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Cullen v. Berryhill

United States District Court, M.D. Pennsylvania

September 19, 2017

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

          MEMORANDUM

          William J. Nealon, United States District Judge.

         On January 6, 2016, Plaintiff, Dawn Cullen, filed this instant appeal[2] under 42 U.S.C. § 405(g) for review of the decision of the Commissioner of the Social Security Administration (“SSA”) denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”)[3] under Titles II and XVI of the Social Security Act, 42 U.S.C. § 1461, et seq and U.S.C. § 1381 et seq, respectively. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiff's applications for DIB and SSI will be vacated.

         BACKGROUND

         Plaintiff protectively filed[4] her applications for DIB and SSI on January 22, 2013, and January 24, 2013, respectively, alleging disability beginning on May 1, 2012, due to a combination of Attention Deficit Hyperactivity Disorder (“ADHD”), anxiety, and depression. (Tr. 12).[5] These claims were initially denied by the Bureau of Disability Determination (“BDD”)[6] on March 27, 2013. (Tr. 12). On May 3, 2013, Plaintiff filed a written request for a hearing before an administrative law judge. (Tr. 12). An administrative hearing was held on August 7, 2014, before administrative law judge Daniel Myers, (“ALJ”), at which Plaintiff and impartial vocational expert Sheryl Bustin, (“VE”), testified. (Tr. 12). On August 18, 2014, the ALJ issued an unfavorable decision denying Plaintiff's DIB and SSI applications. (Tr. 12-20). On September 10, 2014, Plaintiff filed a request for review with the Appeals Council. (Tr. 7). On November 2, 2015, the Appeals Council concluded that there was no basis upon which to grant Plaintiff's request for review. (Tr. 1-5). Thus, the ALJ's decision stood as the final decision of the Commissioner.

         Plaintiff filed the instant complaint on January 6, 2016. (Doc. 1). On March 14, 2016, Defendant filed an answer and transcript from the SSA proceedings. (Docs. 11 and 12). Plaintiff filed a brief in support of her complaint on April 28, 2016. (Doc. 13). Defendant filed a brief in opposition on June 3, 2016. (Doc. 16). Plaintiff did not file a reply brief.

         Plaintiff was born in the United States on April 8, 1969, and at all times relevant to this matter was considered a “younger individual.”[7] (Tr. 172). Plaintiff graduated from high school in 1988, and can communicate in English. (Tr. 175, 177). Her employment records indicate that she previously worked as a cashier in the retail industry. (Tr. 178). The records of the SSA reveal that Plaintiff had earnings in the years 1990 through 2012. (Tr. 167). Her annual earnings range from a low of one hundred thirty-three dollars and zero cents ($133.00) in 1990 to a high of fourteen thousand eight hundred fifty-one dollars and eighty-five cents ($14, 851.85) in 2003. (Tr. 167). Her total earnings during this twenty-two (22) year period were one hundred sixty-seven thousand nine hundred eleven dollars and ninety-four cents ($167, 911.94). (Tr. 167).

         During the administrative hearing on August 7, 2014, Plaintiff testified that she was disabled due to a combination of anxiety, depression, ADHD, and borderline intellectual functioning. (Tr. 28-29). She testified that the depression she experienced made her “feel like crying all the time.” (Tr. 39). She stated that depression made her feel like she did not want to be around or talk to others. (Tr. 39). She testified that the Zoloft she was taking for depression helped “some” and did not cause side effects. (Tr. 38-39). Regarding anxiety, she stated that it caused her to feel shaky and nervous and caused difficulty breathing and chest heaviness. (Tr. 39). She also stated she took Buspirone for anxiety, and that it did not cause side effects. (Tr. 38). Regarding ADHD, she stated that this condition caused her to feel hyper and confused, and that the Ritalin that she took for this condition did not cause any side effects. (Tr. 38, 41).

         Regarding daily activities, she testified that she did not drive, but rather was driven places by her mother. (Tr. 33). She testified that she had difficulty staying falling and staying asleep, which caused her to “feel like [she could not] stay awake” during the day. (Tr. 40). She used the computer and telephone and watched television. (Tr. 41-43).

