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Hazlak v. Berryhill

United States District Court, M.D. Pennsylvania

March 22, 2018

LORI LYNN HAZLAK, Plaintiff
v.
NANCY A. BERRYHILL[1]Acting Commissioner of Social Security, Defendant

          Conner Chief Judge

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         This is an action brought under Section 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. §405(g) by reference), seeking judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff Lori Hazlak's (“Ms. Hazlak”) claim of supplemental security income(“SSI”) under Title XVI of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.

         For the reasons expressed herein, and upon detailed consideration of the arguments raised by the parties in their respective briefs, it is respectfully recommended that the Commissioner's decision be VACATED and that the case be REMANDED to the Commissioner to conduct a new administrative hearing pursuant to sentence four of 42 U.S.C. §405(g).

         II. Procedural History and Background

         This is Ms. Hazlak's fourth round of application(s) for Social Security benefits. Ms. Hazlak applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act on May 15, 2006 and May 22, 2006, respectively, which were denied on July 25, 2006. (Tr. 20; 88.) There is nothing in the administrative record to suggest that Ms. Hazlak further pursued the Appeals Council's denial of these initial applications. On May 4, 2007, Ms. Hazlak protectively filed claims for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, alleging a disability onset date of April 29, 2006. (Tr. 74.) These 2007 applications were denied initially on July 23, 2007. (Id.) Ms. Hazlak requested a hearing before an Administrative Law Judge (“ALJ”), which took place on December 8, 2008, in which she appeared and testified pro se. (Id.) On January 12, 2009, the ALJ determined Ms. Hazlak was not disabled. (Tr. 81.) After the ALJ denied her applications, Ms. Hazlak sought review of her claim by the Appeals Council, which remanded her case to another ALJ. (Tr. 79-84.) On May 23, 2011, the ALJ issued an unfavorable decision. (Tr. 82.) Ms. Hazlak sought review of her claim by the Appeals Council, which denied her appeal on May 18, 2012. (Tr. 82-85.) Ms. Hazlak filed another application for disability insurance benefits under Title II of the Social Security Act on August 27, 2012, which was denied on December 14, 2012. (Tr. 88.) There is nothing in the administrative record to suggest that Ms. Hazlak further pursued the Appeals Council's denial of this application. Instead, just under one year later, Ms. Hazlak filed again for supplemental security income under Title XVI of the Social Security Act. (Tr. 118.) This fourth application is now before the Court.

         Ms. Hazlak is a high school graduate and attended beauty school thereafter. (Tr. 42.) Ms. Hazlak lives with her husband and their three children. (Tr. 119.) She has previous work experience as a disability aide, a cashier, and a laborer. (Tr. 157-158.) Her pain began in November 2005, which she states came from standing on her feet all day, lifting boxes of frozen dough, and bending and kneeling to stock shelves. (Tr. 174.) Ms. Hazlak stopped working on April 26, 2006. (Tr. 157.)

         On October 18, 2013, Ms. Hazlak protectively filed a claim for supplemental security income under Title XVI of the Social Security Act, alleging a disability onset date of June 1, 2011.[2] (Tr. 118-128.) Ms. Hazlak alleges she is disabled because of the following: “herniated discs in back, scoliosis of spine, muscle spasms, degenerative disc disease, chronic pain, depression, anxiety, problems controlling bladder, arthritis, and degenerative disc disease in back, a central herniated disc.” (Tr. 156.) Ms. Hazlak was born on November 12, 1971, and at the time of the protected filing date, [3] Ms. Hazlak was forty one-years old and thus was defined as a “younger individual” under the regulations promulgated under the authority of the Act.[4] (Tr. 145.)

         Ms. Hazlak has been receiving ongoing treatment for both physical and mental health problems. She presented to BPS Orthopedics on April 27, 2012, complaining of severe back pain. (Tr. 192.) After an examination, Dr. Martinez ordered an x-ray of her lumbar spine, which revealed osteophytosis of the proximal lumbar vertebra with degenerative disc disease at ¶ 1-L2. (Tr. 191-192.) On May 22, 2012, Ms. Hazlak underwent an MRI of her lumbar spine, which revealed minimal disc herniation at ¶ 5-S1, a mild disc bulge at ¶ 1-2, and mild neural foramen narrowing at ¶ 3 through L5. (Tr. 198.)

