United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
are the objections filed on July 15, 2016, by plaintiff
Jessica R. Chaney (“plaintiff”) to the magistrate
judge's Proposed Findings and Recommendation
August 20, 2015, plaintiff instituted this civil action
pursuant to 42 U.S.C. § 405(g). Plaintiff seeks judicial
review of the Commissioner's administrative decision
denying plaintiff's application for disability insurance
benefits and supplemental security income.
action was referred to United States Magistrate Judge Omar J.
Aboulhosn for consideration, pursuant to 28 U.S.C. §
636(b)(1)(B) and standing order in this district. The
magistrate judge filed his PF&R on July 5, 2016. In that
document, the magistrate judge recommends that
plaintiff's motion for judgment on the pleadings be
denied, that the motion for judgment on the pleadings filed
by the Commissioner be granted, that the Commissioner's
final decision be affirmed, and that this action be dismissed
from the docket. See PF&R, 19-20. On July 15,
2016, as noted, plaintiff timely filed her objections to the
PF&R. The Commissioner has not filed a response to
objects to the magistrate judge's determination that the
Administrative Law Judge's (“ALJ”)
explanation that the lack of weight he gave to the medical
opinion of Dr. Priscilla Leavitt, Ph.D. was supported by
substantial evidence and to the magistrate judge's
determination that consideration of certain updated medical
opinions would not have changed the ALJ's decision and
hence was not necessary. See Plaintiff's Objections to
PF&R (“Obj.”), 2-4 and 4-6.
is a thirty-three-year-old woman who resides in Wood County,
West Virginia with her grandparents. Tr. at 39-40.
medical record indicates that plaintiff received outpatient
mental health treatment from a number of sources.
was treated by Dr. Amelia McPeak, D.O., of Westbrook Health
Services from June 2010 until March 2011. Tr. at 278-89. On
June 7, 2010, Dr. McPeak diagnosed plaintiff with generalized
anxiety disorder, noting that plaintiff had some symptoms of
depression and worsening anxiety. Id. at 278-79. On
August 9, 2010, Dr. McPeak noted that plaintiff still
struggled with significant anxiety, particularly when
traveling in a car. Id. at 280-81. On September 20,
2010, Dr. McPeak reported that plaintiff was
“paralyzed, stuck in feelings of anxiety and
fear.” Id. at 282-83. On October 18, 2010, Dr.
McPeak noted that while plaintiff regularly only took 60
milligrams of Cymbalta, instead of the 90 milligram daily
dose she recommended, “her anxiety is under the best
control that it has ever been.” Id. at 284-85.
On February 28, 2011, plaintiff reported continued anxiety
and that she felt “very tense, very nervous, [and] has
trouble driving because she experiences anxiety while
driving.” Id. at 286-87. Due to
plaintiff's continued anxiety, Dr. McPeak prescribed
BuSpar. Id. On March 31, 2011, plaintiff visited Dr.
McPeak in a pleasant mood, without any current feelings of
anxiety or depression. Id. at 288. Because she was
stable, Dr. McPeak continued her current medication.
Id. at 289.
was treated by Dr. Ryan Lowers, M.D. on June 20, 2011.
Id. at 290-93. She presented with anxiety.
Id. He noted that she had agoraphobia, anxiety
driving cars, anxiety with crowds, and generally avoids
traffic. Id. For the past several months she had not
traveled from home apart from going to work. Id.
Because her anxiety and panic disorder were not well
controlled, Dr. Lowers changed plaintiff's medication to
Klonopin and Pristiq. Id. at 292. On August 3, 2011,
in a follow up visit to Dr. Lowers, plaintiff described her
anxiety as “severe and unchanged.” Id.
at 298. Despite this, Dr. Lowers reported that her symptoms
were relieved by medications, and did not change her current
medications. Id. at 298-300.
saw Dr. Priscilla Leavitt, Ph.D., of the Counseling and
Wellness Center five times between August 10, 2011 and
January 9, 2012. Id. at 338, 342, 366, 343, 344. On
August 10, 2011, she noted that plaintiff had a twelve-year
history of panic attacks moving towards agoraphobia and that
plaintiff was unable to drive more than a few blocks or stay
alone. Id. at 361-64. Dr. Leavitt also noted that
she performed hypnosis and psychotherapy on plaintiff.
