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Hyer v. Colvin

United States District Court, D. Delaware

October 28, 2014

SUSAN HYER, Plaintiff,

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[Copyrighted Material Omitted]

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Angela Pinto Ross, Esquire of Doroshow, Pasquale, Krawitz & Bhaya, Wilmington, Delaware. Counsel for Plaintiff.

Charles M. Oberly III, Esquire, United States Attorney, District of Delaware, and Alexander L. Cristaudo, Esquire, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Philadelphia Pennsylvania. Of Eric P. Kressman, Esquire, Regional Chief Counsel, Region III and Allyson Jozwik, Esquire, Assistant Regional Counsel, Office of General Counsel, Social Security Administration, Philadelphia, Pennsylvania. Counsel for Defendant.

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Susan Hyer (" plaintiff) appeals from a decision of Carolyn W. Colvin, the Commissioner of Social Security (" defendant" ),[1] denying her application for disability insurance benefits (" DIB" ) under Title II of the Social Security Act, 42 U.S.C. § § 401-433. (D.I. 1) Plaintiff has filed a motion for summary judgment asking the court to remand for further proceedings. (D.I. 15, 16, 20) Defendant has filed a cross-motion for summary judgment, requesting the court to affirm her decision and enter judgment in her favor. (D.I. 18, 19) The court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).[2]


A. Procedural History

Plaintiff filed a protective claim for DIB in April 2009, asserting disability as of January 2, 2009, because of bipolar and major depression. (D.I. 13 at 160) Her claim was denied initially and after reconsideration. ( Id. at 79-84, 86-90) Plaintiff

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requested a hearing before an Administrative Law Judge (" ALJ" ). A hearing was held on October 19, 2010. ( Id. at 34-78) Plaintiff, represented by counsel, appeared and testified. Vocational expert Tony Melanson (" VE" ) also testified. ( Id. at 34-78)

In a decision dated November 8, 2010, the ALJ found that plaintiff had the severe impairment of depression with a bipolar component. ( Id. at 21) The ALJ further found that plaintiff retained the residual functional capacity (RFC" )[3] for employment and was not disabled. ( Id. at 23-28) The Appeals Council considered plaintiff's objections to the ALJ's decision and denied her request for review on March 14, 2012. ( Id. at 1-6) Flaving exhausted her administrative remedies, plaintiff filed a civil action on May 11, 2012, seeking review of the final decision. (D.I. 1)

B. Factual Background

The record medical evidence reflects that in August 2008, at the age of 44, plaintiff commenced treatment with Deborah Bernstein, M.D. (" Dr. Bernstein" ), a psychiatrist. (D.I. 13 at 280) Progress notes reveal that, at age 28 and while working as a receptionist, plaintiff experienced depression. ( Id.) She was prescribed Trazodone[4] and resumed working some time later. Plaintiff reported feeling depressed, irritable and unable to control her emotions and spending sprees. ( Id.) Dr. Bernstein diagnosed major depression and mood cycling with episodes of racing thoughts. Dr. Bernstein increased plaintiff's dosage of Effexor,[5] which was successful in decreasing plaintiff's feelings of hopelessness, but interfered with her sleep. ( Id. at 279) Notes from September 22, 2008 indicate that plaintiff's mood was stable, with a decrease in mood cycling. ( Id. at 279) During an October 16, 2008 appointment, plaintiff reported that her mood was " completely stable." ( Id. at 281)

In November 2008, plaintiff started psychotherapy treatment with Joan Chatterton, RN, LCSW, CADC (" Ms. Chatterton" ).[6] ( Id. at 199-206) In a biopsychosocial evaluation form, Ms. Chatterton described plaintiff as having a " history of mood stabilization problems" and as having a depressed mood with " a high degree of irritability, poor concentration, some expressed hopelessness," with no evidence of current suicidal intent. ( Id. at 199) Ms. Chatterton also recorded that plaintiff had two panic attacks that occurred on unspecified dates, several years prior. ( Id. at 200) Plaintiff had problems with anxiety in some work settings, but no phobias, trauma or dissociate states were detected. Although some degree of " suspiciousness" was reported, there were no paranoid statements. Ms. Chatterton assessed plaintiff's short term memory as " impaired" and long term memory as " difficult to retrieve." She characterized plaintiff's impulse control and frustration tolerance as " poor." ( Id. at 201) The presence of binge eating, late in the evening, resulting in a weight

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gain of 60-75 lbs was noted. ( Id. at 204) Ms. Chatterton's diagnosed plaintiff with " bipolar disorder, type 1" and " major depressive disorder." She assessed plaintiff's Global Assessment Functioning (" GAF" )[7] score at 52, with a past GAF of 70. ( Id. at 206) Ms. Chatterton recommended a consultation with a neuro-psychiatrist for complete assessment, weekly psychotherapy sessions, and family therapy.

Dr. Bernstein's notes dated January 12, 2009 reflect that plaintiff had recently lost her job, but did not suffer any symptoms of depression and was " doing well." ( Id. at 281) Dr. Bernstein recommended that plaintiff continue taking her medications and return in March for a follow-up appointment. ( Id.) During a March 29, 2009 appointment, plaintiff complained to Dr. Bernstein of " mild anhedonia," with no other depression symptoms. ( Id.)

Psychotherapy notes dated March 31, 2009 depict plaintiff as " very defensive" about her boyfriend and easily agitated by Ms. Chatterton's suggestion that the relationship take a slower course. ( Id. at 297)

Progress notes dated April 14, 2009 reflect that Ms. Chatterton called several times to discuss rescheduling appointments that plaintiff had previously cancelled. ( Id. at 298) Progress notes taken on May 4, 2009 indicate that plaintiff's depression symptoms decreased in intensity in response to an increase in the dosage of Effexor. ( Id. at 281) In a letter dated May 4, 2009, Dr. Bernstein wrote:

Plaintiff is a patient under my care. It is my professional opinion, that due to plaintiff's mental health disorder, she is unable to perform work-related mental activities, including activities relating to understanding and memory, sustained concentration and persistence, social interaction and adaptation.

