United States District Court, M.D. Pennsylvania
Honorable Richard P. Conaboy, Judge
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.
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
Testimony Before the ALJ.
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.
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).
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).
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
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).
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.
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).
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.
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”.
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).
Mental Impairment Evidence.
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.
The Testimony of Dr. Thomas Fink.
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.
Treatment at the Lebanon, Pennsylvania Veteran's
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).
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.
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).
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).
Mark Pentz, Licenced Professional Counselor.
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.”
Evidence Provided by Other Physicians.
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. 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).
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.
December 13, 2011 and May 15, 2012, Plaintiff saw Dr.
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, ...