         The Bureau of Disability Determination Section referred Ms. Hazlak to undergo a consultative examination. (Tr. 209.) On November 27, 2012, Dr. Willner conducted a physical examination and reviewed Ms. Hazlak's available medical records. (Tr. 205-205.) Dr. Willner observed that Ms. Hazlak likely had degenerative disc disease in her back, herniated central disc in her back, and arthritis in her back. (Tr. 206.) Dr. Willner determined that a psychological evaluation would help outline her allegations of depression and anxiety. (Tr. 207.)

         Ms. Hazlak presented to Dr. Suraci at Suraci & Srinivasan Urologic on March 12, 2013, complaining of frequent urinary tract infections. (Tr. 229.) On March 22, 2013, Ms. Hazlak underwent a renal ultrasound in connection with blood in her urine. (Tr. 292.) The results were unremarkable. (Tr. 293.) On March 28, 2013, Ms. Hazlak underwent a CT of her abdomen and pelvis in connection with left flank pain, nausea, and urine frequency. (Tr. 289.) The results revealed a 2mm non-obstruction calcification in the interpolar region of her kidney.[5](Tr. 289.)

         Ms. Hazlak followed up with Dr. Suraci on April 2, 2013, complaining of abdominal pain, back pain, mild dysuria, frequent urination, excessive nighttime urination, occasional odor to the urine, occasional stress incontinence, occasional urgency, and occasional urgency incontinence. (Tr. 265.) Ms. Hazlak underwent a cystoscopy on April 16, 2013. (Tr. 262.) On May 28, 2013, Ms. Hazlak followed up with Dr. Suraci, complaining of frequent urination, excessive urination at night, occasional stress incontinence, and urgency incontinence. (Tr. 255.) On August 13, 2013, Ms. Hazlak followed up with Dr. Suraci, complaining of excessive urination at night, occasional stress incontinence, occasional urgency, and occasional urgency incontinence. (Tr. 248.)

         On September 9, 2013, Ms. Hazlak presented to Dr. Prisuta of Family Practice Benton complaining of chronic back pain. (Tr. 338.) She reported to Dr. Prisuta that she takes her medication faithfully but it is not working, and that Dr. Martinez told her to “live with it, ” as it is not fixable by surgery. (Id.) Dr. Prisuta prescribed her medications and informed her to follow up in 2 weeks if her symptoms have not decreased. (Tr. 340.)

         Dr. Prisuta referred Ms. Hazlak to the psychiatry department at Geisinger Clinic. (Tr. 391.) On October 1, 2013, Ms. Hazlak presented to Dr. Bharucha for further assessment of her mood. (Id.) She complained that someone close to her was sexually assaulted, which has caused her great stress and worrying. (Id.) She reported she has no energy to do anything, and has gained 30 pounds in the past two years because she cannot exercise. (Id.) Ms. Hazlak revealed that her two sons told her that they think she favors her daughter over them, and also that she is having strains in her marriage. (Id.) After talking with Ms. Hazlak, and conducting a mental health status evaluation, Dr. Bharucha diagnosed her with major depression, probable ADD, learning disorder (not otherwise specified), and assessed her GAF[6] score at 50. Dr. Bharucha recommended Ms. Hazlak participate in psychotherapy and he prescribed her medication.

         Ms. Hazlak returned to the psychiatry department at Geisinger Clinic on October 8, 2013. (Tr. 400.) Licensed clinical social worker Mr. Johnson conducted a psychosocial assessment and he recommended that Ms. Hazlak work on alleviated depression symptoms, stabilizing her sleep patterns, and continue with therapy. (Tr. 404.)

         On October 9, 2013, Ms. Hazlak followed up with Dr. Prisuta complaining of chronic back pain with spasms. (Tr. 319.) She also reported that occasionally she would fall asleep during the day, and suffers from severe snoring. (Id.) She requested a sleep study. (Id.) Dr. Prisuta referred Ms. Hazlak to undergo a sleep study, as well as physical therapy. (Tr. 321.)

         Ms. Hazlak returned to therapy with Mr. Johnson on October 24, 2013, and reported that she has been depressed all day, every day, and that she is not sleeping well. (Tr. 409.) She continued therapy with Mr. Johnson on November 7 and November 21, 2013. (Tr. 415-425.) At Ms. Hazlak's last therapy session, it was recommended to her that she continue treatment because of her depression, mood, and anxiety. (Tr. 421.)

