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Wesneski v. Berryhill

United States District Court, M.D. Pennsylvania

March 21, 2017

NANCY A. BERRYHILL, [1]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 Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. (Doc. 1.) Plaintiff filed an application for benefits on February 14, 2013, alleging a disability onset date of February 13, 2013. (R. 1.) After Plaintiff appealed the initial denial of the claim, a hearing was held on July 22, 2014, and Administrative Law Judge (“ALJ”) Patrick Cutter issued his Decision on August 6, 2014, concluding that Plaintiff had not been under a disability at any time from February 13, 2013, to the date last insured of March 31, 2014. (R. 39-49.) Plaintiff requested review of the ALJ's decision which the Appeals Council granted on March 16, 2016. (R. 4.) In the Decision of the Appeals Council dated July 22, 2016, Plaintiff's date last insured was extended to December 31, 2014, and the ALJ's Decision was otherwise adopted, the Appeals Council concluding that newly submitted evidence either did not warrant a change in ALJ Cutter's determinations or did not relate to the relevant time period. (R. 4-8.)

         Plaintiff filed this action on September 16, 2016 (Doc. 1), asserting in her supporting brief that the Acting Commissioner's determination should be reversed for the following reasons: 1) the ALJ erred when he found that Plaintiff's impairments or combination of impairments did not meet or equal one of the listed mental health impairments (Doc. 11 at 3-12); and 2) based on inadequate consideration of symptoms related to Plaintiff's mental health impairments, the ALJ failed to find Plaintiff disabled under the Medical-Vocational Rules after improperly determining she was capable of performing light work (id. at 12-14). After careful review of the record and the parties' filings, the Court concludes this appeal is properly denied.

         I. Background

         Plaintiff was born on July 16, 1964, and has at least a high school education. (R. 47-48.) The ALJ determined that Plaintiff had past relevant work as an administrative clerk, income tax return preparer, and account executive. (R. 47.) In a February 20, 2013, Disability Report, Plaintiff reported that the following physical and mental conditions limited her ability to work: diabetes; depression; memory lapse/loss; anxiety disorder due to general medical condition; hypertension; asthma with acute exacerbation; obesity; panic disorder without agoraphobia; obstructive sleep apnea; and hyperlipidemia. (R. 177.) Plaintiff said she stopped working on February 13, 2013, because she was fired. (R. 177-78.) She further indicated that, although she was fired for other reasons, she believed her conditions became severe enough to keep her from working as of January 15, 2013. (R. 178.)

         1. Medical Evidence

         Because Plaintiff's claimed errors relate to her mental health conditions, the Court will focus on medical evidence related to those conditions. Although February 13, 2013--the date Plaintiff stopped working--is the alleged disability onset date, records from the preceding six months are reviewed for context.

         Plaintiff was seen for a check up at Hanover Family Medicine by Vernon Preston, M.D., on July 24, 2012. (R. 311.) She presented as tearful and stated she had a panic attack all day. (Id.) She said she had been without insurance for a while but had acquired insurance and wanted to have testing done. (Id.) Plaintiff reported that she was having memory loss and was feeling depressed. (Id.) Dr. Preston noted she was willing to see someone for counseling. (Id.)

         In August 2012, Dr. Preston's notes show that memory and depression were still issues and Plaintiff did not feel her depression was controlled. (R. 306.) At Plaintiff's September 18, 2012, visit, Plaintiff felt her depression was controlled but her anxiety was not. (R. 302-03.) She reported a potential medication side effect was that she was waking up a lot at night and having very vivid dreams. (R. 302.) Plaintiff said she was concerned about an increase in memory loss and anxiety, and she was experiencing low blood sugars in the middle of the night which increased her anxiety. (R. 303.)

         At her visit to Wellspan Endocrinology on October 12, 2012, Ashok Kuruvilla, M.D., noted that Plaintiff was unable to manage her insulin pump at the time because of her memory loss. (R. 288.) In addition to history directly related to diabetes, Dr. Kuruvilla noted that Plaintiff reported panic attacks, anxiety, depression, sleeping too much, trouble falling asleep, and trouble staying asleep. (R. 290-91.) On physical exam, he noted that Plaintiff looked anxious and mildly depressed. (R. 291.)

         On October 22, 2012, Plaintiff had a neurology consultation with Xi Lin, M.D., at Wellspan Rheumatology. (R. 332.) Dr. Lin noted that Plaintiff said over the preceding five years she had worsening attention and concentration, and she was easily distracted or overwhelmed. (R. 333.) He further noted that Plaintiff reported she could function at home with no significant difficulties. (Id.) On physical exam, Dr. Lin found Plaintiff alert and oriented to person, place and time, with normal affect and expression, no aphasia, and good insight with a good fund of knowledge. (R. 335.) Because of her reported progressive memory loss, poor concentration, and fatigue, he scheduled MRI of the brain, EEG, and sleep study. (R. 332.) His differential diagnosis included obstructive sleep apnea, epilepsy, and cerebrovascular accidents. (Id.)

