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Smith v. Berryhill

United States District Court, M.D. Pennsylvania

May 8, 2017

SHAWN A. SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM

          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 and Supplemental Security Income (“SSI”) under Title XVI. (Doc. 1.) Plaintiff filed applications for benefits in February 2013, alleging a disability onset date of May 22, 2011. (R. 14.) After Plaintiff appealed the initial denial of the claims, a hearing was held on December 11, 2014, and Administrative Law Judge (“ALJ”) Sharon Zanotto issued her Decision on May 7, 2015, concluding that Plaintiff had not been under a disability during the relevant time period.[2] (R. 23.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on July 12, 2016. (R. 1-3.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on October 17, 2016. (Doc. 1.) He asserts in his supporting brief that the Acting Commissioner's determination should be reversed or remanded for the following reasons: 1) the ALJ did not acknowledge and identify how she evaluated all medically determinable impairments established by the record; 2) the ALJ did not properly evaluate opinion evidence; and 3) the ALJ did not properly evaluate witness statements. (Doc. 9 at 7.) 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 2, 1980, and was thirty years old on the alleged disability onset date. (R. 22.) He has a high school education and past relevant work as a wax molder. (R. 21-22.)

         A. Mental Impairment Evidence[3]

         Plaintiff began treating with Psychiatrist Yury Yaroslavsky, M.D., at T.W. Ponessa & Associates Counseling Services, Inc., on June 20, 2011. (R. 270-71.) The Psychiatric Evaluation shows that Plaintiff reported a history of ADHD and behavioral problems as a teenager, and also

sharp but relatively short periods of depression, generally lasting for a few days only. During this period of time, he feels that he is not well functioning. He forced himself to go to work but was generally late and felt very slow during those periods of time. . . . There is a history of one longer episode of depression. He was admitted at the age of 13 when he tried to cut his wrist. . . . [H]e doesn't remember details. . . . In terms of depression, he admitted a history of “hyperness, ” during these periods which lasted for only a few hours. He can't sit still. . . . He denied any changes in sleep, with increased energy, euphoric mood, increased and goal oriented activities. He is concerned that he may have a bipolar period. He denied any history of psychosis or violence. . . . He described lately being quite irritable. He just recently terminated his job after he almost physically attacked his boss. According to the patient, it was a minor argument that shouldn't have ended up in such an outburst. The patient remembered throwing tools around, pushing his boss, etc. The patient described over the course of his work with this employer for seven years that this was the third incident with three different people there. The patient was given the option to be laid off, be terminated or voluntarily resigning. He chose to resign and is currently at home. He continues to experience some mood swings. Just recently, he was playing a game and got very irritable. He threw his controller into the wall. He denied any recent suicidal or homicidal ideations.

(R. 270.) Dr. Yaroslavsky found that Plaintiff presented as pleasant, cooperative and overweight. (R. 271.) His Mental Status findings included the following: no significant distress; slightly avoidant eye contact; fluent and coherent speech; minimal psychomotor slowness and difficulty concentrating and staying on subject; no delusions or hallucinations of any kind endorsed; linear thought process; fair insight and judgment; alert and oriented times three; average “fund of knowledge of intelligence”; slightly decreased concentration; intact memory; and appropriately dressed, well groomed and kept. (Id.) Dr. Yaroslavsky assessed Mood Disorder, NOS, and History of Attention Deficit Hyperactivity Disorder with Axis IV considerations identified as unemployment, limited access to medical care, and interpersonal difficulties, and a current GAF of 55. (Id.) He started Plaintiff on Celexa for depressive symptoms and Depakote for mood stabilization and impulse control. (Id.) Plaintiff was to start individual psychotherapy and return in four weeks for medication management.

