United States District Court, Eastern District of Pennsylvania
REPORT AND RECOMMENDATION
CAROL SANDRA MOORE WELLS CHIEF UNITED STATES MAGISTRATE JUDGE
Latora Hazsana Tyler (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”), denying her claim for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits under Titles II and XVI of the Social Security Act. Plaintiff has filed a brief in support of her request for review, the Commissioner has responded to it and Plaintiff has filed a reply brief. For the reasons set forth below, it is recommended that the case be REMANDED to the Commissioner for further proceedings consistent with this report and recommendation and Judgment be entered in favor of Plaintiff and against Defendant.
I. PROCEDURAL HISTORY
On May 27, 2009, Plaintiff applied for DIB and SSI alleging disability, based upon bipolar disorder and schizophrenia. (R. 411, 415). The claim was denied, initially, so Plaintiff requested a hearing. (R. 221). On October 25, 2010 and September 11, 2011, Plaintiff appeared before Sharon Zanotto, Administrative Law Judge (“the ALJ”), for administrative hearings. (R. 24-38, 117-187). Plaintiff, represented by counsel, testified at both hearings, different vocational experts testified at each hearing, and Plaintiff’s mother, testified at the October 25, 2010 hearing. Id. On November 18, 2011, the ALJ, using the sequential evaluation process for disability, issued an unfavorable decision. (R. 197-206). On February 21, 2012, the Appeals Council remanded the case for consideration of additional evidence Plaintiff had submitted. (R. 213-15). Plaintiff represented by counsel, Plaintiff’s mother, Latice Tyler, Dr. Jerry Cottone, a medical expert (“the ME”), and Terry Leslie, a vocational expert (“the VE”), testified at the third administrative hearing on May 22, 2012. (R. 39-116). On June 5, 2012, the ALJ, again using the sequential evaluation process for disability, issued an unfavorable decision. (R. 10-18). On October 21, 2013, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s findings the final determination of the Commissioner. (R. 1-3). This case was referred to the undersigned by the Honorable Timothy J. Savage, under the authority of 28 U.S.C. § 636(b)(1)(B), for preparation of a report and recommendation.
II. FACTUAL BACKGROUND
A. Personal History
Plaintiff, born on June 14, 1979, (R. 16), was thirty-two years old on the date of the last administrative hearing. She is five feet, seven inches tall and weighs 140 pounds. (R. 414). Plaintiff did not complete high school, (R. 419), and has past relevant work as a convenience store worker, fast food worker and short-order cook. (R. 106-09). She resides with her mother, brother and three nephews, ages five, seven and eight. (R. 62, 66, 69).
B. Plaintiff’s Testimony
At the May 22, 2012 administrative hearing, Plaintiff testified about her mental health condition and limitations. (R. 48-69). Daily, she experiences racing thoughts of suicide and homicide and has panic attacks whenever she leaves her home unaccompanied and encounters large groups of people. (R. 51-53, 59). When Plaintiff has a panic attack, she retreats to an isolated place in order to calm down. (R. 59-60). She also has a sleep disorder. (R. 50).
In December 2011, Plaintiff, overwhelmed by racing thoughts of suicide, attempted suicide via an overdose. (R. 48, 56). She was hospitalized for nine days to recover from that suicide attempt. (R. 48-49).
Plaintiff takes medication to treat her mental health and sleep disorder. (R. 49-50). Also, she sees a therapist every two weeks and a psychiatrist every four weeks to treat her mental health condition. (R. 51). Despite the medication, which causes drowsiness and stomach discomfort, Plaintiff only sleeps approximately three hours each night and does not sleep during the day; further, her racing thoughts and panic attacks persist. (R. 50-51, 59-61).
Plaintiff has a stressful home life; there is a great deal of screaming and arguing there. (R. 62). Her brother struck her in the past and her nephews hit her on a daily basis. (R. 68).
C. Testimony of Plaintiff’s Mother, Latice Tyler
Latice Tyler, Plaintiff’s mother, testified at the May 22, 2012 administrative hearing. (R. 69-85). She confirmed residing with Plaintiff and seeing her every day. (R. 69). Ms. Tyler opined that Plaintiff’s condition had worsened since the last hearing, because her daughter constantly talks about suicidal thoughts. Just one week before the hearing, Plaintiff was hospitalized briefly, because of her suicidal thoughts. (R. 70, 72). Ms. Tyler says her daughter is depressed and spends approximately six hours a day alone in her bedroom. (R. 71-73). Ms. Tyler must remind Plaintiff to keep her doctor’s appointments, to take her medication and to eat. (R. 73). She has observed Plaintiff during panic attacks, which are rare; the last one she witnessed took place a few months before the hearing. (R. 74-75). Furthermore, Plaintiff has a history of wandering around the neighborhood alone at 2:00 or 3:00 a.m. (R. 81).
Ms. Tyler has not observed any improvement in Plaintiff’s condition, even with changes in medication. (R. 74). Plaintiff suffers bloating as a side effect of her medication. Id. Ms. Tyler testified that Plaintiff interacts well with her brother, but not with her nephews. (R. 79). Socially, Plaintiff visits her aunt, who lives nearby, approximately once or twice each month; the aunt picks Plaintiff up for their three or four hour visits. (R. 79-80). Plaintiff does not visit anyone else and has no friends. (R. 80-81).
Plaintiff is willing to perform household chores, but Ms. Tyler does not allow her to do many, because, without assistance, Plaintiff will do them incorrectly. (R. 76-77). Ms. Tyler does permit her daughter to cut the grass, take out the trash and wash dishes. (R. 77). Finally, Plaintiff is able to attend to her personal grooming and hygiene. (R. 78).
D. Medical Expert Testimony
The ME, a licensed psychologist, (R. 86), testified at the May 22, 2012 administrative hearing. (R. 85-105). He had neither examined nor treated Plaintiff. (R. 86). Based upon his review of the administrative record, Plaintiff’s symptoms were inconsistent; he opined that she suffered from mood and anxiety disorders. (R. 88). The ME stated that the record did not support the diagnoses of schizoaffective disorder or bipolar disorder. (R. 96). However, he conceded that some symptoms of mood disorder were common to schizoaffective disorder and bipolar disorder. (R. 97).
The ME stated that Plaintiff had mild limitation in her activities of daily living, mild to moderate limitation in maintaining social functioning, moderate limitation in maintaining concentration, persistence or pace and no evidence of episodes of decompensation. (R. 91). Hence, he opined that she neither met nor equaled the requirements of Listed Impairments 12.04 or 12.06. (R. 89).
The ME assessed that Plaintiff should be limited in decision-making or exercising judgment at work. (R. 92). She could understand, remember and carry out simple instructions and complete simple, routine, repetitive tasks. (R. 92). The ME further opined that Plaintiff was capable of working in proximity to others and interacting appropriately with co-workers and supervisors. (R. 93). He explained that, although Plaintiff’s home life was very stressful, the record revealed that, once removed from that stressful environment, such as when she visiting with her mentor or her aunt, she functioned better. (R. 94). The ME also opined that Plaintiff’s mother prevented Plaintiff from performing more activities. (R. 104). Additionally, he stated that Plaintiff would require a low-stress work environment, hence, she should not perform work that had production and pace requirements, and could not tolerate more than occasional work setting changes. (R. 95).
E. Vocational Testimony
The VE identified Plaintiff’s past relevant work as: (1) convenience store work, which was light and unskilled; (2) fast food worker, which was also light and unskilled; and (3) short-order cook, which was medium and semi-skilled. (R. 106-09). The ALJ ...