

Plaintiff attended a psychological consultative evaluation with Christopher Royer, Psy. D., in July 2010 (Tr. 391-94). Plaintiff reported periods of depression and that she was taking Prozac to deal with this (Tr. 392). Plaintiff reported being up three to four times per night due to her restless leg syndrome when she takes medication, and more if she does not (Tr. 392). Plaintiff was fully alert throughout the evaluation (Tr. 393). Her expressive speech was assessed as fluent and slow in pace (Tr. 393).

Dr. Royer assessed Plaintiff's thought processes as clear, associations as appropriate, and judgment as fair (Tr. 393). Plaintiff exhibited no perceptual disturbances or other gross psychopathology (Tr. 393). Plaintiff's mental status examination revealed that she was fully oriented (Tr. 393). Her ability to learn and recall a list of four words over a brief delay was mildly impaired. but she performed a mental arithmetic test without error as well as a serial three test (Tr. 393). Plaintiff could comprehend and follow all test instructions (Tr. 393). Dr. Royer assessed Plaintiff's fund of information as adequate, and her affect as flat (Tr. 394).

Dr. Royer's diagnostic impression was that Plaintiff had major depressive disorder, moderate, recurrent; he assessed a GAF score of 52 (Tr. 394). In his functional assessment of Plaintiff, Dr. Royer opined that Plaintiff had no restriction in understanding, remembering, and carrying out short, simple instructions, and moderate limitation in doing so with regard to detailed instructions (Tr. 389). Dr. Royer opined that Plaintiff was moderately restricted in making judgments on simple, work-related decisions, and interacting appropriately with coworkers (Tr. 389). He found Plaintiff was slightly restricted in interacting appropriately with supervisors, and markedly restricted in responding appropriately to pressures and changes in a routine work setting (Tr. 389).

6. State Agency Psychological Assessment

State Agency expert psychologist Michael Suminski, Ph.D., reviewed Plaintiff's medical history, assessing Plaintiff's mental functional abilities (Tr. 402-05). Dr. Suminski opined that Plaintiff could "meet the basic mental demands of simple routine work on a sustained basis despite the limitations resulting from her [mental] impairment" (Tr. 405). Although he noted that Plaintiff was limited in remembering complex or detailed instructions, he opined that she could understand and remember simple one- and two-step instructions and could perform simple, routine, repetitive work in a stable environment, make simple decisions, and had adequate impulse control (Tr. 402, 404).

In terms of specific functional abilities, Dr. Suminski opined that Plaintiff was not significantly limited in nearly every subcategory of social interaction and adaptation, but that she was moderately limited in her abilities to interact appropriately with the general ...


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