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Steiner v. Berryhill

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

January 14, 2019

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


          Cheryl A. Eifert, United States 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 a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. 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. 6, 7). The undersigned has fully considered the evidence and the arguments of counsel. For the following reasons, the undersigned respectfully RECOMMENDS that Plaintiff's request for judgment on the pleadings be DENIED, the Commissioner's request for judgment on the pleadings be GRANTED, the Commissioner's decision be AFFIRMED, and this case be DISMISSED and removed from the docket of the Court.

         I. Procedural History

         On December 8, 2010, Plaintiff, Terence Troy Steiner (“Claimant”), completed an application for DIB, alleging a disability onset date of July 31, 2007 due to “bipolar, depression, anxiety, panic attacks, [and] sleep disorder.” (Tr. at 124-25, 169). The Social Security Administration (“SSA”) denied Claimant's application initially and upon reconsideration. (Tr. at 54-58, 64-66). Claimant filed a request for an administrative hearing, which was held on May 2, 2012 before the Honorable Charlie Paul Andrus, Administrative Law Judge (“ALJ Andrus”). (Tr. at 31-51). By written decision dated July 3, 2012, ALJ Andrus found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 14-30). The Appeals Council denied Claimant's request for review and Claimant filed a civil action seeking judicial review pursuant to 42 U.S.C. § 405(g). The District Court concluded that ALJ Andrus's decision did not reflect full consideration of Claimant's mental and physical impairments and their functional effects. (Tr. at 1169-87). Therefore, the District Court reversed the Commissioner's final decision denying Claimant's DIB application and remanded the case to the agency for further administrative proceedings. (Id.).

         On remand, the Appeals Council assigned Claimant's application to the Honorable Jerry Meade, Administrative Law Judge (the “ALJ”), and ordered the ALJ to offer Claimant the opportunity for another hearing, take any further action needed to complete the record, and issue a new decision. (Tr. at 992, 1167). On June 6, 2017, Claimant appeared for a hearing before the ALJ. (Tr. at 1114-40). By written decision dated November 17, 2017, the ALJ found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 989-1010). Claimant did not seek review from the Appeals Council. See (ECF No. 6 at 3). Instead, Claimant timely filed the present civil action seeking judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 1). The Commissioner filed an Answer and a Transcript of the Administrative Proceedings, (ECF Nos. 4, 5), and both parties filed memoranda in support of judgment on the pleadings. (ECF Nos. 6, 7). Consequently, the issues are fully briefed and ready for resolution.

         II. Claimant's Background

         Claimant was 36 years old on his alleged onset date and 40 years old on his date last insured. He has a Bachelor of Arts degree in psychology with additional credits toward a Master's Degree in physiology, and he communicates in English. (Tr. at 168, 1120). Claimant previously worked as a restaurant host; activities coordinator/recreation aide in a nursing home; telemarketer; and a telemarketing supervisor. (Tr. at 46).

         III. Summary of ALJ's Decision

         Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable impairment which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(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. § 404.1520. The first step in the sequence is determining whether a claimant is currently engaged in substantial gainful employment. Id. § 404.1520(b). If the claimant is not, then the second step requires a determination of whether the claimant suffers from a severe impairment. Id. § 404.1520(c). 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 the Administrative Regulations No. 4 (the “Listing”). Id. § 404.1520(d). If the impairment does, then the claimant is found disabled and awarded benefits.

         However, if the impairment does not meet or equal a listed impairment, the adjudicator must determine 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. § 404.1520(e). After making this determination, the fourth step is to ascertain whether the claimant's impairments prevent the performance of past relevant work. Id. § 404.1520(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, as the fifth and final step in the process, that the claimant is able to perform other forms of substantial gainful activity when considering the claimant's remaining physical and mental capacities, age, education, and prior work experiences. 20 C.F.R. § 404.1520(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).

         When a claimant alleges a mental impairment, the SSA “must follow a special technique at every level in the administrative review, ” including the review performed by the ALJ. 20 C.F.R. § 404.1520a. First, the ALJ evaluates the claimant's pertinent signs, symptoms, and laboratory results to determine whether the claimant has a medically determinable mental impairment. Id. § 404.1520a(b). If such impairment exists, the ALJ documents his findings. Second, the ALJ rates and documents the degree of functional limitation resulting from the impairment according to criteria specified in 20 C.F.R. § 404.1520a(c). Third, after rating the degree of functional limitation from the claimant's impairment(s), the ALJ determines the severity of the limitation. A rating of “none” or “mild” in the first three functional areas (activities of daily living, social functioning, and concentration, persistence or pace) and “none” in the fourth (episodes of decompensation) will result in a finding that the impairment is not severe unless the evidence indicates that there is more than minimal limitation in the claimant's ability to do basic work activities. Id. § 404.1520a(d)(1). Fourth, if the claimant's impairment is deemed severe, the ALJ compares the medical findings about the severe impairment and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment meets or is equal to a listed mental disorder. Id. § 404.1520a(d)(2). Finally, if the ALJ finds that the claimant has a severe mental impairment, which neither meets nor equals a listed mental disorder, the ALJ assesses the claimant's residual function. Id. § 404.1520a(d)(3).

