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Hoskavitch v. Colvin

United States District Court, M.D. Pennsylvania

April 27, 2015

CHRISTOPHER G. HOSKAVITCH, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM

RICHARD P. CONABOY, District Judge.

Here we consider Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). (Doc. 1.) The Administrative Law Judge ("ALJ") who evaluated the claim concluded that Plaintiff's severe impairments of schizoaffective disorder, obsessive compulsive disorder, morbid obesity, and obstructive sleep apnea did not meet or equal the listings. (R. 16-17.) The ALJ found that Plaintiff had the residual function capacity ("RFC") to perform a full range of work at all exertional levels but with certain nonexertional limitations and that such work was available. (R. 20-27.) The ALJ therefore denied Plaintiff's claim for benefits. (R. 27.) With this action, Plaintiff argues that the decision of the Social Security Administration is error because there is a lack of substantial evidence to support the ALJ's rejection of Plaintiff's treating medical providers and the ALJ did not properly consider the disabling effects of Plaintiff's obesity. (Doc. 10 at 7-15.) For the reasons discussed below, we conclude Plaintiff's appeal of the Acting Commissioner's decision is properly denied.

I. Background

A. Procedural Background

On December 18, 2011, Plaintiff filed a Title II application for DIB alleging disability beginning on November 18, 2011. (R. 14.) Plaintiff also protectively filed an application for SSI under Title XVI on December 18, 2011. ( Id. ) On both applications, the claimant alleged disability beginning on November 18, 2011. ( Id. ) The applications were made due to the following: schizoaffective disorder; obsessive compulsive disorder; essential tremors in left hand; esophageal reflux; morbid obesity; depression; anxiety and panic attacks. (R. 93.) The claims were initially denied on January 31, 2012. (R. 93-116.) Plaintiff filed a request for a review before an ALJ on February 17, 2012. (R. 127-28.) On October 4, 2012, Plaintiff, with his attorney, appeared at a video hearing before ALJ Gerard W. Langan. (R. 31.) Vocational Expert Josephine Doherty also testified at the hearing. ( Id. ) The ALJ issued his unfavorable decision on October 22, 2012, finding that Plaintiff was not disabled under the Social Security Act during the relevant time period. (R. 27.)

On December 14, 2012, Plaintiff filed a Request for Review with the Appeal's Council. (R. 7-10.) The Appeals Council denied Plaintiff's request for review of the ALJ's decision on June 17, 2014. (R. 1-6.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

On August 13, 2014, Plaintiff filed his action in this Court appealing the Acting Commissioner's decision. (Doc. 1.) Defendant filed her answer and the Social Security Administration transcript on December 23, 2014. (Docs. 8, 9.) Plaintiff filed his supporting brief on January 29, 2015. (Doc. 15.) Defendant filed her opposition brief on April 3, 2015. (Doc. 16.) Plaintiff did not file a reply brief, and the time for doing so has passed. Therefore, this matter is ripe for disposition.

B. Factual Background

Plaintiff was born on April 2, 1985. (R. 171.) In December 2009, Plaintiff received a degree in journalism from Lock Haven University. (R. 38.) Plaintiff last worked as a janitor in November 2011. (R. 174.) Plaintiff testified that he stopped working because of what he termed a "nervous breakdown" which included overwhelming paranoia, fear, obsessive thoughts, and a severe panic attack. (R. 39.)

