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Kurbanova v. Berryhill

United States District Court, M.D. Pennsylvania

February 15, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          RICHARD P. CONABOY, United States District Judge

         Pending before the Court is Plaintiff's appeal from the Commissioner's denial of Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“Act”). (Doc. 1.) Plaintiff filed this action on June 3, 2016, after the Appeals Council denied review of the Decision issued by Administrative Law Judge (“ALJ”) Sykle Merchan on July 24, 2014--the second Decision issued in this matter. (Doc.1; R. 1-5, 109-30.) With this action, Plaintiff identifies three errors: 1) the ALJ erred in finding that Plaintiff “was able to ‘communicate in English' without vocational limitation and failing to include such limitations in the hypothetical questions to the vocational expert”; 2) the ALJ erred in accepting the vocational expert's testimony as consistent with the Dictionary of Occupational Titles (“DOT”) when two of the jobs identified had greater demands than allowed by Plaintiff's RFC and all jobs identified had greater language requirements than Plaintiff could meet; and 3) the ALJ erred in not properly evaluating the testimony of the medical expert witness who testified at the hearing and in accepting the hearing of the post-hearing consultative examiner. (Doc. 17 at 14-15.) After careful review of the record and the parties' filings, the Court concludes this appeal is properly denied.

         I. Background

         A. Procedural Background

         Plaintiff applied for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act on February 10, 2010. (Doc. 17 at 5.) She alleged disability beginning on May 28, 2008. (R. 109.) Following an initial denial on July 6, 2010, Plaintiff requested reconsideration which was also denied. (Doc. 17 at 5.) Plaintiff then requested a hearing before an ALJ on September 10, 2010. (Id.) ALJ Allyn Brooks held a hearing on August 2, 2011, and issued his unfavorable decision on August 16, 2011. (Id.) Plaintiff requested review by the Appeals Council, and the Appeals Council remanded the case for a new hearing with its November 14, 2012, Order. (Doc. 17 at 6.)

         On January 14, 2014, ALJ Merchan held another hearing. (Id.) She issued the decision denying Plaintiff's claim on July 24, 2014, after concluding that Plaintiff was capable of performing jobs that existed in significant numbers in the national economy despite limitations related to her severe impairments of degenerative disc disease, cervical radiculopathy, major depressive disorder, panic disorder, and disruptive mood dysregulation disorder. (R. 112-30.) The Appeals Council denied Plaintiff's request for review of the hearing decision on April 11, 2016, making the ALJ's decision the final decision of the Acting Commissioner. (R. 1-5.)

         As noted above, Plaintiff filed her action in this Court on June 3, 2016. (Doc. 1.) Defendant filed her Answer and the administrative transcript on August 8, 2016. (Docs. 9, 10.) After Plaintiff filed her supporting brief (Doc. 17) on December 19, 2016, Defendant timely filed her opposing brief (Doc. 18), and Plaintiff timely filed a reply brief (Doc. 19). Therefore, this matter is fully briefed and ripe for disposition.

         B. Factual Background

         Plaintiff was born on May 3, 1973, and was thirty-six years old on the date the application was filed and forty-one years old at the time of the 2014 ALJ Decsion. (R. 129; Doc. 18 at 4.)

         Plaintiff, who came to the United States in 2006 as a refugee, said that she had ten years of education in Uzbekistan “where the education system only goes to 10 years.” (Doc. 17 at 7 & n.2; Doc. 18 at 4.) Her interpreter at the second hearing interjected that she had graduated and Plaintiff answered in the affirmative when she was asked if she had finished high school. (R. 18.) Plaintiff had past relevant work as a hand packager. (R. 129.) In her brief, Defendant notes that

[a]t two face-to-face disability interviews, Plaintiff spoke Russian and her son translated (Tr. 280, 327). In a disability report, Plaintiff indicated that she could not speak and understand English, but could read and understand English, and could write more than her own name in English (Tr. 282). A provider at Swedish Covenant Hospital noted that “Patient does speak some English but her son translates as well” (Tr. 444).

(Doc. 18 at 4.)

         1. Impairment Evidence[1]

         Plaintiff provides a brief summary of medical evidence which we set out here to provide context.

