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Neal v. Colvin

United States District Court, D. Delaware

March 26, 2015

JACQUELINE C. NEAL, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.

Sommer L. Ross, Esquire, of Duane Morris, L.L.P., Wilmington, Delaware. Of Councel: Eddy Pierre Pierre, Esquire, Law Offices of Harry J. Binder and Charles E. Binder, P.C., New York, New York. Counsel for Plaintiff.

Charles M. Oberly, III, Esquire, United States Attorney, District of Delaware, and Patricia A. Stewart, Esquire, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Philadelphia, Pennsylvania. Of Councel: Nora Koch, Esquire, Acting Regional Chief Counsel, and Rafael Melendez, Esquire, Assistant Regional Counsel, Office of General Counsel, Social Security Administration, Philadelphia, Pennsylvania. Counsel for Defendant.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

Jacqueline Neal ("plaintiff') appeals from a decision of Carolyn W. Colvin, the Commissioner of Social Security ("defendant"), denying her application for Supplemental Security Income benefits ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The court has jurisdiction pursuant to 42 U.S.C. § 405(g).[1]

Pending before the court are the parties' cross-motions for summary judgment. (D.I. 13, 15) For the reasons set forth below, plaintiffs motion will be denied and defendant's motion will be granted.

II. BACKGROUND

A. Procedural History

Plaintiff filed an application for SSI on December 22, 2010, alleging disability beginning on December 6, 2010, due to "post-traumatic stress disorder ('PTSD') and bipolar disorder." (D.I. 14 at 2; D.I. 11 at 21) After a hearing on March 25, 2013, the ALJ issued a decision on May 13, 2013 ("the 2013 decision") finding that plaintiff was not disabled. (D.I. 15 at 1) Plaintiff appealed to the Appeals Council, which issued an unfavorable opinion on May 24, 2013. ( Id. ) On November 26, 2013, plaintiff filed the present action for review of the 2013 decision.

B. Medical History

1. Mental health history before the relevant time period

Plaintiff was born in 1961 and was 49 years old on her alleged onset date. (D.I. 14 at 2) She is considered a younger individual under 20 C.F.R. 404.1563(c). Plaintiff has an 11th grade education and no past relevant work experience. (D.I. 11 at 33, 239) Plaintiff has been receiving treatment from Dr. Patricia Lifrak ("Dr. Lifrak"), a psychiatrist, since June 2008 (D.I. 11 at 320) and Dr. Samuel Romirowsky ("Dr. Romirowsky"), a licensed psychologist, since September 2009. ( Id. at 62, 478) The doctors have been coordinating their treatment efforts. ( Id. at 62)

On June 2008, Dr. Lifrak first met with plaintiff and diagnosed her with Bipolar II Disorder. ( Id. at 319-20) Dr. Lifrak's treatment note from that appointment indicates that plaintiff had grossly normal memory and cognition, fair judgment and insight, a logical and goal directed thought process, and that she had denied suicidal or homicidal ideation. ( Id. ) Dr. Lifrak indicated that plaintiff's global assessment of functioning (GAF) score was 65-70.[2] ( Id. ) She prescribed various medications to treat plaintiff's condition. ( Id. ) On January 22, 2010, Dr. Lifrak reported that plaintiff was "stable on meds, " "doing well, " and her sleep was good. ( Id. at 302) In September 2010, Dr. Romirowsky met briefly with plaintiff and noted that she was "very agitated" and was "too fearful to talk." ( Id. at 485) His notes reflect that plaintiff was frustrated her medications had not been helpful. ( Id. ) Dr. Romirowksy diagnosed plaintiff with post-traumatic stress disorder and bipolar disorder and recommended future appointments as necessary. ( Id. at 485)

2. Mental health history after the relevant time period

On December 8, 2010, plaintiff met with Dr. Lifrak and complained that Seroquel[3] had caused weight gain. ( Id. at 306) Dr. Lifrak replaced the Seroquel prescription with Topamax.[4] ( Id. ) Dr. Lifrak noted that "Celexa helped with her depression" and that she denied suicidal and homicidal ideation.[5] ( Id. ) Dr. Lifrak continued prescribing Celexa and Klonopin.[6] ( Id. ) On February 24, 2011, Dr. Romirowsky's consultation note indicates that plaintiff reported feeling "very anxious" and having panic attacks. ( Id. at 326) During this time, Dr. Romirowsky helped plaintiff complete a Function Report. ( Id. at 245-52) The report stated that plaintiff drove and visited her mother, but preferred not to shop for herself and rarely went outside due to panic attacks. ( Id. at 248) It listed plaintiff's hobbies as watching television and crocheting. ( Id. )