         Plaintiff saw Dr. Yaroslavsky several times over the summer. (R. 264-69.) During this period, Dr. Yaroslavsky's Diagnosis, including the assessed GAF, remained the same. (R. 264, 266, 268.) On September 6, 2011, Plaintiff described himself as doing quite well. (R. 264.) He told Dr. Yaroslavsky that he had stopped the Depakote and felt the Celexa alone “alleviated pretty much his irritability.” (Id.) Mental Status examination showed the following: sufficient eye contact; linear thought process; fair insight and judgment; and no behavioral problems or impulse control disorder. (Id.) Dr. Yaroslavsky also found that Plaintiff was fluent and coherent, and he was alert and oriented times three. (Id.)

         Plaintiff discontinued treatment at T.W. Ponessa because he lost funding and cancelled appointments. (R. 245-46.) It was recommended that he contact Lebanaon County Mental Health/Mental Retardation/Early Intervention for services and support groups. (R. 246.)

         Plaintiff resumed treatment at T.W. Ponessa in February 2012. (R. 262-63.) Plaintiff's diagnosis was the same as that recorded during his 2011 visits. (R. 262.) He reported that he was still somewhat depressed but felt that he was doing much better. (Id.) Mental Status findings included the following: euthymic mood; linear thought process; no delusional thought content; no hallucinations of any kind; no suicidal or homicidal ideations; mood described as depressed; constricted affect; no abnormal or involuntary movements; no impulsivity; and current irritability denied. (Id.) Plaintiff declined the need for individual psychotherapy. (R. 263.)

         On March 26, 2012, Plaintiff reported that he was doing well, he was sleeping well, and his mood was stable. (R. 260.) Dr. Yaroslavsky noted that neither Plaintiff nor his girlfriend complained about him being irritable. (Id.) In April, he described himself as doing well except for multiple stressors. (R. 258.) Dr. Yaroslavsky also noted that Plaintiff was “overall quite appropriate, ” his mood and affect were close to euthymic but his affect also appeared somewhat blunted, his eye contact was limited, his thought content showed some poverty, and his insight and judgment were limited to fair. (Id.) Plaintiff again declined the need for psychotherapy. (R. 259.)

         Periodically, Plaintiff presented to Dr. Yaroslavsky with increased stress and decreased functioning (see R. 254, 256) but he continued to decline individual psychotherapy (see R. 255, 257). However, in October 2012, Plaintiff described himself as “doing quite well” and said his mood was good. (R. 252.)

         In October and November 2012, Plaintiff had three visits to Annville Family Medicine, P.C., where he was seen by George Loose, D.O. (R. 285-86, 287-88, 289-90.) At each visit he was reported to be alert and oriented times three with his affect appropriate. (R. 285, 287, 289.)

         On January 14, 2013, Plaintiff had his last visit with Dr. Yaroslavsky, who was leaving the practice. (R. 250-51.) Plaintiff complained about an increase of anxiety and insomnia, and he was bothered by nightmares. (R. 250.) Dr. Yaroslavsky recorded the following Mental Status: Plaintiff appeared pleasant, cooperative, and mildly disheveled; eye contact limited; Plaintiff looked obstinate; he described his mood as somewhat depressed; he showed some poverty of thought content; he revealed no hallucinations or delusions of any kind; he denied being homicidal or suicidal; his insight and judgment were overall fair; his affect appeared blunted; and he was oriented times three. (Id.) Dr. Yaroslavsky noted that Plaintiff declined individual psychotherapy, he was relatively stable, and he would be seen again by another provider in three months. (R. 251.) His diagnosis remained Mood Disorder, NOS, and a history of ADHD. At Axis IV, he noted unemployment, limited access to medical care, and interpersonal difficulties. At Axis V, he noted a current GAF of 55.

         At Plaintiff's visit with Dr. Loose on March 27, 2013, Plaintiff denied psychiatric symptoms. (R. 318.) Dr. Loose found that Plaintiff appeared healthy and well developed, there were no signs of acute distress, he was alert and oriented, and his facial expression appeared appropriate and relaxed. (R. 319.)

