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Wester v. Astrue

United States District Court, D. Delaware

May 28, 2014

LINDA M. WESTER, Plaintiff,
MICHAEL J. ASTRUE, [1] Commissioner of Social Security, Defendant.


GREGORY M. SLEET, Chief District Judge.


This action arises from the denial of plaintiff Linda Wester's ("plaintiff') claim for Social Security benefits. On November 30, 2005, plaintiff filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("551") under Titles II and XVI of the Social Security Act (the "Act"). (D.I. 15 at 51-83.) In her application and disability report, plaintiff claimed she became disabled beginning on January 15, 1998, due to panic attacks, agoraphobia, depression, post traumatic stress disorder ("PTSD"), and suicidal thoughts. ( Id. at 51, 85.) Following the Social Security Administration's ("SSA") denial of her claim, both initially and upon reconsideration, plaintiff requested an All hearing. ( Id. at 31, 36-40, 42-48.) The hearing occurred on March 6, 2008. ( Id. at 26-28.) At the hearing, testimony was provided by plaintiff and an impartial vocational expert ("VE"), Christina Cody ("Cody"). ( Id. at 537-65.) On April 2, 2008, the ALJ, Edward Banas, issued a written decision denying plaintiffs benefits claim. ( Id. at 11-25.) Plaintiff requested a review of the ALJ's decision by the Social Security Appeals Council, which denied review on October 17, 2008. ( Id. at 4-10.) On December 15, 2008, plaintiff filed a timely appeal with the court. (D.I. 2.) Presently before the court are the parties' cross-motions for summary judgment. (D.I. 17, 19.) For the reasons that follow, the court will: (1) deny plaintiff's motion for summary judgment, and (2) grant defendant's motion for summary judgment.


Plaintiff was born on October 16, 1954. (D.I. 15 at 51.) She has an Associate Degree in human services. ( Id. at 542.) At the time of her application for DIB and SSI on November 19, 2005, plaintiff was fifty-one years old.[2] Her alleged disability dates back to January 15, 1998. ( Id. at 51.) Throughout the duration in question, plaintiff worked as a part-time nursing assistant. ( Id. at 86, 357.) From the date of her application for disability in 2005 through the date of the All's decision, she worked as a food service worker, nursing home worker, file clerk, waitress, security guard, and housekeeper. ( Id. at 237, 264, 334, 356-57, 360, 362, 426, 553.) Despite her prior vocational experience, plaintiff claims she remains disabled under the Act. ( Id. at 51-83.) To be eligible for DIB and SSI, plaintiff must demonstrate she is disabled within the meaning of sections 216(1) and 223(d). ( Id. at 14.)

A. Evidence Presented

Plaintiff claimed a history of mental health treatment for as long as she could remember, however, there is a significant lack of treatment evidence prior to 2005. ( Id. at 263)[3] Relevant documentation of her psychiatric impairments began on June 20, 2005, when she started treatment with New Castle County Community Mental Health Center ("CMH") for depression, anxiety, and PTSD. ( Id. at 324-64.) Throughout her treatment with CMH, (from June 2005 to August 2006 comprising 20 visits), plaintiff's main concerns were financial, vocational and housing related. ( Id. at 356.) During that time, she worked at a motel, as a temporary hospice worker, file clerk, housekeeper, and security guard. ( Id. at 334, 356-57, 360, 362, 426.)

On September 15, 2005, CMH records indicate plaintiff's psycho-social situation deteriorated. ( Id. at 355.) She quit her hospice job after the death of a client, because the death reminded her of a previous husband's passing in an automobile accident in 2000. ( Id. ) However, treatment records indicate the plaintiff was capable of gainful activity, and she wanted to work. ( Id. at 326-27)[4] On January 3, 2006, the plaintiff was assessed a Global Assessment of Functioning ("GAF") of 55. ( Id. at 326-27.)[5]

On May 2, 2006, plaintiff underwent a consultative examination with Dr. Brian Simon ("Simon"), a licensed psychologist with the Delaware Disability Service ("DDS"). ( Id. 262-68)[6] Dr. Simon described plaintiff as having fair attention and concentration. ( Id. at 264.) Her speech was normal in both rate and volume, but was tangential and over-elaborative. ( Id. ) Dr. Simon noted plaintiff did not show any evidence of articulation problems or slurring, hyperactivity or psychomotor retardation. ( Id. ) Her immediate and short term memory was good, and she performed serial calculations without errors. ( Id. at 265.) Although she presented as being "a bit odd" and somewhat nervous, plaintiff denied being suicidal, homicidal or significantly depressed. ( Id. at 265.) Dr. Simon diagnosed PTSD, chronic generalized anxiety disorder, unspecific personality disorder and a GAF of 50. ( Id. at 266.)

