United States District Court, W.D. Pennsylvania
OPINION ECF NOS. 16, 18
PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
Ann Walter (“Walter”) brings this action pursuant
to 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review
of the final determination of the Commissioner of Social
Security (“Defendant” or “Acting
Commissioner”) denying her application for supplemental
security income (“SSI”) benefits under Title XVI
of the Social Security Act, 42 U.S.C.
§§1381-1383f. (“Act”). This
matter comes before the Court on cross-motions for summary
judgment. (ECF Nos. 16, 18). The record was developed at the
administrative level. For the following reasons, Walter's
Motion for Summary Judgment will be denied, and
Defendant's Motion for Summary Judgment will be granted.
filed applications for SSI benefits on September 5 and 26,
2013, claiming a disability onset date of September 5,
2012. (R. at 24, 85, 159-73). She claimed that
her inability to work stemmed from her depression/ anxiety
DX5/2013; her learning disability; and her back and right hip
issues DX 2011. (Id. at 84, 160). Walter was denied
SSI benefits on January 22, 2014. (Id. at 98-101).
She filed a request for an administrative hearing, which was
held on November 9, 2015, before Administrative Law Judge
(“ALJ”) John J. Porter. (Id. at 44).
Walter appeared with counsel and testified at the hearing.
(Id. at 44-83). Alina Kurtanich, an impartial
vocational expert, provided testimony concerning the nature
of jobs and expectations of employers existing in the
national economy. (Id. at 78-83).
decision dated February 23, 2016, the ALJ determined that
Walter was not “disabled” within the meaning of
the Act. (R. at 13-25). Walter filed a request for review of
the ALJ's decision by the Appeals Council, which was
denied on June 29, 2017, thereby making the ALJ's
decision the final decision of the Commissioner.
(Id. at 1-3).
filed a Motion for Leave to Proceed in Forma Pauperis on
August 25, 2017, that was granted on August 29, 2017. (ECF
Nos. 1, 2). Thereafter, Walter filed a complaint on August
29, 2017, which was not served until October 2017. (ECF Nos.
3, 5). After being granted an enlargement of time, Defendant
filed an answer on January 22, 2018. (ECF No. 8). The parties
voluntarily consented to having a United States Magistrate
Judge conduct all further proceedings in this case. (ECF Nos.
12, 13). Cross motions for summary judgment followed. The
matter has been fully briefed. (ECF Nos. 16-20).
Statement of Facts
was born on November 6, 1974, and was forty-one years of age
at the time of the hearing. (R. at 52). Walter went no
further than the eighth grade. (Id.) She has no
vocational or post-secondary education. (Id. at
189). Walter has three children. (Id. at 285). She
initially stopped working to take care of her middle child
who at that time was just six months of age; her middle child
was eleven at the time of the hearing. (Id. at 55).
Walter's last job was as a bartender, and she previously
worked as an aide at a daycare. (Id. at 189). Walter
currently lives with her boyfriend. (Id. at 70).
ALJ's decision includes a detailed summary of the medical
evidence pertaining to Walter's physical and mental
impairments. (R. at 13-24). Walter's challenge pertains
to the ALJ's analysis of her mental impairment.
“People in Need” Treatment
Michael Frantz, D.O., treated Walter at People in Need on
June 12, June 30, July 21, August 21, and September 22, 2015,
for mood, anxiety, and substance issues. (R. at 297-306,
317-19). She sought treatment at People in Need after being
referred there by a halfway house. (Id. at 304). At
her initial visit, Walter complained of restlessness,
fatigue, anxiety, and decreased attention, memory, and
concentration, but Dr. Frantz found her attention, memory,
and concentration to be fair. (Id. at 304-05). She
reported that she was seeing a therapist weekly.
(Id.) Dr. Frantz recorded that Walter had a history
of low mood, irritability, decreased sleep, and low energy.
(Id. at 304). Avoidance, flashbacks, and
hyperarousal were discussed. (Id. at 304). He
described her affect as anxious with limited insight and
judgment. (Id. at 305). He found her thoughts to be
linear and goal directed. (R. at 305). He found her speech to
be soft and slow. (Id.) He found her to have no
evidence of hallucinations, psychosis, or suicidal/homicidal
thoughts. Dr. Frantz diagnosed her with a depressive disorder
and prescribed various medications. (Id. at 306).
30 and July 21, 2015, Dr. Frantz recorded that there were
mild benefits with change in medication but her symptoms
continued to cause distress. (Id. at 300, 302). Dr.
Frantz found her to be awake, alert, and oriented to person,
place, time, and event; having no suicidal ideation; affect
congruent; and her mood, attention, memory, and concentration
to be fair. (Id. at 300, 302). On August 21, 2015,
Dr. Frantz recorded that Walter was having less distress and
tolerating her medication without side effects. (Id.
at 298). Dr. Frantz found her to be awake, alert, and
oriented to person, place, time, and event; having no
suicidal ideation; affect congruent; and her mood, attention,
memory, and concentration to be fair. (Id.) On
September 22, 2015, Dr. Frantz again described Walter's
symptoms as causing her less distress. (Id. at 317).
Dr. Frantz again found her to be awake, alert, and oriented
to person, place, time, and event; having no suicidal
ideation; and her mood to be “better” and her
attention, memory, and concentration to be fair.
(Id. at 317).
also treated with Samantha Maxwell, LCSW, at People in Need.
On August 25, 2015, Walter was not taking her medication due
to problems with her pharmacy and reported problems with
anxiety, poor sleep, and agitation. (Id. at 323).
Maxwell found Walter to be on edge during the session.