         On May 13, 2013, Plaintiff returned to T.W. Ponessa and had his first visit with psychiatrist Vassili V. Arkadiev, M.D. (R. 298-99.) Plaintiff reported worsening mood swings and said they lasted up to four days, he felt his mind racing, and he felt hyper and unable to fall asleep. (R. 298.) Plaintiff said he completed high school but was in special classes for reading and math. (Id.) Dr. Arkadiev recorded the following Mental Status: fair to good grooming; intermittent eye contact; slightly guarded; soft, monotonous speech; poverty of thought content; good energy; alert and oriented times three; fair long term memory; and intellect appeared below average. (Id.) Dr. Arkadiev noted that Plaintiff denied hopelessness or helplessness at the time; he reported that his mood was hyper; he denied suicidal or homicidal ideations; and he denied psychotic symptoms. (Id.) Dr. Arkadiev changed Plaintiff's diagnosis from Dr. Yaroslavsky's assessed Mood Disorder, NOS and History of ADHD (see R. 250) to “Bipolar Disorder, NOS vs. Bipolar II Disorder” and Borderline Intellectual Functioning. (R. 298.) At Axis IV, Dr. Arkadiev noted poor support, severe personal difficulties, and severe mental problems. (Id.) At Axis V, he assessed a current GAF of 50. (Id.)

         In June, Plaintiff reported feeling better because his girlfriend got some money, but he also reported feeling anxious and having concentration problems. (R. 300.) Mental Status was similar to the preceding month, and Dr. Arkadiev's Axis I diagnosis and GAF assessment remained the same. (Id.)

         In August, Plaintiff reported increased stressors because his girlfriend broke her back and he was exhausted trying to take care of her. (R. 302.) Dr. Arkadiev reported that Plaintiff burst into tears a couple of times during his appointment, he had poor eye contact, Plaintiff reported his mood was terrible, his thought process appeared to be “alogia, very concrete, ” his affect appeared constricted, depressed, and anxious, he admitted to low energy as well as problems with attention and concentration, he was alert and oriented times three, and his intellect appeared to be below average. (R. 302.)

         On October 8, 2013, Plaintiff reported that he felt “all right” but his affect appeared to be constricted and anxious, and the Mental Status was similar to that recorded in August except that Plaintiff admitted to episodes of visual, somatic, and auditory hallucinations which Dr. Arkadiev assessed to be pseudo hallucinations. (R. 305.) Dr. Arkadiev changed Plaintiff's diagnosis to Bipolar Disorder, NOS with psychotic symptoms. (Id.) Axis IV factors remained similar to those previously noted, and he assessed Plaintiff's current GAF to be 50-55. (R. 306.) Dr. Arkadiev planned to re-evaluate Plaintiff in about one month. (Id.)

         Plaintiff did not return to see Dr. Arkadiev until January 24, 2014, at which time he reported that he had been doing well until he ran out of medication several days before his appointment. (R. 307.) Plaintiff said he was not feeling well, he had been having trouble sleeping since he stopped his medications, and he was having episodes of seeing shadows. (Id.) Dr. Arkadiev's Mental Status findings included the following: poor grooming; monotonous speech; very concrete, slowed thought process; constricted, anxious, and ambivalent affect; fair long term memory; fair to good insight and judgment; and he was alert and oriented times three. (Id.) He also noted that Plaintiff denied problems with concentration and attention; he denied anhedonia, suicidal and homicidal ideation; he admitted to paranoid ideations; and he denied auditory hallucinations at the moment. (Id.) Dr. Arkadiev planned to restart Plaintiff on his medications and see him again in two months. (R. 308.)

         Plaintiff complained to Dr. Arkadiev in February 2014 that he was having more hallucinations and he was still having paranoid ideations, mostly about his roommates. (R. 309.) Plaintiff reported feeling stressed and anxious, primarily because of conflict with his girlfriend and roommates. (Id.) Mental Status findings were similar to those recorded in January. (See R. 307, 309.) Dr. Arkadiev adjusted Plaintiff's medications and planned to see him again in one month. (R. 310.)

