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Kelly v. Colvin

United States District Court, Third Circuit

September 18, 2013

THOMAS J. KELLY, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

Sherry R. Fallon United States MAGISTRATE JUDGE

Plaintiff Thomas J. Kelly ("Kelly" or "Plaintiff) appeals from a decision of Carolyn W. Colvin, the Commissioner of Social Security (the "Commissioner" or "Defendant"), [1] denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. The court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).[2]

Presently pending before the court are cross-motions for summary judgment filed by Kelly and the Commissioner. (D.I. 19, 23) Kelly asks the court for an award of benefits, or alternatively, to remand to the Commissioner for further administrative proceedings. (D.I. 20) The Commissioner requests that the ALJ's decision be affirmed. (D.I. 24) For the reasons set forth below, I recommend that the court grant Kelly's motion, deny the Commissioner's motion, and remand this matter for further proceedings.

I. BACKGROUND

A. Procedural History

Kelly filed his application for DIB on July 22, 2005, alleging disability beginning on May 1, 2003. (D.I. 15 at 124-29, 145-53) Kelly later amended his onset date to June 30, 2005. (Id. at 123) Kelly's claim was denied initially on December 29, 2005, and upon reconsideration on November 16, 2006. (Id. at 94-98, 102-06) On December 19, 2006, Kelly filed a request for a hearing before an administrative law judge. (Id. at 107-08) The hearing was held on February 20, 2008 before administrative law judge Judith A. Showaiter (the "ALJ"). (Id. at 114-20) On April 9, 2008, the ALJ issued a decision confirming the denial of benefits to Kelly. (Id. at 8-25)

Kelly requested a review of the ALJ's decision by the Appeals Council on April 24, 2008. (Id. at 5-7) The Appeals Council denied Kelly's request for review on September 11, 2009. (Id. at 1-4) The April 9, 2008 decision of the ALJ therefore became the final decision of the Commissioner. See 20 C.F.R. §§ 404.955, 404.981; see also Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On October 12, 2009, Kelly filed a complaint seeking judicial review of the ALJ's decision. (D.I. 2) On September 1, 2011, Kelly filed his motion for summary judgment. (D.I. 19) The Commissioner opposed Kelly's motion and filed a cross-motion for summary judgment on November 3, 2011. (D.I. 23) On April 26, 2012, this case was referred to the Magistrate Judge to hear and resolve all pretrial matters.

B. Factual Background

1. Medical History

Kelly was fifty-three years old when the ALJ rendered her decision. (D.I. 15 at 12, 33) He has a high school education and a two-year college degree. (Id. at 35-36) He has not worked since 2003, when he was employed as a roofing foreman. (Id. at 38) Kelly alleges disability due to ADHD, arthritis, depression, compulsive anxiety, and pain in his neck and left shoulder. (Id. at 146)

a. Substance abuse

Kelly treated with his primary care physician, A. Douglas Chervenak, D.O., since 1999 for various conditions, including substance abuse. (Id. at 276-93) On May 24, 2003, Dr. Chervenak indicated that Kelly had been drinking heavily for about a month, three to four days a week. (Id. at 286) He smoked two and a half packs of cigarettes per day. (Id.) In December 2003, Dr. Chervenak noted that Kelly continued to drink, had obtained several DUI's, and was attending Kent County Counseling. (Id. at 285)

On June 2, 2004, Kelly was admitted to the emergency room of Kent General Hospital after suffering a fall while intoxicated. (Id. at 264-69) A CT scan revealed no skull fracture or extracranial soft tissue swelling. (Id. at 269) Kelly tested positive for alcohol. (Id. at 264-69)

