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Protzman v. Colvin

United States District Court, M.D. Pennsylvania

March 25, 2015

GREGORY PROTZMAN, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION TO VACATE THE DECISION OF THE COMMISSIONER AND REMAND FOR FURTHER PROCEEDINGS Docs. 1, 6, 7, 8, 12, 13

GERALD B. COHN, Magistrate Judge.

REPORT AND RECOMMENDATION

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 Gregory Protzman for disability insurance benefits ("DIB") under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the "Act"). Plaintiff asserts that the ALJ erred in evaluating his mental impairments. Plaintiff was injured at his job as a high school principal in 2006. He developed reflex sympathetic dystrophy ("RSD"), which caused pain and a "burning" sensation in his legs, and other physical impairments. He reported that he had been athletic and active prior to his injury, but his physical pain precluded him from performing these activities and he became obese. Conservative treatment failed, and he had to undergo spinal surgery to have a spinal stimulator implanted. He lost his job and pension, entered bankruptcy, and went through a divorce from his wife. He began reporting depressive, anxious, and post-traumatic stress disorder ("PTSD") symptoms from these events, along with abuse he suffered as a child. Plaintiff was treated by a psychiatrist and a therapist during the relevant period, and was on multiple psychotropic medications. He reported that these medications, along with his pain medications, impacted his mental functioning. He also reported memory problems from traumatic brain injuries suffered while playing contact sports. Plaintiff reported difficulties getting along with family, paramours, students he mentored and their families, and supervisors. He was admitted to the hospital for an overdose of medication. He also checked himself into three different emergency rooms in early February of 2012 after having traumatic triggers of past sexual abuse as a child, which he dealt with by slamming his hand with a hammer. He frequently carried the diagnoses of depression, anxiety, and PTSD throughout the relevant period and was assessed global assessment of functioning ("GAF") scores between 41 and 60.

In determining Plaintiff's functional limitations, the ALJ discussed only Plaintiff's diagnosis of depression and his "normal examination findings." The ALJ did not mention Plaintiff's overdose, suicidal thoughts, or hospitalization after harming himself with a hammer. The ALJ factually mischaracterized the record and concluded that Plaintiff had never visited the emergency room for mental problems and never reported problems with interacting with others or daily activities. Despite concluding that Plaintiff had moderate difficulties in concentration, persistence, and pace, the ALJ found that Plaintiff's mental impairments required only a limitation to semi-skilled work and a restriction from "constant" interaction with coworkers, supervisors, or the public. This violates Third Circuit precedent. Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004). The ALJ also rejected the opinion of the state agency psychologist that Plaintiff should be limited to simple, repetitive work without explanation. This also violates Third Circuit precedent. Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994). The combination of factual and legal errors with regard to Plaintiff's mental impairments precludes meaningful review. As a result, the Court recommends that Plaintiff's appeal be granted, the decision of the Commissioner be vacated, and the matter be remanded for further proceedings.

II. Procedural Background

On January 31, 2011, Plaintiff protectively filed an application for DIB under Title II of the Act. (Tr. 177-83). On June 13, 2011, the Bureau of Disability Determination denied this application (Tr. 102, 141-45), and Plaintiff filed a request for a hearing on July 11, 2011. (Tr. 147-48). On June 7, 2012, an ALJ held a hearing at which Plaintiff-who was not represented by an attorney-and a vocational expert ("VE") appeared and testified. (Tr. 11-46). On August 2, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 122-38). On August 13, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 8-10), which the Appeals Council denied on August 20, 2013, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-7).

On October 14, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On March 5, 2014, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 6, 7). On April 17, 2014, Plaintiff filed a brief in support of his appeal ("Pl. Brief"). (Doc. 8). On May 1, 2014, the Court referred this case to the undersigned Magistrate Judge. On June 18, 2014, Defendant filed a brief in response ("Def. Brief"). (Doc. 12). On July 2, 2014, Plaintiff filed a brief in reply. (Doc. 13). The matter is now ripe for review.

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). 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 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 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 (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).

V. Relevant Facts in the Record

Plaintiff was born on November 13, 1973 and was classified by the regulations as a younger individual through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 132). Plaintiff has a college and a master's degree and past relevant work as a principal, assistant principal, and fitness teacher. (Tr. 41).

