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Martin v. Berryhill

United States District Court, E.D. Pennsylvania

January 26, 2018

NYSHIANA S. MARTIN, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE.

         This action was brought pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), which denied the application of Nyshiana S. Martin for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 301, et seq. (the “Act”). Presently before the Court is Plaintiff's Brief and Statement of Issues in Support of Request for Review (“Pl. Br.”) (Doc. 9); Defendant's Response to Request for Review of Plaintiff (“Def. Br.”) (Doc. 10); and Plaintiff's Brief in Reply (Doc. 11); together with the record of the proceedings before the Administrative Law Judge (“ALJ”) (Doc. 6). Plaintiff asks the Court to reverse the Commissioner's final decision and remand her case for further administrative proceedings and a new decision. (Pl. Br. at 20-21.) The Commissioner seeks the entry of an order affirming the decision of the ALJ. (Def. Br. at Prop. Order.) For the reasons set out below, we recommend that the Court grant Plaintiff's request for review and remand the matter to the Commissioner for further proceedings.

         I. FACTUAL AND PROCEDURAL HISTORY

         Martin applied for SSI on November 18, 2011, at the age of 22. (R. 24, 33.)[2] She had graduated from a high school for students with behavioral problems. (R. 49-50.) She had a limited employment history consisting of jobs held for only a few months. She was let go from a fast food position after she had an anxiety attack while working the front counter and passed out. (R. 52.) She was later let go from a hotel housekeeping position when she was overheard talking on a telephone in a room and “going off” about the manager. (R. 51-52.) She alleged disability due to bipolar disorder, depression, intermittent explosive disorder, and irritable bowel syndrome. (R. 82.) She lived with her mother and sister, with whom she often had conflicts.

         Martin had many contacts with area hospitals for issues arising from her mental health both prior to and during the period at issue in her disability claim. She was hospitalized at the Horsham Clinic due to a suicide attempt and explosive outbursts at age 17 in 2006. (R. 388-93.) She was taken to the ER at Sacred Heart Hospital in September 2010 for mood swings and with fears that she would hurt herself. (R. 648.) She was again seen in the Sacred Heart Hospital ER in January 2011 when she threatened her mother and expressed a plan to commit suicide. Due to her hostility and aggression towards hospital staff, she was discharged into the custody of the police and charged with assault. (R. 610-23.) She was admitted to Lehigh Valley Hospital in June 2011 for suicidal ideation, which the medical staff addressed with medications for depression and mood swings. (R. 541.) She received psychiatric care and psychotherapy on an outpatient basis between February 2011 and June 2012 from Cedar Point Family Services, a division of New Directions Treatment Services. (R. 518-40, 668-80, 696-734, 893-928.)

         In 2012, after she filed for SSI, Martin moved in with her grandmother in New Jersey, although she continued to return to the Allentown area periodically for treatment. At the recommendation of her providers at Cedar Point Family Services, she signed herself into Sacred Heart Hospital in April 2012 with complaints of depressed mood and suicidal ideations with a plan to overdose. She acknowledged that she had been off her medications due to weight gain and admitted to occasional heavy drinking. She was admitted to the psychiatric unit. (R. 735-50.) By September 2012, Martin again discontinued her medications due to side effects of a rash and itching and was experiencing depression and anxiety. Her Cedar Point therapist again referred her for evaluation and medications, this time at Lehigh Valley Hospital. She did not require an admission, however, and was discharged in stable condition with a prescription for Ativan for anxiety and sleep disturbances. (R. 756-61.)

         At some point not readily apparent from the record, Martin returned to Allentown to again live with her mother and sister. By November 2013, she was not in treatment and contacted the local crisis unit, reporting a worsening mood over the prior two months featuring depression and anger. She was referred to Lehigh Valley Hospital and admitted for five days. She was stabilized with lithium and discharged with a plan for treatment in the hospital's outpatient mental health clinic. (R. 762-64.) She was evaluated in that clinic beginning December 11, 2013 and continued in treatment in the months that followed, seeing a psychiatrist and nurse practitioner for her medications and working with a therapist, Colleen C. Horlacher, LCSW. (R. 846-84, 885-92, 929-31.)