Kelly began treating with psychiatrist Yvette Baker, M.D. on June 23, 2004 for his alcohol dependence, among other conditions. (Id. at 270-72) On June 24, 2005, Dr. Baker indicated that Kelly had served six months in jail due to a DUI conviction, but he had been clean for a year and had been attending Alcoholics Anonymous meetings four times a week. (Id. at 225) On July 19, 2005, Dr. Baker noted that Kelly was still adjusting to life outside of jail following his DU I conviction, but he was making progress. (Id. at 223) From September to November 2005, Dr. Baker observed that Kelly attended his meetings and was doing well. (Id. at 222-23) According to Dr. Baker, Kelly experienced cravings and dreams that he was using again. (Id. at 224) However, Dr. Baker indicated that Kelly's alcoholism was in remission as of November 7, 2005. (Id.)

b. Mental conditions

Dr. Chervenak also noted Kelly's history of depression. (Id. at 276-93) In June 2000, Dr. Chervenak prescribed Effexor to treat Kelly's depression and anxiety. (Id. at 288) He noted that Kelly was sleeping better and seemed calmer at his next visit later that month. (Id.) Dr. Chervenak prescribed Zoloft beginning in December 2003 after noting that Kelly had been drinking and obtained a few DUI's. (Id. at 283, 285)

From 2004 to 2006, Kelly treated with Dr. Baker for major depressive disorder, attention deficit hyperactivity disorder ("ADHD"), and recurrent and generalized anxiety disorder. (Id. at 270-72) On June 23, 2004, Dr. Baker noted that Kelly worried about his finances, his wife's unemployment, the children he and his wife cared for, and the loss of his driver's license. (Id. at 270) Kelly informed Dr. Baker that his sleep was okay at that time and his appetite was good. (Id.) Dr. Baker described Kelly's mood as overwhelmed. (Id. at 271) Dr. Baker prescribed Librium and Zoloft to control Kelly's anxiety and depression at the June 2004 visit, and measured his global assessment of functioning ("GAF") score at 61. (Id. at 272)

On June 24, 2005, Dr. Baker measured Kelly's GAF score at 62. At Kelly's next visit on July 19, 2005, Dr. Baker noted that Kelly was anxious, but his mood and anxiety were stabilizing, and he continued to take his medications. (Id. at 223) On October 10, 2005, Dr. Baker indicated continued improvement, described Kelly's mood and anxiety levels as stable, and continued his medications. (Id.) Later that month, Dr. Baker observed that Kelly was better on his medication, and the addition of Strattera to his medications had helped his organization. (Id. at 224) She indicated that he was calmer and his mood and anxiety remained stable. (Id.) On November 28, 2005, Dr. Baker indicated that Kelly experienced some forgetfulness and mild anxiety but was otherwise doing well. (Id.)

From December 2005 through February 2006, Dr. Baker met with Kelly four times and concluded that Kelly was doing fine, but had some increase in anxiety and mild depression due to the fact that he was caring for a friend's son. (Id. at 219, 224) Dr. Baker increased Kelly's prescription of Lexapro in December 2005. (Id. at 224) On June 13, 2006, Dr. Baker concluded that he was "doing ok, " and was calmer, but still tense. (Id. at 217) She identified his anxiety as stable. (Id.) Dr. Baker measured Kelly's GAF score at 61 during this visit. (Id. at 272)

Dr. Baker performed an assessment of Kelly on February 15, 2008 prior to his hearing before the ALJ and rated his GAF score at 63. (Id. at 318) She indicated that Kelly was currently taking Lexapro, Adderall, and Librium, and noted that while there was minimal improvement in his mood, he had not relapsed and his ADHD symptoms had subsided. (Id. at 319) Dr. Baker indicated that Kelly's chances of complete recovery were poor to fair. (Id.) According to Dr. Baker, Kelly's conditions would cause him to be absent from work more than three times per month. (Id. at 320)

c. Physical conditions

On January 22, 2002, Kelly visited Dr. Chervenak and reported that he had been experiencing back pain since January 17, 2002. (Id. at 287) Dr. Chervenak evaluated Kelly again on May 24, 2003, and observed that Kelly experienced some tenderness to the touch on his spine. (Id. at 286) Dr. Chervenak indicated that Kelly complained of occasional back pain which grew worse during inclement weather. (Id.) On April 20, 2004, Kelly saw Dr. Chervenak with complaints of lower back pain which had lasted for about three days. (Id. at 281) At another visit shortly thereafter on April 27, 2004, Kelly made no mention of his back pain.[3] (Id.)

