United States District Court, M.D. Pennsylvania
MEMORANDUM TO DENY PLAINTIFF'S APPEAL Docs. 6, 7, 8, 11, 12
GERALD B. COHN, Magistrate Judge.
I. Procedural History
On January 3, 2009, Susan Decarolis ("Plaintiff") protectively filed an application for Title II Social Security Disability benefits ("DIB"), and a Title XVI application for Supplemental Security Income ("SSI"), with an alleged onset date of December 12, 2009. (Tr. 117-125, 167).
This application was denied, and on February 28, 2011, a hearing was held before an Administrative Law Judge ("ALJ"), where Plaintiff appeared with counsel and testified, as did a vocational expert (Tr. 57-95). On March 10, 2011, the ALJ issued a decision finding that Plaintiff was not entitled to DIB or SSI because Plaintiff could perform the following jobs of at a reduced range of medium, unskilled work: laundry worker, dry clean checker, and janitor/cleaner, and was therefore not disabled within the meaning of the Social Security Act (Tr. 28, 34-35). On July 9, 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. 20, 204-207, 6-9).
On January 18, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1. On April 24, 2013, Commissioner filed an answer and administrative transcript of proceedings. Docs. 5, 6. In June and August 2013, the parties filed briefs in support. Docs. 7, 8, 11, 12. On May 1, 2014, the Court referred this case to the undersigned Magistrate Judge. On May 20, 2014, the parties consented to Magistrate Judge jurisdiction, and Plaintiff notified the Court that the matter is ready for review. Doc. 14.
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
Plaintiff, who was 46 years old at the time the she alleges she became disabled and 49 years old on the date of the ALJ's decision, has a sixth grade education and reads at a sixth grade level (Tr. 117, 69, 70). She has past relevant work as a fast food worker and a school crossing guard. (Tr. 34, 86, 160).
The Administrative Law Judge found Plaintiff had severe impairments of a learning disorder by history, generalized anxiety disorder, depressive disorder, mood disorder, personality disorder, dependent type, post traumatic stress disorder, low back syndrome, and marijuana abuse. (Tr. 26).
Plaintiff stated that she went outside about five or six times a week; shopped in stores for clothing and food about once a month; spent time with her sister, brother, and other family members; and talked with family members by telephone (Tr. 182, 185-86). She reported no problems getting along with family, friends, neighbors, or others (Tr. 187). She got along very well with authority figures, and never had a problem getting along with other people on the job (Tr. 188).
B. Relevant Medical Evidence
1. On November 11, 2008, Plaintiff was treated at the Emergency Department of Jamaica Hospital in Jamaica, New York for her complaints of mid-to-low back pain, rated at 10/10. Her medical history was notable for depression, anxiety, and panic attacks. She was ambulating with a limp. Diagnosis was chronic back pain (Tr. 209-211). Plaintiff's "medical history... notable for depression, anxiety, and panic attacks" appears based exclusively on Plaintiff's subjective statements as there is no indication that the emergency room medical personnel had access to any of Plaintiff's medical records (Tr. 211). Plaintiff spent a total of two hours in the emergency department (Tr. 209-10). Although Plaintiff was observed ambulating with a limp, no neurological deficits were noted (Tr. 211). The diagnostic impression of "chronic back pain" was apparently based solely on Plaintiff's subjective complaints and the observations of the emergency room medical personnel as there is no indication that any diagnostic or clinical testing was performed (Tr. 210). Specifically, there are no entries on the discharge form indicating that any radiology testing was performed (Tr. 210).
