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Wright v. Colvin

United States District Court, M.D. Pennsylvania

July 27, 2015

DALE LEE WRIGHT, Plaintiff,
v.
CAROLYN W. 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") under Title II of the Social Security Act. (Doc. 1.) Plaintiff originally alleged disability due to epilepsy, chronic depression, and arthritis. (R. 160.) In his application, Plaintiff identified his onset date as March 27, 2007, but he amended the date to January 1, 2013. (Doc. 11 at 2.) The Administrative Law Judge ("ALJ") who evaluated the claim concluded that Plaintiff's severe impairments of epilepsy, obstructive sleep apnea, major depressive disorder, carpal tunnel syndrome and degenerative joint disease secondary to osteoarthritis did not alone or in combination meet or equal the listings. (R. 69.) The ALJ found that Plaintiff had the residual function capacity ("RFC") for light work with certain nonexertional limitations and that he was capable of performing jobs that existed in significant numbers in the national economy. (R. 71-77.) The ALJ therefore found Plaintiff was not disabled under the Act through December 31, 2013, the date last insured. (R. 78.)

With this action, Plaintiff asserts that the decision of the Social Security Administration should be reversed and benefits awarded or, alternatively, that the case be remanded for further administrative proceedings. (Doc. 11 at 23-24.) He identifies the following errors: 1) the ALJ erred at step three in determining that Plaintiff's major depressive disorder does not meet medical listing 12.04; 2) the Commissioner erred as a matter of law in failing to provide any reason for rejecting the opinion of Stanley E. Schneider, Ed.D.;[1] 3) the Commissioner failed to sustain her burden of establishing there is other work in the national economy Plaintiff could perform; and 4) the ALJ's credibility finding is not based on 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 July 25, 2013, Plaintiff protectively filed an application for DIB. (R. 67.) As noted above, Plaintiff alleges disability beginning on January 1, 2013. (Doc. 11 at 2.) In his application for benefits, Plaintiff claimed his ability to work was limited because of epilepsy, chronic depression, and arthritis. (R. 160.) The claim was initially denied on December 3, 2013. (R. 11.) Plaintiff filed a request for a review before an ALJ on January 14, 2014. ( Id. ) On May 8, 2014, Plaintiff appeared and testified at a hearing in Harrisburg before ALJ Daniel Myers. (R. 11-49.) Plaintiff appeared with his attorney, Steven Serra. (R. 11.) Vocation expert (VE) Michael Kibler also testified. ( Id. ) The ALJ issued his unfavorable decision on June 5, 2014, finding that Plaintiff was not disabled under the Social Security Act though December 31, 2013, the date last insured. (R. 78.) On August 1, 2014, Plaintiff requested a review with the Appeal's Council. (R. 9-10.)

The Appeals Council issued its decision on November 12, 2014. (R. 1-8.) The Appeals Council adopted the ALJ's "statements regarding the pertinent provisions of the Social Security Act, Social Security Administration Regulations, Social Security Rulings and Acquiescence Rulings, the issues in the case, and the evidentiary facts, as applicable." (R. 5.) The Appeals Council also adopted the ALJ's "findings or conclusions regarding whether the claimant is disabled'. The Council considered the claimant's statements concerning the subjective complaints (Social Security Ruling 96-7p) and the [sic] adopts the Administrative Law Judge's conclusions in that regard." ( Id. ) The Council agreed with the ALJ's findings under steps one through five of the sequential evaluation, but did not agree that the claimant's date last insured was December 31, 2013. (R. 5.) Rather, the Appeals Council determined that Plaintiff met the insured status requirements through December 31, 2016. ( Id. ) The Appeals Council then determined that the remainder of the ALJ's findings applied through June 5, 2014 (the date of the ALJ decision) since the record did not indicate any significant change in Plaintiff's impairments from January 1, 2013, to June 5, 2014. ( Id. ) Accordingly, the Appeals Council concluded "the claimant has not been under a disability, ' as defined in the Social Security Act, at any time from January 1, 2013, the alleged onset date, through June 5, 2014, the date of the Administrative Law Judge's decision. (R. 5.)

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 11, 2015 (Doc. 12), and Plaintiff filed his reply brief on June 30, 2015 (Doc. 15). Therefore, this matter is fully briefed and ripe for disposition.

B. Factual Background

Plaintiff was born on October 3, 1962. (R. 77.) Plaintiff has a at least a high school education. ( Id. ) In the August 14, 2013, Disability Report, he reported that he stopped working on December 7, 2012, because his temporary contract position ended. (R. 160.) He also indicated in the report that he believed his conditions became severe enough to keep him from working on August 6, 2007. ( Id. ) The report indicates Plaintiff had worked as an administrative assistant, call center customer care specialist, customer service counselor, customer service representative, and group administrator sales support. (R. 162.)