1. Mental Impairment Evidence

a. Treatment Records and Notes

Plaintiff has a long history of mental difficulties. In 2008 and 2009, he was regularly seeing a psychiatrist, Vijay-Kumar Rekhala, M.D. (R. 324-42.) In April 2008, Dr. Rekhala diagnosed Plaintiff with "major depressive disorder, chronic, recurrent, non-psychotic with comorbid anxiety, " OCD, Bipolar Type II disorder, and BDD. (R. 333.) Dr. Rekhala planned to treat Plaintiff's depression and anxiety with medication. ( Id. ) He was not considering individual psychotherapy at the time because in the past Plaintiff had "bounced back to his normal functioning once his OCD and depression [had] been treated." ( Id. ) Plaintiff showed improvement in May and June of 2008 but was hospitalized at Divine Providence Hospital Mental Health Unit from July 7 to July 11, 2008. (R. 328-29.) Though he initially showed improvement after discharge, by the end of July he had some regression. (R. 329.) Delusional thinking and suicidal thoughts led to his hospitalization at Divine Providence Hospital on August 2, 2008, and his transfer to The Meadows on August 7, 2008. (R. 339.) He was discharged on August 18, 2008, reporting at his next visit with Dr. Rekhala that he had not been leveling with him about his delusions and thoughts of suicide. ( Id. ) On August 28, 2008, Dr. Rekhala noted that some symptoms were improved but Plaintiff was still delusional with persecutory thoughts and associated anxiety. (R. 328.) It was determined it was best for him to take a medical leave for the semester, and Dr. Rekhala advised him not to work (which was weekend work as a security guard at the time). ( Id. ) Plaintiff continued to have significant difficulties through the fall of 2008 and was again hospitalized in November. (R. 327.) Following his inpatient treatment and some medication alterations, Plaintiff's condition improved and he decided to return to school for the Spring 2009 semester. (R. 341.) Plaintiff had difficulty adjusting to school and was seen on an emergency basis on January 23, 2009. (R. 326.) Dr. Rekhala concluded that "in addition to his past history of psychosis, depression, mood fluctuations, there is significant comorbidity of agoraphobia." ( Id. ) Thereafter, Plaintiff showed improvement through the spring of 2009, expressing plans to finish his degree after the fall semester and seek a job upon graduation.[1] (R. 342.) He got a summer job working three to four days a week as a security guard on second shift and continued to improve over the summer. (R. 325.) In October 2009, Plaintiff's mother called Dr. Rekhala's office and reported that they had decided to follow with PCP. (R. 324.) She also stated that Plaintiff was doing well. ( Id. )

In 2010, Plaintiff was seen somewhat regularly at South Side Family Medicine by James S. Baldys, M.D., and Maureen Polakowski, CRNP, for a variety of ailments and medication management. ( See, e.g., R. 299-312.) On January 18, 2010, CRNP Polakowski noted that Plaintiff had been admitted three times in the past eighteen months for inpatient mental health, he was no longer in counseling, and he had recently graduated from college. (R. 311.) She added that Plaintiff reported he had been stable for a number of months, and he and his mother agreed he had been doing well. ( Id. ) CRNP Polakowski also noted it was Plaintiff's and his mother's idea to follow up at South Side Family Medicine for Plaintiff's medications, an arrangement which was acceptable as long as Plaintiff was well controlled. (R. 311-12.)

On May 20, 2010, Plaintiff returned to South Side Family Medicine for a medication check and reported he had been doing quite well as far as his medications were concerned. (R. 308.) He denied any change in thought patterns, denied hallucinations, and denied any difficulties. ( Id. )

On July 6, 2010, Plaintiff saw Dr. Baldys complaining of toe pain. (R. 306.) No notation was made concerning Plaintiff's mental health issues.

Plaintiff saw Dr. Baldys on July 23, 2010, for an "acute check" related to soreness of the upper lip. (R. 304.) Dr. Baldys noted that Plaintiff was not seeing psychiatry at the time and was not seeing a counselor. ( Id. ) He added that functionally Plaintiff had been able to work and "has not had much trouble there although he works as a security guard and is there a lot of times by himself." ( Id. ) Dr. Baldys did not find Plaintiff to be overly anxious although he commented that Plaintiff related that "he does not seem to be in control [of his OCD] at this point like he used to be." (R. 305.) Dr. Baldys increased his Luvox dosage and suggested that Plaintiff get involved with psychiatry for medication checks and counseling. ( Id. )

On July 26, 2010, Plaintiff, accompanied by his mother, saw CRNP Polakowski to discuss difficulty with his behavioral health issues and reported that he had been having significant anxiety and depressive symptoms. (R. 301.) Plaintiff indicated that he was frustrated with his life situation and his weight. ( Id. ) Plaintiff's mother stated that he had been having suicidal thoughts but assured her he would not act on them. ( Id. ) She also stated that Plaintiff had been doing "quite well" until recently and then began a "slow but steady decline overall." ( Id. ) Ms. Polakowski noted that Plaintiff had been stable and had refused to return to his doctor so South Side Family Medicine was monitoring his medications. ( Id. ) He was "adamant that he did not want to return to the hospital. He had been inpatient 3 times DeVine and then once at Meadows. The Meadows was a very difficult experience for him and because of this he refuses to return to the emergency room." ( Id. ) She further noted that the increase in the Luvox dosage had been three days before and Plaintiff did not see a significant improvement. ( Id. ) CRNP Polakowski objectively reported that Plaintiff had a flattened affect though he did make eye contact. ( Id. ) She commented that it was a