2. In a December 9, 2008 report, Patricia Berliner, Ph.D. of Ozone Park, New York, states that she has seen Plaintiff for psychotherapy five times since September, 2008. Plaintiff had been in abusive relationships for much of her life, starting with sexual abuse by her father when she was very young. Currently, she was being abused by her husband. Her husband was going to move to Florida and Plaintiff expressed that she was not willing to continue being abused by him but was concerned about how she would manage emotionally and financially without him. Dr. Berliner described Plaintiff as "an emotionally fragile person, a situation exacerbated by medical problems and limitations, as well as fear of her husband and concerns about her future." She was taking medication for pain and depression and was struggling to pull things together. According to Dr. Berliner: "It is my assessment that she is not emotionally able to work at this time" (Tr. 258). After offering her opinion that Plaintiff was "not emotionally able to work at this time, " Dr. Berliner, a psychologist, added that "[Plaintiff's] medical doctors would be the appropriate contacts to assess her physical limitations" (Tr. 258).
3. On March 18, 2009, when Plaintiff was seen by Dr. Albert Alley. D.O. in Hazleton, Pennsylvania, it was noted that she had recently moved from New York. She was complaining of persistent depression increasing in severity. Plaintiff told Dr. Alley that as a child, she was sexually abused by her father. Her mother committed suicide. Plaintiff recently separated from her husband who was abusive toward her and sexually abused her daughter. She described feeling sad and blue, having difficulty sleeping (getting 1-4 hours of sleep, ) and having episodes of spontaneous crying. Her other complaints were of low back pain and stiffness, and neck pain. Current medications were Celexa, Valium, Flexeril, Naproxen, and Robaxin. On examination, Plaintiff appeared depressed. She "displays or has experienced abnormal or psychotic thoughts including suicidal ideation." No musculoskeletal examination was conducted. Dr. Alley's impression was: (1) Anxiety/Depression for which he prescribed Abilify, Celexa, and Valium; (2) Persistent Insomnia; (3) Cervicalgia (4) Abuse by Partner; (5) Bipolar Disorder, NOS; and, (6) Fibrosclerosis, breast. Laboratory testing was ordered (Tr. 284-285). Plaintiff stated that her back pain was precipitated by heavy weight lifting, and has developed "due to many years of heavy lifting and improper body mechanics" (Tr. 284). She said that her symptoms were aggravated by exertion and weight lifting (Tr. 284). Although Dr. Alley assessed anxiety and depression, he noted that, on mental status and neurological examination, Plaintiff was alert, fully oriented, and cooperative (Tr. 285). She displayed no impairment of her recent or remote memory, and she had normal sensation and normal coordination (Tr. 285).
4. In follow-up at Dr. Alley's Hazleton office on April 15, 2009, Plaintiff was seen by Dr. Glenda Buyo, M.D. who noted that Plaintiff's back pain - which had been increasing over the last year - was stabbing in nature and located in the lumbar area. It radiated to her neck and was precipitated by bending, prolonged walking, and heavy lifting. There were no relieving factors. Muscle spasms and back stiffness were also present. Plaintiff reported that her pain medication was not working. Her sleep was disturbed; she said that she only got 1-4 hours of sleep at night. Examination revealed point tenderness over the lateral part of Plaintiff's thoracic lumbar area; decreased sensation; "no step off"; extension and flexion limited to less than 25°; positive straight leg test; and, decreased strength (2/5) of the lower extremities bilaterally. Dr. Buyo's assessment was: (1) Cervicalgia for which Plaintiff was to continue taking Naproxen; (2) Insomnia for which Ambien was prescribed; and, (3) Anxiety/Depression for which Plaintiff was to continue taking Celexa and Abilify. It was noted that Plaintiff needed an MRI of the thoracic/lumbar spine (Tr. 282-283).
5. Six days later, on April 21, 2009, Plaintiff returned to Dr. Buyo stating that her pain medications were not helping. Her lumbar pain was constant. It radiated to her neck and also from the left to the right side of her low back. Examination was the same as at the previous visit. Dr. Buyo added Ultram and Flexeril to Plaintiff's regimen (Tr. 280-281). A review of systems indicated no neck pain or swollen glands; no joint pain, muscle pain, or swelling of extremities; no decreased memory, dizziness, paresthesia (i.e., burning or prickling), or weakness; and no anxiety, depression, mood changes or suicidal ideation (Tr. 280).
