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De La Torre v. Berryhill

United States District Court, M.D. Pennsylvania

July 12, 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 filed an application on October 21, 2014, alleging disability beginning on August 6, 2014.[1] (R. 9.) After Plaintiff appealed the initial February 3, 2015, denial of the claim, a hearing was held by Administrative Law Judge (“ALJ”) Richard Zack on April 18, 2016. (Id.) ALJ Zack issued his Decision on July 12, 2016, concluding that Plaintiff had not been under a disability, as defined in the Social Security Act (“Act”), through the date last insured of June 30, 2016. (R. 21-22.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on September 20, 2017. (R. 1-5.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on November 3, 2017. (Doc. 1.) She asserts in her supporting brief that the Acting Commissioner's determination should be reversed or remanded for the following reasons: 1) the ALJ failed to set reasonable limitations on Plaintiff's ability to work based on her diagnosis of Meniere's disease; and 2) the ALJ erred by giving great weight to the opinion of Melissa Diorio, Psy.D., a State agency consultant. (Doc. 13 at 4.) For the reasons discussed below, the Court concludes Plaintiff's appeal is properly denied.

         I. Background

         Plaintiff was born on May 11, 1965, and was fifty-one years old on the alleged onset date. (R. 20.) She has a high school education and a two-year associates degree. (R. 29.) Plaintiff alleged that her inability to work was limited by vertigo, dizziness, tinnitus, back pain, and mental health issues. (R. 15.)

         In her supporting brief (Doc. 13), Plaintiff does not provide a factual background with citation to evidence of record. In the Argument section of her brief, Plaintiff references four exhibits generally (id. at 5 (citing Exs. C7F, C8F, C9F, C10F)) and does not otherwise cite the record (id. at 5-12). Lacking the general presentation of facts by Plaintiff, the Court will briefly set out evidence of record pertinent to Plaintiff's claimed errors in order to provide a framework for discussion.

         A. Meniere's Disease

         As noted by the ALJ, the medical record regarding Plaintiff's Meniere's disease is very limited. (R. 16.) On August 5, 2014, she was seen at the Bucktail Medical Center Emergency Department with the chief complaint of dizziness for several weeks which had worsened a few days earlier. (R. 226.) Plaintiff reported that she had previous similar episodes which were treated with Meclizine. (Id.) She was diagnosed with vertigo which was treated with Antivert, and she was told to follow up with her family physician. (R. 224.)

         On August 22, 2014, Joel DHue, M.D., an ear, nose and throat specialist at Susquehanna Health, saw Plaintiff to check her for Meniere's disease. (R. 212.) Plaintiff reported that she had episodes of sudden loss of hearing which had begun several months earlier with the most recent event five days before her office visit. (R. 212.) She said the events, which lasted about ten minutes, occurred about twice a week and she had associated ringing and dizziness. (Id.) Dr. DHue diagnosed Meniere's disease and planned to get auditory testing. (R. 214.)

         On September 26, 2014, Dr. DHue noted that Plaintiff had no more episodes of sudden hearing loss and no pain, she had “pressure headaches” in the temporal region, no otorrhea, no dizziness, her audiogram and tympanogram were normal, and Plaintiff reported that the ringing in her ears continued. (R. 207.) Physical examination was normal. (R. 208.) Dr. DHue assessed Meniere's disease and directed Plaintiff to call the office for an immediate appointment if she had another episode of sudden hearing loss. (R. 209.) He also noted that Plaintiff was to continue with Meclizine when vertigo occurred. (R. 209.)

         B. Mental Impairments

         On December 12, 2014, Counselor Ashley Kalbach, MSW, LSW, of Crossroads Counseling, Inc., communicated to a Disability Claims Adjudicator that Plaintiff had participated in Counseling and Medication Management with Crossroads since January 17, 2013. (R. 262.) Ms. Kalbach noted that Plaintiff was working toward completing her goals and was cooperative with clinical recommendations. (Id.) Ms. Kalbach opined that Plaintiff's prognosis was guarded considering Plaintiff's continued participation in treatment. (Id.)

         On January 20, 2015, Andrew Cole, Psy.D., conducted a consultative Psychiatric Evaluation. (R. 265-68.) He noted that Plaintiff lived with her eleven-year-old daughter and her four-year-old granddaughter, and she last worked as a cook in 2011, a job she held for one-and-a-half weeks before being let go. (R. 265.) Dr. Cole's report of Plaintiff's “Current Functioning” included the following:

The claimant reported difficulty falling asleep. Her appetite is normal. She reported that she experiences agitation and anger when her mood becomes low. She denied most other symptoms of depression. She denied thoughts, plans, or intent for suicide or homicide. The claimant stated that she worries excessively, has difficulty concentrating, and experiences nightmares . . . related to a history of abuse as an adult and child; however, she did not report other symptoms of post traumatic stress disorder. . . . The claimant reported difficulties with short-term memory and concentration. She recently started to experience difficulty with spelling.

(R. 265-66.) “Legal History” indicates that Plaintiff was arrested for assault in September 2013 and she received two-and-a-half years probation. (R. 266.) Mental Status Examination revealed the following: Plaintiff was cooperative and her manner of relating was adequate; speech was fluent and clear, and expressive and receptive language skills were adequate; affect was full in range and appropriate to speech and thought content; mood was dysthymic; orientation was intact to person, place, and time; attention and concentration were intact; Plaintiff completed counting, simple calculations, and serial 3s tasks; recent and remote memory skills were intact; overall intellectual functioning appeared to be in the average to below average range with the general fund of information appropriate to experience; and insight and judgment were fair. (R. 266-67.) Related to “Mode of Living, ” Dr. Cole noted that Plaintiff was able to dress, bathe, and groom herself, she cooked, cleaned, did laundry, shopped, managed money, and drove. (R. 267.) Plaintiff reported that she spent her days cleaning, organizing, and cooking. (R. 267.) Dr. Cole found that the results of the examination were consistent with psychiatric problems which did not appear to be significant ...

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