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Forster v. Colvin

United States District Court, M.D. Pennsylvania

April 10, 2015

SCOTT M. FORSTER, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM Docs. 1, 11, 12, 17, 18, 20, 22.

GERALD B. COHN, Magistrate Judge.

I. Procedural Background

On January 18, 2011, Scott M. Forster ("Plaintiff") protectively filed an application as a claimant for disability insurance benefits, with an alleged disability onset of December 19, 2010. (Administrative Transcript, hereinafter, "Tr." at 16, 56, 120). After Plaintiff's claim was denied at the initial level of administrative review, at Plaintiff's request, on September 18, 2012, an administrative law judge ("ALJ") held a hearing at which Plaintiff, who was represented by an attorney, and a vocational expert ("VE") appeared and testified. (Tr. 31-55). On September 26, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 13-30). On November 21, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 10-12), which the Appeals Council denied on September 4, 2013, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 4-9).

On November 4, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) and pursuant to 42 U.S.C. § 1383(c)(3), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1. On February 12, 2014, the Commissioner ("Defendant") filed an answer and an administrative transcript of proceedings. Doc. 11, 12. On May 28, 2014, Plaintiff filed a brief in support of the appeal ("Pl. Brief"). Doc. 17. On June 23, 2014, Defendant filed a brief in response ("Def. Brief"). Doc. 18. On November 11, 2014, the Court referred this case to the undersigned Magistrate Judge. Both parties consented to the referral of this case to the undersigned Magistrate Judge, and an order referring the case to the undersigned Magistrate Judge was entered on December 1, 2014. Doc. 20, 22.

II. Relevant Facts in the Record

Plaintiff was born January 21, 1978 and thus was classified by the regulations as a younger person through the date of the ALJ decision on September 26, 2012. (Tr. 34); 20 C.F.R. § 404.1563(c). Plaintiff has a high school degree with some college. (Tr. Pg. 34). He attempted to enter the military but did not complete his training and was separated from the military before completing basic training. Plaintiff has past relevant work as a pizza delivery person, cashier and sales attendant (Tr. 50) and he was working part-time delivering pizzas at the time of the hearing. (Tr. 35). Among other conditions, Plaintiff has been diagnosed with Asperger's Developmental Disorder and Attention Deficit Hyperactivity. Pl. Brief at 2. Plaintiff's mother, reported that Plaintiff lives alone in a condominium and she spends time with Plaintiff shopping, going out to eat, going with him to counseling appointments, and assisting him with paying bills and making home and car repairs. (Tr. 175).

A. Relevant Treatment History and Medical Opinions

1. Thomas Bowers, Ph.D., Psychological Evaluation, May 17, 2011

Dr. Bowers performed a mental status evaluation on Plaintiff. (Tr. 319). Upon examination, Plaintiff's speech was distant and aloof, his behavior was slightly eccentric and odd, and he complained of poor sleep. (Tr. 320). Dr. Bowers reported that Plaintiff's IQ was in the average range, his verbal comprehension was in the superior range, and his perceptual reasoning and working memory abilities were average. (Tr. 320-21). Although he exhibited some impulse control difficulties, his insight was "quite good, " and his social judgment was reasonable. (Tr. 321). Dr. Bowers diagnosed Plaintiff with Asperger's Disorder and assigned him a Global assessment of Functioning (GAF) score of 60.[1](Tr. 322). He opined that Plaintiff's outlook was good (Tr. 322), and further concluded that although Plaintiff had moderate restrictions on his ability to interact appropriately with the public, he had only slight restrictions on his abilities to interact with co-workers and supervisors. (Tr. 326).

2. Michael Suminski, Ph.D., Psychological Consultation, May 31, 2011

Dr. Suminski, reviewed Plaintiff's medical records and made a residual functional capacity (RFC) assessment. (Tr. 60-61). Dr. Suminski observed that Plaintiff did not have limitations in his understanding, memory, sustained concentration, or persistence. (Tr. 60). With regard to social limitations, Dr. Suminski noted that Plaintiff was moderately limited in ability to interact appropriately with the general public and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (Tr. 60-61). Dr. Suminski further opined that Plaintiff was not significantly limited in his ability to ask simple questions or request assistance or maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. (Tr. 60-61). Plaintiff was also capable of engaging with others socially. (Tr. 61). Dr. Suminski concluded that Plaintiff's statements were only partially credible, and he was capable of at least simple, routine work, and probably more. (Tr. 61).

3. Pon Lion Tsou, M.D., Psychiatric Evaluation, July 18, 2011

In the July 2011 evaluation report, Dr. Tsou diagnosed Plaintiff with Asperger's Disorder, nicotine dependence, anxiety disorder, and depressive disorder with a current GAF score of 55. (Tr. 337-38).

4. Pennsylvania Counseling Services: Curt Byers, Counselor

Mr. Byers treated Plaintiff for Asperger's Disorder since December 2009 in twice-monthly sessions. (Tr. 382). In a letter dated September 17, 2011, Mr. Byers wrote that he was not a licensed psychologist and had "no unique training or qualifications for assessment of capability for employment.'' (Tr. 382). Mr. Byers noted that Plaintiff has held multiple jobs for periods in excess of six months, and Plaintiff has improved in his conflict management and conflict avoidance skills. (Tr. 382-83). Mr. Byers opined that Plaintiff's success may be dependent on his continued counseling sessions. (Tr. 383).

According to Mr. Byers, although a typical person with Plaintiff's diagnosis would likely have a proclivity for road rage and other associated aggressive driving, Plaintiff has a relatively clean driving record. (Tr. 383). Mr. Byers noted that he had to repetitively review the Plaintiff's problems with him in order for Plaintiff to control his anger and that it took a great deal of attention and emotional energy on Plaintiff's part to consistently employ anger management and conflict skills in his job as a delivery driver. (Tr. 383). Mr. Byers noted that Plaintiff's "ability and willingness to seek and gain employment, and ...


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