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McMullen v. Colvin

United States District Court, M.D. Pennsylvania

January 25, 2017

TIMOTHY MCMULLEN Plaintiff
v.
CAROLYN W. COLVIN Acting Commissioner of Social Security Defendant

          MEMORANDUM

          Honorable Richard P. Conaboy, Judge

         I. Background.

         We consider here Plaintiff's appeal from an adverse ruling of the Social Security Administration (“SSA” or Agency”) on his application for Disability Insurance Benefits (“DIB”). Plaintiff's application alleging a period of disability beginning January 15, 2010 (R.191) was denied at the administrative level on June 18, 2013 (R.130-134), whereupon Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”) on August 19, 2013 (R.139-140). Plaintiff's hearing was held via video conference with ALJ Sharon Zanotto presiding on November 3, 2014.

         On December 5, 2014, the ALJ issued a written opinion (R.47-65) that was unfavorable to Plaintiff. After Plaintiff requested Agency review of the ALJ's decision, the Appeals Council, by notice dated April 13, 2016, upheld the ALJ's decision and advised Plaintiff that additional medical information he had submitted that post-dated the date of the ALJ's decision was relevant only to a new claim he could file for a period of disability beginning at some point after the date (December 5, 2014) of the ALJ's decision. The Appeals Council's denial of Plaintiff's request for review constitutes a final decision by the Agency and leaves this Court with jurisdiction over the instant appeal pursuant to 42 U.S.C. § 405(g). The parties have fully briefed (Docs. 16, 22 and 23) the issues and this case is now ripe for disposition.

         II. Testimony Before the ALJ.

         On November 3, 2014, Plaintiff had his hearing before the ALJ. Testimony was taken from the Plaintiff and from Andrew Capperelli, a Vocational Expert. Also present was Plaintiff's counsel, Adam Crosier.

         Plaintiff's testimony may be summarized as follows. On the date of his hearing Plaintiff was an inmate at SCI Frackville. He was born on June 21, 1961 and was 53 years of age at the time of the hearing. He is single and has no children under the age of 18. Since his alleged disability date (January 15, 2010) Plaintiff had been incarcerated or otherwise subject to a criminal justice sentence at various prisons, rehabilitation facilities, and community confinement centers from November 30, 2011 through the date of his hearing. (R.74-78).

         Plaintiff's last job prior to his alleged disability date was at the Waffle House. He could not specifically recall when or for how long he worked at the Waffle House. He has not worked at all since being incarcerated in November of 2011. Plaintiff graduated from high school in 1980 whereupon he joined the army and served two tours of duty in South Korea. While in high school at the Milton Hershey School Plaintiff had special vocational training in agriculture. Despite the fact that he successfully graduated, Plaintiff stated that he has problems with math and reading comprehension. (R.78-80).

         Plaintiff stated that he found military service difficult because he had difficulty following orders and he got into numerous fights. These problems resulted in disciplinary actions which, in turn, resulted in a general discharge. He does not drive because his license is suspended due to convictions on drug charges. He has also been convicted of a theft offense. Plaintiff acknowledged doing community service work 20 hours per week at the York Rescue Mission Thrift Store incident to one of his incarcerations. He described that work as one where he essentially did nothing but sit at a door and check bags. (R.81-83).

         Plaintiff also testified regarding his drug and alcohol abuse. He stated that he had not used either illegal drugs or alcohol since November 30, 2011 - - a period of almost three years. He stated that during this period of abstinence, which was identical to his period of incarceration, he has continued to be alternately depressed and agitated. He does not sleep well and states that despite his use of Zoloft he cannot calm down and has difficulty concentrating. He also stated that his motivation is low and that two or three times each month he will just remain in bed and not even get up for meals. He is permitted to miss meals at his place of incarceration but he must go to meetings of his drug and alcohol and violence prevention groups. Missing either of those meetings could jeopardize his parole. (R.84-85).

         Plaintiff states that he has been compliant with all his medications while incarcerated and has been seeing a psychologist and psychiatrist once every three months. He can see the psychologist more often than that if he feels the need. (R.86-89).

