United States District Court, M.D. Pennsylvania
MEMORANDUM DOCS. 1, 9, 10, 11, 13, 19
B. COHN UNITED STATES MAGISTRATE JUDGE
August 10, 2011, and April 27, 2011, Michael S Romano, II
(“Plaintiff”) filed as a claimant for Social
Security Child's Insurance Benefits (“CIB”)
pursuant to 42 U.S.C. § 402(d) and for supplemental
security income (SSI) under Title II and XVI of the Social
Security Act, 42 U.S.C. §§ 401-434, 1181-1183f.
(Administrative Transcript (hereinafter, “Tr.”),
After the claim was denied at the initial level of
administrative review, and on April 2, 2013, Plaintiff and is
mother, appeared and testified at an administrative hearing.
(Tr. 73-88). The administrative law judge (ALJ) continued the
hearing so that Plaintiff could obtain representation and a
psychiatric evaluation. (Tr. 83). On July 29, 2013, the ALJ
held a second administrative hearing, at which time Plaintiff
was not represented. (Tr. 46-72). On September 3, 2013, the
ALJ found that Plaintiff was not disabled within the meaning
of the Act. (Tr. 28-45). On December 24, 2014, the Appeals
Council denied Plaintiff's request for review, thereby
affirming the decision of the ALJ as the “final
decision” of the Commissioner. (Tr. 9-14).
Plaintiff's request to extend time to file civil action
notices was granted on January 21, 2016. (Tr. 1-2).
February 25, 2016, Plaintiff filed the above-captioned action
pursuant to 42 U.S.C. § 405(g) and pursuant to 42 U.S.C.
§ 1383(c)(3), to appeal a decision of the Commissioner
of the Social Security Administration denying social security
benefits. (Doc. 1). On April 26, 2016, the Commissioner
(“Defendant”) filed an answer and an
administrative transcript of proceedings and on July 11,
2016, the Court granting Defendant's motion to correct
the transcript. (Doc. 9, 10, 12, 14). On June 10, 2016,
Plaintiff filed a brief in support of the appeal. (Doc. 11
(“Pl. Brief”)). On July 8, 2016, Defendant filed
a brief in response. (Doc. 10 (“Def. Brief”)). On
November 7, 2016, the Court referred this case to the
undersigned Magistrate Judge, and both parties consented to
the referral of this case to the undersigned Magistrate
Judge. (Tr. 19).
Relevant Facts in the Record
was born in June 1992 and had not attained the age of 22 as
of the alleged onset date of January 1, 2011. (Tr. 33); 42
U.S.C. § 402(d); 20 C.F.R. § 404.350. Plaintiff
alleged disability due to the following impairments: 1)
bipolar disorder; 2) depression; 3) intellectual impairment;
4) autism; 5) attention deficit hyperactivity disorder
(ADHD); 6) oppositional defiant disorder (ODD), and; 7)
obsessive-compulsive disorder (OCD). (Tr. 89-91, 111); Pl.
Brief at 2. Plaintiff completed the eleventh grade with the
assistance of special education. (Tr. 52, 77, 224). He also
testified that he had never worked, and that his mother and
her boyfriend supported him financially. (Tr. 78).
Relevant Treatment History and Medical Opinions
Christos Eleftherios, Ed.D.
November 2, 2011, Dr. Eleftherios performed a consultative
psychological evaluation. (Tr. 279-84). He came to the
evaluation with his fiancée whom he had met through
the internet. (Tr. 279-80). Plaintiff reported that he had
received monthly treatment from Dr. Iuzukuo who prescribed
Lamictal 100 milligrams a.m., Lamictal 150 milligrams h.s.,
Geodon 80 milligrams, and Adderall 30 milligrams. (Tr. 280).
Plaintiff stated that the medications were helping “A
lot, ” and assed that he was trying to keep his anger
under control.” (Tr. 280). Plaintiff elaborated
“[w]hen I don't take my medicine I will flip out
for no reason.” (Tr. 280). Plaintiff elaborated that
when he became mad, he would go to his room and punch a wall
and after he calmed down, he would apologize. (Tr. 280).
indicated that he did not have a license and did not drive.
(Tr. 280). Plaintiff added that he would get a driving permit
once his family believed that he would be responsible. (Tr.
280). Plaintiff stated that he had applied to jobs, but
prospective employers would not hire him because of his
“conditions” and elaborated that employers
“discriminate against mentally challenged
people.” (Tr. 280). Plaintiff stated that he did not
like “hanging out with anybody.” (Tr. 280).
