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Hennion v. Colvin

United States District Court, M.D. Pennsylvania

January 14, 2015

ROBERT T. HENNION, JR., Plaintiff,

For Robert T. Hennion, Jr., Plaintiff: Katherine L. Niven, LEAD ATTORNEY, Law Office of Katherine L. Niven & Associates, PC, Harrisburg, PA; Jane Muller-Peterson, Law Offices of Jane Muller-Peterson, Carlisle, PA.

For Carolyn W Colvin, Acting Commissioner of Social Security, Defendant: Justin J. Blewitt, U.S. Attorney's Office - Social Security, Scranton, PA.



REPORT AND RECOMMENDATION Docs. 1, 10, 11, 12, 15


I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security (" Commissioner") denying the application of Plaintiff Robert T. Hennion, Jr., for supplemental security income (" SSI") and disability insurance benefits (" DIB") under the Social Security Act, 42 U.S.C. § § 401-433, 1382-1383 (the " Act"). Plaintiff asserts that, inter alia, the administrative law judge (" ALJ") improperly rejected two consistent opinions from his treating psychologist and psychiatrist, who had each been treating Plaintiff for more than four years when they wrote their opinions, in favor of an opinion by a state agency physician who never examined Plaintiff. ALJs may reject treating physician opinions in favor of state agency, non-examining physicians if they sufficiently justify this rejection. Here, the rationales provided by the ALJ for rejecting the opinions, on their face, would provide sufficient justification. However, each rationale provided by the ALJ, under the facts of this case, constituted either an impermissible lay interpretation of medical evidence, a mischaracterization of the record, or both. Consequently, the ALJ failed to provide sufficient justification for rejecting the treating physician opinions. For the foregoing reasons, the Court recommends that Plaintiff's appeal be granted, the decision of the Commissioner be vacated, and the matter remanded to the Commissioner for further proceedings.

II. Procedural Background

On September 29, 2010, Robert T. Hennion, Jr. (" Plaintiff") filed an application for Title II Social Security Disability benefits and also protectively filed a Title XVI application for Supplemental Security Income, alleging disability since June 17, 2010. (Tr. 66). This application was denied, and on January 31, 2012, a hearing was held before an Administrative Law Judge (" ALJ"). Plaintiff was represented by counsel, and a vocational expert testified. On March 9, 2012, the ALJ found that Plaintiff was not disabled and thus not entitled to benefits. (Tr. 77). The decision of the ALJ, which the Appeal's Council declined to review, is the final decision of the Commissioner.

On February 4, 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 3, 2013, Commissioner filed an answer and administrative transcript of proceedings. Docs. 9, 10. In May, June, and July 2013, the parties filed briefs in support. Docs. 11, 12, 15. On April 29, 2014, the Court referred this case to the undersigned Magistrate Judge. On May 19, 2014, Plaintiff notified the Court that the matter is ready for review. Doc. 14.

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). In other words, substantial evidence is " less than a preponderance" and requires only " more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)).

IV. Sequential Evaluation Process

To receive disability or supplemental security 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); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits 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).

The Commissioner uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed. See 20 C.F.R. § 404.1520. The Commissioner must sequentially determine: (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 from 20 C.F.R. Part 404, Subpart P, Appendix 1 (" Listing"); (4) whether the claimant's impairment prevents the claimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. § § 404.1520, 416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's residual functional capacity (" RFC"). 20 C.F.R. § § 404.1520(e), 416.920(e).

The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability within the meaning of the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

The ALJ's disability determination must also meet certain basic procedural and substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by " a clear and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, " [t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Com. of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).

V. Relevant Facts in the Record

A. Medical, school and work records

Plaintiff was born on July 7, 1981 and was classified by the regulations as a younger individual through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 85). He has a twelfth grade education and past relevant work as a telephone sales representative. (Tr. 75, 85).

Plaintiff began experiencing problems from mental impairments in school. Plaintiff had been " above average to superior" in elementary school, excelled in spelling bees, and was in good physical health. (Tr. 286). However, he was diagnosed with attention-deficit hyperactivity disorder (" ADHD") and prescribed medication in eighth grade. (Tr. 286). His education records indicate he " barely made it through the year" with the help of tutors. (Tr. 295). Plaintiff received several failing grades in ninth grade, and appeared to repeat the ninth grade. (Tr. 285). He was referred to a " partial hospitalization" program at Harrisburg Institute of Psychiatry, where he was initially " defiant, non-compliant, and performing poorly, " although he completed the program. (Tr. 291, 429-34).

In the tenth grade, Plaintiff was in need of " academic and emotional support to a greater extent than can be provided solely by the regular education program." (Tr. 297). An evaluation indicated that he had a " learning disability and a serious emotional disturbance" and was provided " supplemental intervention in the regular instructional environment" at his " regular school." (Tr. 302). After additional problems, he was assigned to an alternative education program for thirty days outside the regular school building. (Tr. 308-10, 312-13). At a reevaluation, his " difficulties appear[ed] to be related more to emotional and behavioral problems" and he was recommended for an " emotional support program." (Tr. 316). At that point, he was assigned to " full-time Sp. Ed. outside of the regular school" in the " emotional support" instructional group for a full school year. (Tr. 320). He made moderate progress in the " Emotional Support" setting in eleventh grade, but his progress was inconsistent because his motivation fluctuated from week to week. (Tr. 328). He " becomes overwhelmed and will 'shut down.'" (Tr. 328). He " require[d] an highly structured environment [with] a therapeutic component and a low student to teacher ratio 100% of the school day to address his social, emotional, and behavioral needs." (Tr. 335).