         Ms. Hazlak started physical therapy on October 28, 2013. (Tr. 377.) The physical therapist noted that her lumbar range of motion was limited to 75% for flexion and 100% for extension, with severe pain with range of motion in both directions. (Id.) Her physical therapist recommended she attend therapy two days per week for four weeks. (Id.)

         On November 25, 2013, Dr. Bermudez assessed Ms. Hazlak's physical RFC after reviewing the medical evidence of record that was available to him. (Tr. 93-95.) Dr. Bermudez assessed that Ms. Hazlak could: occasionally lift and/or carry (including upward pulling) twenty pounds; frequently lift and/or carry (including upward pulling) ten pounds; stand and/or walk (with normal breaks) for a total of about six hours per eight-hour workday, sit (with normal breaks) for a total of about six hours per eight-hour workday; and no restrictions for push and/or pull (including operation of hand and/or foot controls). (Tr. 93-94.) Dr. Bermudez determined that Ms. Hazlak had postural limitations, noting that she could occasionally stoop and climb ladders/ropes/scaffolds; frequently crouch; and no limits for climbing ramp/stairs, crouching, balancing, and kneeling. (Tr. 94.) Dr. Bermudez also assessed that Ms. Hazlak had no manipulative, visual, or communicative limitations. (Id.) Dr. Bermudez determined Ms. Hazlak had environmental limitations, and that she should avoid concentrated exposure to vibration. (Tr. 95.)

         Ms. Hazlak underwent a sleep study on November 25, 2013, which revealed that she suffered from mild obstructive sleep apnea. (Tr. 472.) The attending physician recommended Ms. Hazlak use a CPAP machine, to use extreme caution driving if feeling sleepy, and to undergo a clinical sleep medicine evaluation. (Id.)

         On December 12, 2013, Ms. Hazlak returned to Dr. Bharucha for a follow up. (Tr. 492.) Ms. Hazlak reported that she was not doing well, and that she stopped seeing her therapist. (Id.) Dr. Bharucha noted that her home life is in disarray, and that he suspected she might have ADD. (Id.) Dr. Bharucha observed that her mood was dysphoric and anxious, her affect had some range, and her insight and judgment were fair. (Tr. 493.)

         The Bureau of Disability Determination Section referred Ms. Hazlak to undergo a consultative psychological examination. (Tr. 428.) On December 23, 2013, Dr. Yohey conducted a clinical interview and mental status examination. (Tr. 426-435.) Dr. Yohey observed that Ms. Hazlak's affect appeared sad. (Tr. 431.) Dr. Yohey noted that Ms. Hazlak was able to retain and repeat four digits backwards, falling below average. (Id.) Dr. Yohey observed that Ms. Hazlak had problems with speed in counting backwards by 5's from 100, and that her pace was slow and it was obvious she was thinking hard. (Id.) Dr. Yohey noted that though Ms. Hazlak claimed that she had trouble with basic math, she was able to answer fairly quickly, and correctly, what 6 times 8 equaled. (Tr. 432.) Ultimately, Dr. Yohey diagnosed Ms. Hazlak with depressive disorder, not otherwise specified and generalized anxiety disorder. (Tr. 434.)

         On January 9, 2014, Dr. Yohey completed a medical source statement of mental ability to do work-related activities. (Tr. 436-438.) Dr. Yohey opined that Ms. Hazlak has mild limitations in her ability to understand, remember, and carry out short, simple instructions; moderate limitations in her ability to make judgments on simple work-related decisions; moderate limitations in her ability to understand, remember, and carry out detailed instructions; marked limitations in her ability to make judgments on complex work-related decisions; moderate limitations in her ability to interact appropriately with supervisor(s), coworkers, and the public; and marked limitations in her ability to respond appropriately to usual work situations and to changes in a routine work setting. (Tr. 436-437.)

