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Romano v. Commissioner of Social Security

United States District Court, M.D. Pennsylvania

May 3, 2017

MICHAEL S ROMANO, II, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM DOCS. 1, 9, 10, 11, 13, 19

          GERALD B. COHN UNITED STATES MAGISTRATE JUDGE

         I. Procedural Background

         On 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.”), 31).[1] 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).

         On 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).

         II. Relevant Facts in the Record

         Plaintiff 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).

         A. Relevant Treatment History and Medical Opinions

         1. Christos Eleftherios, Ed.D.

         On 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).

         Plaintiff 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).

         Dr. 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.”[2] Dr. Eleftherios opined that Plaintiff was somewhere between upper mild mental retardation and borderline intellectual functioning. (Tr. 281). Dr. Eleftherios explained:

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.

(Tr. 282).

         Dr. 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).

         Dr. Eleftherios checked the boxes indicating that Plaintiff had slight limitations in his ability to understand, remember, and carry out short, simple instructions. (Tr. 286).[3] 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 skills.[4]

         2. State Agency Psychologist Psychiatric Review Technique and Residual Functional Capacity Assessment: Sandra Banks, Ph.D.

         On 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).

         Dr. 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 impairments.

(Tr. 98).

         3. New Beginnings Outpatient Behavioral Health: Sheikh Afzal, M.D.

         In a 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. (Tr. 305).

         On 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 ...


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