At the beginning of twelfth grade, Plaintiff's therapist opined that neither regular school or the alternative school was meeting Plaintiff's needs, and recommended home-schooling. (Tr. 338). His IEP team recommended full-time placement in the home. (Tr. 349). He was suspended multiple times throughout high school in the regular education and alternative education schools. (Tr. 394, 400-03). He graduated in 1999. (Tr. 455).

Plaintiff worked fairly regularly after graduating in June of 1999, although he had gaps of several months between each job. (Tr. 249). In 2004, he began working in telephone sales. (Tr. 250). He would work in this position for six years, until his alleged onset date of June 2010. (Tr. 250). However, he was increasingly absent and unable to comply with office procedures.

In 2008 Plaintiff was treated with imipramine, then Celexa, for " severe" panic attacks. (Tr. 650). When Celexa made him feel like a " zombie, " he switched back to imipramine and then added Ativan. (Tr. 652, 656). He initially reported no side effects, but by January of 2009, Plaintiff was reporting to providers at Hershey Medical Center that he had been absent for four days from work with symptoms of nausea, diarrhea, aches, and chills. (Tr. 586, 656). In February of 2009, Plaintiff reported " some" panic attacks and was prescribed Klonopin[1] as needed. (Tr. 658). In April of 2009, Plaintiff was reporting recent panic attacks, so his Klonopin was increased to 0.75 mg, twice per day. (Tr. 659).

By July of 2009, Klonopin was helping Plaintiff's panic attacks, but he was unable to go to sports events due to agoraphobia. (Tr. 495). Later that month, he missed two days of work. (Tr. 526). Plaintiff continued to have some issues with anxiety, so his Klonopin was increased to 0.5 mg three times a day in September of 2009. (Tr. 497). In November of 2009, Plaintiff reported to a resident the office of Dr. Stephen Sinderman, M.D. (his psychiatrist) that he had anxiety during the day intermittently, including a panic attack during a meeting, and was getting anxious when he got too far from home. (Tr. 498, 664). His mood was stable and " neutral" without irritability. (Tr. 498). He had been " overeating-stress eating lately" but his energy was stable. (Tr. 498). Later that month, he missed a week of work " due to swine flu." (Tr. 535). In December of 2009, Plaintiff had a " bit of a meltdown" with " fluctuations" that went up and down and missed work on two days. (Tr. 539). On January 13, 2010, Plaintiff reported that he had been missing " a lot of work, " had to use six or seven vacation days, and that this was the " biggest disaster ever." (Tr. 541). On January 21, 2010, Plaintiff reported that he had been missing work and using vacation days and indicated that he needed to " get on a schedule." (Tr. 542).

In February 2010, Plaintiff missed work because he was having a panic attack. (Tr. 545). He later reported problems with work and panic in open spaces. (Tr. 500). Plaintiff missed work again later that month. (Tr. 548). In March 2010, Plaintiff reported increased stress at work. (Tr. 550). He indicated that he had been going on spending binges and wanted to reprogram his mind to lessen his panic attacks. (Tr. 550). On March 31, 2010, Plaintiff reported that he had gone to work for eight days in a row, which was a " record" for the past year or more. (Tr. 551).

On April 27, 2010, Plaintiff was seen at the Hershey Medical Center for right wrist pain. (Tr. 587). He explained that two weeks earlier, he injured his wrist playing hockey. (Tr. 587). He also indicated that he played guitar semiprofessionally and typed at his job in sales. (Tr. 587). He weighed 250 pounds. (Tr. 587). However, on May 7, 2010, Plaintiff reported panic attacks. (Tr. 554). He was exercising with " some regularity" for the past ten days, but had episodes where " time stops" and he " can't breathe." (Tr. 554).

On June 1, 2010, Plaintiff followed-up with Dr. Sinderman. (Tr. 503). He was " OK" and reported " some stress." (Tr. 503). He reported feeling physically ill from anxiety and had a panic attack with nausea, vomiting, and diarrhea. (Tr. 503). He was still taking Klonopin three times per day and reported no medication side effects. (Tr. 503). His appearance was neat, his behavior was appropriate, his mood was " OK, " his insight and judgment were intact, and his attention and concentration were good. (Tr. 503). Dr. Sinderman prescribed a trial of Lexapro.[2] (Tr. 503). He was assessed a global assessment of functioning (" GAF")[3] of 60. (Tr. 503).

On June 2, 2010, Plaintiff followed-up with Dr. Rogers, his psychologist. (Tr. 557). He indicated that he was on new medications and had not been back to work yet. (Tr. 557). He had had a panic attack. (Tr. 558). On June 9, 2010, Plaintiff reported that " outside of work [his] life is 'OK.'" (Tr. 559). He indicated the " panic attacks have permanently stained [his] mind." (Tr. 559).