Plaintiff's activities included playing video games,
watching television, cooking “a little bit, ”
helping with household cleaning, helping clean up after five
dogs, doing laundry, and doing dishes. (Tr. 281).
Eleftherios noted that Plaintiff demonstrated evidence of
immature speech and a “slight articulation problem but
he could be readily understood.” (Tr. 280). Dr.
Eleftherios administered the Wechsler Adult Intelligence
Scale-Third Edition, III (WAIS-III). (Tr. 281). Plaintiff
obtained a Verbal IQ of 76, Performance IQ of 62, and Full
Scale IQ of 67, which Dr. Eleftherios noted that these
results placed Plaintiff in the “upper limits of Mild
Mental Retardation.” Dr. Eleftherios opined that Plaintiff
was somewhere between upper mild mental retardation and
borderline intellectual functioning. (Tr. 281). Dr.
Verbal subtest analysis revealed poor vocabulary and poor
abstract reasoning. Arithmetic reasoning was very poor and he
had extreme difficulty mentally manipulating auditorally
presented arithmetic symbols. Attention and immediate recall
were fair - he recalled six digits forward and three backward
- both with error. This was below average. His fund of
information was fair this is generally obtained through
education and environment. Comprehension was good; he
evidenced pretty good practical judgment and was able to
generate commonsense solutions to everyday problems likely
indicating intellect probably closer to the borderline range.
Performance subtest analysis revealed a poor alertness to his
environment. He also had trouble on a new learning task
requiring the ability to associate meaning with visual
stimuli. He understood the task but performed slowly.
Perceptual planning and organization abilities were poor;
non-verbal abstract reasoning was very poor. He also had
trouble comprehending perceptually and conceptually a total
situation. Social sense was poor as was his ability to see
cause and affect relationships.
[Plaintiff] seemed to have significant difficulties with
regards to intellect. A brief reading assessment indicated
that his word recognition is at about the fifth grade level
and likely overall he is probably closer to borderline
intelligence. His achievement is relatively good for the most
part, but certainly well below his grade placement when he
was in school.
Eleftherios observed that Plaintiff was alert and able to
respond to direct questions. (Tr. 283). Although his thinking
was “slow, ” he was clear, logical, and goal
directed, with no evidence of an overt or underlying thought
disorder. (Tr. 283). There were no reported or observed
hallucinations or delusions, he was oriented times three (to
person, place, and time), he had some awareness regarding his
ongoing learning difficulties, and he was not suicidal or
homicidal. (Tr. 283). Although he described himself as
antisocial, he had a girlfriend. (Tr. 283). Dr. Eleftherios
assessed Plaintiff with: 1) likely borderline intelligence
with learning disorder; 2) reported mood disorder with poor
impulse control, rule out for probable bipolar disorder, and;
3) likely history of ADHD, combined type. (Tr. 283).
Eleftherios checked the boxes indicating that Plaintiff had
slight limitations in his ability to understand, remember,
and carry out short, simple instructions. (Tr.
286). Dr. Eleftherios indicated that Plaintiff
had moderate limitations in his ability to make judgments on
simple work-related decisions, understand, remember, and
carry out detailed instructions. (Tr. 286). Dr. Eleftherios
indicated that Plaintiff had marked limitations in his
ability to: 1) interact appropriately with the public,
supervisors, and coworkers; 2) respond appropriately to work
pressures in the usual work setting, and; 3) respond
appropriately to changes in a routine work setting. (Tr.
286). In support of his opinion, Dr. Eleftherios explained
that Plaintiff was avoidant, and had poor problem solving
State Agency Psychologist Psychiatric Review Technique and
Residual Functional Capacity Assessment: Sandra Banks,
November 17, 2011, Dr. Banks reviewed Plaintiff's
records, which included the November 2011 opinion from Dr.
Eleftherios, and rendered an opinion regarding the extent of
Plaintiff's limitations. (Tr. 92-95). Dr. Banks found
that Plaintiff's impairments did not meet the part
“B” criteria under the relevant listings for
mental impairments because he had a moderate restriction of
activities of daily living, moderate difficulties in
maintaining social functioning, moderate difficulties in
maintaining concentration, persistence, or pace, and no
episodes of decompensation, each of extended duration. (Tr.
94). Dr. Banks also found that the evidence did not establish
the presence of the part “C” criteria under the
relevant listings for mental impairments (Tr. 94). In support
of her opinion, Dr. Banks cited to Plaintiff's IQ tests
and the examination dated November 2, 2011, which noted that
Plaintiff was cooperative, demonstrated immature speech, was
intelligible, reported mood swings but apologizes, was
simplistic, and dependent. (Tr. 94).