The plaintiff had a workplace injury at Tyson Foods and stopped working. [Tr. 433] Multiple MRIs showed cervical disc injury at ¶ 5-C[6]. This problem appears to have got [sic] worse over time. In addition, MRI of the lumbar-sacral area showed disk bulging at ¶ 4-L5 and disk herniation at ¶ 5-S1. [Tr. 490] Nerve conduction studies did not, however, confirm radiculopathy. (See e.g. Tr. 409 et seq.) Treatment included spinal injections (see e.g. 435) and physical therapy (see e.g. Tr. 456). There were notes of improvement in motion and pain (e.g. Tr. 458) as well as other notes of increase or recurrence in pain (see e.g. Tr. 483).

(Doc. 17 at 11-12 (footnotes omitted).)

         Defendant provides a summary of evidence relevant to the issues raised in Plaintiff's appeal.

In April 2010, Plaintiff underwent a psychiatric consultative examination with Ana Gil, M.D. (Tr. 520-23). Plaintiff spoke in Russian and was accompanied by a translator (Tr. 520). Plaintiff reported social isolation, decreased energy, irritability, increased appetite, decreased sleep, difficulty with concentration, poor memory, lack of motivation, and crying spells; however, Plaintiff never received psychiatric treatment and had no history of suicidal ideation, psychotic or manic symptoms (Tr. 520-21). On mental status examination, Plaintiff was cooperative; made good eye contact; was alert and oriented in all spheres; and was friendly, polite and related well during the interview (Tr. 521). She noted feeling down and helpless, but denied suicidal ideations, intent or plan, and she presented with no auditory, visual or tactile hallucinations, paranoid ideation or delusions (Tr. 522). Plaintiff could repeat three digits forward and two in reverse, and was able to name three objects immediately, after one minute, three minutes, and five minutes (Tr. 522). She demonstrated the capacity to classify and identify similarities and differences, abstract, and judgement was intact (Tr. 522-23). Dr. Gil diagnosed depressive disorder, NOS, moderate in severity (Tr. 523).
Scott Kale, M.D., a medical expert and internal medicine doctor, testified at the second hearing after reviewing Plaintiff's medical record (Tr. 38-42). Dr. Kale testified that Plaintiff's complaints of pain had no physical basis, as there was no evidence of radiculopathy, cervical myelopathy, spinal stenosis, or significant arthritis (Tr. 40).[2] He noted that her pain complaints were out of portion with physical disease (Tr. 41). On this basis, Dr. Kale concluded that she equaled the mental listing for somatoform disorder, [3] Listing 12.07 (Tr. 41).
Dr. Kale noted that he has a master's degree in psychology, but does not practice it routinely (Tr. 41, 239). He was not a psychiatrist, and was not board certified in psychiatry (Tr. 239-40). Dr. Kale's curriculum vitae noted that he was an internist with specialization in arthritis and internal medicine (Tr. 239). Dr. Kale admitted that there was no documented diagnosis of somatoform disorder in the record, and it was conclusory based on the lack of any other basis for her complaints (Tr. 41). Plaintiff's attorney declined questioning Dr. Kale (Tr. 42).
After the hearing, on May 16, 2014, Plaintiff attended a consultative psychological examination with Charles LaJeunesse, Ph.D. (Tr. 622-28). Plaintiff appeared with her son, who served as the translator (Tr. 623). Plaintiff reported pain in her shoulders, neck and numbness around her arms and shoulders with lower back pain (Tr. 622). She also endorsed depressive symptoms and anxiety (Tr. 622-23). On mental status examination, Plaintiff was well-groomed; had normal posture; adequate manner of relating and social skills; and normal eye contact; but appeared somewhat restless (Tr. 623). There were no signs of hallucinations, delusions or paranoia, and she reported no suicidal thoughts (Tr. 623-24). Plaintiff's mood seemed dysthymic and her affect was somewhat dysphoric (Tr. 624). Sensorium was clear (Tr. 624). Attention was mildly impaired due to emotionality, and she could not do serial three subtraction without writing it down (Tr. 624). Recent and remote memory skills were mildly impaired due to anxiety; intellectual functioning was average; and general fund of information was somewhat limited (Tr. 624). Plaintiff reported performing self-care and chores with the support of her daughter (Tr. 624). Her son claimed that Plaintiff had no friends, but was part of a loving family (Tr. 624). Her only hobby was reading (Tr. 624). Dr. LaJeunesse diagnosed disruptive mood dysregulation disorder; major depressive disorder and panic disorder with a rule out diagnosis of social phobia (Tr. 625).
On May 21, 2010, state agency psychological consultant Howard Tin, Psy.D., reviewed the record and completed a Psychiatric Review Technique, and opined that Plaintiff did not have a severe mental impairment (Tr. 543-56).