         Plaintiff was discharged from treatment at T.W. Ponessa on July 31, 2014. (R. 311.) The Discharge Summary noted that Plaintiff was discharged because of non-compliance and he was last seen on May 31, 2014.[4] (Id.) The Summary reported the following Discharge Diagnosis: Axis I - Major Depressive Disorder, recurrent, moderate, Anxiety Disorder, NOS, R/O Post-Traumatic Stress Disorder, Attention-Deficit/Hyperactivity Disorder NOS; Axis IV indicates “[n]one reported”; and Axis V indicates a current GAF of 50. (Id.) It also stated that Plaintiff was given information about contacting other providers if he was interested in further treatment. (Id.)

         On July 23, 2014, Plaintiff had an office visit with Dr. Loose stating that the primary reason for his visit was that he was dismissed from T.W. Ponessa for appointment tardiness and he needed to get depression medication refills. (R. 316.) Plaintiff's history included depression, but at the time of the visit he denied difficulties concentrating, or frequent crying, fatigue, change in sex pattern, stress, suicidal thoughts, or excessive worry. (Id.) Dr. Loose found Plaintiff alert and oriented times three, and found his memory intact. (R. 317.) He diagnosed Bipolar Disorder NOS. (Id.)

         At his follow up visit with Dr. Loose in October 2014, Plaintiff's subjective presentation was similar. (See R. 314, 316.) Dr. Loose found that Plaintiff appeared healthy and well developed, he was alert and oriented times three, and his memory was intact. (R. 315.)

         B. Opinion Evidence

         State agency consultant Mark Hite, Ed.D., completed a Psychiatric Review Technique (“PRT) and Mental Residual Functional Capacity Assessment for each application on April 16, 2013. (R. 54-55, 57-59, 65-66, 67-69.) He concluded that Plaintiff's medically determinable mental impairments were Organic Mental Disorders and Affective Disorders and both were severe. (R. 55, 65.) He found the following: Plaintiff had mild restrictions of activities of daily living; he had moderate difficulties in maintaining social functioning; he had moderate difficulties in maintaining concentration, persistence or pace; and he had no repeated episodes of decompensation, each of extended duration. (Id.) Dr. Hite also concluded that Plaintiff could perform simple, routine, repetitive work in a stable environment. (R. 59, 69.)

         Other opinion evidence consists of various GAF scores assessed by mental health providers which range from 50 to 55 throughout the relevant time period. (See, e.g., R. 271, 250, 300, 306, 309.)

         C. Hearing Testimony

         As noted above, Plaintiff did not appear at the December 11, 2014, hearing held by ALJ Zanotto and, in response to the Notice to Show Cause for Failure to Appear, he said he did not have transportation. (R. 14, 133.)

         Plaintiff's attorney stated that he believed Plaintiff's affective bipolar disorder was the primary diagnosis and treatment records from Dr. Yaroslavsky and Dr. Arkadiev document the episodic mental health issues that reportedly led him to lose his job when he blew up at his manager over something minor. (R. 32-33.)

         Vocational Expert Michael Kibler (“VE”) testified concerning past relevant work and availability of jobs in the national economy. (R. 36-43.) ALJ Zanotto asked him to consider whether Plaintiff would be able to perform his past relevant work as a wax molder

assuming he were able to perform the full range of work at all exertional levels except that he were limited to jobs that required only occasional interaction with supervisors and no interaction with co-workers and the public. And by interaction, I'm talking about where you have to work in tandem with others rather than you, . . . pleasantries walking in and out of the break room or in or out of the building or into the restroom or something like that. But no work that would require tandem work or team work.

(R. 39.) The VE stated that he would be able to perform his past work as a wax molder. (Id.) He also said that other work would be available, such as industrial cleaner, ...


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