[v]ery difficult situation.... Ultimately, he would obviously benefit from ongoing counseling. I would wonder about partial program for him. He is obviously not a candidate for traditional counseling I feel he needs more intensive management however he is quite resistant to inpatient management. As all the offices are closed now, we will need to contact local psychiatrist tomorrow to see if we did [sic] get someone to see him. If there will be a delay in getting an appointment, and his behavior accelerates, I was quite honest with him that he will need to go to the emergency room.... If there is a slight delay in appointment and he continues with behaviors we will max his dose of Luvox to 300 mg. daily....
This is an increasingly difficult situation for his mother to manage. He has serious issues and she is poorly equipped to deal with these. She should be in counseling to help her deal with these.

(R. 302.) CRNP Polakowski commented that Plaintiff's weight was clearly an issue-that he was concerned it was going to cause serious medical problems and he had a history of obsessing over medical issues. ( Id. ) She noted that she reassured Plaintiff that the long term complications of obesity are what he needed to address, and they could work on an exercise plan once his depression was stabilized. ( Id. )

On July 28, 2010, Plaintiff attended one day of a partial hospitalization program at Williamsport Hospital, having been referred by Dr. James Baldys' office at South Side Family Medicine due to increasingly obsessive thoughts, increasing anxiety and depression and auditory hallucinations. (R. 264.) Plaintiff was scheduled to attend three full days of the program per week, but he informed the staff at the end of the first day that he was reluctant to return. ( Id. ) He later called and left a message that he preferred to attend medication management alone. ( Id. )

On August 19, 2010, Dr. Baldys received a letter from Community Services Group informing him that Plaintiff was receiving therapy services through All Seasons Therapy Center with James Wool, LSW, CAC. (R. 314.)

Plaintiff again saw CRNP Polakowski on November 10, 2010, for a rash on his right thigh. (R. 299.) Plaintiff's behavioral health was not discussed other than to note that Plaintiff was not too concerned with the rash which was unusual given his history of behavioral health issues. ( Id. )

On March 2, 2011, Dr. Baldys received a letter from Community Services Group informing him that Plaintiff was scheduled for medication management with Philipp Othmer, M.D., and Charlene Bean, LPN. (R. 345.)

On August 18, 2011, Plaintiff saw Ms. Polakowski for back pain. (R. 297.) Subjectively, Plaintiff denied anxiety or depression. ( Id. ) Commenting that Plaintiff had been pain free "until recently, " Ms. Polakowski noted that he continued to gain weight and weight was a factor with his back pain. (R. 298.)

On August 31, 2011, Plaintiff had his initial evaluation with psychiatrist Michael Greenage, D.O., his chief complaints being his "depression and shizoaffective." (R. 274.) Dr. Greenage recorded that Plaintiff reported the following: his shizoaffective disorder was fairly under control and his delusions had "drastically improved" with medications; his depression remained a problem with occasional suicidal thoughts; his recent prescription for Ativan was helping his anxiety; and he was doing very well with his OCD. ( Id. ) Dr. Greenage assessed Plaintiff's anxiety and depression to be his "current issues, " adding that he gets some mild and brief relief with Ativan. (R. 275.)

On September 26, 2011, Plaintiff saw CRNP Polakowski about his weight. (R. 294.) He denied anxiety and depression at the time. ( Id. ) CRNP Polakowski noted that Plaintiff had lifelong issues with his weight "which has worsened significantly recently especially as he finds his obsessive-compulsive disorder and anxiety worsening." ( Id. ) She acknowledged the possible link between Plaintiff's underlying psychiatric issues and his weight and reviewed possible strategies, including discussing the matter with his psychiatrist. (R. 295.)

On September 28, 2011, Plaintiff reported to Dr. Greenage that he was doing "okay" and described his mood as "a little better." (R. 273.) In October 2011 he reported that he was doing "a little worse" and his mood was "not so good." (R. 272.) In November 2011, Plaintiff's mother accompanied him to his appointment-she wanted to be sure Plaintiff was giving Dr. Greenage accurate information because Plaintiff tended to minimize his symptoms. (R. 271.) Plaintiff's mother expressed specific concerns about his depressive symptoms, anxiety about going to work, and habitual binge eating when he became more depressed. ( Id. ) Plaintiff reported the following: Ativan was "considerably helpful" in enabling him to get out of the house and go to work; though his mood was somewhat depressed, he was doing a bit better generally; his anxiety was a little better in terms of being able to go to work; and his OCD symptoms were under very good control. ( Id. ) Two weeks later, Plaintiff reported that his depressive symptoms were under very good control and he did not want to make any medication changes because he was doing fairly well overall. (R. 270.) Dr. Greenage noted that Plaintiff "was adamant... that he feels his depression is not an issue currently for him." ( Id. ) Plaintiff was to return for follow up in six weeks. ( Id. ) Throughout this period, Dr. Greenage stated that Plaintiff's insight and judgment appeared to be fair. (R. 270-73.)