On the DDS psychological functional capacities evaluation form, Dr. Simon noted plaintiff's degree of impairment in relating to others as moderately severe; however, her restriction of daily activities and deterioration of personal habits were moderate, while her constriction of interests were mild.[7] ( Id. ) Similarly, within the competitive labor-market setting, Dr. Simon concluded her impairment in understanding simple, primarily oral, instructions was also mild. ( Id. at 268.) Finally, he described plaintiffs impairment in carrying out instructions under ordinary supervision, sustaining work performance and attendance in a normal work-setting, coping with pressures of ordinary work, and performing routine, repetitive tasks under ordinary supervision as moderate. ( Id. )

On June 29, 2006, a DDS psychologist completed a Psychiatric Review Technique and a Mental Residual Functional Capacity ("RFC") Assessment. ( Id. at 296-309.) The psychiatric review described the following "B" Criteria limitations:[8] a mild restriction of daily living activities; moderate difficulties in social functioning and moderate problems with concentration, persistence, or pace; and one to two repeated episodes of decompensation of extended duration.[9] ( Id. at 304.) The RFC assessed plaintiff was not significantly limited in most work-related activities, and was moderately limited as follows: maintaining attention and concentration for an extended period; performing activities within a schedule; maintaining regular attendance, and being punctual; completing a normal workday and workweek without interruption from psychologically based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; and accepting instructions and responding appropriately to criticism from supervisors. ( Id. at 307-08.) In conclusion, the DDS psychologist found plaintiff was capable of low stress tasks, preferably away from other co-workers. ( Id. at 309.) On October 31, 2006, another DDS psychologist affirmed the June 29, 2006 report. ( Id. at 368-81.)

In 2007, plaintiff relocated to North Carolina with her husband to pursue employment opportunities. ( Id. at 388.) While there, she was treated at Wake County Human Services between January 26, 2007 and April 2, 2007.[10] ( Id. at 403.) During the initial consultation on January 26, 2007, the mental status examiner described plaintiff as pleasant, cooperative, neatly groomed and goal oriented, with good eye contact, fair insight and intact judgement. ( Id. at 389.) Her affect and mood were within normal limits. (Id.) Despite a diagnosis of PTSD, plaintiff was found capable of gainful employment. ( Id. at 388, 393.) During a followup visit on April 2, 2007, plaintiff was alert, oriented, with a clear thought process and exhibited no delusions or psychotic symptomatology. ( Id. at 399.) She denied auditory and visual hallucinations and had no suicidal or homicidal ideation. ( Id. )

In June 2007, plaintiff returned to Delaware and began monthly treatment with Dr. Criselda Abad-Santos ("Dr. Abad-Santos"). ( Id. at 410-25.) During the July 19. 2007 initial evaluation, Dr. Abad-Santos diagnosed major depressive disorder, recurrent, without psychotic features, PTSD, borderline personality disorder and a GAF of 45. ( Id. at 425.)

On September 6, 2007, plaintiff was referred to Dr. Frederick Kurz ("Dr. Kurz") for psychological evaluation by the Division of Vocational Rehabilitation. ( Id. at 426.) Diagnosis was cognitive disorder non-specific, generalized anxiety disorder and major depressive disorder. ( Id. at 429.) Dr. Kurz found no evidence of personality or thought disorder, no reading disorder or conversational deficit. ( Id. ) He concluded plaintiff functioned "within low average to borderline levels of intelligence. Her reading abilities suggested that there had been a decline in her global intelligence. There were significant deficits noted in her short-term memory." ( Id. ) While Dr. Kurz found plaintiff was not sufficiently stable for competitive employment, he assessed a GAF score of 60. ( Id. at 430.)