( Id. at 208) During an appointment on July 7, 2009, plaintiff complained to Dr. Bernstein about a reduction in sleep and an increase in mood cycling. ( Id. at 282) Dr. Bernstein found plaintiff " stabilized," without additional complaints.

Dr. Richard Ivins, Ph.D. (" Dr. Ivins" ), a clinical neuro-psychologist, conducted a consultative psychological examination on July 8, 2009. ( Id. at 212-15) Plaintiff reported having a " mental collapse" during a semester at college, resulting in her leaving school and returning home to work as a waitress. ( Id. at 212) She experienced another emotional breakdown in 1992, while working for a law firm. She was diagnosed with major depressive disorder. Plaintiff reported that she had never been hospitalized for psychiatric reasons. ( Id. at 212) She sees a psychiatrist for medication management and a nurse practitioner/social worker for psychotherapy.

As a result of the mental status examination, Dr. Ivins found that plaintiff " appeared to be quite overweight" and was

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fairly well-spoken during the interview. Her " stream of thinking was good and she was able to answer the questions fairly well." ( Id. at 212-13) She described having difficulty focusing and experiencing depression, which goes up and down. No delusional thinking was noted. She was oriented, with good remote and past memory recall. Plaintiff reported that her attention and concentration were mildly impaired. Her " verbal abstract reasoning was quite good, and she was able to interpret several proverbs." ( Id. at 213) She had difficulty with math problems, especially multiplication and division. Plaintiff's stated that " her impulse control is good" and that she is now " better able to control it," however, she sometimes becomes " verbally hostile." ( Id. at 213) Dr. Ivins concluded that plaintiff's responses seemed reliable. He diagnosed her as having major depressive disorder, recurrent, with a GAF of 50 and a guarded prognosis. ( Id. at 213) Dr. Ivins assessed plaintiff as competent to manage her own funds.

With respect to plaintiff's functional capacity, Dr. Ivins rated plaintiff's ability to understand simple primarily oral instructions as " mild," [8] with mild limits in carrying out instructions. ( Id. at 214-14) He characterized as " moderate" [9] plaintiff's abilities to sustain work performance and attendance, cope with pressures associated with ordinary work, and to perform routine repetitive tasks.

Ms. Chatterton's progress notes from July 2009 reflect that plaintiff cancelled her previous psychotherapy session because she was away on vacation. ( Id. at 299) Progress notes dated August 20, 2009 reveal that plaintiff had cancelled two appointments. ( Id. at 275)

In a Medical Source Statement completed on August 24, 2009, Dr. Bernstein concluded that plaintiff's " mental illness interferes with her ability to carry out work-related tasks." ( Id. at 248) Dr. Bernstein rated plaintiff's ability to carry out complex work instructions and to make judgments on complex work-related decisions as " markedly impaired." [10] Dr. Bernstein diagnosed plaintiff with " bipolar disorder-most recent episode depressed." ( Id. at 250) She further remarked: " I feel [plaintiff] has been unable to work for quite some time, but managed to keep working until now." ( Id.)

In an August 24, 2009 Psychiatric Assessment Form, Dr. Bernstein recorded plaintiff's chief complaint as " mood cycling with racing thoughts," sleep problems, depression and an inability to get out of bed. ( Id. at 251) Plaintiff was reported as taking the following prescription medications: Lamictal,[11] Effexor, and Depolate.[12] ( Id. at 251) Dr. Bernstein assessed plaintiff's attitude and behavior as appropriate. ( Id. at 252) Plaintiff's mood was dysthymic, affect constricted and mood congruent. Her thought processes were intact and she

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had good insight and fair judgment. Dr. Bernstein ranked her GAF at 55. ( Id. at 253) Dr. Bernstein concluded plaintiff " can manage her own interests but not in a work environment." ( Id. at 254)

On August 27, 2009, Janet Brandon, Ph.D. (" Dr. Brandon" ) conducted a psychiatric review. ( Id. at 255) She found the presence of " organic mental disorders" and " affective disorders." In the residual functional capacity assessment, Dr. Brandon ranked only three areas as " moderately limited," [13] the remaining 17 were assessed as " not significantly limited." ( Id. at 266) Dr. Brandon summarized, in part, plaintiff's functional capacity as follows:

She has a history (remote and current) of depressive disorder but was able to perform workplace tasks throughout her employment. Field Office noted no mental problems. She is diagnosed with a learning disability which appears to be the inability to think through a problem that for her is challenging. She cannot deal with stress too efficiently. Sometimes she does not follow instructions. ADL's are independent and sustaining. Evidence in file indicates that the limitations from [plaintiff's] condition do not preclude [her] from performing simple routine workplace tasks.

( Id. at 268) Dr. Brandon's findings were subsequently affirmed by Pedro M. Ferreira, Ph.D, M.B.A. ( Id. at 286)

On September 27, 2009, Dr. Bernstein composed the following letter:

Plaintiff is a patient under my care. Plaintiff has a diagnosis of Bipolar Disorder. Plaintiff applied for disability and was rejected. In my medical opinion, plaintiff is unable to sustain substantial work of any kind, now or in the foreseeable future. Her last two employment positions ended in termination due to her illness. Plaintiff has been more stable psychiatrically while currently unemployed. I believe plaintiff ...

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