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Fleetwood v. Berryhill

United States District Court, M.D. Pennsylvania

June 1, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Pending before the Court is Plaintiff's appeal from the Acting Commissioner's denial of Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”). (Doc. 1.) Plaintiff protectively filed an application on February 19, 2014, alleging disability beginning on February 9, 2014. (R. 18.) After Plaintiff appealed the initial April 22, 2014, denial of the claims, a hearing was held by Administrative Law Judge (“ALJ”) Sharon Zanotto on April 19, 2016. (Id.) ALJ Zanotto issued her Decision on May 24, 2016, concluding that Plaintiff had not been under a disability, as defined in the Social Security Act (“Act”) from February 9, 2014, through the date of the Decision. (R. 27.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on August 2, 2017. (R. 1-7.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on October 4, 2017. (Doc. 1.) He asserts in his supporting brief that the Acting Commissioner's determination should be reversed for the following reasons: 1) the ALJ erred at step three in finding Plaintiff did not meet listing 12.04 and 12.06; 2) the ALJ erred in concluding that Plantiff has the residual functional capacity (“RFC”) to perform light-duty work; and 3) the ALJ erred when she concluded that other work existed in the national economy which Plaintiff could perform. (Doc. 9 at 4.) For the reasons discussed below, the Court concludes Plaintiff's appeal is properly denied.

         I. Background

         Plaintiff was born on September 16, 1980, and was thirty-three years old on the alleged disability onset date. (R. 26.) He has a high school education and past relevant work as a merchandise deliverer, laborer, lubrication technician, auto parts counter person, and kitchen helper. (Id.) Plaintiff alleged that his inability to work was limited by major depression, anxiety disorder, ADHD (predominantly inattentive type), and OCD. (R. 172.)

         A. Medical Evidence

         In his supporting brief (Doc. 9), Plaintiff does not provide a factual background with citation to medical evidence of record. Rather, he provides citation to the record in the Argument section of his brief. (Doc. 11 at 2-4.) Defendant adopts the facts set out in the hearing decision and those stated in Defendant's Argument context. (Doc. 10 at 4.) Thus, the Court will provide a general background derived from the record as relevant to the parties' arguments and ALJ's Decision.

         Plaintiff testified that he became disabled on the alleged onset date of February 9, 2014, because he was hospitalized. (R. 24.) Hospital records show Plaintiff's girlfriend and sister sought involuntary inpatient psychiatric hospitalization on the alleged onset date. (Id. (citing R. 350-54).) They alleged Plaintiff threatened his child. (Id.) Involuntary hospitalization was denied because there were no identifiable features requiring inpatient hospitalization. (Id.)

         Two weeks later, Plaintiff presented to Wellspan Behavioral Health where he had been going for medication management. (Id. (citing R. 328-41).) At the February 27, 2014, visit, with Todd Muneses, M.D., Plaintiff did not mention the February 9th hospital visit. Having previously been seen on January 28, 2014 (R. 334), Plaintiff reported that the increase in Wellbutrin had helped with energy and motivation and his outlook was slightly better though he continued to struggle with getting his days going. (R. 332.) Other than a depressed and anxious mood, Plaintiff's physical and mental status examination was normal. (Id.) Plaintiff was directed to increase Wellbutrin SR to 150 milligrams twice a day. (Id.)

         At his March 11, 2014, Wellspan visit, Plaintiff reported improvement with the Wellbutrin increase, stating that he felt calmer and more patient. (R. 330.) He also reported that he noticed improved energy and motivation, he was doing more activities of daily living and chores around the house, and he was eating and sleeping well. (Id.) Plaintiff denied any medication side effects or new medical problems. (Id.)

         At his July 18, 2014, visit with Dr. Muneses, Plaintiff reported worsening symptoms Plaintiff noted that a therapist had recommended DBT treatment. (R. 373.) Plaintiff also said he would like to go back to work and was welcome by his employer, but he felt that his symptoms were continuing to interfere with his ability to work. (Id.) Other than depressed mood and distracted attention span, mental status exam was normal. (R. 374.) Dr. Muneses noted that Plaintiff was to return in two months to see a nurse for medication management and Dr. Muneses would see him in four months. (Id.)

         In September 2014, Plaintiff reported no change in symptoms, he was having good days and bad days, he continued to want to try DBT but his appointment had been bumped, and he was working at Sam's Club. (R. 370.) Although Plaintiff also noted worsening anxiety symptoms, he reported his attention symptoms were overall improved, his energy was improved, and he was functioning ok at his job. (R. 371.) The provider recorded that Plaintiff was “not yet at baseline and does feel the current treatment is helping somewhat. Depression and anxiety remain a problem, but he is ‘more functional than I've been in a long time.' He is active with usual interests and functioning and further intervention is necessary to address his anxiety, he believes.” (Id.)

         Plaintiff was seen for an acute visit on December 19, 2014, at which time he reported that his symptoms had worsened. (R. 368.) Other than depressed mood, his mental status exam was normal. (R. 367.)

         In February 2015, Dr. Muneses noted that he had last seen Plaintiff over the summer. (R. 366.) Dr. Muneses recorded that Plaintiff stated his depression was significant in December but then he started a DBT program which resulted in significant improvement in his mood and outlook. (Id.) Dr. Muneses noted that Plaintiff felt that the DBT program had helped him deal with stressors in a much healthier way, he continued to feel the benefit of Adderall for his ADD, he had been able to reduce his need for Alprazalom for anxiety or panic symptoms, and he had been eating and sleeping better. (R. 366.) Plaintiff's mental status exam was normal, including euthymic mood. (R. 366-67.) Plaintiff was to return for a medication management appointment in four months. (R. 366.)

