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Shank v. Berryhill

United States District Court, S.D. West Virginia, Huntington Division

January 3, 2018

VICTORIA ANN SHANK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert Magistrate Judge.

         This action seeks a review of the decision of the Commissioner of the Social Security Administration (hereinafter “Commissioner”) denying Plaintiff's application for supplemental security income (“SSI”) under Titles XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and was referred to the undersigned United States Magistrate Judge by standing order for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are the parties' cross motions for judgment on the pleadings, as articulated in their briefs. (ECF Nos. 13, 16).

         Having fully considered the record and the arguments of the parties, the undersigned respectfully RECOMMENDS that the presiding District Judge DENY Plaintiff's Motion for Judgment on the Pleadings, (ECF No. 13); GRANT Defendant's request to affirm the Commissioner's decision, (ECF No. 16); and DISMISS this action from the docket of the Court.

         I. Procedural History

         On March 17, 2014, Plaintiff Victoria Ann Shank (“Claimant”), completed an application for SSI, alleging a disability onset date of September 1, 2008 due to attention deficit disorder, bipolar disorder, and manic depressive disorder. (Tr. at 181, 198). The Social Security Administration (“SSA”) denied Claimant's application initially and upon reconsideration. (Tr. at 12). Claimant filed a request for an administrative hearing, which was held on June 15, 2015 before the Honorable Robert M. Butler, Administrative Law Judge (“ALJ”). (Tr. at 27-74). By written decision dated September 8, 2015, the ALJ found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 12-22). The ALJ's decision became the final decision of the Commissioner on November 15, 2016, when the Appeals Council denied Claimant's request for review. (Tr. at 1-4).

         Claimant timely filed the present civil action seeking judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). (ECF No. 1). The Commissioner subsequently filed an Answer opposing Claimant's complaint and a Transcript of Proceedings. (ECF Nos.5, 6). Claimant then filed a Brief in Support of Judgment on the Pleadings. (ECF No. 13). In response, the Commissioner filed a Brief in Support of Defendant's Decision to which Claimant filed a Reply. (ECF Nos. 16, 17). Consequently, the matter is fully briefed and ready for resolution.

         II. Claimant's Background

         Claimant was 15 years old at the time of her alleged onset of disability and 22 years old at the time of the ALJ's decision. (Tr. at 194). She has a tenth grade education and communicates in English. (Tr. at 197, 199). Claimant has never been employed; therefore, she has no past relevant work. (Tr. at 198).

         III. Summary of ALJ's Decision

         A claimant seeking disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). For purposes of SSI, a disability is defined as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A).

         The Social Security regulations establish a five-step sequential evaluation process for the adjudication of disability claims. If an individual is found “not disabled” at any step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. § 416.920(a)(4). The first step in the sequence is determining whether a claimant is currently engaged in substantial gainful activity. Id. § 416.920(b). If the claimant is not, then the second step requires a determination of whether the claimant suffers from a severe impairment. Id. § 416.920(c). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” Id. If severe impairment is present, the third inquiry is whether this impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of Part 404 of the Administrative Regulations (the “Listing”). Id. § 416.920(d). If so, then the claimant is found disabled and awarded benefits.