         She stated that, at the time of her hearing, she lived with her mother, father, sister, and her sister's husband. (Tr. 33). She had a daughter, who was twenty-three (23) at the time of the hearing. (Tr. 34). She had a three (3) year old grandson, whom she took care of every other weekend for the entire weekend with the help of her mother and sister. (Tr. 34-35). She testified that she also watched the children of her sister's friend “a couple of times . . . spur of the moment” and her daughter's friend's children for an entire summer in 2013. (Tr. 35-36).

         When questioned on her educational background, she stated that she took special education classes in high school because she had trouble learning and concentrating. (Tr. 42).

         MEDICAL RECORDS

         On August 14, 2012, Plaintiff had an appointment with Beverly J. Dillon, PA-C. (Tr. 274). It was noted that Plaintiff: was depressed; experienced crying spells; had a decrease in focus, concentration, energy, and motivation; experienced racing thoughts; and did not have suicidal ideations. (Tr. 274). An examination revealed a diagnosis of depression and anxiety, for which Plaintiff was prescribed Celexa. (Tr. 274). Beverly Dillon, PA-C opined that Plaintiff was able to work, and that she needed aid with her medical expenses and prescriptions. (Tr. 277).

         On February 11, 2013, Plaintiff underwent an initial intake evaluation performed by Mary McCubbin, M.D., at Huntingdon Counseling and Psychiatric Services due to complaints of anxiety and a depressed mood. (Tr. 303). It was noted that, while Plaintiff had been depressed much of her life, it had been manageable until a few years prior to the appointment, and that at the time of the appointment, she was depressed daily without an identifiable reason. (Tr. 303). It was noted that Plaintiff experienced: anhedonia; weight gain; difficulty sleeping; daytime napping; mild psychomotor agitation; low energy; poor motivation; feelings of helplessness, hopelessness, and worthlessness; problems concentrating; excessive worry; feeling of physical tenseness; feelings that other people were talking about, watching and/ or judging her; avoidance of friends and crowds; memory problems; and difficulty focusing and paying attention to details. (Tr. 303-304). Her medical history included morbid obesity, hyperlipidema, and seasonal allergic rhinitis. (Tr. 304). Her educational history noted that she was in special education from elementary school through high school; that she graduated from high school; and that she attended a trade school for two (2) to three (3) years after high school, but did not complete the program. (Tr. 305). Her mental status examination revealed Plaintiff: was neatly dressed and groomed; had a depressed and anxious mood; and had an affect restricted in range. (Tr. 305). She was diagnosed as having Major Depressive Disorder, recurrent, moderate; Social Phobia; Dysthymic Disorder; ADHD; morbid obesity; hyperlipidemia; and seasonal allergic rhinitis. (Tr. 306). Dr. McCubbin switched Plaintiff from Citalopram to Zoloft, increased the Buspirone dosage, and instructed Plaintiff to continue psychotherapy. (Tr. 307).

         On February 21, 2013, Plaintiff had a follow-up appointment with Jonathan Aromatorio, MA, at Huntingdon Counseling. (Tr. 309). It was noted that Plaintiff reported she: was feeling down and depressed on and off for much of her life; was an anxious person; was uncomfortable in crowds of people or with people she did not know; has a learning disability and that she is “slow, ” which caused self-consciousness and feelings of guilt; and was living with her parents, where she had no privacy and slept on the couch in the living room, which caused feelings of worthlessness and caused stress. (Tr. 309). She reported that she was experiencing depression, anxiety, anhedonia, hopelessness, interrupted sleep, insomnia, sleep apnea, issues with concentration, and a withdrawn feeling. (Tr. 309). A mental status examination revealed: Plaintiff's memory, perception, appearance, motor activity, speech, and activities of daily living were within normal limits; her primary mood was anxious and her secondary mood was depressed; her affect was constricted; her attitude was cooperative; her self-concept was self-deprecating; her judgment and thought were intact; and her orientation was full. (Tr. 309). Plaintiff reported no change in her feelings of depression or anxiety. (Tr. 309). The plan was for Plaintiff to be aware of when she was putting herself down. (Tr. 309).