A. Physical Impairments

On April 9, 2010, Plaintiff was evaluated by pain specialist Dr. Ibrahim Elsamanoudi, M.D. (Tr. 400). Dr. Elsamanoudi noted that Plaintiff had been injured in 2006 and subsequently developed symptoms of complex regional pain syndrome in his right leg that spread to his left leg. (Tr. 400). Plaintiff "failed all treatment modalities and underwent an implant of a spinal cord stimulator." (Tr. 400). Plaintiff reported using the stimulator periodically for "some pain relief." (Tr. 400). He was also complaining of a "burning" sensation and sensitivity to touch in his legs. (Tr. 400). Plaintiff rated his pain as a seven out of ten and reported that it was improving due to warmer weather. (Tr. 400). Plaintiff was also treating his pain with Lortab and Flexeril, and was treating his mental impairments with Ambien, Cymbalta, lorazepam, and Elavil from his psychiatrist. (Tr. 400). He ambulated with a "slight antalgic gait." (Tr. 400). He had "functional range of motion of his hips, knees, and ankles bilaterally." (Tr. 400). His leg strength was "5/5 and symmetric." (Tr. 400). He had "areas of hyperesthesia[1] especially over the thighs bilaterally and the right knee." (Tr. 400). Plaintiff's medications were continued except for his Lortab, which was temporarily increased until he had a painful tooth extracted. (Tr. 400). At a follow-up on June 11, 2010, Plaintiff had a normal gait, was increasing his activity, and rated his pain as a two out of ten. (Tr. 396). In September and December of 2010, Plaintiff continued reporting pain and burning in his legs to Dr. Elsamanoudi, and examination findings included sensitivity and discoloration on his legs. (Tr. 394-95).

Plaintiff also began to complain of shoulder pain. (Tr. 299). On December 9, 2010, an X-ray of Plaintiff's shoulder indicated no "acute osseous abnormalities." (Tr. 299). On December 15, 2010, a CT scan of Plaintiff's shoulder indicated a labral tear. (Tr. 298). Plaintiff was scheduled for surgery on his shoulder. (Tr. 319).

On December 12, 2010, Plaintiff was evaluated by Dr. Dennis Probst, D.O. for one day of profound dizziness. (Tr. 318). He denied headaches and weakness and reported that his dizziness was worse with changing positions. (Tr. 318). Plaintiff's "balance [was] off when he [stood] from a seating position." (Tr. 318). Plaintiff was prescribed antivert for dizziness and instructed to follow-up in five days if there was no improvement. (Tr. 318).

On January 19, 2011, Plaintiff underwent surgery for a labral tear in his shoulder. (Tr. 301). On March 4, 2011, Plaintiff followed-up with Dr. Elsamanoudi. (Tr. 393). Plaintiff continued to complain of a burning sensation, sensitivity to touch, and color changes in his legs. (Tr. 393). He rated his pain as a two or three out of ten in the lower extremities and a five out of ten in the shoulder. (Tr. 393). On examination he had sensitivity, dysesthesia, [2] and discoloration on his legs. (Tr. 393). Later that day, Plaintiff followed-up with his shoulder surgeon, Dr. John B. O'Donnell, M.D. (Tr. 309). Plaintiff was "doing well." (Tr. 309). He had "painless neck motion" with no instability. (Tr. 309). He had "excellent strength of his rotator cuff muscles" and a negative impingement sign. (Tr. 309). He was scheduled to start formal physical therapy. (Tr. 309).

On March 14, 2011, Plaintiff followed-up with Dr. Probst for a "feeling of off balance." (Tr. 316). Plaintiff reported that he does not feel dizzy, just off-balance. (Tr. 316). Plaintiff reported "these symptoms have been progressive over several weeks to months." (Tr. 316). On examination, Plaintiff had a "slight horizontal nystagmus to the left" and positive Romberg sign. (Tr. 316). Plaintiff was referred to a neurologist. (Tr. 316).

On April 14, 2011, Plaintiff had a consultative examination with state agency physician Dr. Craig Nielsen, M.D. (Tr. 325). Dr. Nielsen noted that "[h]istory was a bit difficult to get from the patient, as he was a bit wandering and it was difficult to put a clear story together." (Tr. 325). Dr. Nielsen noted that Plaintiff "has a really odd affect" and will intermittently "have a glaring wide-open eyed look." (Tr. 328). He had pressured speech and never smiled. (Tr. 328). His "[a]rticulation of speech [was] a bit difficult to understand at times, particularly when he talk[ed] very rapidly." (Tr. 328). Plaintiff's physical examination was largely normal. (Tr. 326-29). Dr. Nielsen observed Plaintiff descending the stairs normally as he left the office. (Tr. 330). Dr. Nielsen opined that Plaintiff could lift and carry up to twenty five pounds occasionally, had no limitation in sitting, standing, walking, pushing, pulling, postural activities, or other physical functions. (Tr. 332). He opined that Plaintiff should avoid working around moving machinery until his shoulder was fully recovered. (Tr. 332).

On May 6, 2011, Plaintiff followed-up with Dr. Elsamanoudi. (Tr. 392). He reported that his shoulder was "doing much better and he has very little pain in his shoulder at this point." (Tr. 392). Plaintiff had discontinued his therapy for his shoulder and was "planning on seeing the surgeon today to be released back to full activities." (Tr. 392). He rated his pain as a two or three out of ten in the lower extremities with pain medication. (Tr. 392). On examination he ...


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