         On January 13, 2014, Dr. Chiampi completed a psychiatric review technique (“PRT”) form and mental RFC assessment after reviewing the records available on that date. (Tr. 92-93; 95-97.) Dr. Chiampi determined that Ms. Hazlak's mental impairment did not meet any of the Listings' criteria but he assessed that her mental impairments do result in a mild restriction of activities of daily living, moderate difficulties maintaining social functioning, moderate difficulties maintaining concentration, persistence, or pace, and one or two repeated episodes of decompensation. (Tr. 92.) Dr. Chiampi found that Ms. Hazlak has marked limitations in the following: the ability to understand and remember detailed instructions and the ability to carry out detailed instructions. (Tr. 96.) Dr. Chiampi found that Ms. Hazlak has moderate limitations in the following: the ability to maintain attention and concentration for extended periods; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; the ability 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; the ability to accept instructions and respond appropriately to criticism from supervisors; the ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; the ability to respond appropriately to changes in the working setting; and the ability to set realistic goals or make plans independently of others. (Tr. 96-97.) Dr. Chiampi opined that Ms. Hazlak has mild coping problems, and that her depressive disorder and generalized anxiety disorded reduces her social functioning mildly. (Tr. 97.) Ultimately, Dr. Chiampi assessed that although Ms. Hazlak is a slow learner, she is capable of adequate judgment, reasoning, and memory functioning to carry out simple tasks. (Tr. 96.)

         On January 16, 2014, Ms. Hazlak's claims were denied at the initial level of administrative review. (Tr. 99.) At this level of review, the adjudicator found that Ms. Hazlak had the following medically determinable impairments: spine disorders, affective disorders, and anxiety disorders. (Tr. 92.) The adjudicator determined that Ms. Hazlak was “not disabled” because she had the RFC to perform the following occupations: ticket taker, sorter, surveillance system monitor. (Tr. 98.) On January 27, 2014, Ms. Hazlak filed a request for an administrative hearing. (Tr. 107.)

         On January 30, 2014, Ms. Hazlak returned to Dr. Bharucha for a follow up. (Tr. 520.) Ms. Hazlak complained that the winters are very difficult for her from the standpoint of mood and pain. (Id.) She reported that she was having multiple psychosocial stressors in her life, including a court date for the sexual assault of someone close to her, marital problems, and the denial of her disability application. (Id.)

         Ms. Hazlak presented to Columbia Pain Management on April 11, 2014, on referral from Dr. Prisuta. (Tr. 635.) After an assessment and examination, Ms. Hazlak's medication was increased and she was recommended to receive a sacroiliac joint steroid injection for her pain. (Tr. 637.)

         Ms. Hazlak returned to Dr. Bharcuha on May 19, 2014. (Tr. 706.) She reported that she was continuing to struggle with chronic pain, unstable mood, and difficulties managing her children. (Id.) Dr. Bharchua recommended that she stop using Cymbalta, as suggested by Dr. Marino. (Id.) Eventually, Ms. Hazlak ceased care with Dr. Bharucha, as he indicated that he was returning her care to Dr. Prisuta because she was doing so well. (Tr. 935.)

         Ms. Hazlak underwent another sleep study on July 22, 2014. (Tr. 771.) Dr. Marino noted that her propensity to fall asleep was borderline abnormal, and that the study supported the diagnosis of hypersomnia. (Id.) Dr. Marino again suggested that Ms. Hazlak taper off some of her medication and then complete another sleep study. (Id.)

         On September 2, 2014, Ms. Hazlak underwent a successful breast reduction surgery, in hopes of alleviating back and shoulder pain. (Tr. 841; 896.) On January 5, 2015, Ms. Hazlak followed up for her breast reduction surgery, complaining of continuing chronic back pain. (Tr. 981.) The attending physician assistant opined that her pain was most likely related to nerve pain. (Id.)

         On February 25, 2015, Dr. Prisuta authored a medical opinion statement of physical ability to do work-related activities. (Tr. 444-47.) Dr. Prisuta opined that Ms. Hazlak could occasionally lift and/or carry no more than ten pounds; frequently lift and/or carry less than ten pounds; and sit (with normal breaks) for a total of less than two hours per eight-hour workday. (Tr. 445.) Dr. Prisuta determined that Ms. Hazlak must alternate every 15 minutes between sitting, standing, and walking to relieve discomfort. (Id.) Dr. Prisuta assessed that Ms. Hazlak must have the opportunity to shift at will from sitting or standing and walking, and also need to lie down at unpredictable intervals during a work shift. (Tr. 445-46.) Ultimately, Dr. Prisuta opined that Ms. Hazlak cannot work due to chronic low back pain, sleep apnea, and depression. (Tr. 446.)