         Here, the ALJ determined as a preliminary matter that Claimant met the insured status for disability insurance benefits through March 31, 2011. (Tr. at 995, Finding No. 1). At the first step of the sequential evaluation, the ALJ confirmed that Claimant had not engaged in substantial gainful activity from July 31, 2007, his alleged onset date, through his date last insured. (Id., Finding No. 2). At the second step of the evaluation, the ALJ found that Claimant had the following severe impairments: “osteoarthritis of the left ankle; history of right tibial pillion fracture, status post open reduction internal fixation; bursitis of the left hip; history of L2 compression fracture; lumbar sprain; leg-length discrepancy; bipolar disorder; generalized anxiety disorder; panic disorder; and alcohol dependence.” (Id., Finding No. 3). The ALJ also considered Claimant's alleged sleep disorder but determined that it was not a medically determinable impairment. (Tr. at 995). Under 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 995-97, Finding No. 4). Accordingly, the ALJ determined that Claimant possessed:

[T]he residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c). He can occasionally climb ladders, ropes, or scaffolds. He can occasionally stoop, kneel, crouch, and crawl. He can frequently balance and climb ramps/stairs. He must avoid concentrated exposure to vibrations and hazards such as moving machinery and unprotected heights. The claimant can understand, remember, and carry out simple instructions. He can have occasional changes in the work setting. He can have no interaction with the public. He can have occasional interaction with co-workers and supervisors.

(Tr. at 997-1002, Finding No. 5).

         At the fourth step, the ALJ determined that Claimant could not perform any of his past relevant work. (Tr. at 1002, Finding No. 6). Therefore, the ALJ reviewed Claimant's past work experience, age, and education in combination with his RFC to determine his ability to engage in other substantial gainful activity. (Tr. at 1001-02, Finding 7 through 10). The ALJ considered that (1) Claimant was born in 1970 and was defined as a younger individual age 18-49 on his date last insured; (2) Claimant had at least a high school education and could communicate in English; and (3) transferability of job skills was not an issue because the Medical-Vocational Rules supported a finding that Claimant was “not disabled, ” regardless of his transferable job skills. (Tr. at 1002, Finding 7 through 9). Taking into account these factors, Claimant's RFC, and the testimony of a vocational expert, the ALJ determined that Claimant could perform other jobs that existed in significant numbers in the national economy, including unskilled work as a store laborer, furniture cleaner, price marker, routing clerk, table worker, and sorter. (Tr. at 1003, Finding No. 10). Consequently, the ALJ concluded that Claimant was not disabled as defined by the Social Security Act and was not entitled to benefits. (Id., Finding No. 11).

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

         Claimant contends that the Commissioner's decision is not supported by substantial evidence because the ALJ failed to (1) conduct a proper subjective symptom analysis; (2) properly weigh the opinion of Claimant's treating psychiatrist, Rownak Afroz, M.D.; and (3) accept the vocational expert's testimony that a person cannot work if the person is off-task 20 percent or more of the workday. (ECF No. 6). In response to Claimant's arguments, the Commissioner contends that substantial evidence supports the ALJ's conclusions that Claimant's statements were not entirely consistent with the evidence and that Dr. Afroz's opinion was entitled to little weight. (ECF No. 7).

         V. Relevant Evidence

         The undersigned has reviewed all evidence of record and summarizes the evidence that is most relevant to the issues in dispute below:

         A. Treatment Records

         A little over a year before his alleged onset of disability, Claimant was admitted to the psychiatric unit at Flagler Hospital in St. Augustine, Florida on May 23, 2006 after he presented to the emergency room reportedly feeling very depressed and suicidal. (Tr. at 260). The attending psychiatrist diagnosed Claimant with bipolar disorder without psychotic features. (Id.). Claimant was prescribed lithium and “improved considerably” over the subsequent six to seven days. (Id.). On May 30, 2006, Claimant was discharged. He was noted to be alert, oriented, quite cooperative, and obviously very bright and talented. He exhibited no signs of delusions, mostly normal thoughts, and a good mood. (Tr. at 260-61). Claimant was instructed to continue taking lithium and to follow up with group activity and recreational therapy. (Id.).