Subsequent treatment notes from June and July 2004 indicate that Kelly complained of an infected and swollen right foot. (Id. at 279) Dr. Chervenak recommended elevation and soaking. (Id.) These notes reflect no further complaints regarding back pain.

Kelly visited Dr. Chervenak three times after his disability onset date. In June 2005, Dr. Chervenak treated Kelly for a rash on his hands and feet. (Id. at 277) The condition did not improve by the end of July 2005, and Dr. Chervenak referred Kelly to a dermatologist. (Id.) In October 2005, Dr. Chervenak noted that Kelly's hands were better, but Kelly had not gone to the dermatologist. (Id. at 276) These treatment notes contain no reference to ongoing back pain.

d. Non-treating physicians

The record contains various opinions and evaluations of Kelly from non-treating physicians, including state agency doctors. On November 15, 2005, Kelly visited Jay Freid, M.D., for a consultative examination. (Id. at 184-90) Dr. Freid identified Kelly's chief complaint as back pain. (Id. at 184) Dr. Freid determined that Kelly suffers from chronic cervical and lumbar pain in his muscles. (Id. at 185) Dr. Freid further observed that Kelly has a limited range of motion in his left thumb, he has a history of alcohol abuse, and he has obsessive compulsive disorder with a history of anxiety. (Id.)

On November 29, 2005, Michael Borek, D.O., a state agency medical consultant, completed a physical residual functional capacity ("RFC") assessment of Kelly. (Id. at 191-98) Dr. Borek determined that Kelly could occasionally lift up to fifty pounds and frequently lift up to 25 pounds, he could stand, walk, or sit for about six hours in an eight hour workday, and he is unlimited in his ability to push or pull. (Id. at 192) Dr. Borek observed that Kelly had limited feeling in his left thumb and opined that he should avoid concentrated exposure to vibration, which could increase his pain. (Id. at 194-95) According to Dr. Borek, the severity and duration of Kelly's symptoms were disproportionate to their expected severity and duration based on Kelly's medical history, and they were inconsistent with the medical and non-medical evidence. (Id. at 196) On November 12, 2006, Dr. R. Palandjian conducted a medical examination of Kelly and affirmed Dr. Borek's RFC assessment dated November 29, 2005. (Id. at 263)

On December 16, 2005, Kelly saw Pedro M. Ferreira, Ph.D., a consultative psychologist for the Social Security Administration. (Id. at 213-16) Dr. Ferreira completed a mental RFC assessment and determined that Kelly suffered from depression and anxiety, but indicated that the severity of Kelly's symptoms was not supported by the psychiatric evidence. (Id. at 215) According to Dr. Ferreira, the record indicated that Kelly had been responding to treatment slowly but adequately. (Id.) Overall, Dr. Ferreira concluded that Kelly was not significantly limited by his conditions, and was only moderately limited in his ability to understand and remember instructions, maintain concentration for extended periods of time, complete a normal workday and work week, and set realistic goals. (Id. at 213-14) On October 26, 2006, Kelly saw Dr. D. Fugate for a second mental RFC assessment. (Id. at 251-53) Dr. Fugate affirmed Dr. Ferreira's RFC assessment from December 16, 2005. (Id. at 253)

On October 24, 2006, Kelly visited Janis Chester, M.D., for a consultative examination. (Id. at 229-39) Dr. Chester indicated that Kelly showed no signs or symptoms consistent with ADHD, depression, bipolar disorder, or obsessive compulsive disorder. (Id. at 231) Dr. Chester attributed his anxiety to Kelly's cravings for drugs or alcohol and his irritation with his wife's tendency to keep a cluttered home. (Id.) Dr. Chester determined that Kelly's polysubstance dependence was in remission and identified a cognitive disorder likely secondary to head trauma, substance abuse, and side effects from his Librium prescription. (Id. at 233) Dr. Chester concluded that Kelly was not capable of managing benefit payments. (Id. at 236)