Plaintiff stopped working on June 17, 2010. (Tr. 504, 562). He reported " major side effects" from his medications. (Tr. 561). He reported that the medications seemed to have curbed some of his symptoms, but that he felt nauseous and dizzy. (Tr. 561). The next week, he explained he " missed work all week" after having a panic attack the previous Thursday. (Tr. 504). He reported that he did not like people at work. (Tr. 504). His appearance was neat, his behavior was appropriate, his mood was " ok, " his affect was broad but anxious, his insight was intact, his judgment was " fair/intact, " and his attention and concentration was good. (Tr. 504). He was assessed a GAF of 62. (Tr. 504). His medications were continued, his Lexapro was increased from 5mg per day to 10mg per day, and he was to continue with therapy. (Tr. 504).

On June 30, 2010, he reported to Dr. Rogers that he could not wake up and could not move. (Tr. 562). On July 7, 2010, he indicated that he was depressed and trying to get his " head on straight." (Tr. 563). On July 14, 2010, he indicated that he was distressed from the course of events that had transpired over the past few weeks. (Tr. 563). He was struggling with helplessness and hopelessness. (Tr. 563). Plaintiff indicated he had slept for eleven hours, was up for an hour and a half, and went back to bed. (Tr. 563). He identified circumstantial stressors, like his work situation and some family matters. (Tr. 563). Plaintiff indicated that his medications were working " great" for his panic attacks and that he had been able to travel to Baltimore the previous Monday without panic symptoms. (Tr. 563). However, he was experiencing some dizziness. (Tr. 563). On July 28, 2010, Plaintiff reported that he had been really productive and creative since being on Lexapro. (Tr. 568). He indicated that he wanted to go to school and move forward with his life. (Tr. 568). However, he referenced the " dilemma" of his side effects. (Tr. 568). He was still struggling to get stable. (Tr. 568).

On July 30, 2010, Plaintiff followed-up with Dr. Sinderman. (Tr. 505, 671). He was taking 10 mg of Lexapro per day and Klonopin 0.5mg three times per day. (Tr. 505). Plaintiff had been off work since June. (Tr. 505). He reported sedation and constipation as a result of Lexapro and had a low stress tolerance, but had been able to run and workout. (Tr. 505). His appearance was neat, his mood was anxious, and his concentration was good. (Tr. 505). He was assessed a GAF of 60-62. (Tr. 505). Dr. Sinderman opined that " given his slow improvement" and symptoms, " he should remain off work for now." (Tr. 505).

On August 6, 2010, Plaintiff followed-up with Dr. Sinderman. (Tr. 506). Plaintiff had decreased his Klonopin to 0.25 mg, but had a panic attack so he returned to 0.5 mg. (Tr. 506). However, he had improved " on Lexapro" and " off work." (Tr. 506). He reported no side effects from medications. (Tr. 506). He was assessed a GAF of 63 and continued on his medications. (Tr. 506). On August 10, 2010, Plaintiff reported that he was still having side effects, that he was handling things " poorly, " and was having problems with compulsive spending. (Tr. 569).

On August 20, 2010, Plaintiff followed-up with Dr. Sinderman. (Tr. 507-09). Dr. Sinderman observed that Plaintiff was dressed neatly with clear speech and no evidence of psychosis. (Tr. 508). He indicated he lost his job because he could not provide a specific return date and had been denied short-term disability, but was " holding up fairly well despite this." (Tr. 508). He reported that Plaintiff was moving in with his girlfriend and would walk with her, although he had not jogged since the day before he lost his employment. (Tr. 508). He reported that his anxiety was better on Lexapro and feels " more comfortable in wide-open spaces." (Tr. 508). Dr. Sinderman noted that Plaintiff's Klonopin made him sleep excessively, but that when they reduced the dosage, he had a panic attack. (Tr. 508). He explained that Plaintiff " has had a prolonged period of side effects but never wanted to change his medications as he has found it helpful for his anxiety. He seems to be tolerating it fairly well now and gaining improvement." (Tr. 509). He had " good support, is active with his friends." (Tr. 509). Dr. Sinderman again attempted to decrease Plaintiff's nightly dosage of Klonopin to 0.25 mg to combat his excessive sleeping. (Tr. 507, 509).

On August 24, 2010, Plaintiff reported to Dr. Rogers that he had resumed working out, but discussed the " humiliation" of receiving assistance and indicated that he was still experiencing lethargy and fatigue. (Tr. 571). On September 3, 2010, Plaintiff indicated that his symptoms were controlled but that he was still experiencing side effects. (Tr. 572). He indicated that he was still sedated but was hesitant to get off Klonopin. (Tr. 572).

On September 10, 2010, Plaintiff followed-up with Dr. Sinderman. (Tr. 510). He was reporting some panic attacks in open areas, more anxiety at times, and a decreased ability to workout. (Tr. 510). He reported no medication side effects. (Tr. 510). He was " living day to day." (Tr. 510). His concentration was good, his insight and judgment were fair, his mood was " OK, " his affect ...

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