On March 22, 2011, plaintiff reported to Dr. Romirowsky that she felt "very agitated" and had "angry outbursts." ( Id. at 486) In April 2011, Dr. Romirowsky noted that plaintiff continued to experience persistent anxiety. ( Id. at 325) On May 2, 2011, Dr. Lifrak reported that plaintiff had to stop taking Topamax due to nose bleeds, but again recorded that she did well on Klonopin and Celexa. ( Id. at 330) Plaintiff denied suicidal and homicidal ideation and explained that she feels depressed without her medications. ( Id. ) Dr. Lifrak started plaintiff on Trazodone.[7] ( Id. ) Later in May 2011, Dr. Lifrak noted that the Trazodone made plaintiff depressed, suicidal, nauseated, and agitated, and discontinued that prescription. ( Id. at 329) Dr. Lifrak replaced that prescription with Depakote.[8] ( Id. ) In July 2011, Dr. Lifrak indicated that plaintiff's progress had "improved." ( Id. at 328) The treatment note states that she was "doing better, feels better, [is] calmer, [and] denies depression, suicidal thoughts" and homicidal ideation. ( Id. ) On August 17, 2011, Dr. Romirowsky noted that plaintiff was still upset, agitated, and depressed, and was fearful to leave her home. ( Id. at 480)

In September 2011, plaintiff completed a second Function Report. ( Id. at 260-67) She noted that she lives with friends in an apartment and periodically checks in on her mother. Id. She indicated that she cannot sleep without medication. ( Id. at 261) She reported that she has no problems with personal care, cooks for herself daily, completes housework, rarely leaves her house, is able to pay bills and handle accounts, and socializes with others by playing cards and dominos, and watching television. ( Id. at 260-64) In December 2011, plaintiff continued experiencing "extreme anxiety" and was "very volatile." ( Id. at 338) In February 2012, plaintiff again reported to Dr. Romirowsky that she was highly anxious, mistrustful of others, and continuing to experience panic attacks. ( Id. at 340) He wrote that plaintiff needed to attend counseling more regularly. ( Id. )

On December 9, 2012, Dr. Romirowsky completed a Pyschiatric/Psychological Impairment Questionnaire and diagnosed major depressive disorder, post-traumatic stress disorder, and dependent personality disorder. ( Id. at 341) He assessed a GAF score of 40 and a "poor" prognosis. ( Id. ) The Questionnaire also documented that plaintiff suffered from poor memory, sleep disturbance, mood disturbance, emotional liability, recurrent panic attacks, anhedonia or pervasive loss of interests, psychomotor agitation or retardation, paranoia or inappropriate suspiciousness, difficult thinking or concentrating, suicidal ideation or attempts, social withdrawal or isolation, intrusive recollections of a traumatic experience, persistent irrational fears, generalized persistent anxiety, and hostility and irritability. ( Id. at 342) Dr. Romirowsky opined that plaintiff would be incapable of tolerating even low stress work. ( Id. at 347)

Dr. Romirowsky indicated that plaintiff was markedly limited in her ability to remember locations and work-like procedures; carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule; maintain regular attendance and be punctual within customary tolerance; sustain ordinary routine without supervision; work in coordination with or proximity to others without being distracted by them; complete a normal work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral extremes; be aware of normal hazards and take appropriate precautions; travel to unfamiliar places or use public transportation; and set realistic goals or make plans independently. ( Id. at 344-46) He indicated that plaintiff was moderately limited in her ability to understand and remember one- or two-step instructions. ( Id. at 344)