         On November 30, 2012, Dr. Kuruvilla noted that Plaintiff had not followed directives regarding faxing her blood glucose chart weekly, she had not yet seen the dietician and she had been very erratic and infrequent with blood glucose monitoring. (R. 279.) He added that she had symptoms when she had low blood glucose levels. (Id.)

         On February 11, 2013, Plaintiff saw Dr. Preston with the chief complaint of severe anxiety attacks. (R. 295.) Dr. Preston recorded a detailed history.

Patient states her anxiety level has greatly increased recently with her job. She states her job is the job from hell. She does not want to quit but she does need to get her anxiety under control. Her job is very hectic and she has had to take some mental health days to relieve her stress level. She needs a return to work note. She states she was hired to help elderly patients pay for their heat during the winter time.
It has not been as busy as last year. As a result, she is now answering telephones for the department of public welfare. She states [there are] times that she hides underneath her desk and places a blanket over the back [of] the desk so that no one can see her and she takes her headphone off for decompression time. She states she has panic attacks on a daily basis now. On reviewing, she has not been taking citalopram on a regular basis. She has been using lorazepam for her panic attacks and often uses one to two per day.

(R. 295.) Dr. Preston decided to switch Plaintiff from the pump to subcutaneous insulin because of her poor memory and lack of monitoring and he continued her on lorazepam for anxiety. (R. 295-96.)

         On March 14, 2013, Plaintiff reported to Dr. Preston that she had lost her job and was trying for disability. (R. 377.) She said she could not keep a job because of her depression and anxiety--she was fighting coworkers and having panic attacks at work. (Id.) Plaintiff said she wanted to increase her anxiety medication and she felt her depression was controlled. (Id.)

         Anthony J. Fischetto, Ed.D., performed a clinical psychological examination and review of documents on April 9, 2013. (R. 315.) He reported that Plaintiff was crying throughout the evaluation. (Id.) Regarding the history of her illness, Dr. Fischetto recorded that Plaintiff said “she has diabetes and this has caused her stress and caused her to have panic attacks which is hard to distinguish between low blood sugar. She has depression.” (R. 316.) At the time, Plaintiff was taking lorazepam and Zoloft prescribed by her family doctor. (Id.) She said she had never seen a psychiatrist and was not getting any therapy for her panic attacks or sleep problems. She told Dr. Fischetto that psychiatrists scared her “because her mother and sister were taken away in straight jackets by medical personnel.” (R. 316.) Plaintiff said she could not work because of the panic attacks and asthma as well as arguing and crying. (R. 318.) Mental Status Examination included the following findings: Plaintiff was crying and restless; her speech consisted of crying and she was able to understand clearly; she was depressed, anxious, and angry, and she fought with her in-laws and people at work; she had panic attacks lasting fifteen seconds to fifteen minutes once or twice a day with fast heart beat, sweating, shaking, trembling, and shortness of breath; she was having a panic attack at the time; she had sleep problems including falling asleep, early morning wakening, and nightmares of getting lost; productivity of thought was spontaneous; continuity of thought was goal-directed and no looseness of association; content of thought consisted of fear of going to work and getting into a fight; she had no delusions; her abstract thinking was good for similarities; she had average fund of information; regarding concentration, she was slow for serial sevens; she was oriented to time, place and person; her remote memory was limited in that she did not remember much of her childhood, her recent past memory was average, and her immediate retention and recall was poor for Digit Span; her test judgment was good; her insight was limited; and her reliability was average. (R. 318-20.) Diagnoses included major depressive disorder, recurrent, moderate; personality disorder, NOS; reported problems with diabetes, overweight, asthma, hyperlipidemia, OSA, and hypertension; stress with her physical condition, not working, arguments with people; and a GAF score of 50. (R. 320.) Dr. Fischetto's prognosis was “[g]uarded and chronic.” (Id.) He added that Plaintiff needed ongoing psychiatric and psychological help. (Id.)

         In April 2013, Dr. Preston stated that the following month he would consider changing anxiety medication because Plaintiff wanted to be on a non-controlled substance medication. (R. 373.) He hoped that her stress would be decreased, noting that a decision would be made on her wrongful firing suit. (Id.) He commented that Plaintiff had not yet seen Dr. Carlson, she continued to have issues with depression and confusion as well as life stressors at home, she was apprehensive about seeing a psychologist, and she was in the middle of a lawsuit that was causing her a lot of stress. (R. 373-74.) Plaintiff reported that she felt her depression was controlled and she was tolerating the depression medication without side effects. (R. 375.)

         On July 22, 2013, Dr. Preston again noted that Plaintiff was having panic attacks and wanted the change medications so she would not have to come into the office for medication pickup. (R. 370.) He added that Plaintiff had not been taking the citalopram on a regular basis. (Id.) Plaintiff did not feel that her panic attacks were controlled, and Dr. Preston noted that she was not compliant with medications/treatment recommendations. (R. 370.) On examination, he found that psychologically Plaintiff was oriented and appropriate. (R. 372.)

