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Felder v. Saul

United States District Court, E.D. Pennsylvania

January 9, 2020

WHITNEY NAKITA FELDER
v.
ANDREW SAUL, Commissioner of Social Security

          OPINION

          JACOB P. HART, UNITED STATES MAGISTRATE JUDGE

         Whitney Nakita Felder brought this action under 42 USC §405(g) to obtain review of the decision of the Commissioner of Social Security denying her claim for Supplemental Security Income (“SSI”). Felder has filed a Request for Review to which the Commissioner has responded. For the reasons that follow, I conclude that Felder's Request for Review should be granted and the matter remanded solely for a calculation of benefits.

         I. Factual and Procedural Background

         Felder was born on June 30, 1986. Record at 151. She graduated from high school and completed several years of college but did not obtain a degree. Record at 196. She has worked in retail clothing sales as a clerk and as an assistant manager. Id.

         On December 11, 2011, Felder filed an application for SSI. Record at 151. This followed an incident the summer of that year where she was arrested in Florida for refusing to pay a cab fare and physically resisting police officers, and sent to a mental hospital for treatment because of psychotic behavior while in custody. Record at 254, 298. Felder alleged disability since July 1, 2011, as a result of mental illness and headaches. Record at 151, 195. Felder's application for benefits was denied initially and upon reconsideration. Record at 97, 100.

         Following two de novo hearings in 2014 before an Administrative Law Judge, (“ALJ”), benefits were again denied. Record at 11. The Appeals Council denied review on January 27, 2016. Record at 1.

         Felder then filed an action in this Court, which was given Civil Action number 16-1231 and assigned to the Honorable Joseph F. Leeson, Jr. On April 19, 2017, Judge Leeson adopted a Report and Recommendation written by the undersigned, and remanded this matter to the Commissioner for “further development of the record, including consideration of Felder's therapy notes, procuring a functional assessment from her treating professionals, and the taking of testimony from a medical expert if needed.” Order docketed in this case as Document No. 2. The Appeals Council issued a remand order on October 24, 2017. Record at 463.

         An additional hearing in this case, before a different ALJ, took place on March 27, 2018. Record at 362. On November 6, 2018, however, the ALJ issued a written decision denying benefits. Record at 341. The Appeals Council did not issue a new ruling. Felder then filed the present action. The parties consented to proceed before the undersigned.

         II. Legal Standards

         The role of this court on judicial review is to determine whether the Commissioner's decision is supported by substantial evidence. 42 U.S.C. § 405(g); Richard v. Perales, 402 U.S. 389 (1971); Doak v. Heckler, 790 F.2d 26, 86 (3d Cir. 1986); Newhouse v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985). Substantial evidence is relevant evidence viewed objectively as adequate to support a decision. Richardson v. Perales, supra, at 401; Kangas v. Bowen, 823 F.2d 775 (3d Cir. 1987); Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979). The court must also ensure that the Agency used the proper legal standards. Coria v. Heckler, 750 F.2d 245 (3d Cir. 1984).

         To prove disability, a claimant must demonstrate that there is some “medically determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful activity' for a twelve-month period.” 42 U.S.C. § 423(d)(1). As explained in the following agency regulation, each case is evaluated by the Commissioner according to a five-step process:

(i) At the first step, we consider our work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled. (ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirements in § 404.1509, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled. (iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 of this subpart and meets the duration requirement, we will find that you are disabled. (iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled. (v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are disabled.

20 CFR § 404.1520 (references to other regulations omitted).

         III. The ALJ's Decision and Felder's Request for Review

         In the decision now under review, i.e., the November 6, 2018, decision, the ALJ found that Felder suffered from the severe impairments of schizophrenia, schizoaffective disorder, and post-traumatic stress disorder. Record at 343. She found, however, that no impairment, and no combination of impairments, met or medically equaled a listed impairment. Record at 344.

