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McElhenny v. Colvin

United States District Court, M.D. Pennsylvania

July 2, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


RICHARD P. CONABOY United States 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. (Doc. 1.) Plaintiff originally alleged disability due to mental conditions, reporting an onset date of April 19, 2011. (See, e.g., R. 11, 162.) The Administrative Law Judge (“ALJ”) who evaluated the claim concluded that Plaintiff’s severe impairments of bipolar disorder and polysubstance abuse did not meet or equal the listings alone or in combination with Plaintiff’s non-severe impairments. (R. 14, 15.) 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 he was capable of performing his past relevant work. (R. 20-21.) The ALJ therefore found Plaintiff was not disabled under the Act. (R. 22.)

With this action, Plaintiff argues that the decision of the Social Security Administration must be remanded. (Doc. 11 at 20-21.) He identifies the following errors: 1) the ALJ erred at step three in determining that Plaintiff’s bipolar disorder does not meet medical listing 12.04; 2) the ALJ did not properly evaluate Plaintiff’s treating and evaluating physicians; and 3) the ALJ’s credibility determination as to the severity of Plaintiff’s limitations is not supported by substantial evidence. (Doc. 11 at 2.)

After careful consideration of the administrative record and the parties’ filings, we conclude Plaintiff’s appeal is properly denied.

I. Background

A. Procedural Background

On December 29, 2011, Plaintiff protectively filed applications for DIB and SSI. (R. 11.) As noted above, Plaintiff alleges disability beginning on April 19, 2011. (Id.) In his application for benefits, Plaintiff claimed his ability to work was limited because of bipolar disorder, bipolar I disorder, and schizoid personality disorder. (R. 162.) The claim was initially denied on April 9, 2012. (R. 11.) Plaintiff filed a request for a review before an ALJ on May 7, 2012. (Id.) On July 19, 2013, Plaintiff appeared and testified at a hearing in Harrisburg before ALJ Patrick S. Cutter. (R. 23-49.) Plaintiff appeared with his attorney, and a vocational expert (VE) also testified. (Id.) The ALJ issued his unfavorable decision on August 2, 2013, finding that Plaintiff was not disabled under the Social Security Act. (R. 22.) On August 21, 2013, Plaintiff requested a review with the Appeal’s Council. (R. 6-7.) The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on November 14, 2014. (R. 1-5.) In doing so, the ALJ’s decision became the decision of the Acting Commissioner. (R. 1.)

On January 16, 2015, 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 March 27, 2015. (Docs. 9, 10.) Plaintiff filed his supporting brief on May 11, 2015. (Doc. 11.) Defendant filed her opposition brief on June 15, 2015 (Doc. 12), and Plaintiff filed his reply brief on June 25, 2015 (Doc. 15). Therefore, this matter is fully briefed and ripe for disposition.

B. Factual Background

Plaintiff was born on February 5, 1980, and was thirty-one years old on the alleged disability onset date of April 19, 2011. (R. 50.) Plaintiff has a high school education. (Id.) He reported that he stopped working on August 20, 2010, “[b]ecause of other reasons.” (R. 162.) Plaintiff worked as a short order cook, landscape laborer, fast food worker, and a commercial or institutional cleaner. (Doc. 11 at 3.)

1. Impairment Evidence

On June 20, 2011, Plaintiff saw Bret A. Daniels, M.D., at Twin Rose Family Medicine at Lancaster General Health. (R. 259.) Dr. Daniels had last seen Plaintiff in July of 2009. (Id.) He was on parole at the time of his June 2011 visit. Plaintiff reported he had been clean since he was jailed in April 2010, and he complained of decreased motivation. (Id.) Dr. Daniels reported that Plaintiff was alert on examination and his mood was not restricted. (Id.) He assessed Plaintiff to have substance abuse problems and bipolar disorder and recommended drug and alcohol counseling as well as psychiatric counseling. (Id.) Dr. Daniels stated that he started Plaintiff back on Lamictal, which Plaintiff had been on in the past for treatment of his bipolar disorder. (Id.)

Plaintiff visited Twin Rose on June 30, 2011, and July 7, 2011, for follow up after he had been seen in the emergency room at Memorial Hospital as a result of injuries sustained when he was a bystander in a bar scuffle and an insect bite he had gotten a few weeks before. (R. 265, 272.) Plaintiff was alert and oriented, had normal mood and affect, and his behavior was normal. (R. 266, 273.) He was assessed with right-sided Bell’s Palsy and the Lyme disease suspected at the June 30th visit was confirmed at the July 7th visit. (Id.) Plaintiff was treated with prednisone and antibiotics. (Id.)