         At her October 2013 three-month follow-up appointment, Dr. Preston reported that Plaintiff felt her depression and anxiety were not controlled. (R. 363.) He noted that she was compliant with medications/treatment recommendations, she was tolerating her medications well, and psychologically Plaintiff was oriented and appropriate. (Id.) Dr. Preston recorded a similar assessment in November at which time Plaintiff reported that she was seeing a psychologist. (R. 357-59.)

         In March 2014, Dr. Preston noted that Plaintiff said she was doing well on Strattera, that she was remembering more and focusing better. (R. 352.) She told Dr. Preston her only concern was that she was worrying a lot. (Id.) Dr. Preston recorded that Plaintiff felt her depression was controlled but she was having side effects from her medication concerning libido and wanted to try something different. (Id.) Examination showed that psychologically Plaintiff was oriented and appropriate. (R. 355.)

         On April 28, 2014, Dr. Preston recorded Plaintiff was “doing better with her sugars now that attention deficit is better controlled.” (R. 346.) Plaintiff felt that her depression was controlled and she was tolerating related medications without side effects. (R. 347.) Examination showed Plaintiff's judgment and mentation were normal. (R. 350.) He made similar findings on May 29, 2014. (R. 343, 345.)

         On July 14, 2014, Dr. Preston noted that Plaintiff's ADHD was well-controlled on Strattera but she felt her depression was not controlled. (R. 338, 339.)

         2. Opinion Evidence

         a. Consultative Examiner

         In addition to the April 9, 2013, evaluation summarized above, Dr. Fischetto completed a Medical Source Statement of Ability to Do Work-Related Activities (Mental) on the same date. (R. 322-24.) Regarding ability to carry out instructions affected by the impairment, Dr. Fischetto opined that Plaintiff had moderate difficulties in her ability to understand and remember simple instructions, carry out simple instructions, and make judgments on simple work-related decisions, and she had marked difficulties in her ability to understand and remember complex instructions, carry out complex instructions, and make judgments on complex work-related decisions. (R. 322.) He identified the support for his assessment to be Plaintiff's panic attacks, crying throughout the evaluation session, and poor focus. (Id.) Dr. Fischetto also indicated that Plaintiff's ability to interact appropriately with supervisors, co-workers and the public, and respond to changes in the routine work setting was affected by her impairments, but after checking the “Yes” box, Dr. Fischetto did not evaluate the specific categories set out in the form. (R. 323.)

         In the evaluation narrative, Dr. Fischetto included an assessment of the effects of Plaintiff's impairments on function. (R. 320-21.) Regarding activities of daily living, he concluded that Plaintiff was able to do some cooking and cleaning, and she was able to drive and shop but, when shopping, she did not bring a list and bought unneeded items so her husband did not let her shop. (R. 320-21.) Dr. Fischetto found that Plaintiff's social functioning was limited as evidenced by a disorderly conduct charge and being fired from many jobs because of arguing. (R. 321.) He noted that Plaintiff's concentration, persistence, and pace appeared to be slow because she had trouble focusing and concentrating, and she had difficulty remembering her age. (R. 321.) Dr. Fischetto added that Plaintiff was having a panic attack during the evaluation and “[o]bviously, during the panic attack, she was going to have greater difficulty focusing, concentrating and completing tasks.” (R. 321.)

         b. State Agency Consultant

         On April 24, 2013, state agency consultant Roger Fretz, Ph.D., completed a Psychiatric Review Technique (“PRT”) and a Mental Residual Functional Capacity Assessment based on his review of the evidence, including Dr. Fischetto's evaluation. (R. 85-92.) In the PRT, he reviewed the listing criteria for 12.04-Affective Disorders, 12.06-Axiety-Related Disorders, and 12.08-Personality Disorders and concluded Plaintiff did not satisfy the “paragraph B” or paragraph “C” criteria of the listings. (R. 87-88.) Regarding the “B” criteria, Dr. Fretz concluded that Plaintiff had mild restrictions in activities of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace, and no repeated periods of decompensation each of extended duration. (R. 88.)

         Dr. Fretz opined that Plaintiff was moderately limited in her abilities to carry out detailed instructions, maintain attention and concentration for extended periods, and work in coordination with or proximity to others without being distracted by them. (R. 89-90.) He also opined that Plaintiff was moderately limited in her abilities to accept instructions and respond appropriately to criticism from supervisors, and get along with coworkers or peers without distracating them or exhibiting behavioral extremes. (R. 90.) Dr. Fretz provided the following narrative explanation for his findings:

The claimant is capable of self-care/hygiene. She is able to perform ADLs, able to drive, shop. She has recently been employed. Treatment is limited to being prescribed psychoactive medication by PCP, no inpatient care. She was cooperative with the CE examiner, manifesting no evidence of a thought disorder, no evidence, as per narrative, of severe dysfunction in any area. She described a troubled adolescence, not currently manifesting a similar behavior pattern however does admit to having difficulty with others, can be argumentative. She is however able to engage in social settings, attends church services with a friend. She was ...

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