         The state agency denied Martin's November 2011 SSI application in February 2012 and again on reconsideration in December 2012. An ALJ convened a hearing on her appeal of that decision on May 21, 2014. Martin testified at the hearing that she could not work due to “really bad anxiety” and “really bad anger issues, ” which she had been unable to control. (R. 48.) She described prior conflicts with management in work settings and with peers and teachers in school settings. (R. 48, 50.) She also described difficulties in family relationships and reported that she was involved in several physical altercations with her sister, peers, care-givers, or strangers. (R. 55, 57-58, 61-64.) She testified that she sometimes used alcohol or marijuana to control her feelings or anger. (R. 54-55.)

         Counsel argued at the hearing that Martin was disabled due to her long-term history of a mood disorder rendering her unable to control her emotions and anger. He asserted that this resulted “on a fairly regular basis” with physical altercations and that sometimes involved a depressive mood or periods of anxiety. (R. 76-77.) He reviewed the records of her hospitalizations and her outpatient treatment, acknowledging that her treatment was interrupted by her relocation to New Jersey, which was “necessitated by concerns that she would do violence to family members.” (R. 77.) He contended that the treatment records reflected that she could not be stabilized and that, despite “multiple medication changes, ” the records reflect her continued depression and anxiety, and periodic agitation and psychomotor retardation. (Id.) He sought to excuse the episodes in which Martin had “gone off medication perhaps due to side effects, ” noting that “she has gotten frustrated at times because of how she felt” and had poor judgment. (R. 77-78.) He also argued that drug and alcohol abuse was not material to her disability and that she abused substances as an effort to control her mood disorder. (R. 78-79.) He contended that the severity and frequency of symptoms of her mood disorder and the resulting loss of control she felt rendered her unable to maintain employment on a regular and continuing basis. (R. 79.)

         In his decision dated June 9, 2014, the ALJ explained his finding that Martin was not disabled because she was capable of other jobs so long as the work was routine and repetitive, did not involve detailed instructions, did not involve more than occasional contact with the general public, and did not expose her to excessive pollutants. (R. 29.) The Appeals Council declined Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (R. 1-6.) This litigation followed.

         II. STANDARD OF REVIEW

         This Court must determine whether substantial evidence supports the Commissioner's decision. 42 U.S.C. § 405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). Substantial evidence is “more than a mere scintilla but may be somewhat less than a preponderance of evidence.” Rutherford, 399 F.3d at 552. The factual findings of the Commissioner must be accepted as conclusive, provided they are supported by substantial evidence. Richardson, 402 U.S. at 390 (citing 42 U.S.C. § 405(g)); Rutherford, 399 F.3d at 552. The review of legal questions presented by the Commissioner's decision, however, is plenary. Shaudeck v. Commissioner of Social Security Admin., 181 F.3d 429, 431 (3d Cir. 1999).

         III. DECISION UNDER REVIEW

         The issue before the ALJ was whether Martin was disabled within the meaning of the Act between her SSI application date of November 18, 2011 and the June 9, 2014 date of the decision. To resolve this question, the ALJ utilized the five-step sequential evaluation process set forth in 20 C.F.R. § 416.920(a). At Step One, he found that Martin had not engaged in substantial gainful activity from her application date through the date of decision. (R. 26, Finding No. 1.) At Step Two, he found that Martin suffered from impairments that were “severe” within the meaning of the Regulations.[3] (R. 26, Finding No. 2.) At Step Three, he found that Martin had no impairment or combinations of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). (R. 26, Finding No. 3.) Plaintiff does not challenge these findings.

         The ALJ then proceeded to assess Martin's residual functional capacity (“RFC”), which is defined as “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. § 416.945(a)(1). He made the following finding:

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except: she is restricted to routine and repetitive work not involving detailed instructions; her work should not involve more than occasional contact with the general public nor should it expose her to any excessive pollutants.

(R. 29, Finding No. 4.) He considered this RFC assessment to be supported by “composite objective medical findings, ” Martin's “generally routine and conservative course of treatment, ” “her compliance with treatment, ” her credibility, and the opinions of “the State agency physician and the State agency psychological consultant as well as that of the independent consultative examiner.” (R. 33.)[4]

         The ALJ next determined at Step Four that, with this RFC, Martin was not capable of performing her past work. (R. 33, Finding No. 5.)[5] Inasmuch as the Medical-Vocational Guidelines would direct a finding of “not disabled” if Martin possessed the RFC for the full range of “medium” work, the ALJ considered the extent to which the occupational base at this exertional level would be eroded by the additional restrictions reflected in his RFC finding. Relying upon VE testimony that the positions of “laundry worker, ” “stores laborer, ” and “hand-packager” were not precluded by someone with this RFC (R. 34), the ALJ determined that there were occupations that Martin could perform that existed in significant numbers in the national economy. (R. 34, Finding No. 9.) Accordingly, he concluded at Step Five that Martin was not disabled. (R. 35, Finding No. 10.)