(Doc. 18 at 5-8.)

         2. Hearing Testimony

         At the January 2014 hearing held in Evanston, Illinois, Plaintiff personally appeared as did her attorney, Richard Victor, Vocactional Expert (“VE”) Craig Johnston, interpreter Lydia Wexler; medical expert, Scott Kale, M.D., testified by phone.[4] (R. 10.) Plaintiff testified that she lived in Scranton with her husband and three children who were twenty-three, twenty, and thirteen at the time. (R. 17.) She also said that before she started working she had taken English classes for “[n]o more than two months, ” she had taken her citizenship test in English two years before, and she had become a citizen. (R. 18, 19.)

         The ALJ asked Plaintiff if she could read and write in English and Plaintiff responded “no, not really.” (R. 19.) Plaintiff confirmed that she could write her last name and address in English but she needed help to write a short note like a school absence excuse--her oldest son would help her and she would just sign her name. (R. 19-20.) She said she could read in English “[i]f it's a very, very simple word, the sentence” and her son helped her read things like the hearing notice. (R. 20.) Plaintiff testified that she had a driver's license and had taken the test in Russian. (R. 21.) When asked if she went to her youngest child's parent-teacher conferences to talk to his teachers, Plaintiff responded that she did not because she doesn't know the language so she feels uncomfortable. (R. 37.)

         Regarding employment, Plaintiff said she last worked in 2008 at Tyson Foods as a meat packer--she worked for about a year before she was injured in a fall on the job and her doctors told here she could not work anymore. (R. 23-24.) Plaintiff's attorney clarified that a worker's compensation claim was filed--it was ultimately settled. (R. 25-26.) The ALJ asked Plaintiff how she communicated with her coworkers and supervisor when she worked at Tyson; Plaintiff said that she had some Russian-speaking coworkers who helped with communication with the supervisor so she spoke with him “through a translator.” (R. 38.)

         Following Dr. Kale's testimony outlined above, including his diagnosis of somatoform disorder, Plaintiff's attorney stated that he had no questions for Dr. Kale. (R. 42.) VE Johnston then testified, indicating that his testimony would be consistent with the DOT or, if it was not consistent, he would advise the ALJ of that fact. (R. 42-43.) ALJ Merchan asked VE Johnston to consider an individual of Plaintiff's “age, education, and work experience who is able to do work at the sedentary exertional level, limited to no ladders, ropes, or scaffolds; no more than occasional as to the remaining postural activities of climbing ramps or stairs, balancing, stooping, crawling, crouching, or kneeling; no work above shoulder level; and no work in cold environments.” (R. 44.) The VE testified that Plaintiff's past work would not be available to such an individual but other jobs would be, including production assembler, parts inspector, and sorter. (R. 45.) The VE estimated that the number of jobs available would be reduced by fifty percent if the individual could not lift more than five pounds though this was not mentioned in the DOT. (R. 45-46.) The VE further testified that adding no more than frequent reaching, handling, or fingering would not affect the jobs because that was the typical requirement for the jobs, and adding additional restrictions of no more than simple, routine, repetitive tasks would not affect the jobs because he had cited only unskilled jobs. (R. 46.) VE Johnston stated that all jobs would be eliminated if the individual were off work more than three days per month. (Id.)

         Plaintiff's attorney then questioned VE Johnston about a sit/stand option and the amount of time an individual would be expected to be on task. (R. 47.) The VE responded that the jobs would allow a sit/stand option and the individual would have to be on task at least eighty-five percent of the time. (Id.) Plaintiff's attorney confirmed that he had no further questions. (Id.)

         Before the hearing ended, ALJ Merchan determined that another consultative examination by a mental health professional was warranted because she had reservations about Dr. Kale's testimony--he did not practice in the mental health area and there was no other mental health treatment. (R. 47.) Other than clarifying that Pennsylvania would be the best location for the consultative exam, Plaintiff's attorney had no further questions. (R. 47-50.)

         3. ALJ Decision

         In her July 24, 2014, Decision, ALJ Merchan made the following findings of fact and conclusions of law:

1. The claimant has not engaged in substantial gainful activity since February 12, 2010, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: degenerative disc disease; cervical radiculopathy; major depressive disorder; panic disorder; disruptive mood dysregulation disorder (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, ...

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