         On April 24, 2015, Plaintiff was seen earlier than his scheduled appointment due to worsening depression and anxiety and an increase in irritability and agitation. (R. 362.) He reported that he felt a significant reduction in energy and motivation and he had been isolating himself in bed. (Id.) Plaintiff's mood was recorded to be depressed, anxious, and irritable, and the mental status exam was otherwise normal. (Id.) Dr. Muneses adjusted Plaintiff's medication regimen and directed him to return in a month for his medication appointment. (R. 362.)

         In May 2015, Plaintiff reported some benefit from the change in medication and denied side effects. (R 359.) He also reported that he had done fairly well over the preceding month with the exception of a brief four-day period of increased depression. (Id.) Plaintiff said he was looking forward to an evaluation by vocational rehabilitation services “in order to possibly land a job or go back to school.” (Id.) Other than a depressed and anxious mood, Plaintiff' mental status exam was normal. (R. 360.)

         In July Plaintiff reported that his depression had worsened, he had panic attacks that occurred about twice a week with a two-hour duration, and he continued with stressors including problems with an ex-girlfriend and child custody. (R. 356.) Plaintiff said that he had met with vocational rehabilitation services but he told them that he was “not dependable in that if his depression symptoms are severe he would not show up for work.” (R. 356.)

         In August 2015, Plaintiff continued to report feeling depressed and anxious with no motivation and extremely low energy level. (R. 353.) Plaintiff reported that he had gotten calls from two prior employers who wanted him to come back to work. (Id.) Mental status exam was normal, including euthymic mood. (Id.) Plaintiff was to return for medication management in six weeks. (R. 352.)

         A Wellspan Health record certification form dated January 18, 2016, completed in response to an attorney's request for records from October 7, 2015, to the present indicates that no records existed for Plaintiff for that time period. (R. 377.)

         Plaintiff was seen by Brian J. Taylor, M.D., of Spring Valley Medicine, on January 19, 2016. (R. 379.) Dr. Taylor recorded that Plaintiff's blood pressure was high and his triglycerides were extremely high which worried Plaintiff. (Id.) Dr. Taylor noted that Plaintiff's “anxiety . . . is obviously very high right now.” (R. 379.) Plaintiff reported that he was so anxious that he thought his depression was worsening. (R. 380.) Plaintiff was to let his psychiatrist know about medication changes and return in one month for lab and progress checks. (R. 379.)

         Wellspan BH notes dated February 4, 2016, indicate an adjustment in Plaintiff's medication regimen. (R. 433.)

         At his February 26, 2016, office visit with Dr. Taylor, Plaintiff reported that he was doing much better and was very happy with the changes his psychiatrist had made to his medication regimen. (R. 442.) Dr. Taylor noted that Plaintiff had “some definite issues with his anxiety over the last couple months” and medication changes had helped. (R. 443.) On physical exam, Dr. Taylor noted that Plaintiff was alert and in no acute distress.

         B. Opinion Evidence

         1. Neuropsychosocial Evaluation

         On February 23, 2013, Daniel Aikins, Psy.D., conducted a Neuropsychosocial Evaluation on referral of the York Pennsylvania Office of Vocational Rehabilitation (OVR). (R. 274-84.) Plaintiff's mental impairment symptoms were reviewed and Dr. Aikin noted that Plaintiff evidenced severe depression, “crying mark[ed] his behavior, ” and “[a]nhedonia, agitation, irritability, indecisiveness, and fatigue all mark Michael's existence these days.” (R. 285.) Plaintiff also endorsed anxiety symptoms. (Id.) Dr. Aikin questioned whether there may have been an over-endorsement of symptoms which was possibly a “cry for help.” (Id.) His diagnosis included Depressive Disorder NOS, Anxiety Disorder NOS (possibly generalized anxiety disorder), and Cognitive Disorder NOS (memory problems, non-verbal deficits). (R. 287.) Dr. Aikin assessed a GAF of 55. (Id.) He also provided job recommendations including that Plaintiff should avoid jobs that were fast-paced and those that required attention to detail or multi-tasking. (R. 288.)

         2. State Agency Consultant

         John Gavazzi, Psy.D., a State agency reviewing consultant, completed a Psychiatric Review Technique (“PRT”) and Mental Residual Functional Capacity Assessment on April 16, 2014. (R. 66-69.) After concluding that Plaintiff's diagnoses of affective disorders and anxiety disorders were severe, Dr. Gavazzi determined that Plaintiff had no restrictions of activities of daily living, mild difficulties of maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no repeated episodes of decompensation, each of extended duration. (R. 66.) He assessed that plaintiff was not significantly limited in most areas but concluded he had moderate limitations in his ability to understand and remember detailed instructions, and his ability to carry out detailed instructions. (R. 68.) In narrative form, Dr. Gavazzi explained that, based on Plaintiff's understanding and memory limitations, he found Plaintiff could “understand, retain, and follow simple job instructions, i.e., perform one- and two-step tasks. The claimant can perform simple, routine, repetitive tasks in a stable ...

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