6. Plaintiff presented to Dr. Buyo on May 5, 2009 complaining of a headache, moderate in severity. She said that she had been having headaches for months. Examination was unchanged from Plaintiff's previous visit. Her dose of Naproxen was increased. Assessment was: (1) Insomnia; (2) Back pain; and, (3) Anxiety/Depression (Tr. 278-279). A review of systems indicated no neck pain or swollen glands; no joint pain, muscle pain, or swelling of extremities; no decreased memory, dizziness, paresthesia, or weakness; and no anxiety, depression, mood changes or suicidal ideation (Tr. 278).
7. On May 11, 2009, Plaintiff was seen at Northeast Counseling Services in Hazleton, Pennsylvania for a Psychosocial Evaluation conducted by Marilyn Brenner, B.A. Presenting problems were depression characterized by tearfulness, decreased motivation and interest, and sleep disturbance; anxiety with shakiness, sweating, muscle tightness, palpitations and panic attacks; and, hearing good and bad voices. She had a history of physical, verbal, and sexual abuse. Psychosocial stressors stemmed from an abusive relationship from which she had removed herself, relocating, and physical (back) problems. She saw a therapist when she was living in New York (Tr. 232-234). Plaintiff refused a referral for a partial hospitalization at the Destinations Program but agreed to an outpatient psychiatric evaluation (Tr. 237-238). When Plaintiff agreed to an outpatient psychiatric evaluation, her expressed goals were to "get thru' and be happy again" and to "live her life" (Tr. 237).
8. On May 20, 2009, when Plaintiff presented to Dr. Buyo with a cough, she told the doctor that her sub-orbital edema was due to insomnia. The doctor prescribed Nasonex for allergic rhinitis (Tr. 276). Examinations of Plaintiff's nose and sinuses, mouth and throat, and chest and lungs were all normal (Tr. 276).
9. On June 3, 2009, Plaintiff told Dr. Buyo that she had been having constant headaches over the past two weeks, located in the frontal area. Her back and neck pain was not improving with physical therapy. Range of motion of Plaintiff's neck was full with mild pain. She was referred to pain management for her back pain and treated with an antibiotic for a sinus infection (Tr. 274). Mental status examination indicated that Plaintiff was alert, fully oriented, cooperative, and well groomed (Tr. 274). Examinations of her head, ears, eyes, nose and sinuses, and mouth and throat were all normal (Tr. 274).
10. Psychiatrist Nilesh Baxi, M.D. of Northeast Counseling Services performed an initial psychiatric evaluation of Plaintiff on June 10, 2009. Plaintiff told Dr. Baxi that she was separated, had a seventh grade education and was unemployed. Before moving to Pennsylvania in December, she saw a therapist in New York for a couple of months. Her history included sexual abuse by her father for a almost year at around age 10. Her husband was abusive to her and sexually abused her daughter. Plaintiff reported crying a lot, thinking about the past, and having frequent flashbacks. She had difficulty sleeping. She had been thinking about suicide for a great deal of her life but said she would not act on it because of her children (daughter age 22 and son age 17.) Plaintiff said that she smoked marijuana for a couple of months about a year earlier. Her mother committed suicide. Plaintiff reported having back and neck problems (Tr. 226-227). Dr. Baxi observed that Plaintiff appeared older than her stated age. Her motor activity was slightly increased and thought flow was tangential. She denied hallucinations. Her mood was sad and her affect, appropriate. She was tearful at times during the interview. Her insight was poor. Diagnosis was: Axis I: Posttraumatic Stress Disorder Depression, NOS Axis II: deferred Axis III: neck and back problems Axis IV: moderate Axis V: 50 (Tr. 227). Dr. Baxi instructed Plaintiff to discontinue Abilify because she was experiencing side effects. She was to continue Celexa. Because of her extensive history of abuse and emotional problems, "she is medically appropriate to be in the Destinations Program and she has agreed to do it" (Tr. 228). Plaintiff specifically denied any psychotic symptoms or mood swings; she stated that she had never seen a psychiatrist before, and denied any prior psychiatric hospitalization (Tr. 226). Mental status examination revealed her to be alert and oriented to time, place, person, and situation (Tr. 227).
