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Brinegar v. Berryhill

United States District Court, M.D. Pennsylvania

May 3, 2017

LISA K. BRINEGAR, Plaintiff,
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 Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“Act”). (Doc. 1.) Plaintiff filed an application for benefits on May 8, 2013, alleging a disability onset date of April 10, 2001. (R. 14.) However, because of res judicata considerations related to her previous application for SSI, the relevant period for the current application begins on the filing date of May 8, 2013. (Id.) After Plaintiff appealed the initial denial of the claim, a hearing was held on September 10, 2014, and Administrative Law Judge (“ALJ”) Therese A. Hardiman issued her Decision on January 23, 2015, concluding that Plaintiff had not been under a disability during the relevant time period. (R. 26.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on July 12, 2016. (R. 1-5.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on September 12, 2016. (Doc. 1.) She asserts in her supporting brief that the Acting Commissioner's determination should be reversed or remanded for the following reasons: 1) the ALJ's finding that Plaintiff has no severe physical impairments is not supported by substantial evidence and is harmful error; 2) the ALJ's RFC assessment imposing no exertional limitaions is not supported by substantial evidence; and 3) the ALJ committed a reversible error of law by failing to accord greater weight to the opinion of Joseph Primavera, Ph.D. (Doc. 11 at 3.) After careful review of the record and the parties' filings, the Court concludes this appeal is properly denied.

         I. Background

         Plaintiff was born on December 26, 1965, and was forty-seven years old on the date the application was filed. (R. 25.) She has a high school education and does not have past relevant work. (Id.) Plaintiff reported that she was last employed as a dogsitter in 2008 and she had worked in sales in the “distant past.” (R. 416.)

         A. Medical Evidence

         1. Physical Impairments

         On February 3, 2013, Plaintiff presented as a new patient to Marshall-Rismiller and Associates where she was seen by Robert A. Scalia, D.O. (R. 316-17.) By history, Plaintiff reported episodes of chronic joint pain, especially of the lower back with stiffness and decreased range of motion of the lower back and multiple joints of her body. (R. 316.) She said the symptoms had been present for years, she took Percocet for pain, and she had been diagnosed with rheumatoid arthritis in the past but had been unable to see a rheumatologist because she did not have insurance. (R. 316.) Plaintiff also reported a history of mood disorder, panic disorder, and ADHD treated with Xanax, Prozac, Geodon, and Adderall and followed by psychiatry. (Id.) Physical examination showed the following: height of five feet, five inches and weight of 212 pounds with a body mass index (BMI) of 35.3; healthy and well developed appearance with no signs of acute distress; alert and oriented x3; no edema of the lower limbs bilaterally; normal gait; low back pain and stiffness with decreased range of motion of lower back; and some joint pain of various joints. (R. 316-17.) Dr. Scalia assessed rheumatoid arthritis for which he recommended that Plaintiff continue to take Percocet for pain. (R. 317.) He also recommended that she continue with her medications for the mood disorder, panic disorder, and ADHD, and that she continue to follow up with psychiatry. (R. 317.) At March and April office visits, Dr. Scalia's examination findings remained the same, and he referred Plaintiff to a rheumatologist. (R. 318-19, 320-21.)

         Plaintiff saw rheumatologist Thomas M. Harrington, M.D., on April 5, 2013. (R. 272-75.) The reason for the visit was “generalized body aches and pains” of longstanding duration (over ten years). (R. 272.) Plaintiff reported that she had been diagnosed with fibromyalgia several years earlier and she had not seen a rheumatologist for several years due to lack of insurance but recently had gotten insurance again. (Id.) Plaintiff said her symptoms had been relatively stable on Percocet which she took on a regular basis (three to four per day). (Id.) She also ssid she had tender points to touch, morning stiffness for an hour and a half, and Raynaud's phenomena which caused her fingertips to turn white and painful on exposure to cold. (Id.) Plaintiff also reported her mental health history and said that she was due to see a psychiatrist in the near future. (Id.) Dr. Harrington recorded that Plaintiff's history included hypertriglyceridemia, one atrophic kidney since birth, recurrent kidney stones, and a motor vehicle accident in 2012 when her left half was overrun by the vehicle resulting in a vertebral fracture, and left shoulder and hip injuries. (Id.) Dr. Harrington made the following musculoskeletal examination findings: no synovitis, tenderness, or effusion; full range of motion of all joints; 5/5 grip strength; three small non-tender firm subcutaneous nodules on the right forearm; no contractures; and more than twelve musculoskeletal tender points. (R. 274.) Dr. Harrington's Assessment stated “47 yo female with longstanding Hx of generalized muscle aches and pain lower back and knees; managed as fibromyalgia by rheumatologist at Baltimore (lost follow up) now comes for re-evaluation. Clinical posture consistent with FM, no current evidence of any inflammatory etiology.” (Id.) Fibromyalgia was the primary encounter diagnosis for which Dr. Harrington recommended Plaintiff continue with Percocet which provided “reasonable control” of her pain, he added Mobic as needed for pain, and he provided a physical therapy referral. (R. 275.) He also diagnosed osteoarthritis which would be treated the same as fibromyalgia and would be evaluated with x-ray. (Id.) Dr. Harrington planned to see Plaintiff again in six months. (Id.)