On August 3, 2011, Plaintiff again saw Dr. Daniels who reported that Plaintiff said he had been clean since his June visit but he had not gotten counseling, and had not started taking medication because of the cost. (R. 279.) Plaintiff stated that he was feeling well emotionally and, on examination, he was alert. (Id.) Plaintiff also told Dr. Daniels he would begin taking the Lamictal and would see a psychiatrist. (Id.) Substance abuse counseling was again recommended. (Id.)

On November 23, 2011, Plaintiff was seen at Lancaster General Health for a psychiatric evaluation. (R. 223.) The examiner, who appears to have been Leo Dorozynsky, M.D., (see R. 224-25) noted that Plaintiff reportedly had been sober since April 2010. (Id.) Plaintiff was taking Lamictal and Prilosec at the time. (R. 224.) In a patient questionnaire, Plaintiff indicated that he had little interest in doing things, he felt depressed or hopeless and anxious or on edge. (R. 226.) Plaintiff’s diagnosis was bipolar disorder. (R. 229.)

On November 28, 2011, Plaintiff presented at Lancaster General Health for Suboxone Pretreatment Screening. (R. 233.) Plaintiff reported that his substance of choice was heroin and he had been using five to ten bags daily for four months. (Id.) Under “substance abuse history, ” Plaintiff identified several substances including alcohol, cocaine, heroin, marijuana, pain killers, and ecstasy. (R. 234.) He stated that his longest period of abstinence was one year. (Id.)

At his suboxone induction on the same date, Eric Hussar, M.D., at Twin Rose Lancaster General Health noted in his “review of systems” that the psychiatric/behavioral category was positive for depression and that Plaintiff was nervous/anxious. (R. 287.) He also noted that Plaintiff was oriented to person, place, and time, he appeared well-developed and well-nourished, and he was not in distress. (R. 288.) He also found Plaintiff to have a normal mood and affect. (R. 288.) Plaintiff was instructed on the use of suboxone, including to wait until he was in moderate to severe withdrawal before starting it. (Id.)

At his visit with Dr. Dorozynsky on December 5, 2011, Plaintiff stated he was doing better with Seroquel, that his mood had improved and he was sleeping well but not sedated during the day. (R. 214.) He noted that Plaintiff continued to deny relapse into substance abuse. (Id.) Dr. Dorozynsky recorded Plaintiff’s mood to be euthymic and his affect appropriate. (Id.) He also noted that Plaintiff’s level of functioning was “good; improved.” (Id.) The goals were to maintain remission, continue medication regimen and abstain from drugs and alcohol. (R. 215.)

On January 3, 2012, Plaintiff was admitted to the Roxbury Treatment Center, with the “reason for treatment” noted as Plaintiff “reported that health was declining due to binges and sleep pattern.” (R. 239.) He was diagnosed with opioid dependence, cannabis abuse, cocaine abuse, and bipolar disorder NOS; his GAF was assessed to be 40. (Id.) Treatment notes recorded Plaintiff’s presenting problem as follows: “This 31-year-old single Caucasian male is admitted to the detox phase of treatment for opiate dependency. This is his third inpatient treatment stay.” (R. 243.) As well as gaining time being clean and sober, it was anticipated that Plaintiff would be able to develop coping skills and address his mental health needs in the course of his treatment at Roxbury. (R. 243.) Plaintiff was discharged on January 27, 2012. (Id.) His condition was recorded as “oriented” and his prognosis was that he appeared motivated to follow up with aftercare and continue the recovery process. (R. 240.)

On January 31, 2012, Plaintiff was seen at T.W. Ponessa & Associates Counseling Services. (R. 301.) His disorders were recorded to be Bipolar II Disorder, Opioid Dependence, and Alcohol Dependence, he had a GAF of 50. (R. 301.) He was reportedly seeking outpatient counseling to address issues related to mood instability, substance dependence, and legal problems. (Id.)

On February 24, 2012, Plaintiff, accompanied by his mother, saw Dr. Dorozynsky at Lancaster General Health. (R. 399.) In his “Pertinent interval history” narrative, Dr. Dorozynsky noted that Plaintiff had stopped taking his medications prior to his Roxbury hospitalization but was restarted on them. (Id.) Plaintiff was going to counseling at T.W. Ponessa. (Id.) Dr. Dorozynsky added the following:

States he has been clean and sober since the rehabilitation. They brought in prior psychiatric evaluations from 1999 which we reviewed amongst other diagnoses was given diagnoses of bipolar disorder type I. Patient now acknowledges having had delusional and psychotic symptoms at that time accompanied by manic symptoms so it appears his diagnosis is actually bipolar disorder type I. Most recently he has been feeling depressed somewhat tired when asked admits passive passing suicidal feelings but denies any intentions or plans. . . . He also brought in a disability form from the York County legal system I indicated he is currently disabled estimated until July of this year. In the past was on Wellbutrin tolerated it well is not sure how helpful it was, however given continued depressive symptoms despite Seroquel and Lamictal, adding a low dose of Wellbutrin would br reasonable.