11. On June 30, 2010, Plaintiff underwent an initial psychiatric evaluation by psychiatrist P.S. Sriharsha, M.D. of the Destinations Program of Northeast Counseling Services. Plaintiff's history of abuse was noted. Her abusive husband had moved to Florida. She admitted to a history of separating from her husband and then getting back with him. She moved to this area because she had family here. Medically, she had a history of back pain, neck pain, and headaches. She was taking Celexa, Naprosyn, Valium, Tramadol, and Ambien. Dr. Sriharsha observed that Plaintiff's gait was fair. Her anxiety level was moderate. Her affect was unhappy and sad. Her short-term plans, judgment, and insight were questionable and her reliability was fair (Tr. 229-230). Diagnosis was: Axis I: Posttraumatic Stress Disorder Depressive Disorder, NOS Relationship Problems, NOS Axis II: no diagnosis Axis III: neck and back pain Axis IV: trauma issues Axis V: GAF: 40. Dr. Sriharsha recommended that Plaintiff be placed in the Destinations partial hospitalization program, finding it "is medically and therapeutically necessary given her history of trauma." The doctor believed that with treatment, Plaintiff's depression and coping skills would improve (Tr. 230). Upon mental status examination, Plaintiff was awake, alert, and cooperative; her gait was fair; her personal hygiene was good; her speech was clear, coherent, relevant, spontaneous, and productive; she had average reaction time; her anxiety level was moderate; she denied any suicide intent; there was no indication of any formal thought disorder; she had good memory functioning and retention recall; her attention and concentration were good; she was fully oriented to time, place, and person (Tr. 230).
12. Plaintiff was hospitalized at First Hospital of Wyoming Valley in Kingston, Pennsylvania from July 9, 2009 through July 17, 2009. She was admitted following a two-day period of suicidal thoughts, homicidal threats concerning her husband, and an attempt to overdose on medication On the date of her admission, her mood was anxious and depressed but she denied suicidal or homicidal ideation. She was able to contract for safety. Her speech was slow. She was admitted for supportive individual and group therapy and treatment with medication (Tr. 243-244). During her stay, Plaintiff was treated with Valium, Celexa, Seroquel, and Lithium (as well as Robaxin, and Naproxen) and individual and group therapy. Valium was gradually decreased and discontinued. Diagnoses were: Bipolar Disorder, Depressed; and Marijuana Abuse. Plaintiff admitted to drinking alcohol sporadically and smoking marijuana four times a month but she declined the recommendation for outpatient drug and alcohol treatment. On discharge, she agreed to attend the partial hospitalization program and go to her first appointment on July 21, 2009. Her prognosis was considered fair to good (Tr. 240-241). During the course of her in-patient treatment, Plaintiff responded to treatment and showed improvement, with no suicidal ideas or psychotic symptoms (Tr. 241). At the time of her discharge, Plaintiff had done well with remission of her presenting problem (Tr. 241). Her mood, thinking, and behavior were stable with no suicidal or homicidal ideas, unstable mood, or problems with her medication (Tr. 241).
13. On July 20, 2009, in follow up with Dr. Buyo, Plaintiff needed refills of her medications. She said that she was no longer feeling suicidal since being released from the hospital. Dr. Buyo observed that Plaintiff's speech was monotonous with flight of ideas. Medications were refilled and Plaintiff was referred for sleep studies because of her insomnia. Bipolar Disorder was added to her diagnoses (Tr. 272-273). Plaintiff presented in no acute distress, and was alert and fully oriented (Tr. 272). Her mood and affect were normal; her judgment and insight were appropriate; and although she displayed some flight of ideas, there was no attention deficit and no impairment in reading comprehension or problem solving (Tr. 272).