         The ALJ determined that Felder retained the residual functional capacity (“RFC”) to engage in a full range of work at any exertional level, but with the following non-exertional limitations: “the claimant is limited to work with simple, routine, and repetitive tasks as defined in the Dictionary of Occupational Titles (DOT) as specific vocational preparation (SVP) levels 1 and 2; the claimant is limited to occasional interaction with the general public, co-workers, and supervisors; the claimant requires jobs where the complexity of tasks is learned by demonstration and performed by repetition with few variables, where little judgment is required; and any changes in the workplace need to be infrequent and gradually introduced.” Record at 345.

         Relying upon the testimony of a vocational expert who appeared at the hearing, the ALJ concluded that Felder could work as a cleaner, a bagger in the garment industry, or a drier attendant in the garment industry. Record at 354. Accordingly, she decided that Felder was not disabled. Record at 355.

         In her Request for Review, Felder argues that the ALJ erroneously rejected the opinions of her treating and examining physicians; improperly evaluated the credibility of testimony provided by her father; and failed to include all of her established limitations in the hypothetical questions posed to the vocational expert. She also argues that she should have been found to meet the requirements of Listing 12.03.

         IV. Discussion

         A. The Medical Opinions

         One of the factors which led to the 2016 remand of this case was the lack of a functional assessment by a treating professional in the record. (At that stage, Felder was proceeding without representation, and the lack of development in the record was legally attributable to the ALJ). The record still lacks an assessment by a treating professional, but the Agency procured a new consultative examination by Elisabeth N. Gibbings, Psy.D., who also completed a functional assessment. Record at 880. On April 13, 2018, Gibbings opined that Felder was markedly limited in the ability to interact appropriately with the public, supervisors, or co-workers, or to respond appropriately to usual work situations and to changes in a routine work setting because of “diminished emotional expression, avolition [and] alogia.” Record at 881-2.

         The ALJ accepted Dr. Gibbings' evaluation in part, but rejected her findings of marked limitations as “inconsistent with the record as a whole.” Record at 352. The ALJ relied upon her observation that Felder was frequently said to be “cooperative” by mental health service providers. Id. Even Dr. Gibbings described Felder as “generally cooperative.” Record at 877.

         However, despite being cooperative, Felder displayed serious abnormalities. According to Dr. Gibbings, Felder's responses were “noticeably lacking true content” and her “social skills were poor.” Record at 877. Felder denied experiencing auditory or visual hallucinations, but she also told Dr. Gibbings that “the TV does sometimes talk directly to her” and that she believed “people are out to get her.” Record at 876. Her hygiene and grooming were poor, and she appeared somewhat unkempt. Record at 877. At this time, Felder reported taking aripiprazole (marketed as Abilify). Record at 876.

         Similarly, on November 28, 2016, Felder was noted by her psychotherapist to be “cooperative.” Record at 842. Nevertheless, she was also “unable to follow through with response, loose association, tangential thoughts.” Again, she was medicated with Abilify at the time of the session. Id.

         Indeed, the avolition and alogia described by Dr. Gibbings are noted throughout the record.[1] A Biopsychosocial Evaluation completed on August 2, 2016, at Crozer Keystone Health System Community Division stated:

Miss Felder presented with an indifferent mood and appropriate behavior during the interview. Her speech was at a normal rate and low volume. She exhibited a flat affect. Her thought processes were not goal directed with apparent cognitive deficits in communication, processing and memory. Her perception and process appeared outside normal limits. Miss Felder could neither deny or confirm suicidal ideation in the past or currently. She engaged in conversation, and maintained good eye contact. She was not well groomed and did not appear to be a reliable historian.

Record at 837. The Crozer Keystone clinician also wrote of Felder: “She is not social and often uses word salads.”[2] Record at 838.

         Even earlier, shortly after Felder's 2011 arrest, the Orange County Corrections Department health services said of her: “She attempts to be cooperative but answers do not match questions.” Record at 712. She was referred to Lakeside Behavioral Healthcare, where she was treated for six weeks, after the prison mental health personnel noted that she was “mentally confused, withdrawn, and responding to internal stimuli.” Record at 254, 298. Clearly, a cooperative attitude is not equivalent to a normal mental state.

         Further, when non-compliant with medication, Felder was not always cooperative. An October 6, 2016, note from Crozer Keystone reflects that Felder was rejected from a partial hospitalization program to which she had been recommended by ...


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