         However, if the impairment does not meet or equal a listed impairment, the adjudicator must assess the claimant's residual functional capacity (“RFC”), which is the measure of the claimant's ability to engage in substantial gainful activity despite the limitations of his or her impairments. Id. § 416.920(e). After making this determination, the fourth step is to ascertain whether the claimant's impairments prevent the performance of past relevant work. Id. § 416.920(f). If the impairments do prevent the performance of past relevant work, then the claimant has established a prima facie case of disability, and the burden shifts to the Commissioner to demonstrate, in the fifth and final step of the process, that the claimant is able to perform other forms of substantial gainful activity, given the claimant's remaining physical and mental capacities, age, education, and prior work experience. 20 C.F.R. § 416.920(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Commissioner must establish two things: (1) that the claimant, considering his or her age, education, skills, work experience, and physical shortcomings has the capacity to perform an alternative job, and (2) that this specific job exists in significant numbers in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         Here, at the first step of the sequential evaluation, the ALJ confirmed that Claimant had not engaged in substantial gainful activity since the date of Claimant's SSI application. (Tr. at 14, Finding No. 1). At the second step of the evaluation, the ALJ found that Claimant had the following severe impairments: “bipolar disorder, generalized anxiety disorder, attention deficit hyperactivity disorder, and personality disorder.” (Tr. at 14-15, Finding No. 2). As for the third inquiry, the ALJ found that Claimant did not have an impairment or combination of impairments that met or medically equaled any of the impairments contained in the Listing. (Tr. at 15-16, Finding No. 3). Accordingly, the ALJ determined that Claimant possessed:

[T]he residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except the claimant is limited to simple, routine and repetitive tasks in an environment free of fast paced production requirements, involving only simple work related decisions and routine workplace changes with no interaction with the general public and only occasional interaction with coworkers.

(Tr. at 17-20, Finding No. 4).

         At the fourth step, the ALJ determined that Claimant had no past relevant work. (Tr. at 20, Finding No. 5). Therefore, under the fifth and final inquiry, the ALJ assessed Claimant's age and education in combination with her RFC to determine her ability to engage in substantial gainful activity. (Tr. at 20-21, Finding Nos. 6-9). The ALJ noted that (1) Claimant was born in 1993 and was defined as a younger individual on the date the application was filed; (2) she had a limited education and could communicate in English; and (3) transferability of job skills was not material to the disability determination because Claimant had no prior relevant work. (Id., Finding Nos. 6-8). Considering these factors, Claimant's RFC, and the testimony of a vocational expert, the ALJ determined that Claimant could perform jobs that existed in significant numbers in the national economy, including unskilled work as a sorter, store laborer, price marker, and packager tagger. (Tr. at 21, Finding No. 9). Therefore, the ALJ found that Claimant was not disabled. (Tr. at 22, Finding No. 10).

         IV. Claimant's Challenge to the Commissioner's Decision

         Claimant raises two challenges to the Commissioner's decision. First, she contends that the ALJ erred in evaluating her credibility. (ECF No. 13 at 10-15). In particular, Claimant alleges that the ALJ relied only on the objective medical evidence when finding Claimant to be less than fully credible despite legal precedent requiring the ALJ to consider all of the evidence. (Id. at 13-15). According to Claimant, the ALJ “parsed the medical evidence” prepared after the date of the application, highlighting clinical notes that showed “slight improvement in symptoms” while “barely” mentioning Claimant's school records and failing to mention at all “her long history of mental health treatment prior to February 2014.” (Id. at 13).

         Second, Claimant asserts that the ALJ improperly declined to give deferential weight to the opinions of Claimant's treating psychiatrist, Dr. Anne Zappacosta. (Id. at 15-20). Citing to the regulations and rulings governing the weight to be given to a treating source's opinions, Claimant argues that the ALJ violated these mandates by undervaluing Dr. Zappacosta's RFC findings without providing good reasons for doing so. In Claimant's view, the ALJ looked only at Dr. Zappacosta's most recent clinical notes when assessing her opinions, which caused the ALJ to overlook the longitudinal history of Claimant's symptoms. Claimant indicates that she has had only “mixed success at maintaining control of her symptoms”; therefore, the ALJ's analysis was insufficient and his view of her impairments was inaccurate. (ECF No. 13 at 19).

         In response, the Commissioner argues that substantial evidence supports the ALJ's determination that Claimant's statements were not entirely credible. (ECF No. 16 at 9-12). The Commissioner contends that the ALJ considered much more than the objective medical evidence in making his credibility finding; such as, Claimant's statements, activities, and medication side effects. The Commissioner posits that the ALJ correctly concluded that Claimant was doing well, her symptoms were controlled, and she required mental health appointments on a less frequent basis. (Id. at 11-12).