Banks opined that Plaintiff had no significant limitations in
the ability to: 1) remember locations and work-like
procedures; 2) understand, remember, and carry out very short
and simple instructions; 3) perform activities within a
schedule, maintain regular attendance, and be punctual within
customary tolerances; 4) sustain an ordinary routine without
special supervision; 5) work in coordination with or in
proximity to others without being distracted by them; 6)
complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of
rest periods; 7) ask simple questions or request assistance;
8) accept instructions and respond appropriately to criticism
from supervisors; 9) maintain socially appropriate behavior
and to adhere to basic standards of neatness and cleanliness;
10) be aware of normal hazards and take appropriate
precautions; 11) travel in unfamiliar places or use public
transportation, and; 12) set realistic goals or make plans
independently of others. (Tr. 96-97). Dr. Banks opined that
Plaintiff was moderately limited in the ability to: 1)
understand, remember, and carry out detailed instructions; 2)
maintain attention and concentration for extended periods; 3)
make simple work-related decisions; 4) interact appropriately
with the general public; 5) get along with coworkers or peers
without distracting them or exhibiting behavioral extremes,
and; 6) respond appropriately to changes in the work setting.
(Tr. 96-97). In support of her opinion, Dr. Banks explained
that although Plaintiff's “ability to understand
and remember complex or detailed instructions is limited, he
could be expected to understand and remember simple, one and
two-step instructions, ” he would be able to maintain
regular attendance, and he could be expected to complete a
normal workday without an exacerbation of psychological
symptoms. (Tr. 96-97). Dr. Banks added that Plaintiff was
able to: 1) maintain socially appropriate behavior; 2)
perform the personal care functions needed to maintain an
acceptable level of personal hygiene; 3) ask simple
questions; 4) accept instruction; 5) sustain a basic,
repetitive routine and adapt to routine changes without
special supervision, and; 6) function in production oriented
jobs requiring little independent decision making. (Tr. 97).
With regards to Dr. Eleftherios' November 2011
consultative opinion, Dr. Banks opined that:
While the examining source statements in the report
concerning [Plaintiff's] abilities in the areas of making
occupational and performance adjustments are fairly
consistent with the other evidence in file, the examining
source statements regarding his abilities in the areas of
making personal and social adjustments are not consistent
with all of the medical and non-medical evidence in the
claims folder. The opinion provided by the examining source
is based on a brief clinical encounter that does not provide
insight that would exist from a longitudinal treatment
history. The opinion is an overestimate of the severity of
[Plaintiff's] limitations. . . . [Plaintiff] is able to
meet the basic mental demands of competitive work on a
sustained basis despite the limitations resulting from his
New Beginnings Outpatient Behavioral Health: Sheikh Afzal,
treatment plan dated January 29, 2013, it was noted that
Plaintiff's abilities included computer playing and
fixing and his strength was sports. (Tr. 305). Plaintiff
reported experiencing problems with anger and depression and
it was indicated that he would attend individual counseling
once a month. (Tr. 305). Plaintiff was assessed with
diagnostic code 296.80 (bipolar) and with a GAF score of 55.
April 8, 2013, Plaintiff underwent a psychiatric evaluation.
(Tr. 299-303). Plaintiff stated that he had been off his
medication for a year and it was noted that there were no old
treatment records available at the time of the evaluation.
(Tr. 299). It is noted that Plaintiff presented with ADHD, a
learning disability, and mild autism. (Tr. 299). Plaintiff
reported a history of impulsivity, depression, and
aggression. (Tr. 299). Plaintiff reported past treatment
included mood stabilizers, stimulants, and antidepressants.
(Tr. 299). Plaintiff reported experiencing distractibility,
inability to focus, inability to concentrate and comprehend,
and that he was unable to maintain any employment secondary
to ADHD. (Tr. 299). Plaintiff reported that he had seen a
psychiatrist and counseling since the age of five, that he
dropped out of the eleventh grade, and that he failed his
GED. (Tr. 300-01). Dr. Afzal noted that Plaintiff's
behavior was within normal limits, his speech was normal, his
mood was dysthymic, his affect was mood-congruent, his
thought process was goal directed, his cognition was grossly
intact, his insight and judgment were fair, and that he was
alert, with no evidence of suicidal or homicidal thought
content, hallucinations, delusions, or ...