         On May 2, 2013, Plaintiff saw Dr. Scalia who noted that Plaintiff presented as “healthy and well-developed [with] [n]o signs of acute distress present [and] [a]lert and oriented x 3.” (R. 323.) He recorded musculoskeletal physical examination findings of low back pain and stiffness, decreased range of motion of low back, some joint pain of various joints, and a normal gait for her age. (Id.) Dr. Scalia's diagnoses included rheumatoid arthritis for which he noted she was following up with rheumatology. (R. 323.)

         On May 17, 2013, Plaintiff had bilateral knee x-rays because of pain. (R. 304.) Findings included “symmetrical mild to moderate narrowing of the medial compartments . . . [and] [m]inimal patellar osteophytosis, bilaterally.” (Id.) The Impression was “[m]ild symmetric medial compartmental joint space narrowing in both knees. No evidence of acute osseous abnormality.” (Id.)

         At Plaintiff's six visits with Dr. Scalia from May 30, 2013, to October 14, 2013, he recorded musculoskeletal physical examination findings of low back pain and stiffness, decreased range of motion of low back, and some joint pain of various joints. (R. 382, 385, 388, 390, 392, 394.) He also noted that Plaintiff walked with a normal gait for her age. (Id.) He found that she consistently presented as “healthy and well-developed [with] [n]o signs of acute distress present [and] [a]lert and oriented x 3.” (Id.) Dr. Scalia's diagnoses included rheumatoid arthritis at the first five visits (R. 385, 388, 390, 392, 394) but not in October (R. 382).

         Plaintiff had her follow up visit with Dr. Harrington on October 18, 2013. (R. 340-46.) By Plaintiff's subjective history, he recorded that “Fibromyalgia - remains stable on Percocet as per Dr. Scalia tolerates the medicine without difficulty.” (R. 340.) Dr. Harrington noted that osteoarthritis occasionally gave Plaintiff problems but the pain was helped by Percocet. (Id.) On physical examination, Plaintiff generally presented as “alert, healthy, well nourished, well developed and anxious.” (R. 341.) Dr. Harrington made the following musculoskeletal examination findings: no synovitis or effusion; decreased range of motion of her right shoulder; 5/5 grip strength; right rotator cuff tendinitis; and ten musculoskeletal tender points. (R. 341.) His primary diagnosis was myalgia and myositis, unspecified, and he also assessed Plaintiff to have “[o]steoarthritis, unspecified whether generalized or localized, lower leg.” (Id.) Dr. Harrington also diagnosed rotator cuff syndrome and offered Plaintiff an injection but she refused because she was afraid of needles. (R. 340-41, 345.) She was to return in six months. (R. 346.)

         From November 8, 2013, to June 2, 2014, Plaintiff saw Dr. Scalia seven times and he again regularly recorded musculoskeletal physical examination findings of low back pain and stiffness, decreased range of motion of the low back, and some joint pain of various joints. (R. 361, 364, 367, 370, 373, 376, 379.) He also noted that Plaintiff walked with a normal gait for her age. (Id.) Dr. Scalia found that Plaintiff consistently presented as “healthy and well-developed [with] [n]o signs of acute distress present [and] [a]lert and oriented x 3.” (Id.) His diagnoses did not include rheumatoid arthritis or fibromyalgia at any of these visits. (Id.) However, at Plaintiff's May 2, 2014, office visit, his assessments included “Joint Disorder Unspec Site Unspec” (R. 364), a finding not recorded the following month (R. 362).