(Id.) Maxwell recorded that Walter was cooperative
with goal directed and productive speech. (Id. at
324). On September 15, 2015, Walter participated in a therapy
session for anxiety and depression. (Id. at 320).
Maxwell recorded that Walter responded positively to the fact
that soon she would be leaving the halfway house and planned
to attend meetings, volunteer, and engage in family
counseling once she was released from the halfway house. (R.
at 320). Also, on that day, Walter self-reported a reduction
in PTSD symptoms with exposure to trauma-related stimuli.
Dr. Wesley Sowers' Residual Functional Capacity
Wesley Sowers of POWER New Day Outpatient completed a mental
residual functional capacity questionnaire on October 8,
2013. (Id. at 277). Dr. Sowers explained that he had
treated Walter for four months (seeing her once per month)
and found her to have both major depression and anxiety d/o
NOS but could not identify when her symptoms began.
(Id. at 277-81). Her signs and symptoms included:
appetite disturbance with weight change; decreased energy;
blunt, flat, or inappropriate affect; feelings of guilt or
worthlessness; mood disturbance; difficulty thinking or
concentrating; psychomotor agitation or retardation;
persistent disturbances of mood or affect; emotional
withdrawal or isolation; and emotional lability.
(Id. at 278). Dr. Sowers did not diagnose Walter
with substance dependence or identify substance dependence as
one of Walter's signs or symptoms. (Id. at
Sowers found Walter to be seriously limited in nearly every
“Mental Abilities and Aptitudes needed to do Unskilled
Work” category and recorded problems with concentration
and motivation, including the ability to remember work-like
procedures, carry out very short and simple instructions,
maintain regular attendance, sustain an ordinary routine
without special supervision, work in coordination with or
proximity to others without being unduly distracted, complete
a normal workday and workweek without interruptions from
psychologically based symptoms, respond appropriately to
changes in a routine work setting, get along with co-workers,
deal with normal work stress, ask questions, perform at a
consistent pace, and maintain socially appropriate
behavior. (R. at 279-80). Dr. Sowers believed
Walter's impairments or treatment would cause her to miss
work three days per month and that her disorders would last
or had lasted at least twelve months. (Id. at 281).
It is Dr. Sowers' medical opinion that Walter cannot
engage in full-time competitive employment on a sustained
basis. Finally, Dr. Sowers answered “no” to the
question, “If your patient's impairments include
alcohol or substance abuse, do alcohol or substance abuse
contribute to any of your patient's limitations set forth
POWER Outpatient Program Letter
Oakley, POWER's outpatient program manager, informed the
disability claims adjuster that on May 21, 2013, Walter was
diagnosed with alcohol dependence, barbiturate abuse, cocaine
dependence in remission, and cannabis dependence in
remission. (Id. at 282). She began treatment on May
30, 2013. On June 18, 2013, she completed orientation and was
moved to Intensive Outpatient Level Care where she was
required to attend eight hours of group and one hour of
individual therapy per week. On July 16, 2013, due to a
relapse, she was moved into “Partial Level of
Care” and was required to attend sixteen hours of group
and two individual sessions per week. Walter stepped down to
“Intensive Level of Care” on October 2, 2013.
Dr. Charles Kennedy
January 9, 2014, Walter underwent a consultative
psychological evaluation with Dr. Charles Kennedy. (R. at
284-91). Dr. Kennedy recorded that Walter regained custody of
two of her children in December 2013. (R. at 285). Dr.
Charles Kennedy recorded that Walter self-reported
depression, that she had difficulties with motivation, and
that she spent four hours each day feeling tearful,
self-isolating, and lying in her bed. (Id. at 286).
Walter also self-reported experiences with anxiety with panic
attacks that occurred most frequently with crowds and a
period of alcohol abuse from February 2013 to May 2013.
(Id.) Dr. Kennedy noted that she was tearful
throughout the evaluation and had difficulty with serial
7's and spelling the word “world” backwards.
(Id. at 287). Dr. Kennedy's exam revealed that
Walter's speech was normal, her stream of thought was
goal-directed, she was fully oriented, did not have
hallucinations or delusions, and that her memory,
concentration, judgment, and insight were intact.
(Id. at 284-91). Dr. Kennedy diagnosed her with a
major depressive disorder, recurrent mild-to-moderate; panic
disorder with agoraphobia; and alcohol abuse in early full
remission. (Id. at 289). Dr. Kennedy noted her
progress was fair and she should reconsider counseling and
continue sobriety. (Id. at 290).
Kennedy also completed a Medical Source Statement of Ability
to do Work-Related Activities on January 9, 2014. (R. at
292-95). Dr. Kennedy found Walter to be mildly impaired with
regard to understanding, remembering, and carrying out simple
instructions. (Id. at 292). Dr. Kennedy found her
moderately impaired with regard to understanding,
remembering, and carrying out complex instructions.
(Id.) He found that she would be moderately impaired
in interacting appropriately with the public, supervisors,
and co-workers and in responding appropriately to usual work
situations and to changes in routine or work setting.
(Id.) Finally, he noted that “[s]obriety
should improve [her] prognosis”. (Id. at 293).
hearing before the ALJ on November 9, 2015, the following
discussion took place between the ALJ and Evan Wolfson,
ALJ: . . . We have no treatment records from Dr. Sowers.
ATTY: Right. Which happens with him, on occasion, Your Honor.
But I - - ALJ: Did you try to get them?
ATTY: Yes, we did. Yes, we did. And we actually didn't
get any records, other than that RFC. So I understand what
your position may be there, and I can appreciate that. I did
see that there was the treatment plan summary that was
received in 3-F. I can certainly make ...