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Kilmer v. Berryhill

United States District Court, M.D. Pennsylvania

January 12, 2018

KEVIN PAUL KILMER, Plaintiff,
v.
NANCY BERRYHILL, Defendant.

          Brann, Judge

          REPORT AND RECOMMENDATION

          Martin C. Carlson, United States Magistrate Judge

         I. Introduction

         One of the primary tasks facing Social Security Administrative Law Judges (“ALJs”) entails weighing and assessing various competing medical opinions. An ALJ undertakes this task against the backdrop of a regulatory regime which prescribes specific guidelines for the evaluation of expert medical opinions. Once the ALJ has completed this task it falls to the district court on appeal to ascertain under a deferential standard of review whether substantial evidence supports the ALJ's findings and determinations.

         So it is in this case, where an ALJ was called upon to consider, weigh and assess no less than five different medical source opinions which evaluated the degree to which Kevin Paul Kilmer's emotional impairments were wholly disabling. Presented with these competing opinions, the ALJ concluded, consistent with the medical opinions of two specialists, that Kilmer retained the residual functional capacity to perform work at a medium exertional level in a workplace environment that was not demanding in terms of interpersonal communication and decision-making.

         Our task now is to evaluate whether the findings of the ALJ are supported by substantial evidence in the record. See 42 U.S.C. §405(g); 42 U.S.C. §1383(c)(3); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). In undertaking this responsibility we are mindful that substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Rather, in this context, substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). With our task defined in this fashion, we conclude under the deferential standard of review laid out by the courts, that substantial evidence supported the decision of the ALJ in this case. Therefore, for the reasons set forth below, we recommend that the decision of the Commissioner be affirmed.

         II. Factual Background

         On August 16, 2013, Kevin Paul Kilmer protectively applied for disability insurance benefits under title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-434, alleging that he became disabled on January 11, 2012. Kilmer, who was 24 years old as of his alleged disability onset date and was regarded as a younger individual under the Commissioner's regulations (Tr. 136), alleged that he had become disabled due to the combined effects of emotional and physical impairments, including addiction, depression, anxiety, agoraphobia, and a right leg injury. (Tr. 136-40, 155.)

         This appeal focuses exclusively on the ALJ's consideration of the medical evidence relating to Kilmer's emotional state. That evidence included treatment notes, examination results, and medical opinions from five different sources, each of whom had differing degrees of contact with Kilmer, different training and professional qualifications, and varying levels of experience in disability-related evaluations of mental health conditions.

         One of these care-givers was Mary Diskerud, a social worker who had counseled Kilmer since 2008. (Tr. 444.) On November 12, 2014 and April 13, 2015, Ms. Diskerud submitted opinion letters on behalf of Kilmer in this case, opining that his emotional impairments were wholly disabling. (Tr. 444, 455.) Ms Diskerud's treatment notes describing her contemporaneous clinical encounters with Kilmer, however, presented a more complex, and significantly less disabling picture of the plaintiff. (Tr. 457-528.) These treatment notes indicated that Kilmer was economically dependent upon, but often socially estranged from, his family. (Id.) As a result, Kilmer often focused upon securing disability benefits in his sessions with Ms. Diskerud, but explained that he “wants disability so he can move out.” (Tr. 461.) Kilmer also indicated that he was seeking disability benefits so that he could “spend on ‘what I want'” an observation which led Diskerud to describe Kilmer as “self-absorbed and inconsiderate of others.” (Tr. 462.) In other treatment sessions, Ms. Diskerud commented upon Kilmer's “great sense of entitlement, ” noting that: “He still feels he should be on disability. He thinks people should take care of things for him . . . .” (Tr. 464.) Further, when questioned regarding “why he needs to be on disability . . . his response is always ‘I don't know' . . . . [H]e cannot really explain why it is necessary for him to be supported by the government.” (Tr. 464.) Thus, when Kilmer “[t]ried to identify why he cannot work [] [h]e was unable to answer those questions, ” an attitude which Ms. Diskerud described as “very vague and almost defiant.” (Tr. 467.) Instead, Kilmer explained that he was pursuing a disability appeal because “he is hoping he will get money so he will then have a car and get around.” (Tr. 468.)

