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Chaney v. Berryhill

United States District Court, S.D. West Virginia, Charleston

March 31, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          John T. Copenhaver, Jr. United States District Judge.

         Pending are the objections filed on July 15, 2016, by plaintiff Jessica R. Chaney (“plaintiff”) to the magistrate judge's Proposed Findings and Recommendation (“PF&R”).

         I. Background

         A. Procedural History

         On 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.

         This 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.[1] 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 plaintiff's objections.

         Plaintiff 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.

         B. The Record Evidence

         Plaintiff is a thirty-three-year-old woman who resides in Wood County, West Virginia with her grandparents. Tr. at 39-40.

         The medical record indicates that plaintiff received outpatient mental health treatment from a number of sources.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.[2]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.

         On 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.

         On 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.

         On 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.

         On 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.

         On May 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.

         On May 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.

         On July 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.

         On 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 351.

         On 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.[3] 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 periods. Id.

         C. The ALJ's Decision

         On 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 ...

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