Id. She assessed a Global Assessment of Functioning
(“GAF”) score of 45.Id. Plaintiff saw
Dr. Leavitt again on August 17, 2011. Id. at 365.
She noted that plaintiff's level of functioning was
better and assessed a GAF score of 47. Id. Plaintiff
saw Dr. Leavitt again on September 1, 2011. Id. at
366. She found plaintiff's level of functioning to be
unchanged and that her stressors were worse and assessed a
GAF score of 48. Id.
October 12, 2011, plaintiff presented to Dr. Liza Schaffner,
M.D., of the Counseling and Wellness Center upon referral by
Dr. Lowers. Id. at 321. Plaintiff reported that she
“becomes extremely panicky in a motor vehicle, ”
and that she became so stressed in the weeks before her
brother's wedding that she “worried [her]self
sick” and was unable to attend it. Id. She
stated that she liked her job but did not feel supported by
her boss. Id. Plaintiff stated that she experienced
the worst panic attacks at work when she had to fill the
ATMs. According to Dr. Schaffner, because she had to fill the
ATM again soon, “it [was causing her] an extreme amount
of anxiety.” Id. Additionally, plaintiff
started having panic attacks while at home. Id. Dr.
Schaffner diagnosed her with panic disorder with agorphobia,
consider generalized anxiety disorder, and depressive
disorder NOS. Id. at 324. She assessed a GAF score
of 50. Id. at 324, 373, 386. According to a letter
sent to Dr. Lowers from Dr. Schaffner that same day,
plaintiff's “panic attacks have increased in
frequency and intensity over the past several months and she
has become much more avoidant in recent weeks. Her mood is
lower as well.” Id. at 320. Dr. Schaffner
believed that psychotherapy would help plaintiff “gain
mastery over her panic attacks.” Id.
November 15, 2011, plaintiff saw Dr. Leavitt for counseling,
with a continuing focus on anxiety attacks. Id. at
343. According to Dr. Leavitt, plaintiff's level of
functioning was much worse at this time. Id. On
November 30, 2011, plaintiff saw Dr. Schaffner after a change
of medication. Id. at 317. Since the change,
plaintiff was doing better at work and feeling less anxious.
Id. Although she filled the ATMs twice, she was
overwhelmed with learning she would have to fill them on a
weekly basis. Id. at 318. Dr. Schaffner assessed a
GAF score of 53 and continued her medications but added
valium. Id. at 318. On January 1, 2012, plaintiff
sent a letter to her employer requesting accommodations from
“travel[ing] to fill, fix or check ATM's.”
Id. at 268. On January 9, 2012, plaintiff saw Dr.
Leavitt, who noted that her stressors and level of
functioning were much worse. Id. at 368-69.
January 18, 2012, plaintiff reported to Dr. Schaffner that
she was in a negative work environment and had to fill the
ATMs on a weekly basis. Id. at 314. Plaintiff also
learned she was on probation because of a situation where she
took too long of a break when her boyfriend visited her at
lunchtime. Id. She stated that she had not visited
her grandfather since Christmas because she always has a
severe panic attack when leaving his home. Id.
Plaintiff had a severe panic attack at work and “[h]er
chest was hurting, she became breathless” and her
boyfriend wanted her to go to the emergency room but she did
not. Id. Dr. Schaffner assessed a GAF score of 55,
continued her medications and encouraged plaintiff to try to
work with her employer. Id.
April 10, 2012, plaintiff presented for a consultative
evaluation and mental status examination before Dr. Frank
Bettoli, Ph.D., a state agency licensed psychologist.
Id. at 307-313. Plaintiff drove herself to the
evaluation but had her boyfriend ride with her and had her
grandparents come to the interview in order to manage her
anxiety. Id. at 307-08. Plaintiff stated that she
“lives in fear” of being by herself, being in
cars, and being in public places or stores. Id. at
308. When she gets anxiety, her heart rate increases, she
“feel[s] like she is going to die, has difficulty
concentrating, feels as though she needs to flee, has an
upset stomach, sweats and sometimes hyperventilates.”
Id. Dr. Bettoli acknowledged that while plaintiff is
capable of doing household chores, she “is primarily
limited in her ability to travel outside of her home due to
her anxiety and panic.” Id. at 310. Dr.