         2. Mental Impairments

         Plaintiff had a Psychiatric Evaluation at Berks Psychiatry on February 5, 2013. (R. 236-37.) Plaintiff reported that she was unemployed and going to McCann School for paralegal services. (R. 236.) Her chief complaint was that she needed help, she was “not doing well.” (Id.) By history, Plaintiff reported that she had been struggling with mental health issues for years and her symptoms of anxiety and depression were getting worse. (Id.) Plaintiff described a variety of symptoms including trouble sleeping, panic attacks, and mood swings. (R. 236.) Mental Status Examination by Rahman Khan, M.D., showed that Plaintiff was alert and oriented to time, place, and person; she had good eye contact; she looked nervous throughout the interview; her speech was normal in volume, rate, and tone; she had clear psycho-motor retardation; no formal thought disorder or delusional thinking were detected; her cognition and memory were fair; and her judgment and insight were good. (R. 237.) Dr. Khan assessed Bipolar Disorder II, Adult ADHD, and a GAF of 57. (Id.) He recommended individual therapy and medication management. (Id.)

         May 18, 2013, Therapy Progress Notes from Gina Talarico of Berks Psychiatry indicate Plaintiff reported she was having some mood swings but they were not as bad as they had been and she was “doing ok other than that.” (R. 286.) She specifically said she was not having any problems with sleep or appetite. (Id.) Assessment showed that Plaintiff was oriented to time, place, and person, her mood was good, and her interactions were good. (Id.)

         A January 15, 2014, Interpretive Summary from Service Access & Management, Inc., (“SAM”) states that Plaintiff was referred for case management services “to provide support and to aid her with linking to community resources and maintaining mental health counseling services.” (R. 412.) Noting a history of depression/anxiety issues and poor coping strategies, the Summary included the notation that Plaintiff needed to remain engaged in mental health counseling services to aid her with developing healthy feelings management skills. (Id.)

         A January 27, 2014, Psychiatric Evaluation from SAM contains a good deal of background information that is largely illegible. (R. 347-48.) Check-the-box Mental Status Exam showed the following: normal and disheveled appearance; fair hygiene; calm psychomotor; appropriate affect; euthymic mood; normal speech; fully oriented x3; coherent thought process; denied hallucinations or delusions; normal attention/concentration; intact memory; and normal appetite, energy, sleep patterns, and libido. (R. 353.) The diagnosis was “R/O Bipolar Disorder[, ] extensive history of substance abuse[, ] mood disorder, NOS[, ] [and] PTSD” with an assessed GAF of 60. (Id.) “Recommendations” consist of the provider's notation that despite great sympathy for Plaintiff and her the past traumas, he cannot take her as a patient--because of her extensive history of drugs and DUI, the provider could not support the use of Xanax, Adderal, Topamax and Prozac. (Id.)

         Background information in an Adult Psychiatric Evaluation conducted by New Beginnings on February 28, 2014, is largely illegible. (R. 407-09.) Check-the-box Mental Status Exam shows the following: appearance and behavior within normal limits; normal speech; euthymic mood; mood-congruent affect; goal directed thought process; alert sensorium; grossly intact cognition; and fair insight and judgment. (R. 410.) Plaintiff was diagnosed with mood disorder, NOS, rule out prescription medication addiction, PTSD as per Plaintiff's report, and bipolar disorder as per her report. (Id.) A GAF of 50-55 was assessed. (Id.) Cognitive Behavioral and Supportive Psychotherapy were recommended, and Plaintiff was to return to the clinic in four weeks. (R. 411.) Medication management visits in March, May, and July 2014 indicated that Plaintiff's Mental Status Exam was the same except for presentation with an anxious mood in May. (R. 404-06.) She consistently denied hallucinations, delusions, and obsessions. (R. 404-06, 410.)

         During a Psychiatric Evaluation conducted by Joseph Primavera, Ph.D., on October 30, 2014, Plaintiff reported that she saw Dr. Kahn every one to two months and she saw Bernadine, a psychotherapist, twice a month. (R. 416.) Regarding her “current functioning, ” Plaintiff reported that she had disturbed sleep with frequent nightmares, increased appetite and mood swings, panic attacks two to three times a week, agoraphobia, manic symptoms every couple months that last several days, auditory and visual hallucinations, and cognitive deficits in terms of problems with short-term memory and concentration. (R. 417.) Mental Status Exam showed the following: overall cooperative; adequate social skills and overall presentation; appropriate appearance; fluent, clear, and adequate speech; coherent and goal-directed thought process with no evidence of hallucinations, delusions, or paranoia in the evaluation setting; depressed and anxious affect; dysthymic mood; clear sensorium; orientation to person, place, and time; intact attention and concentration (able to perform simple counting, perform simple calculations, and serial 3s counting backward from 20); impaired recent and remote memory skills (able to repeat 3 out of 3 objects immediately, but only 2 out of 3 objects after delay, she was able to repeat 5 digits forward and only 3 digits backwards); cognitive functioning within average range of intellectual ability and appropriate fund of information; and good insight and judgment. (R. 417-18.) “Mode of Living” findings include the notations that Plaintiff was limited in her ability to do cleaning and laundry because of her physical restrictions, and she goes shopping with someone because she can't lift. (R. 419.) Dr. Primavera diagnosed ADHD by history, bipolar disorder (unspecified), and PTSD by history, and he recommended that Plaintiff continue her outpatient psychological and psychiatric care. (Id.)