On December 1, 2011, Plaintiff saw CRNP Polakowski about pain in his right upper thigh. (R. 291.) He denied anxiety and depression at the time. ( Id. ) CRNP Polakowski noted that Plaintiff continued to follow with the psychiatrist "which is imperative for this individual." (R. 292.) She also noted that he was doing well at Geisinger's obesity center, having lost thirty pounds. ( Id. )

On December 7, 2011, Plaintiff was seen by Mustafa S. Huseini, M.D., at the Geisinger Nutrition Department in Danville. (R. 422.) Plaintiff told Dr. Huseini that his depression had been relatively well controlled and he had no problems with his depression since his November 9, 2011, visit. ( Id. ) Plaintiff denied any recent changes in his irritability, concentration, sleep, libido or mood, and he denied any suicidal ideation. ( Id. )

Plaintiff again saw Dr. Greenage on January 9, 2012. (R. 444.) Plaintiff reported that he was doing "a little bit worse" and was interested in trying an antidepressant-something he had previously been hesitant about because of the necessary change of dosage for his OCD medication and the potential impact of such a change on his OCD symptoms. (R. 444.) Dr. Greenage added Zoloft to Plaintiff's medication regimen, decreased the OCD medication, Luvox, and scheduled Plaintiff for a two week follow-up appointment. ( Id. ) At the follow-up appointment Plaintiff reported that he was doing "okay." ( Id. ) He had not noticed any significant changes with the new medication regimen. ( Id. ) Dr. Greenage noted that Plaintiff reluctantly offered that he wakes up often in the middle of the night extremely scared and afraid, a feeling that can persist for hours. ( Id. )

On February 23, 2012, Plaintiff saw Ms. Polakowski for treatment of an ingrown toenail. (R. 454.) He denied anxiety and depression at the time. ( Id. ) She noted that Plaintiff's weight had increased and he had been following at Geisinger bariatric. (R. 455.)

At his appointment with Dr. Greenage on February 28, 2012, Plaintiff reported to be doing "pretty good." (R. 442.) Plaintiff also reported that his sleep had improved with the use of a CPAP machine, he was having fewer nighttime awakenings as reported at his last visit, and his depression was gradually improving with some good days interspersed with the bad instead of consistently bad days. ( Id. ) Dr. Greenage noted that Plaintiff denied any auditory or visual hallucinations, adding "[h]owever, of interest, the patient did offer today that historically one of the things that tends to drive his depression is some delusional content, and the patient was visually and verbally reluctant to discuss those delusions today but he was not pressed for same." (Id.) Dr. Greenage found Plaintiff's affect to be "more euthymic than previously, mood congruent." ( Id. )

On March 27, 2012, Plaintiff told Dr. Greenage he was "doing good" and described his mood as "good" - overall about the same as at his last visit. (R. 441.) Plaintiff reported that he had noticed some general improvements but still had occasional periods at night when he becomes "mildly depressed or extremely anxious and feel [sic] that bad things are going to happen to him." ( Id. ) Plaintiff also reported that he had a disagreement with his boss and had become fearful of working for him, ultimately deciding that it would be better if he did not have the job. ( Id. ) Dr. Greenage noted that Plaintiff's affect was euthymic and mood congruent. ( Id. )

In April and May of 2012, Plaintiff reported to Dr. Greenage that he was doing well. (R. 439, 440.) In July, Plaintiff reported to be doing "really well." (R. 438.) He was sleeping well, his anxiety was under "excellent control, " and appetite, energy and concentration were "doing well." ( Id. ) Plaintiff also reported that he had applied for a job as a cook which he was very excited about. ( Id. ) At his next appointment on August 30, 2012, Plaintiff told Dr. Greenage that he continued to work as a cook and he was doing very well overall. ( Id. ) Plaintiff denied any OCD symptomology and stated his anxiety was under excellent control but he was experiencing some sleep difficulties. ( Id. ) Dr. Greenage ...


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