Regarding Plaintiff's background, Defendant notes that Plaintiff held several long-term jobs, reported he received several promotions in customer service, and recently completed a medical coding/billing certification with honors. (Doc. 12 at 6 (citing R. 17, 249, 299).) Defendant also notes that Plaintiff received unemployment benefits after being laid off in 2009, exhausted those benefits and submitted a previous application for DIB which was denied without appeal. ( Id. (citing R. 51, 54, 126, 157, 327).) Defendant adds that the application under consideration here was filed when a temporary employment position ended. ( Id. (citing R. 126, 156, 298).)

1. Impairment Evidence

We review evidence related to the impairments alleged by Plaintiff and discussed by the ALJ, focusing on evidence pertinent to the relevant time period-Plaintiff's alleged onset date of January 1, 2013, through June 5, 2014, the date of the ALJ's decision.

a. Physical Impairment Evidence

On October 20, 2013, Plaintiff underwent a consultative examination by Thomas McLaughlin, M.D. (R. 278-94.) Dr. McLaughlin noted that Plaintiff presented for a disability evaluation with allegations of epilepsy, obstructive sleep apnea, degenerative joint disease and carpal tunnel syndrome. (R. 278.) Dr. McLaughlin recorded the following history:

The claimant has a history of epilepsy diagnosed at the age of nineteen. His last seizure was in April 2013. He generally has three to four seizures per year and usually has an aura before the seizures. When he has a seizure he has tonic clonic movements of the extremities as well as tongue biting, lip biting and incontinence of urine but no incontinence of bowel. The claimant is better controlled on medications of carbitol. His last ER visit for epilepsy was in May of 2012. He does not drive.
He also has a history of obstructive sleep apnea. He had used CPAP in the past which helped however he is lacking insurance and is not using any intervention at this time for the obstructive sleep apnea.
He also has complaints consistent with degenerative joint disease involving the fingers, the knees, the back and the neck. He has no radicular symptoms. He has intermittent achy pain in various joints without swelling, stiffness, locking up or giving way. He is on no medications for this.
He also has a history of bilateral carpal tunnel syndrome with pain in his fingers and paresthesia as well as his hands "locking up". He has not had surgery and has not had EMG evaluation.

(R. 278-79.)

Surgically, Plaintiff had a laparoscopic cholecystectomy in 2013, and a frontal lobectomy for congenital brain cyst in May of 2007. (R. 279.) The Review of Systems was unremarkable except as recorded in the history of present illnesses. (R. 280.)

On physical examination, Plaintiff appeared of normal nutritional status, he had a normal gait, was able to change positions without difficulty, appeared comfortable, had good understanding and knowledge, and was cooperative. (R. 280.) No problems were noted on examination of the head, neck, chest, cardiac, abdomen and extremities. (R. 281.) Musculoskeletal examination showed the following: no tenderness over the cervical spine; shoulders, elbows and wrists were nontender with no redness, swelling, warmth or nodules; examination of the hands revealed no tenderness, redness, warmth, swelling, nodules, or atrophy, Tinel's and Phalen's were positive bilaterally, and Plaintiff was able to make a fist bilaterally, open a jar, open a door, pick up coins, write, and use the hands to button and unbutton without problem; examination of the knees and hips revealed no tenderness or other problems; examination of the dorsolumbar spine revealed no problems, including no evidence of muscle weakness or atrophy. (R. 281-82.)

Neurologically, Plaintiff's mental status was alert and oriented and his affect appropriate. (R. 282.) Plaintiff could walk on his heels and toes, walk heel-to-toe and squat without difficulty. ( Id. ) Dr. McLaughlin noted no irregularities with his neurologic examination. ( Id. )

After his examination and review of Pinnacle Family Health records from 2001 and a Friends Hospital Discharge Summary from 2012, Dr. McLaughlin assessed Plaintiff to have epilepsy, obstructive sleep apnea, degenerative joint disease secondary to osteoarthritis, carpal tunnel syndrome bilaterally, and tobacco abuse. (R. 282-83.) Dr. McLaughlin also completed a Medical Source Statement to Do Work Related Activities (Physical) (R. 289-94) which will be reviewed below in the Opinion Evidence section of this Memorandum.