         On November 14, 2006, Claimant was again admitted to the psychiatric unit at Flagler Hospital after an argument with his partner, who called the police and reported that Claimant was suicidal. (Tr. at 249). Claimant initially presented to the emergency room screaming and yelling in a very intoxicated state with a blood alcohol content of 0.269. (Id.). It was suspected that he took an overdose of Inderal and Klonopin, but he stated that he had only taken three or four Klonopin tablets to “get some sleep.” (Id.). Claimant denied being suicidal and stated that he was doing very well on lithium and staying quite stable. (Id.). However, he explained that he had trouble finding a job and wanted to move to Arizona to find work, which upset his partner and caused a fight. (Id.). Claimant denied regular use of alcohol or other drugs and stated that he had been sober since “last May.” (Id.). Claimant was evaluated by the attending psychiatrist, Gregory Dent, M.D., who noted that Claimant's speech was clear after “sobering up;” his mood was euthymic; he had an appropriate and full range of affect, including humor; his thought processes were clear and coherent; he absolutely denied any suicidal intent or active suicidal thoughts; and his cognition was intact. (Id.). Dr. Dent's assessment was that Claimant suffered from alcohol intoxication with irrational behavior, which was resolved; bipolar disorder by history; and alcohol abuse. (Tr. at 250). Dr. Dent found that Claimant did not meet the criteria for an involuntary psychiatric admission, noting that Claimant had plans for his future and intended to discontinue the relationship with his partner, which he believed would solve the stress and fighting. (Id.). Claimant planned to stay with his parents until he moved to Arizona. (Id.). Claimant was discharged the same day that he entered the hospital. (Id.).

         On April 5, 2007, Claimant was admitted to the psychiatric unit at Flagler Hospital for a third time after his mother called authorities stating that Claimant, who had been drinking alcohol and taking Klonopin, threatened to overdose during an argument with her. (Tr. at 239). Claimant was evaluated the next morning by psychiatrist, Robert G. Baringer, M.D., who stated that Claimant had a normal mental status; seemed stable; was relevant, coherent, oriented, and clear; denied any suicidal ideation, intention, or impulse; had intact memory and good intelligence; and showed no evidence of any major mental illness. (Id.). Dr. Baringer found that Claimant did not meet the criteria for involuntary hospitalization and released Claimant to follow up with his outpatient providers. (Id.).

         On July 23, 2007, Claimant saw Nicole Wilson, M.A., L.P.C., L.S.W., for individual therapy at Prestera Center. Claimant stated that he recently moved from Maine where he was living with friends. (Tr. at 435). He was currently homeless and living at the City Mission. (Id.). Claimant was working on securing government-assisted housing. (Id.). Rapport was easily established at the visit and a plan was developed regarding the issues to focus on in therapy. (Id.). Claimant expressed that he wished to work on his relationships. (Id.).

         Claimant saw Ms. Wilson again on August 7, 2007. He was still living in the City Mission, but Claimant stated that he was “so excited” because his article was published in a newspaper in Florida. (Tr. at 436). During his next therapy appointment on August 27, 2007, Claimant told Ms. Wilson that he was “not feeling the same way about things, ” almost like he was “changing and becoming a different person.” (Tr. at 437). At Claimant's subsequent visit with Ms. Wilson on September 11, 2007, Claimant advised that he had moved into his own apartment and that he was doing well. (Tr. at 438). Claimant stated that his “usual triggers” did not cause him any “bipolar episodes.” (Id.). He felt much more in control of his life and even “tried to start a few of his old triggers to see what would happen and nothing did.” (Id.). On October 5, 2007, Claimant had “no real problems to report” to Ms. Wilson. (Tr. at 439). He continued to feel much better and had no major “bipolar incidents.” (Id.). On November 28, 2007, Claimant told Ms. Wilson that he believed that lithium was kicking in and he felt better. (Tr. at 440). He was angry that his previous provider allowed him to run out of medications and was writing a grievance to report the issue. (Id.). On December 5, 2007, Claimant told Ms. Wilson that he believed that his ex-partner was stalking him and he was afraid. (Tr. at 441). Thus, he was considering “leaving the area.” (Id.).

         However, Claimant saw psychiatrist, Nika Razavipour, M.D., two days later on December 7, 2007. (Tr. at 461). Claimant reported feeling “fine.” (Id.). His diagnoses were bipolar disorder; alcohol dependence; and anxiety disorder, not otherwise specified. (Id.). Dr. Razavipour renewed Claimant's prescriptions for lithium, clonidine, and lisinopril. (Id.). He discontinued Claimant's prescription for trazodone due to lack of efficacy and started Claimant on a trial of Seroquel. (Id.).