Bettoli diagnosed plaintiff with panic disorder with
agoraphobia and assessed her prognosis as fair/guarded.
Id. at 310-11.
3, 2012, Dr. Ann Logan, Ph.D., a state agency consultant,
gave an opinion that plaintiff's anxiety disorder was not
severe and did not meet or equal a listing level impairment.
Id. at 79-80. Dr. Logan did state that
plaintiff's anxiety resulted in mild difficulties in
maintaining social functioning, and no difficulties in
maintaining daily activities, concentration, persistence or
pace, and no episodes of decompensation. Id. On
August 18, 2012, Dr. Carl G. Hursey, Ph.D. affirmed Dr.
Logan's opinion. Id. at 93-94.
8, 2012, plaintiff presented to Dr. Schaffner for the first
time since January 2012. Id. at 328. Since being
terminated from her job at the credit union, Dr. Schaffner
found that plaintiff had become more isolative, much more
avoidant and could not stand to be by herself because of her
fear of having a panic attack when no one is there to calm
her down. Id. at 329. Plaintiff felt that the
“structure of the job was helpful and that at least it
got her out of the house.” Id. at 330. Dr.
Schaffner encouraged her grandmother's efforts to do
things rather than to avoid them. Id. Dr. Schaffner
diagnosed panic disorder with agoraphobia, generalized
anxiety disorder, depressive disorder NOS, and assessed a GAF
score of 57. Id. at 329.
11, 2012, plaintiff saw Dr. Schaffner, reporting that she had
been in a panic attack since before she arrived for the
appointment. Id. at 326. Dr. Schaffner discontinued
Ativan, prescribed Xanax, and increased the dosage of Zoloft.
Id. at 327.
October 1, 2013, plaintiff saw Cherrie L. Cowan, FNP-BC at
Wirt County Health Services, Association, Inc., to become a
new patient there. Id. at 346-53. Ms. Cowan assessed
major depression, recurrent; severe, recurrent major
depression; and generalized anxiety disorder. Id. at
January 6, 2014, Dr. Leavitt completed a form Mental
Impairment Questionnaire on which she stated she saw
plaintiff four times between August 10, 2011 and January 9,
2012. Id. at 407. According to Dr.
Leavitt, plaintiff canceled several appointments because of
her anxiety and did not seek further treatment after she was
fired from her job. Id. at 407. Dr. Leavitt found
that plaintiff was oriented in all spheres, but had many
symptoms including: anhedonia, decreased energy, generalized
persistent anxiety, mood disturbance, difficulty thinking or
concentrating, pathological dependence or passivity,
persistent disturbances of mood or affect, apprehensive
expectation, emotional withdrawal or isolation, persistent
fear, and recurrent severe panic attacks. Id. at
409. She assessed moderate limitations in maintaining
concentration, persistence, or pace; maintaining attention
and concentration for extended periods; performing activities
within a schedule, maintaining regular attendance, and being
punctual within customary tolerances; working in coordination
with or proximity to others without being distracted by them;
sustaining an ordinary routine without special supervision;
making simple work-related decisions; asking simple questions
or requesting assistance; getting along with co-workers or
peers without distracting them or exhibiting behavioral
extremes; and setting realistic goals or making plans
independently of others. Id. at 410, 412-14. Dr.
Leavitt assessed marked limitations in plaintiff's
ability to interact with the general public; respond
appropriately to changes in the work setting; travel to
unfamiliar places or use public transportation; and complete
normal workday and workweek without interruption from
psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest
January 27, 2014, the ALJ held a hearing with plaintiff and
her counsel present. Id. at 37. On March 21, 2014,
the ALJ issued a decision denying plaintiff's request for
benefits. Id. at 20-30. At steps one and two, the
ALJ determined that plaintiff had not engaged in substantial
gainful activity since January 25, 2012 as the result of the
severe impairments of panic disorder and generalized anxiety
disorder, and the non-severe impairment of irritable bowel
syndrome. Id. at 23. At step three, the ALJ
concluded that plaintiff did not suffer from an impairment
listed in 20 C.F.R. § 404, Subpt. P., App. 1.
Id. However, he noted that plaintiff had ...