         IV. DISCUSSION

         Plaintiff urges the court to vacate the decision pursuant to Sentence Four of 42 U.S.C. § 405(g) and remand it for further proceedings and a new determination due to three alleged legal deficiencies in the ALJ's decision. She first contends that the ALJ failed to properly evaluate one of her severe impairments - poly-substance abuse - in accordance with SSR 13-2p and applicable regulations. (Pl. Br. at 5.) She next contends that the ALJ failed to properly consider and assess opinion evidence that supported her claim. (Pl. Br. at 10.) Finally, she asserts that the reasons articulated by the ALJ for his credibility determination were not supported by the record. (Pl. Br. at 17.) While we will touch upon her first argument concerning consideration of her drug and alcohol abuse, we find remand principally warranted based upon her second argument, as we agree that the ALJ's reconciliation of conflicting opinion evidence concerning her mental functioning is not supported by the record. We do not find it necessary to address at any length Plaintiff's concerns about how GAF scores assigned to her should have been taken as medical opinions. Finally, in light of our assessment that a new hearing is necessary, we do not undertake a review of the ALJ's credibility determination, which will need to be assessed anew on remand in light of the anticipated re-evaluation of the record as a whole.

         A. Whether the ALJ failed to properly evaluate her poly-substance abuse impairment in accordance with SSR 13-2p and applicable regulations

         As part of his assessment at Step Two as to whether Martin suffered from a severe impairment, the ALJ identified “poly-substance abuse” as one of Plaintiff's severe impairments. Plaintiff contends that this finding obligated the ALJ to embark upon an analysis described in SSR 13-2p and that his failure to do so renders his decision unsupportable. As we explain below, Plaintiff misinterprets the requirements of this ruling. We find no error in the ALJ's failure to apply it here.

         1. The requirements of SSR 13-2p: “Evaluating Cases Involving Drug Addiction and Alcoholism (DAA)”

         In the section of the Act defining disability, Congress has provided that a claimant “shall not be considered to be disabled … if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled.” See 42 U.S.C. §§ 423(d)(2)(C), 1614 (a)(3)(J) (emphasis added). Social Security Rule 13-2p, which became effective on March 22, 2013, explains the Commissioner's policies “for how we consider whether ‘drug addiction and alcoholism' (DAA) is material to our determination of disability.” SSR 13-2p, 2013 WL 621536, *1 (S.S.A. Feb. 20, 2013). The ruling explains:

When we adjudicate a claim for disability … [that] include[s] evidence from acceptable medical sources … establishing that DAA is a medically determinable impairment(s) (MDI) and we determine that a claimant is disabled considering all of the claimant's medically determinable impairments (MDIs), we must then determine whether the claimant would continue to be disabled if he or she stopped using drugs or alcohol; that is, we will determine whether DAA is “material” to the finding that the claimant is disabled.

SSR 13-2p, 2013 WL 621536, *2 (emphasis added). A “question and answer” portion of the ruling clarifies this point. Addressing the question of “when [the Agency] make[s] a DAA materiality determination, ” it explains that:

a. Under the Act and our regulations, we make a DAA materiality determination only when:
i. We have medical evidence from an acceptable medical source establishing that a claimant has a Substance Use Disorder, and
ii. We find that the claimant is disabled considering all impairments, including the DAA.[FN omitted]

Id. at *4 (emphasis added).

         2. SSR 13-2p does not apply to Petitioner because the ALJ did not find her to be disabled.

         Plaintiff asserts that the ALJ was required to adjudicate her claim in a particular manner pursuant to SSR 13-2p in light of the fact that the ALJ identified “poly-substance abuse” as one of her severe impairments. (Pl. Br. at 5-6.) She makes much of the ALJ's “failure” to follow a “required analysis” set out in the ruling. (Pl. Br. at 6.) She references a “DAA Evaluation Process” described in the ruling and complains that the ALJ “did not make a finding” at Step 2 of the DAA Evaluation Process, which asks whether the claimant is “disabled considering all impairments, including DAA.” See SSR 13-2p, 2013 WL 621536, *5. (Pl. Br. at 5-6.)