         On March 4, 2013, Plaintiff had a follow-up appointment with Jonathan Aromatroio, MA, at Huntingdon Counseling. (Tr. 308). Plaintiff reported she had not been as tired and had not been sleeping as much during the day; was bored easily on the days she did not babysit her grandson; worried more during “downtime;” felt that having her own space would help her mood; and was “mostly calm because not much ha[d] been going on.” (Tr. 308). She reported that she was experiencing depression, anxiety, anhedonia, hopelessness, interrupted sleep, issues with concentration, and a withdrawn feeling. (Tr. 308). A mental status examination revealed: Plaintiff's memory, perception, appearance, motor activity, speech, and activities of daily living were within normal limits; her primary mood was anxious and her secondary mood was depressed; her affect was constricted; her attitude was cooperative; her self-concept was self-deprecating; her judgment and thought were intact; and her orientation was full. (Tr. 308). Plaintiff reported no change in her feelings of depression or anxiety. (Tr. 308). The plan was for Plaintiff to be aware of when she was putting herself down and to identify triggers to symptoms and related thinking. (Tr. 308).

         On March 21, 2013, Plaintiff had an appointment with Dr. McCubbin. (Tr. 340). It was noted that Plaintiff reported that she: continued to have a depressed mood more days than not with crying spells and feelings of helplessness, hopelessness and worthlessness often; felt tired much of the time, but not as tired as when she was first seen; felt a little bit better overall; felt an internal sense of agitation and jitteriness; denied problems with her medications; and was leaving her home more often over the few weeks prior to the appointment. (Tr. 340). Her mental status examination revealed she had: normal speech; a mostly sad affect; a cooperative attitude; a perception within normal limits; a logical and goal-directed thought process; a depressed mood; and intact insight and judgment. (Tr. 340). Plaintiff's medications included Zoloft and Buspirone. (Tr. 340). Plaintiff's diagnoses included Major Depressive Disorder, recurrent and moderate; Social Phobia; Obsessive Compulsive Disorder; and ADHD. (Tr. 340). Plaintiff's Zoloft dosage was increased, and she was scheduled for a follow-up appointment in four (4) weeks. (Tr. 340).

         On March 26, 2013, Monica Yeater, Psy.D. performed a Psychiatric Review Technique, (“PRT”), and completed a Mental Residual Functional Capacity Assessment form based on the medical records up to that date. (Tr. 54-59). In the PRT, Dr. Yeater noted that Plaintiff had mental health impairments that fell under Impairment Listings 12.02, 12.04 and 12.06. (Tr. 56). She opined that, regarding the “B” criteria of these Listings, Plaintiff had: (1) mild restrictions in activities of daily living and mild difficulties in maintaining social functioning; (2) moderate difficulties in maintaining concentration, persistence or pace; and (3) no repeated episodes of decompensation, each of extended duration. (Tr. 56). She also stated that evidence did not establish the presence of “C” criteria for these Impairment Listings. (Tr. 56). Dr. Yeater stated Plaintiff was partially credible, and based her opinions in the PRT and Mental Residual Functional Capacity form on the report submitted by Charles Kennedy, Ph.D. because it was “fairly consistent with the mental residual functional capacity assessment that was determined in this decision. Therefore, the report that was submitted by Charles Kennedy, Ph.D, and was received on 3/25/13 is given great weight and is adopted in this decision.” (Tr. 57). A review of the entire Transcript does not reveal any report prepared by Charles Kennedy, Ph.D.

         In the Mental Residual Functional Capacity form completed the same day, Dr. Yeater opined that, regarding limitations with sustained concentration and persistence, Plaintiff was moderately limited in her ability to maintain attention and concentration for extended periods; to perform activities within a schedule; and to 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. (Tr. 57-58). Dr. Yeater noted Plaintiff could make simple decisions, carry out very short and simple instructions, and maintain regular attendance and be punctual. (Tr. 58). Dr. Yeater further opined that, regarding adaption limitations, Plaintiff was moderately limited in her ability to respond appropriately to changes in the work setting and to set realistic goals or make plans independently of others. (Tr. 58). Dr. Yeater stated Plaintiff could sustain an ordinary routine without special supervision. (Tr. 58).