         On March 4, 2015, Ms. Candlish completed a medical source statement of mental ability to do work-related activities. (Tr. 1063-1065.) Ms. Candlish opined that Ms. Hazlak's outlook was fair in her abilities to remember work-like procedures, to understand, remember, and carry out very short and simple instructions, to maintain regular attendance, to work in coordination with or proximity to others without being duly distracted, make simple work-related decisions, and deal with normal work stress. (Tr. 1064.) Ms. Candlish opined that Ms. Hazlak did not possess the abilities to understand and remember detailed instructions, to carry out detailed instructions, to set realistic goals or make plans independently of others, or to deal with the stress of semiskilled and skilled work.[7] (Id.) Ms. Candlish assessed that Ms. Hazlak's limitations are influenced by interaction of reported physical pain, observed anxiety, difficulty regulating affecting responses, social anxiety, misinterpreting social interactions, and modest level of insight, impulsiveness, and distractibility. (Id.) Ms. Candlish opined that Ms. Hazlak may loser her temper in conflict or in or ambiguous situations, as she has exhibited difficulty seeing perspectives of others. (Tr. 1065.)

         On March 5, 2015, Ms. Hazlak appeared and testified at a hearing before Administrative Law Judge Therese A. Hardiman (“the ALJ”) with the assistance of counsel. (Tr. 37-62.) In addition, impartial vocational expert Nadine Hansis testified. (Id.) At the hearing, Ms. Hazlak testified that her pain is a bigger issue, rather than her depression. (Tr. 52.) Ms. Hazlak testified that she feels like her mind is “going all the time” and it “doesn't shut off.” (Tr. 47.) She reported that she worries about everything all the time, that she thinks the worst about everything, and that she is very negative about everything. (Tr. 54.) Ms. Hazlak testified that because she cannot exercise like people her age, she gains weight, and then gets depressed about it. (Id.) She reported that she can only stand 10-15 minutes before needing to sit or walk, and can only sit for 10 minutes before needing to stand.[8] (Tr. 47.) Ms. Hazlak reported that if she is on her feet for extended periods of time, she gets severe pain in her lower back that starts out as muscle spasms and then continues down her legs. (Tr. 51.) Ms. Hazlak testified she can only walk to the end of her driveway. (Tr. 47.) She explained that she takes medications but is unsure as to the effectiveness. (Tr. 49.) For example, Ms. Hazlak is prescribed Modafinil[9] and she reported that sometimes she falls asleep during the daytime. (Id.) Ms. Hazlak testified that she utilizes a heating pad and a TENS[10] unit to reduce and control her symptoms. (Tr. 50.) Her symptoms are aggravated if she is on her feet too long, or if she picks up something that is too heavy. (Id.)

         Ms. Candlish authored a letter on March 7, 2015, in response to a request for medical records in connection with Ms. Hazlak's claim. (Tr. 1066-1068.) Ms. Candlish explained that because of the particularly personal nature in the progress notes that related to other family members, she instead provided a summary of Ms. Hazlak's treatment, rather than the actual progress notes. (Tr. 1066.) Ms. Candlish reported that Ms. Hazlak initiated psychotherapy in April 2014 and has attended sessions 29 times, approximately two to three times per month. (Id.) Ms. Candlish initially diagnosed Ms. Haslak with major depressive disorder and generalized anxiety disorder. (Id.) The purpose of treatment was to relieve her depression, reduce the level and frequency of anxiety and panic, and improve parenting responses with each of her children. (Id.) Ms. Candlish explained that as therapy continued, Ms. Hazlak was making progress, but once the winter months came, her pain was exacerbated, which increased her symptoms of anxiety and depression. (Id.) Ms. Candlish opined that her current diagnosis is depressive disorder due to another medical condition, recurrent/moderate, with anxious distress-moderate to severe. (Tr. 1068.)

         Ms. Hazlak presented to Dr. Marino at the Sleep Disorder Center on April 9, 2014 for a sleep apnea follow up. (Tr. 606.) She reported that she uses CPAP every night and though she no longer snores, she does not feel more rested. (Id.) Dr. Marino recommended that Ms. Haslak discontinue and modify some of her medications, which could be contributing towards her sleeping problems. (Tr. 611.)

         On May 19, 2014, Ms. Hazlak returned to Dr. Bharucha, complaining that she continues to have the same problems as previously reported. (Tr. 582.) Dr. Bharucha observed that Ms. Hazlak is dysphoric, thinks negatively most of the time, and has a very complicated home life. (Tr. 582-583.) Her ...


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