Plaintiff was evaluated by the Perspective Counseling Center on September 26, 2007. ( Id. at 404.) Based on her subjective complaints, she was diagnosed with PTSD and had a GAF of 50. ( Id. at 405.) The record includes two progress notes dated October, 9, 2007, and October 16, 2007, however, they contain no objective clinical findings. ( Id. at 409.)

On November 10, 2007 after four consultations, Dr. Abad-Santos completed a mental residual functioning capacity form. ( Id. at 410.) Her assessment concluded plaintiff was unable to meet competitive standards to perform even unskilled work, and assessed a GAF of 45. ( Id. at 410-15.) During the treatment period with Dr. Abad-Santos, however, plaintiff worked as a housekeeper at Dover Downs, attended a work training program and responded well to treatment with signs of improvement. ( Id. at 410, 417-18.)

Plaintiff is markedly obese, but no significant functioning limitations are attributed to her weight. According to Dr. Muhammed Niaz ("Dr. Niaz"), [11] plaintiff has no sensory, motor or reflex abnormalities. ( Id. at 311.) She has no objective signs of joint pain, swelling, tenderness, inflammation, or respiratory problem, and has normal blood pressure. ( Id. ) Her gait was unremarkable, and she does not evidence any neurological or joint problems which could limit ambulation. ( Id. ) Dr. Niaz found plaintiff was capable of sustaining at least sedentary work for six to eight hours with customary breaks. ( Id. ) On August 19, 2006, after consultation and review of plaintiffs records, Dr. Robert Palandjian ("Dr. Palandjian") completed a physical residual functioning capacity assessment and determined plaintiff's "only physical restriction would be height and hazard precautions." ( Id. at 321.) Dr. Palandjian found no exertional, manipulative, visual, or communicative limitations. ( Id. at 317-320.)

Finally, plaintiff underwent a hysterectomy in December 2002, arthroscopic knee surgery in April 2000, removal of a nodule of the right lower lobe in March 2002, and was diagnosed with bronchitis and a mildly echogenic liver consistent with fatty infiltration in January 2006. ( Id. at 177, 199, 232, 256-57.) She was hospitalized for eye and facial swelling in May 2006, and diagnosed with a kidney stone in November 2007. ( Id. at 271, 431-36.)

B. Hearing Testimony

1. Plaintiff's Testimony

At the March 6, 2008 hearing, plaintiff testified about her background, the nature of her disability, and claim for benefits. ( Id. at 540-58.) Specifically, she claimed a diagnosis of agoraphobia in 1985. ( Id. ) According to plaintiff, her situation began to deteriorate in 2005 while working as a home health aide, when a woman she cared for died. ( Id. at 552.) The death was so upsetting plaintiff could no longer handle the stresses of the job. ( Id. ) Plaintiff drives, but becomes nervous in heavy traffic. ( Id. at 549.) Loud noises (emergency vehicles and overly crowded stores) cause panic attacks that may continue for an hour. ( Id. at 556.)

Plaintiff also testified about her previous work experience including a recent twelve week placement at Goodwill through a vocational rehabilitation program. ( Id. ) While there, she worked as a sales representative five hours a day, three days a week and attended a weekly three hour training program. ( Id. at 543.) Plaintiff spent most of her day reading, going outdoors and taking care of her dog. ( Id. At 557.) She stated that through Goodwill and "book rehab, " she hoped to find a part time job of five hours a day for up to twenty-five hours a week. ( Id. at 558.)

2. The Vocational Expert's Testimony

Cody, the VE, testified about plaintiff's background, skills and limitations, and the number of jobs available in the national economy that a person of plaintiffs age, education, and skills may perform. ( Id. at 558-64.) Specifically, she testified that plaintiff had past relevant work history as a home health aide and dietary aide at medium exertional levels, and as a housekeeper and waitress at light exertional levels.

The VE opined that depression would have a vocational impact by causing focusing issues, socializing problems and difficulty with complex reasoning tasks, and may require extended breaks and unscheduled loss of work time. ( Id. at 560.) If loss of productivity reached the ...

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