         Two other medical sources also described Kilmer's emotional state in a fashion which tended to lend some support to his disability claim. These two treating sources were Kilmer's primary health care providers, Katrina Johnstonbaugh, a CRNP, and Doctor Tuong Bui. In September of 2014, and March of 2015, CRNP Johnstonbaugh and Dr. Bui submitted letters to the ALJ which were cast in very similar terms and concluded that Kilmer's emotional impairments “would make it difficult for him to function safely in a work environment.” (Tr. 443, 447.)

         In contrast to these medical opinions, which supported Kilmer's disability claim, two other medical professionals, specialists in the field of psychology, concluded that Kilmer retained the residual functional capacity to work. One of these medical experts, Karen Rafferty, Psy.D., conducted a consulting examination of Kilmer in November of 2013. (Tr., 432-38.) Based upon this examination Dr. Rafferty found that Kilmer experienced mild-to-moderate limitations in his ability to interact with supervisors, co-workers and others, and concluded that he would experience moderate difficulty responding to work situations and changes in work routine. (Tr. 433.) Dr. Rafferty, however, did not find that Kilmer suffered from any marked or extreme impairments in any of these spheres of work-related activity. Dr. Rafferty also assessed Kilmer as attentive and alert during the examination, stated that he displayed intact reasoning skills, and found that he was relevant, logical, goal-oriented and coherent in this thoughts and speech. (Tr. 437.)

         Dr. Rafferty's findings, in turn, were consistent with the November 2013 findings of another state agency psychologist, Dr. John Gavazzi, who completed an assessment based upon a medical record review which also found that while Kilmer suffered from some non-disabling moderate impairments in social functioning, he was still capable of performing work. (Tr. 75-85.)

         Finally, Kilmer's medical records included a series of Global Assessment of Functioning, or GAF, [1] scores which reflected evaluations made of Kilmer's emotional well-being at various times. These GAF score ranged from a low score of 30 in September 2011 at a time when Kilmer was first hospitalized following a drug overdose (Tr. 243), to a GAF score of 65 following treatment in the wake of this hospitalization, and GAF scores of 50 and 55 in November of 2013 and January of 2014. (Tr. 247, 438, 527.) Thus, since late September 2011, while Kilmer has been undergoing counseling and therapy, his GAF scores have generally reflected a moderate degree of emotional impairment.

         It was against the backdrop of this mixed, equivocal and contradictory medical evidence summarizing Kilmer's emotional state that the ALJ conducted a hearing on Kilmer's disability application on March 17, 2015. (Tr. 28-74.) At this hearing Kilmer, his parents, and a vocational expert appeared and testified. (Id.) Following this hearing, on July 14, 2015, the ALJ issued a decision denying Kilmer's application for disability benefits. (Tr. 8-22.)

         In this decision, the ALJ first noted that Kilmer met the Act's insured requirements through December 31, 2016. (Tr. 13.) The ALJ then determined at Step 2 of the sequential analysis governing Social Security claims that Kilmer suffered from a series of severe impairments including affective disorder, anxiety disorder, and a substance abuse disorder. (Id.) At Steps 3 and 4 of this analytical process the ALJ concluded that none of these severe impairments were per se disabling, but found that Kilmer could not return to his past employment. (Tr. 15, 21.)

         The ALJ then found that Kilmer retained the residual functional capacity to perform work at a medium exertional level, provided that he worked in a structured environment with routine repetitive work which did not demand a high level of decision-making and involved only limited contact with others. (Tr. 17.) In reaching this conclusion, the ALJ evaluated the medical evidence of record from all of the ...


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