         The premise of Plaintiff's argument, however, is mistaken. As is clear from the text of the ruling, the adjudicator does not analyze whether a Substance Use Disorder is material to a claimant's disability unless and until he determines that the claimant is disabled by her various impairments. Here the ALJ made a finding that Plaintiff was not disabled. See R. 35, Finding No. 10 (“The claimant has not been under a disability….”). In light of this negative finding, SSR 13-2p recognizes that the ALJ is not to determine DAA materiality and that the decision must be a denial. See SSR 13-2p, 2013 WL 621536, *5.[6]

         Despite the Commissioner's argument to this effect, Plaintiff continued to insist in her reply brief that, “having found poly-substance abuse to have been a severe impairment, the ALJ was then required to determine if Martin was disabled considering all of her impairments” by following the DAA Evaluation Process described in SSR 13-2p rather than the normal 5 step sequential evaluation. See Pl. Reply at 1-2. Nothing in the text of the ruling suggests that the DAA evaluation was to supplant the normal sequential evaluation process. Rather, we find the ruling sufficiently clear that the DAA evaluation process is the process by which the adjudicator determines the materiality of DAA to the claimant's disability once disability is established. See, e.g., SSR 13-2p, 2013 WL 621536 at *4 (Question 5: “How do we determine materiality?”). Moreover, the ruling still speaks of the claimant's “burden of proving disability throughout the sequential evaluation process, ” and references the “appl[ication of] the steps of the sequential evaluation a second time to determine whether the claimant would be disabled if he or she were not using drugs or alcohol[.]” Id. at *4. The ALJ here applied the sequential evaluation process and, at Step Five, determined that Plaintiff was not disabled. There was no requirement under SSR 13-2p that he do anything further vis-à-vis Plaintiff's poly-substance abuse impairment. Therefore, we find no error in this aspect of the ALJ's decision.

         B. Whether the ALJ failed to properly consider or assess mental health opinion evidence favorable to Plaintiff

         In reaching his RFC conclusion, the ALJ gave “limited weight” to an opinion offered by treating therapist Colleen Horlacher, LCSW; “restricted weight” to an opinion rendered by consultative examiner Thomas Lane, Ph.D.; and “great weight” to an opinion offered by state psychological consultant Mark Hite, Ed.D. (R. 33.) Plaintiff challenges the ALJ's determinations in these regards, asserting that his consideration of the mental health opinion evidence that was favorable to her was “flawed.” (Pl. Br. at 10.) She also complains that “opinions represented by several cited GAF (global assessment of functioning) scores” were also not “properly considered” by the ALJ. (Pl. Br. at 10, 12.)

         We will address the ALJ's evaluation of the favorable opinions in the order in which they were rendered. As we set out, we conclude that the ALJ's decision cannot be said to be supported by substantial evidence in its rationale for weighing Dr. Lane's February 2012 opinion. A similarly-flawed reading of the record also contributed to his determination that Ms. Horlacher's May 2014 opinion was due only limited weight.

         1. The ALJ erred in giving “restricted weight” to the RFC opinion from Thomas W. Lane, Ph.D., the consultative examiner.

         a. The consultative report

         Martin was referred by the state agency for a psychological evaluation as part of the initial determination of her November 2011 claim. She was examined by licensed psychologist Thomas W. Lane, P.D., on February 2, 2012, during a period in which she was treating at Cedar Point Family Services and taking hydroxyzine (a sedative), Celexa (an antidepressant), and Depakote (for bipolar disorder). (R. 688.) At this evaluation:

She alleged limitations from bipolar disorder and intermittent explosive disorder and indicated she is quick to anger. She also reported a history of breaking items and fighting. She stated she was expelled from her high school and received alternative school placement at VISTA. She also reported a history of three suicide attempts by overdose. She was once arrested for simple assault of medical staff, but criminal charges were dropped. Upon a mental status examination, she provided an accurate interpretation of one simple proverb. She did not exhibit any signs of psychosis. She was oriented to time, person, and place and reality testing, judgment and insight showed “significant compromise at times of acute affective arousal. Otherwise they are fair.”

(R. 31 (ALJ decision describing evaluation).) Dr. Lane's clinical impression was bipolar II disorder, intermittent explosive disorder (IED), and poly-substance dependence.[7] ...


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