(R. 399.) At the visit Plaintiff’s mood was recorded as depressed and his affect constricted. (Id.)

At his visit with Dr. Dorozynsky on March 2, 2012, Plaintiff reported that his mood was better but he felt somewhat tired and sleepy, especially in the morning. (R. 404.) Plaintiff was not sure if this was a result of some residual depression or side effects of medication. (Id.) Medication alteration was discussed and it was recorded that Plaintiff was staying in therapy and remained sober, his mood was neutral, his affect constricted, and his level of functioning was “[f]air; Improved, slightly.” (Id.)

On March 15, 2012, Plaintiff reported he was still oversleeping some and felt a lack of motivation, “not clear if this is sedation.” (R. 409.) Plaintiff also reported feeling some anxiety about being in public. (Id.) Dr. Dorozynsky’s plan was to increase the Wellbutrin dosage, and consider switching some medications depending on Plaintiff’s response. (Id.) Plaintiff’s mood was recorded as neutral, anxious and depressed, his affect constricted, and his level of functioning was fair and improved. (Id.)

On March 30, 2012, Plaintiff saw Barry Hart, Ph.D., for a clinical psychological examination. (R. 348.) When asked about his mood, Plaintiff reported that he could be “either angry or ‘not care about anything’ but his medication appears to have his moods reasonably well stabilized.” (R. 349.) Dr. Hart recorded that Plaintiff worked for York Container for two years unloading containers prior to his incarceration in April 2010 and he tried to go back to York Container and other previous employers when he got out of jail but none of them would hire him, claiming he was too unreliable. (R. 349.) Regarding his mental status, Dr. Hart noted that Plaintiff’s speech was clear, coherent, and goal-directed; he again noted Plaintiff’s mood was reasonably stable with medication, adding that without it, his mood could be quite labile. (R. 350.) Plaintiff denied any perceptual disturbances or disorders of thinking. (Id.) Dr. Hart noted that Plaintiff offered very little insight into his condition, stating “it’s who I am” when asked what he thought caused his mental health problems. (Id.) He later added that he though it was probably due to hereditary issues. (Id.) Dr. Hart found that Plaintiff “appeared to present genuinely and thus his reports is [sic] considered to be an accurate representation of his current mental health.” (Id.)

Dr. Hart diagnosed Bipolar I disorder and polysubstance abuse in sustained partial remission, and he assessed a GAF of 60. (Id.) Dr. Hart opined that Plaintiff’s prognosis was reasonable in that he appeared to be on medication that was stabilizing his moods and he had been clean from drugs for two months. (R. 351.) Regarding the effects of his impairment on function, Dr. Hart noted that his concentration should not be an impediment to his ability to hold down a job. (Id.) The only limitations noted by Dr. Hart were in the area of Plaintiff’s ability to respond appropriately to supervision, co-workers, and work pressures. (R. 353.) Plaintiff had slight limitations in the following areas: interacting appropriately with the public; interacting appropriately with supervisors; and interacting appropriately with co-workers. (Id.) Dr. Hart noted a marked limitation in the area of responding appropriately to work pressures in a usual work setting but no limitation in responding appropriately to changes in routine work setting. (Id.) Dr. Hart stated that the clinical findings supporting the marked assessment were that Plaintiff made mistakes under pressure and got yelled at a lot at work but was only written up once. (R. 353.)

On April 23, 2012, Plaintiff reported to Dr. Dorozynsky that his mood had improved but he remained tired during the daytime from Seroquel. (R. 414.) Plaintiff also reported that he remained in recovery and in counseling. (Id.) Dr. Dorozynsky planned to switch medications the following month if the daytime sedation continued. (Id.) Plaintiff’s mood was recorded as neutral, his affect constricted, and his level of functioning was fair and remained constant. (Id.)

On May 15, 2012, Plaintiff’s mother accompanied on a visit to Dr. Dorozynsky. (R. 421.) Plaintiff reported that he was not depressed but he remained tired and was not sure if it was from the Seroquel, adding that he had always tended to lack motivation and stay in bed when he could. (Id.) Plaintiff’s mother reported that he had some days where he is more upbeat and energized and other days he seemed more tired and down. (Id.) The plan was to try Plaintiff on Abilify. (Id.) Plaintiff’s mood was recorded as neutral, his affect appropriate, and his level of functioning was fair and remained constant. (Id.)

At his June 28, 2012, visit with Dr. Dorozynsky, Plaintiff reported that he was “feeling good generally in that he is not tired and groggy anymore.” (R. 426.) He described occasional “bouts of depression” and said he could be irritable, and also that he tended to forget to take his Wellbutrin and Lamictal a couple days a week. (Id.) Plaintiff agreed to be more compliant with his medication regimen. (Id.) Plaintiff’s mood was recorded as neutral, his affect constricted, and his level of functioning fair and improved. (Id.)