         With respect to the opinions of Dr. Zappacosta, the Commissioner emphasizes the ALJ's authority to give less than deferential weight to a treating source's opinion when the opinion is not well supported by clinical evidence or is inconsistent with other substantial evidence. (Id. at 12). The Commissioner asserts that Dr. Zappacosta's RFC findings were clearly inconsistent with her own clinical records, which confirmed that Claimant had only moderate to mild symptoms, not the marked symptoms necessary to justify Dr. Zappacosta's extreme RFC limitations. (Id. at 13). The Commissioner notes that the ALJ obviously credited some of Dr. Zappacosta's opinions, because the ALJ included limitations in the RFC finding designed to address Claimant's mental functional deficits. The Commissioner adds that Claimant's argument concerning the longitudinal record is fallacious, because the longitudinal record supports the opposite conclusion. Rather than demonstrating a rocky course that persisted despite treatment, the clinical record reflects Claimant's gradual and sustained improvement over time as she complied with recommended therapies.

         V. Relevant Evidence

         The undersigned reviewed all of the evidence before the Court, including the records of Claimant's allegations, her parents' statements, and the health care examinations, evaluations, and treatment. The information that is most relevant to Claimant's challenges is summarized as follows.

         A. Statements of Claimant and Her Parents

         In an Adult Function Report prepared on March 26, 2014, Claimant stated that she lived with her parents and spent most of her day laying around and sleeping. (Tr. at 207-08, 214). She had pets that she fed, but relied on her parents to help her with their care. (Tr. at 208). Claimant attended to her own personal grooming, but had little interest in dressing and bathing. Her parents had to remind her to groom and take her medications. (Tr. at 209). Claimant was able to make quick snacks, but her mother did most of the cooking. Claimant occasionally washed the dishes, but did little else due to a reported lack of energy. (Tr. at 209-10). Claimant did not drive or go out alone, had anxiety attacks, avoided shopping, and found money management to be confusing. (Tr. at 210). Claimant stated that her only hobby was watching television, although she admitted to having online friends. (Tr. at 211). She denied being able to follow instructions or pay attention, explaining that she had attention deficit disorder. (Tr. at 211-12). Claimant indicated that she could not get along with her parents or teachers, which caused her to drop out of school. She complained of having depression and panic attacks. (Tr. at 213).

         Claimant's father, Michael Shank, completed a Third Party ADL form on April 28, 2014. (Tr. at 215-22). Mr. Shank stated that his daughter spent her days watching television, sleeping, and playing with her pets. (Tr. at 215). He felt that Claimant had been ill her entire life, indicating that she could not sleep due to anxiety, had little interest in her personal appearance, and did very little around the house. (Tr. at 216-17). Mr. Shank added that Claimant had a difficult time staying on task. (Tr. at 217-18). She did not venture outside on her own, had never driven, and infrequently accompanied her mother to the grocery store. (Tr. at 218). Claimant had some online friends and went to physician appointments; otherwise, she did not socialize. (Tr. at 219). Mr. Shank added that Claimant was easily upset, and stress exacerbated her psychological symptoms. (Tr. at 221).

         At the administrative hearing on June 15, 2015, Claimant testified that she had severe depression, which caused her to stay in bed once or twice every couple of weeks. (Tr. at 39). Claimant indicated that she had a few friends at school, but after dropping out, she lost touch with them. All of her current friends were people she met online. Claimant testified that she spent most of her day on the computer. She did not venture out of the house very often. Claimant testified that she did work three part-time days at Suboxicon, a comic book convention held in October 2014 at Huntington's Big Sandy Arena. (Tr. at 40-41). Claimant testified that she enjoyed the convention, but experienced a great deal of stress and had a panic attack on the first day. (Tr. at 42).