14. On July 21, 2009, as scheduled during her hospitalization, Plaintiff returned to Dr. Sriharsha at the Destinations Program. She told the doctor that she wanted to be referred to outpatient services rather than continuing at Destinations because she felt uncomfortable in group settings. After a discussion with Plaintiff's treatment team, Dr. Sriharsha approved this change (Tr. 451).
15. When Plaintiff presented to Dr. Buyo on August 5, 2009 for refills of her Seroquel and muscle relaxants, she reported that her depression had improved somewhat but she was feeling anxious three times a week. Dr. Buyo said that she would consider increasing Plaintiff's dose of Mirapex next month. Restless legs syndrome was added to Plaintiff's diagnoses (Tr. 270-271). Plaintiff reported that she was feeling well, with some anxiety, but no depression (Tr. 270). Mental status and neurologic examinations revealed that she was alert, fully oriented, cooperative, and well-groomed (Tr. 270-71). She had a normal posture and gait (Tr. 270). There was no impairment in her recent or remote memory; she had a normal attention span and ability to concentrate; her fund of knowledge was appropriate; and she exhibited normal sensation and coordination (Tr. 271).
16. Nine days later, on August 14, 2009, Plaintiff told Dr. Buyo that she wanted to stop taking Seroquel and Lithium because they were making her feel nauseated, lightheaded, and weak. She requested a refill of Celexa. Plaintiff was told to continue taking Seroquel and Lithium but take them at night. Celexa was also continued (Tr. 268-269). Plaintiff reported no anxiety or depression on her new medications (Tr. 268). Examination indicated that she was alert, cooperative, fully oriented, and not anxious or in acute distress (Tr. 269).
17. On August 19, 2009, when Plaintiff was seen by psychiatrist Dr. Baxi at Northeast Counseling, she told him that he was referred back to him after expressing that she did not want to remain in the Destination Program. She said that she was doing better on her Seroquel, Celexa, and Lithium. Dr. Baxi noted that Plaintiff "is providing different information at different times." For example, although Plaintiff told Dr. Baxi that she had only used marijuana for a few months before she was hospitalized in July, at the hospital she reportedly admitted to daily use of marijuana for 30 years. On mental status examination, Plaintiff's mood was "a little bit sad" and her affect was constricted. Her insight was "very poor." Axis I diagnoses were Mood Disorder, NOS; Posttraumatic Stress Disorder; and, Marijuana Abuse. Axis III diagnoses were chronic neck and back pain. Plaintiff was to continue on her current medications. She was referred to a counselor for therapy and told to return in a month (Tr. 435).
18. On an assessment form dated August 28, 2009, psychologist Patricia Berliner, Ph.D. [see paragraph 2, ] states that she treated Plaintiff during the period September 8, 2008 through December 9, 2008 and has not been in contact with her since that time. Dr. Berliner assesses a slight limitation in Plaintiff's ability to make judgments on simple work-related decisions; interact appropriately with the public, supervisors, and co-workers; and, respond appropriately to work pressures in a usual work situation. She assesses a mild-to-moderate limitation in Plaintiff's ability to respond appropriately to changes in a routine work setting and a moderate limitation in Plaintiff's ability to understand, remember, and carry out detailed instructions. Dr. Berliner states that she based her assessment on Plaintiff's own description of how she handles work and life-related stressors (Tr. 250-251).
19. On September 9, 2009, Plaintiff presented to Dr. Buyo requesting a refill of Valium. She reported having a decreased energy level with poor sleep. She was sleeping about 5 hours a night (Tr. 266).