Plaintiff was incarcerated at York County Prison from July 2012 through September 2012 for violating probation. (R. 360-84, 431.) On the Receiving Screening/Health Assessment dated July 26, 2012, Plaintiff admitted to using three bags of heroin the day before. (R. 361.) Plaintiff was reported to be alert and oriented. (R. 365.) In a Mental Health Screen on the same date, Plaintiff identified with people whose moods change frequently and daily find themselves on an emotional roller coaster. (R. 366.) He also reported that he could get irritable and start fights. (Id.) On August 12, 2012, Plaintiff’s Mental Status Exam indcated that he was oriented to person, place and time, he was cooperative, his mood was normal, his affect was broad, his thought process was logical and organized, his though content was normal, and his judgment, insight and memory were intact. (R. 381.) It was also noted that Plaintiff’s medications–-Abilify, Wellbutrin, and Lamictal–-were effective. (R. 382.)

From September through December of 2012, Plaintiff underwent drug rehabilitation at Colonial House. (R. 385-391.) It was noted on his December 3, 2012, Discharge Summary that Plaintiff completed his eighty-four day treatment with no drug use. (R. 385.) Plaintiff’s “Response to Treatment” included the notations that he was “externally motivated thru legals, ” and he had been meeting all treatment plan goals and participating in groups and lectures. (R. 385.) In group counseling, Plaintiff dealt with problems on feeling and intellectual levels and was able to handle confrontation and criticism. (Id.) Further notations indicate Plaintiff’s emotions were appropriate, his affect was generally appropriate, and he socialized effectively and appropriately. (R. 387.) Plaintiff’s prognosis was reported to be fair, a determination which was explained with the comment that he was in early recovery and needed to reach out to build his support. (Id.)

On January 22, 2013, Plaintiff was seen by Dr. Bowen at Lancaster General Health. (R. 431.) Plaintiff reported that he was feeling “pretty decent” and his current medication regimen was effective. (Id.) After being released from jail to the rehabilitation program, Plaintiff was living in a halfway house at the time of his visit. (Id.) Plaintiff denied depressive or manic episodes and denied sleep problems. (Id.) Plaintiff reported that he was working full-time at the Franklin and Marshall College kitchen. (Id.) Dr. Bowen recorded Plaintiff’s appearance to be calm, cooperative, and well kempt, his mood was euthymic, his affect was in the slightly constricted range but euthymic and appropriate, and his attention and concentration were within normal limits. (Id.) Dr. Bowen’s assessment of Plaintiff’s condition was “Fair; Remained Constant since his incarceration.” (R. 432.)

Plaintiff again saw Dr. Bowen on February 9, 2013. (R. 437.) Plaintiff reported that he had trouble sleeping during the two weeks preceding his visit (sleeping four to five hours a night) and he felt tired during the day. (Id.) Dr. Bowen recorded Plaintiff’s appearance to be well kempt and his behavior cooperative, his thought processes were linear and logical, thought association was intact and coherent, Plaintiff’s mood was described as primarily euthymic, his affect was appropriate and euthymic, full range, and his attention and concentration were within normal limits. (Id.) Dr. Bowen noted that Plaintiff was engaged in substance abuse treatment. (Id.) Plaintiff’s medications were adjusted and Ambien was added to address Plaintiff’s reported sleep problem. (Id.) Dr. Bowen’s assessment of Plaintiff’s condition was “Fair; Remained Constant.” (R. 438.)

At his April 3, 2013, visit with Dr. Bowen, Plaintiff reported that overall he was doing well. (R. 443.) He stated that he planned to change jobs and had given his two-week notice as his job was too stressful. (Id.) He planned to work in construction. (Id.) He asked Dr. Bowen to write a letter detailing his diagnosis and that he was prescribed medication, stating he wanted to use the letter in claims for disability or child support. (Id.) Dr. Bowen recorded Plaintiff to be well kempt, calm and cooperative. (Id.) He also noted that Plaintiff’s thought processes were linear and logical, his thought association was intact and coherent, his mood was euthymic a majority of the time, his affect was appropriate and euthymic, full range, and his attention and concentration were within normal limits. (Id.) Dr. Bowen’s assessment of Plaintiff’s condition was “Good; Improved.” (R. 444.)

2. Opinion Evidence

In addition to the opinion rendered in conjunction with Dr. Hart’s consultative examination set out above, Melissa Diorio, Psy.D., the State Agency reviewer, rendered an assessment in April 2012. (See R. 50-59.) Also Dr. Dorozynsky offered an opinion in a form report from York County Domestic Relations (R. 416), and Dr. Bowen wrote ...

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