         B. Opinion Evidence

         1. Physical Impairments

         On June 14, 2013, Juan B. Mari-Mayans, M.D., a State agency consulting physician, completed a Physical Residual Functional Capacity Assessment. (R. 64-65.) He opined that Plaintiff would be able to perform a range of light work: she could lift twenty pounds occasionally and ten pounds frequently; she could stand and/or walk for about six hours in an eight-hour day, and she could sit for the same amount of time; and her ability to push and/or pull was unlimited other than as shown for lift and/or carry. (R. 64.)

         2. Mental Impairments

         An Assessment of Mental Ability to Do Work-Related Activities was completed on March 9, 2013, by Gina Talarico of Berks Psychiatry. (R. 262-64.) The provider assessed that Plaintiff had moderate limitations in her abilities to relate to peers, use judgment, interact with authority figures, function independently, and maintain attention/concentration; and she had marked limitations in her abilities to deal with the public and deal with stress. (R. 262.) It was noted that the limitations assessed could vary depending on Plaintiff's level of anxiety. (Id.) Plaintiff was also assessed to have moderate limitations in her ability to follow verbal or written instructions, an assessment based on Plaintiff's “severe anxiety that makes client get up and leave without warning” and the inability to control the behaviors. (R. 263.) Regarding making personal and social adjustments, “depending on level of anxiety, ” Plaintiff was found to have moderate limitations in her abilities to behave in an emotionally stable manner and to relate predictably in social situations, and a marked limitation in her ability to demonstrate reliability. (R. 263.) It was also noted that Plaintiff was unable to be around people at times, to leave the house at times, and to control her overwhelming anxiety even on medications. (R. 264.)

         On June 17, 2013, Richard W. Williams, Ph.D., a State agency consulting doctor, completed a Psychiatric Review Technique (“PRT”) and a Mental Residual Functional Capacity Assessment. (R. 62-63, 65-67.) He opined that Plaintiff would have mild restrictions in activities of daily living, moderate difficulties in maintaining social functioning and maintaining concentration, persistence, or pace, and she had no repeated episodes of decompensation, each of extended duration. (R. 63.) In his summary explanation, Dr. Williams noted “[a]lthough this claimant does have some emotional issue with which she deals, the medical data in file does not establish a severity level of mental impairment that would prohibit employment.” (R. 67.)

         On October 30, 2014, Dr. Primavera completed a Medical Source Statement to Do Work-Related Activities (Mental). (R. 421-23.) He opined that Plaintiff had moderate limitations in all abilities related to understanding, remembering and carrying out instructions. (R. 421.) He did not identify factors supporting his assessments. (Id.) Dr. Primavera found that Plaintiff had marked limitations in all four areas related to her ability to interact appropriately with supervisors, coworkers, and the public, as well as respond to changes in the routine work setting. (R. 422.) He identified anxiety and agoraphobia as factors supporting the assessments. (Id.)

         C. Hearing Testimony

         At the September 10, 2014, hearing, Plaintiff testified that she does not leave her house every day, she does not like to go up and down steps at all, she has trouble standing, walking, or sitting: she can stand for about twenty minutes before she starts cramping up; and she can walk a city block before she has to stand still and then she might be able to go another block or two. (R. 44-45.) When asked about her physical pain, Plaintiff said it was in her joints, she had pain that ran from her knees to her ankles and from her hip to her knee, and in the morning her feet hurt and she had burning pain in her heels. (R. 49.) Plaintiff added that medication helped but she continued to have pain all day. She also identified pain related to her “left shoulder separated things like that” and it felt like her “bones hurt.” (R. 49-50.)

         Plaintiff said her mental health medications, which are prescribed by her family doctor, make “a huge difference.” (R. 45-46.) She identified weight gain and physical inertia as medication side effects. (R. 46.) Plaintiff also said her therapist helped her with ...

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