         Upon questioning by his counsel, Plaintiff stated that he takes Lithium and that he believes one of its side effects is that he hears a muttering-type voice and begins to engage in a conversation with this voice. He is aware that he should not be engaging in this “conversation” but he cannot control himself at times. On these occasions this typically goes on for up to half an hour. He also stated that he continues to take Zoloft as directed but believes that it makes him hyperactive. He has talked to the prison psychiatrist and asked to be prescribed Elavil to help him sleep and control his anxiety. The psychiatrist has declined to prescribe Elavil. (R.90-92).

         Plaintiff testified further that he sleeps only about three hours per night because his mind races. When his mind races he thinks about his childhood, a childhood that was characterized by sexual abuse. He thinks also about two of his granddaughters who died as infants. He believes that the sexual abuse he suffered as a child ruined him. (R.93-94). He described himself as a loner. He likes being alone because he has a propensity to share information about himself with others. This sharing has caused problems such as being ridiculed by other inmates for discussing the sexual abuse he suffered. As a result he has learned to keep to himself. Also, he states that he is a bit paranoid and inclined to believe that other people are talking about him or planning to harm him. This feeling has caused him to walk away from numerous jobs without notifying employers. (R.95-97). Plaintiff then recounted a succession of jobs he had held for brief periods of time in the distant past with Rockaway Bedding, Nostalgia Oak Warehouse, Nastasis, Intrapersonal, Federal Cleaning, Bagel Lovers, Spencer Gifts, and A.C. Moore's. These jobs were all of the customer service or shelf stocking variety. (R.99-102).

         Testimony was also taken from Vocational Expert Andrew Capperelli. Mr. Capperelli stated that he had reviewed Plaintiff's work history. Plaintiff's work fits several profiles according to Mr. Capperelli. Some of it was janitorial/cleaning work and some of it was kitchen helper type employment as defined in the Dictionary of Occupational Titles (“DOT”). All of Plaintiff's past relevant work was characterized by Mr. Capperelli as “medium unskilled”. (R.107-110).

         In response to hypothetical questions posed by the ALJ and Plaintiff's counsel, Mr. Capperelli stated that the Plaintiff could not perform some of his past relevant work because the danger posed by his use of blood thinners would be too great for him to work around moving machinery. The vocational expert concluded however that Plaintiff could perform several light exertional category jobs such as “marker” or “mail clerk” that exist in significant numbers in the national economy. When asked by Plaintiff's counsel whether Plaintiff could perform those occupations if one assumed that Plaintiff could have no contact with the public, no interaction with co-workers, and required supervision for up to two thirds of each working date, the Vocational Expert responded that Plaintiff would be unable to sustain employment even as a “marker” or “mail clerk”. (R.111-112).

         III. Mental Impairment Evidence.[1]

         Plaintiff suffers from bipolar disorder, depression, antisocial personality disorder, post-traumatic distress disorder and substance abuse disorder. The ALJ has identified each of these conditions as “severe impairments”. (R.52). Indeed, a succession of physicians and therapists have documented the presence of these mental impairments over a period of more than four years. (R.55-58). Despite the consistency of these diagnoses by multiple medical providers, the record contains very little information regarding the limiting effects of these “severe impairments” on the Plaintiff's capacity to perform gainful activity.

         A. The Testimony of Dr. Thomas Fink.

         Perhaps the best evidence in the record regarding the limiting effects of Plaintiff's various impairments comes from Thomas Fink, Ph.D., the state agency's psychological consultant who assessed Plaintiff's functional abilities on June 12, 2013. Dr. Fink found that Plaintiff had mild restrictions in his activities of daily living; moderate difficulties in maintaining concentration persistence and pace; and moderate difficulties in maintaining social functioning. (R.118-28). Other than Dr. Fink's assessment, no other medical professional has attempted to quantify the extent to which Plaintiff's established “severe limitations” affect his ability to work.