         Claimant stated that she had suffered from emotional problems since childhood. (Id.). Her psychiatrist, Dr. Anne Zappacosta, wrote prescriptions to manage Claimant's symptoms and counseled her once each month. (Tr. at 42-43). Claimant testified that her appointments with Dr. Zappacosta had decreased with time; however, Dr. Zappacosta had recently left the area, so Claimant was going to have to start treatment with another psychiatrist. (Tr. at 43-44).

         Claimant's mother also testified at the hearing. Claimant's mother stated that Claimant would not be able to manage a full-time job, because she was “unable to get up at a set time.” (Tr. at 55). According to Claimant's mother, Claimant missed a great deal of school due to her inability to get up and out of bed. Claimant's mother agreed that part of Claimant's problem was lack of motivation, but she also suffered with psychological issues since grade school, and those issues likely caused many of the difficulties experienced by Claimant. (Tr. at 55-57). Claimant's mother testified that she had two other children, who did not exhibit behavioral problems like Claimant, and Claimant's parents had struggled for years trying to find treatment that would help her. (Tr. at 56). Claimant's mother expressed concern over how Claimant would live when her parents died, noting that Claimant showed no desire to seek employment. (Tr. at 56-57). Claimant's mother confirmed that Claimant had no driver's license and only opened a bank account in the course of applying for SSI. (Tr. at 59). She stated that Claimant tended to be combative and disagreeable and spent little face-to-face time with people who were not family members. (Tr. at 58-60). Claimant's mother felt Claimant had improved with Dr. Zappacosta's treatment, but added that Claimant still had severe emotional issues and would require medications for the rest of her life. (Tr. at 60). Claimant's mother confirmed that Dr. Zappacosta originally saw Claimant one time per month, but had reduced the visits to one every three months, because she felt the medications were working. (Tr. at 65).

         B. School Records

         At the age of 9 years, 9 months, Claimant underwent a psychological evaluation ordered by the Cabell County Board of Education due to Claimant's lack of effort and achievement scores that were significantly lower than her assessed cognitive ability. (Tr. at 309-14). At that time, Claimant had good attendance at school and made friends with those in her peer group. (Tr. at 310). Despite receiving average IQ scores on the Wechsler Intelligence Scale for Children, subtests indicated that Claimant had significant problems with concentration. (Tr. at 310-11). She was receiving special education due to poorly sustained concentration and effort. (Tr. at 313). However, Claimant admitted that she stayed up past midnight watching television, which made her tired in the morning. (Id.). She did not participate in any sports and preferred sedentary activity. The examining psychologist opined that Claimant's test scores and evaluation were suggestive of attention deficit disorder, or some other medical or emotion problem with similar symptomatology. (Tr. at 314).

         Claimant's school records demonstrate a longstanding need for Individualized Education Plans. (Tr. at 247-326). According to school records, Claimant had great difficulty passing the ninth grade due to truancy and lack of motivation. (Tr. at 260). Claimant was evaluated at River Park Hospital and was diagnosed with bipolar disorder and depression. (Id.). She began taking medication and attending Innerchange, a program offered by Prestera Centers for Mental Health (“Prestera”). Claimant was unable to stay in the program for the recommended six weeks, however, due to insurance issues. (Id.).

         In an Individualized Education Plan prepared in ninth grade, the evaluators identified absenteeism as Claimant's biggest obstacle to success in school. (Tr. at 261). Indeed, Claimant missed as many as half of all instructional days each six-week period. (Tr. at 273). In addition to absenteeism, Claimant showed little interest in changing her approach to school. (Tr. at 261). She refused to engage in interviews or personal interest inventories to identify career paths; instead, she advised that her plan was to quit school at age sixteen. The evaluators opined that Claimant had the ability to complete her course work and pass classes, noting that her grades on core subjects at Innerchange, an alternative school offered by Prestera Centers for Mental Health (“Prestera”), were above average. They recommended that she continue in co-taught courses until she achieved sophomore status and then consider attending classes at the Cabell County Voc-Tech Center for further career training. (Tr. at 262). Of note, at that time, Claimant was placed in general education, rather than special education courses. (Tr. at 269).

         C. ...


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