On May 11, 2011, Aroon Suansilppongse, M.D., a state agency physician, reviewed plaintiff's medical evidence record and completed a Psychiatric Review Technique assessment. ( Id. at 115-16) Dr. Suansilppongse reported that plaintiff's affective and anxiety-related disorders resulted in mild restrictions of activities of daily living, moderate difficulties in maintaining social functioning and concentration, persistence, or pace, and one or two repeated episodes of decompensation, each of extended duration. ( Id. at 115) Dr. Suansilppongse reported that the evidence did not establish the presence of the "paragraph C" criteria of Medical Listings 12.04 or 12.06. ( Id. ) After reviewing the medical evidence record and a July 2009 psychological consultative examination report, Dr. Suansilppongse completed a Mental Residual Functional Capacity assessment and reported that plaintiff could perform simple work with infrequent contact with the public. ( Id. at 116-20)

At the administrative hearing, Dr. Romirowsky testified that plaintiff remained "highly anxious, actually sort of on the border of decompensation on a day-to-day basis, sometimes just on the healthier side of decompensation, but still with extreme debilitating anxiety and agitation." ( Id. at 62) He opined that plaintiff met the criteria of Medical Listing 12.04 and 12.06 as described in the Social Security regulations. ( Id. at 64, 69)

C. Administrative Hearing

1. Plaintiff's testimony

The administrative hearing took place on March 25, 2013. Plaintiff appeared, represented by counsel. ( Id. at 43) Plaintiff was 51 years old at the time of the hearing. ( Id. at 44) She has not worked since December 6, 2010. ( Id. at 46) At the time, plaintiff lived with her friend and her friend's husband. ( Id. ) She testified that she worked up until the date of onset, but had been fired from several jobs. ( Id. at 47) She explained that her condition caused her to experience depression, suffer panic attacks when around other people, and not be able to control her attitude. ( Id. at 51) Plaintiff described her personality as fine one minute, but would "fly[] off the handle" the next. ( Id. at 47) In her opinion, this behavior led to her several job terminations.

She first worked at "Transport Command" from 1998 to 2008 as a dishwasher, a host, and a waitress. ( Id. at 49) From 2008 to 2009, she worked as a machine operator for a temporary service. ( Id. ) She then worked at Popeye's, making biscuits and doing dishes. ( Id. ) After she left that job, she worked at Church's Village, a nursing home, where she took care of patients and cleaned. ( Id. ) Plaintiff stated that, presently, her only source of income was Medicaid and food stamps. ( Id. ) She is single and has no children. Plaintiff stopped driving about four years prior to the hearing and no longer has a license. ( Id. at 51-52) She uses public transportation. ( Id. at 52) She testified that she does all her own cooking, cleaning, laundry, and shopping. ( Id. ) She prefers to grocery shop in the middle of the night when the stores are not crowded. ( Id. ) In her spare time, she "like[s] to take her [roommate's] pet to the park" and "do[es] a lot of walking." ( Id. at 53) She "visit[s] [her] mother" in Newark, but "do[es not] do a lot of socializing with people." ( Id. ) She smokes approximately three cigarettes a day. ( Id. )

While she "ordinarily" takes medication, plaintiff discontinued her medications three months prior to the hearing, due to affordability concerns. ( Id. at 54-55) However, she has a medical card, which pays for almost all of the cost of the medication except for $5 or $10. ( Id. at 55) Plaintiff testified that she had not taken her medications on the date of the hearing. ( Id. at 48) She stated that she intends to eventually resume taking the medications. ( Id. at 56) She testified that life is "about the same" on the medications, except that she is "not as angry." ( Id. at 55) In some cases, certain combinations of medications caused sleepiness or an inability to function. ( Id. ) Other combinations made her violent or more depressed. ( Id. at 56) She is working with Dr. Lifrak to find the right combination of medications. ( Id. at 55) She testified that she has been seeing Dr. Lifrak once a month since 2009. ( Id. at 57) She sees Dr. Romirowsky on an as needed basis. ( Id. )

2. VE's testimony

At the hearing, the VE testified that, according to plaintiff's testimony, plaintiff has worked as a machine operator, which is unskilled and light[9] in exertion. Plaintiff also worked as a dishwasher, which the VE assessed as unskilled and at a medium[10] exertion level. The VE described plaintiff's waitressing work as light in exertion, with an SVP of 3, and semi-skilled. Plaintiff also worked at a nursing home, though not as a certified ...


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