On October 30, 2006, Kelly visited Kartik Swaminathan, M.D., for a consultative examination. (Id. at 254-62) Dr. Swaminathan concluded that Kelly would be able to sit for about 30 minutes or stand for about 30 to 45 minutes before needing rest, he must work in a job that allows for constant changes in position, and he would be unable to perform any overhead activities for longer than 5 to 10 minutes as a result of his right rotator cuff tendonitis. (Id. at 257) According to Dr. Swaminathan, the arthritis in the small joints of Kelly's hand would prevent him from performing fine motor activities or gripping objects requiring more than 5 to 10 pounds. (Id.)

On July 6, 2008, Dr. Chris Schellinger, a spine specialist, conducted an independent medical evaluation of Kelly's condition. (Mat 324) Dr. Schellinger observed that Kelly experienced a dull and aching pain in the neck bilaterally, which radiated to both arms and both hands. (Id.) He further observed that Kelly experienced dull, aching, shooting and numbing pain in the low back bilaterally, which radiated to both legs and significantly reduced his ability to carry out daily activities. (Id.) Dr. Schellinger noted slight restrictions in the extension, right lateral flexion, left rotation, and right rotation degrees of the cervical spine, and a mild restriction in the left lateral flexion of the cervical spine. (Id. at 326) He concluded that generalized spinal degeneration marked by stiffness of the vertebral joints was present, as well as extremely advanced degenerative arthritis. (Id. at 327) He described Kelly's prognosis as fair and indicated that continued improvement was expected despite permanent residuals. (Id. at 328) Dr. Schellinger indicated that Kelly would be unable to perform strenuous work indefinitely. (Id)

2. Employers' Letters

Kelly also submitted into evidence the statements of Marianne Jones and Tia-Justine G. Peters-Sievila. (Id. at 173-75) Ms. Jones stated that Kelly had performed some house maintenance jobs for her over the past several years even though others had warned her that he has major problems with time and distraction. (Id. at 173) Ms. Jones observed that Kelly was easily distracted, experienced memory issues, and had difficulty staying focused on "boring" tasks. (Id.) Ms. Sievila indicated that Kelly replaced a window in her home, but the job took several weeks for him to complete. (Id. at 174) She described Kelly as a perfectionist who would get upset if things were not exactly right, and stated that Kelly had a habit of talking to himself out loud about other tasks he felt he needed to complete. (Id. at 174-75) Ms. Sievila also identified Kelly as being easily distracted and forgetful. (Id. at 174)

3. The Administrative Hearing

a. Plaintiffs Testimony

Kelly was fifty-three years old at the time of his hearing before the ALJ on February 20, 2008. (D.I. 15 at 33) At the hearing, Kelly testified that he is married and lives with his wife and his sister-in-law, who has Down Syndrome. (Id. at 34) Kelly's driver's license was suspended due to his multiple DUI convictions, and as a result, he relies on his wife for transportation. (Id. at 34-35) He is a high school graduate and completed two years of college to obtain a degree in architectural engineering technology. (Id.) He testified that his ability to spell is weak, and he needs help to make a grocery list or fill out a job application. (Id. at 36)

Kelly testified that he worked as a roofer for twenty-seven years, and at one point served as a foreman who supervised up to four or five workers. (Id. at 36) However, he did not have the authority to hire or fire an employee without first obtaining approval from the company owner. (Id. at 37) When Kelly tried to work for other employers, he claims that he was fired because he did not work fast enough and did not follow instructions. (Id. at 83) Kelly's work involved heavy lifting and the use of power tools, and he often worked on ladders and scaffolding. (Id. at 37)

Kelly chose to leave his job in May of 2003 because he suffered a relapse and began using drugs and alcohol. (Mat 37-38) He did not file for unemployment or look for work. (Id. at 38-39) He served time in prison from October 2004 to June 2005 as a result of a DUI conviction. (Id.) Following his ...


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