20. On September 11, 2009, Plaintiff was seen by Dr. Baxi's colleague, certified physician's assistant Dorothy Perillo. Ms. Perillo noted that Dr. Buyo had decreased Plaintiff's Lithium because of side effects (dizziness and nausea) which improved with the decreased dose. Although Plaintiff's depression had improved, she continued to have down days, missing her mother who committed suicide 8 years earlier. She was sleeping about 5 hours at night and her appetite varied. Her anxiety was high some days and she took Valium. When she prays, she hears her mother's voice and at times, she sees visions of her mother at night. She said that she had not smoked marijuana for 2 months. Mental status examination was unremarkable except for Plaintiff's fair insight and decreased sleep. Plaintiff's GAF was 55. Seroquel was increased, to be taken at bedtime (Tr. 436).
21. On October 19, 2009, in follow-up with Dr. Buyo, Plaintiff was complaining of increasing depression. She said that she felt tired and lacked energy. Anxiety was also present as were sleep problems, mood changes, frequent crying, and panic attacks. Plaintiff appeared depressed and restless. Although she was anxious, depressed and sad, she was not agitated. Ultram was not helping. Her medications were adjusted; she was told to take Abilify, Celexa, Seroquel, and Lithium, the latter two at bedtime (Tr. 408-409).
22. On November 18, 2009, Plaintiff was seen by state agency examining psychologist Frank James Vita, Ph.D. in Hazleton, Pennsylvania. Dr. Vita, who reviewed records including some from Northeast Counseling, performed a clinical interview and administered the Mini-Mental State Examination ("MMSE"). Plaintiff told Dr. Vita that she dropped out of school in 8th grade after failing 6th and 7th grades and worked as a receptionist for a couple of months. After that, she worked for short periods at several fast food places and for 8 years as a school crossing guard. Her history of abuse was noted. At this time, she was taking Seroquel, Celexa, and Valium. She said that in the past, she used marijuana but only about twice a month. She admitted to hallucinations: seeing her deceased mother (who may have committed suicide) and hearing her father's voice (Tr. 314-315). On mental status examination, Plaintiff's affect was restricted and her mood, labile. Her insight appeared poor and her judgment, fair though based on her history, she had a poor ability to delay gratification and a poor ability to tolerate frustration. Dr. Vita reported that Plaintiff could not complete serial sevens accurately, could not spell the word world' backwards, and her recall was poor: she could remember only one of three words following a two-minute interval. She could recall 5 digits forward but only 3 backwards. Her visuo-spatial ability was poor. Her ability to find similarities between items/words was intellectually deficient as was her fund of information, comprehension, and calculations. Her vocabulary was below average. MMSE testing revealed a raw score of 21, suggesting a mild cognitive impairment but one that required further investigation (Tr. 316-317). Dr. Vita's diagnostic impression was: Axis I: Generalized Anxiety Disorder Dysthymic Disorder, Early Onset, Chronic Cannabis Abuse Reported victim of sexual abuse as a child Axis II: Dependent Personality Disorder Axis III: Degenerative Disc Disease Restless Leg Syndrome Allergies Multiple cysts on breast Axis IV: Severe economic problems, health problems, occupational problems, chronic family problems Axis V: Current GAF = 50. Dr. Vita opined that Plaintiff would likely benefit from the psychiatric medication management and counseling in which she was participating. He recommended a neurological evaluation based upon her MMSE score and also suggested a drug and alcohol evaluation (Tr. 317). Dr. Vita prefaced the recitation of Plaintiff's family history with the proviso that "such histories are subjective.... Family narratives are complex and prone to biases by the narrator's own history, perceptions, beliefs, and schemas." (Tr. 314). Plaintiff stated that she was sexually molested by her biological father at age 10 and that, although she reported the incident, her father "never went to jail, except for one night." (Tr. 315). Plaintiff further stated that she allowed her own daughter to be abused by the child's stepfather (Plaintiff's husband) because she "needed" her husband (Tr. 315). Plaintiff stated that "He would hit her, beat her up and I let it ...