On February 19, 2014, Plaintiff saw neurologist Jayant Acharya, M.D., at Milton S. Hershey Medical Center. (R. 343.) Dr. Acharya had last seen Plaintiff in 2010. ( Id. ) Dr. Acharya reported that Plaintiff had developed seizures in 1998, was diagnosed with right frontal lobe epilepsy, had a frontal lobectomy in March 2007, and was seizure free (although he continued to have auras) until 2008 when he developed nocturnal seizures. ( Id. ) Dr. Acharya noted that Plaintiff was directed to start Zonegran when he was seen in 2010 but Plaintiff only took the drug for a month reportedly because it was too expensive. ( Id. ) Plaintiff had been seizure free from May 2012 (with occasional auras) until April 2013. ( Id. ) Plaintiff told Dr. Acharya that the auras, which had occurred twice in the preceding ten months, consisted of right arm tingling for a few minutes to one hour and he is disoriented for a few minutes. ( Id. ) He also reported that he had a petit seizure in April 2013 which consisted of mild shaking in his sleep and one grand mal seizure over the preceding year (January 2014) which he associated with colonoscopy preparation. ( Id. ) On physical examination, Plaintiff appeared well-built, well-nourished, and well groomed, he was alert and oriented to time, place and person, his attention span and concentration were normal, his immediate recall and recent and remote memory were normal, and all other aspects of his examination were normal. (R. 344-45.) Dr. Acharya's impression was that Plaintiff had partial epilepsy, temporal versus frontal origin, and that he was likely symptomatic due to a frontal cyst diagnosed before the frontal lobectomy. (R. 346.) Dr. Acharya noted that further work-up was needed. ( Id. ) He advised Plaintiff about seizure precautions, including avoiding significant heights, heavy machinery, swimming alone and that showers are preferable to tub bathing. ( Id. )

b. Mental Impairment Evidence

Plaintiff was voluntarily admitted to Friends Hospital in Philadelphia, Pennsylvania, on September 4, 2012. (R. 266.) He was discharged on September 13, 2012. ( Id. ) The Discharge Summary indicates that Plaintiff

presented with chief complaints of agitation and depression. He reported two months of worsening depression after loss of his job, breakup with partner, family conflict, financial problems, and homelessness for the last two weeks. He had severe depression with hypersomnolence, poor appetite, low energy, poor concentration, and thoughts of being a "failure." He said that he had suicidal ideation with a plan to overdose on Trazadone. He had homicidal ideation toward his sister when she was verbally abusive to him or to her partner in front of him. The patient attributed his homelessness to having to leave the abusive environment in his sister's home.
Past Psychiatric History: The patient was diagnosed with depression for the first time at the age of 23. He attended psychotherapy for four years. His primary care doctor had prescribed multiple antidepressant medications. He was also treated for epilepsy. He denied a history of suicide attempts. He had no unmanageability or loss of control due to mood-altering chemicals, and his drug urine screen was negative.

(R. 266.) The Discharge Summary noted that Plaintiff "gradually began to improve in the therapeutic milieu.... He tolerated the medication well, and at discharge, he was behaviorally stable for stepdown and opted for a recovery house environment." ( Id. ) At discharge, Plaintiff was alert and oriented, and his insight and judgment were improved. (R. 267.) He was diagnosed with major depressive disorder with a GAF on admission of 25 and on discharge 59. ( Id. ) Plaintiff's prognosis was reported to be good, and he was referred to Montgomery Mental Health, in Norristown, Pennsylvania. ( Id. )

On November 13, 2013, Stanley E. Schneider, Ed.D., conducted a Clinical Psychological Disability Evaluation. (R. 297.) Dr. Schneider noted that Plaintiff reported he was applying for disability after he applied in 2010 and had been denied. (R. 298.) When asked if he could do any kind of work, Plaintiff said he would like to. ( Id. ) When asked about his alleged chronic depression, Plaintiff reported that

he goes through periods when he feels okay and then something happens... "nothing is right... I will ruminate up to the point where I can't function... I feel lost, sad, hopeless. I sleep a lot... I look for work, I go on the internet and apply and I keep getting rejection notices... I had been in and out of treatment since I was 23 years old... I am 51 and I am going no where."

(R. 299.) Plaintiff reported to Dr. Schneider that he had daily crying spells, felt guilty, worthless and had a sense of helplessness and hopelessness regarding his future. ( Id. ) He also reported that he had worked at Highmark in customer service for nine years and left there in 2009. (R. 299-300.) He had been fired three times in the preceding five years from various customer service jobs either because of his employer's claimed inefficiency for spending too much time addressing customers' concerns or being arrogant. (R. 300.) Plaintiff reported that he got along well with coworkers but had a problem relating to authority figures and supervisors unless he could control them. ( Id. ) At the time of the evaluation, Plaintiff was living with his ex-partner who supported him, and he was also receiving food stamps and medical assistance. ( Id. ) Plaintiff said he had received unemployment benefits until July 2013. ( Id. )

Regarding Plaintiff's ability to interact, Dr. Schneider noted that Plaintiff had a lot of underlying anger, and his irritability was "tapped into quite readily" which Dr. Schneider thought may have been related to his "frustration and sense of failing and feeling lost." ( Id. ) Dr. Schneider stated that there was no memory impairment at all and no evidence of any perceptual disturbances. ( Id. )

Plaintiff described his mood as sad and occasionally suicidal when he was left home alone. ( Id. ) Dr. Schneider found Plaintiff's affect to be appropriate to his mood which reflected "somewhat of an agitated depression." ( Id. ) Dr. Schneider noted that cognitively Plaintiff was a bright man, his attention and concentration were adequate, there was no evidence of an impulse control problem, and test judgment and insight were good. (R. 301.) He further noted that Plaintiff had no reported or identified impairments, restrictions or limitations in his ...


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