         On May 20, 2013, Plaintiff had an appointment with Dr. McCubbin. (Tr. 338). It was noted that Plaintiff reported that she: was still having problems with depression and anxiety; felt jittery most days, with a notation that Plaintiff shook her legs throughout the appointment; was applying for disability; had difficulty with concentration; needed to be reminded to do things others have asked her to do; felt depressed more days than not and hopeless at times; denied the use of alcohol and other substances; had anxiety in public and crowded spaces; and denied having panic attacks. (Tr. 338). Her mental status examination revealed she had: normal speech; a full-range and mood-congruent affect; a cooperative attitude; a perception within normal limits; a logical and goal-directed thought process; an anxious mood; and minimally impaired insight and judgment. (Tr. 338). Plaintiff's Zoloft and Buspirone dosages were increased, and Wellbutrin was prescribed to address her depressed mood and attention problems. (Tr. 338). Plaintiff was scheduled for a follow-up appointment in four (4) weeks. (Tr. 339).

         On June 20, 2013, Plaintiff had an appointment at Huntingdon Counseling with Carlie Frederick, CRNP, due to Dr. McCubbin's unavailability. (Tr. 336). It was noted that Plaintiff reported that she: was taking her medications as prescribed and felt better than before with lingering depression; felt more motivated, energetic and less sad during the day, but also felt empty and anxious; was overwhelmed with stressors; watched her grandchild and neighbor's children during the daytime and in the evening; had lowered levels of anxiety, but that she continued to experience distress in public places and when meeting new people; and denied having side effects from her medications. (Tr. 336). Her mental status examination revealed she had: normal speech; a full-range and mood-congruent affect; a cooperative attitude; a perception within normal limits; a logical and goal-directed thought process; an anxious mood; and minimally impaired insight and judgment. (Tr. 336). Plaintiff's medications included Zoloft, Buspirone, and Wellbutrin. (Tr. 336). Plaintiff was scheduled for a follow-up appointment in four (4) weeks. (Tr. 331).

         On July 25, 2013, Plaintiff had an appointment with Dr. McCubbin. (Tr. 335). It was noted that Plaintiff reported that she: had to stop taking Wellbutrin because it was causing a rash; was having problems with a depressed mood, but was better than when she started; had moderate anhedonia with a “blah” mood; was babysitting a twelve (12) year old girl and three (3) other children with blunted enjoyment of time spent with these children; had improved sleep without difficulty falling asleep or early awakening; had a good appetite; and denied problems with concentration, guilty, or suicidal ideation. (Tr. 335). It was also noted that an ADHD screen done at this appointment was consistent with ADHD. (Tr. 335). Her mental status examination revealed she had: normal speech; a full range and mood congruent affect; a cooperative attitude; a perception within normal limits; a logical and goal-directed thought process; an anxious mood; and minimally impaired insight and judgment. (Tr. 335). Plaintiff's medications included Zoloft, Buspirone, Methylphenidate, and Wellbutrin. (Tr. 335). Dr. McCubbin instructed Plaintiff to discontinue Wellbutrin due to the rash, and prescribed Methylphenidate due to insufficient improvement in her mental health diagnoses. (Tr. 335). Plaintiff was scheduled for a follow-up appointment in four (4) weeks. (Tr. 335).

         On September 12, 2013, Plaintiff had an appointment with Dr. McCubbin. (Tr. 334). It was noted that Plaintiff reported she: was feeling “ok;” had difficulty getting to sleep, sleeping about six (6) hours total a night; had varying energy levels; had depression that was somewhat better; felt people stared at her when she was in public; was no longer babysitting; felt calmer after starting the Methylphenidate; and was able to complete tasks more easily. (Tr. 334). Her mental status examination revealed she had: normal speech; a full-range and mood-congruent affect; a cooperative attitude; a perception within normal limits; a logical and goal-directed thought process; an anxious mood; and minimally impaired insight and judgment. (Tr. 334). Plaintiff's medications included Zoloft, Buspirone, and Methylphenidate. (Tr. 334). ...


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