         B. Treatment at the Lebanon, Pennsylvania Veteran's Administration Hospital.

         Plaintiff was treated by an array of physicians at the Lebanon Veteran's Administration Hospital. On May 31, 2013, he was seen by Dr. Robert A. Kirk, a psychiatrist. Dr. Kirk assessed Plaintiff to have a stable level of consciousness throughout the interview on that date. He detected no abnormal movements or tremors nor did he observe psychomotor agitation or retardation. Plaintiff's attitude was cooperative, his speech rate was normal and articulate, and his thought process was linear without any flight of ideas. Dr. Kirk assessed that Plaintiff's thought content revealed no evidence of delusion or paranoia and was appropriate to the situation. Plaintiff expressed no homicidal or suicidal ideation, his affect was congruent, and both his judgment and insight were described as fair. Dr. Kirk's diagnoses were cocaine dependence in remission, alcohol dependence in remission, mood disorder, NOS, post-traumatic stress disorder, and pain disorder. He assigned Plaintiff a Global Assessment of Functioning (“GAF”) Score of 50. (R.634-637).

         On three occasions between June 4, 2013 and July 2, 2013, Plaintiff was seen by Dr. Steven H. Williams, Ph.D., a Veteran's Administration psychologist working in concert with Dr. Kirk. On each of these occasions Dr. Williams assessed Plaintiff's speech to be clear and logical without overt evidence of a thought disorder or other psychotic process. On each of these occasions Dr. Williams found that Plaintiff's mood was pleasant with full affect, his cognition was grossly intact, and he presented with no active or passive suicidal ideation, intent, or plan. On June 28, 2013, Plaintiff confided in Dr. Williams that he felt stressed by the rules at his half-way house and by the fact that he had a pending disability claim.

         Dr. Williams consistently assessed Plaintiff to be suffering from post-traumatic stress disorder, cocaine dependence in remission, alcohol dependence in remission, mood disorder, NOS, and pain disorder. Like Dr. Kirk, Dr. Williams assessed Plaintiff to exhibit a GAF level of 50 on each occasion that he examined him. (R.609-627).

         On June 28, 2013, Dr. Ellen A. Johnson, a medical doctor in the employ of the Veteran's Administration, authored a note indicating that she was following Plaintiff and that, “due to his ongoing mental health issues and back problems”, he would be unable to work for the next 12 months. Dr. Johnson provided no further elaboration of what mental health issues and back problems contributed to her assessment that Plaintiff was at that time disabled. (R.613).

         C. Mark Pentz, Licenced Professional Counselor.

         Mr. Pentz saw Plaintiff on ten occasions between April of 2013 and June of 2013. Two of these occasions were independent counseling sessions and the other eight involved Plaintiff as part of group sessions. Mr. Pentz noted the various diagnoses of the physicians referenced above and opined that it would be challenging for Plaintiff to interact with others in an occupational setting. Mr. Pentz also stated that Plaintiff would have difficulty adjusting to a work setting due to “over-the-top” behaviors. He described Plaintiff as “loud, argumentative, and defensive.” (R.940-941).

         D. Evidence Provided by Other Physicians.

         Plaintiff saw several other physicians while incarcerated. On July 13, 2011, Plaintiff was admitted to Lancaster General Hospital after a suicide attempt in which he reportedly ingested 24 Seroquel tablets, 12 Tylenol with Codeine tablets, a six-pack of beer, and an indeterminate amount of cocaine.[2] Plaintiff reported that he had been feeling agitated and irritated, had not been eating, and had been crying and sleeping most of the day. He was involved in individual and group therapy after being diagnosed with mood disorder, polysubstance abuse by history, cluster B personality traits, and, upon admission, a GAF of 30. After eight days of counseling and receipt of prescriptions for Celexa and Seroquel, Plaintiff was discharged on July 21, 2011 with an assessed GAF Score of 50 (T.401-402).

         On November 30, 2011, Plaintiff was transported from the Lancaster County Prison to Lancaster General Hospital once again due to a suspected overdose of Seroquel. The examining physician, Dr. Trystan Davies, noted incoherent speech, tired mood, blunted affect and impaired memory. Plaintiff was observed for three hours and was then deemed stable for discharge whereupon he was released to prison officials. (R.644-764).

         Between December 13, 2011 and May 15, 2012, Plaintiff saw Dr.

         Marc Turgeon, D.O., on at least four occasions. On December 13, 2011, Plaintiff presented with complaints of panic attacks and also reported that he was doing better without his medication. On January 10, 2012, Dr. Turgeon noted increased depression due to the death of Plaintiff's brother and prescribed Zoloft. On February 16, 2012, Plaintiff complained of nightmares and difficulty sleeping thus causing Dr. Turgeon to add Elavil to his medications. On May 15, ...


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