         Claimant saw Dr. Razavipour again on January 11, 2008. (Tr. at 463). Claimant was doing very well on lithium and denied having any complaints or mood problems. (Id.). Claimant felt that he was stable enough to start working again, possibly as a substitute teacher. (Id.). Dr. Razavipour renewed Claimant's prescriptions for lithium and Seroquel. (Id.). On February 4, 2008, Claimant told Ms. Wilson that things seemed to be “looking up;” his bipolar disorder seemed to be under control; he was stable on medications; and he was excited about a potential new relationship. (Tr. at 442). Claimant followed up with Dr. Razavipour for medication management on March 7, 2008. (Tr. at 598-99). Claimant stated that he felt great. (Tr. at 598). Claimant's attitude was cooperative; his affect was euthymic with a full range of expressions; his speech was clear and coherent; his thought processes were goal directed; his memory and concentration were intact; and his insight and judgment were good. (Id.). Claimant was continued on lithium and Seroquel and scheduled to return to Dr. Razavipour in three months. (Tr. at 599). On March 31, 2008, Claimant told Ms. Wilson that his bipolar disorder seemed to be under control, and he was doing well on lithium. (Tr. at 444). He was possibly moving to Ashland, Kentucky to live with his significant other. (Id.). On May 1, 2008, Claimant told Ms. Wilson that he felt like “things were falling into place” and that he was “feeling better and making progress in [his] life.” (Tr. at 445). He stated that he was happy and excited about “the way that [his life] was going.” (Id.). He was politically active and was helping a friend with his greenhouse and enjoyed the work. (Id.). Ms. Wilson assessed that Claimant was probably ready for discharge from therapy. (Id.).

         On June 6, 2008, Claimant had his final session with Ms. Wilson. (Tr. at 432, 447). Claimant stated that “things fell through” with his new love interest, but that he was “ok with it.” (Id.). He denied any manic episodes or thoughts or any impulsive behaviors. (Tr. at 447). Claimant continued to enjoy working in the greenhouse, and his mental status was within normal limits. (Id.). Claimant was moving to Florida, but Ms. Wilson noted that Claimant successfully completed therapy before leaving. (Tr. at 432). Claimant also saw Dr. Razavipour on June 6, 2008. (Tr. at 462). Claimant was feeling fine, was stable, and was sleeping well, sometimes even without taking Seroquel. (Id.). Consistent with what Claimant told Ms. Wilson, he stated that he was working in a greenhouse and planning to move to Florida to find work. (Id.). Claimant was no longer taking clonidine or lisinopril. (Id.). Dr. Razavipour renewed Claimant's prescriptions for lithium and Seroquel. (Id.). Claimant followed up with Dr. Razavipour again on August 10, 2008. He was continued on lithium and started on trazadone. (Tr. at 597).

         On November 2, 2008, Claimant was voluntarily admitted to the psychiatric unit at St. Mary's Medical Center in Huntington, West Virginia after he presented to the emergency room with suicidal ideation. (Tr. at 288). Claimant was evaluated by psychiatrist, Kenneth M. Fink, M.D. (Id.). Claimant stated that “things went downhill” since he stopped taking his prescribed medications, including lithium, two weeks earlier when he became unable to pay for his prescriptions. He admitted to self-medicating with alcohol. (Id.). Claimant related that he had been living in St. Augustine, Florida, but returned to Huntington two or three weeks ago. (Tr. at 289). In terms of his history, he stated that he had gone through 14 jobs in the past two or three years. (Id.). He reported being a “child prodigy” who graduated from the North Carolina School of Arts, worked for a Belgian dance company, earned a Bachelor of Arts degree in psychology from Marshall University, and earned credits toward a master's degree that was not conferred because he had some disagreement and “walked out.” (Id.). On examination, Claimant was oriented in all spheres, but his mood was depressed, and his affect was flat. (Tr. at 290). He did not exhibit signs of psychosis or delusions; his memory and judgment were intact; his eye contact was marginal-to-fair; and he was cooperative. (Tr. at 291). Claimant remained in the hospital for over a week and received individual and group therapy, as well as medication adjustments. (Tr. at 382). Dr. Fink evaluated Claimant again on November 10, 2008. (Id.). Claimant was alert and oriented and his mood was improved. (Id.). He was discharged in stable condition with discharge diagnoses of mood disorder, not otherwise specified; provisional bipolar disorder, not otherwise specified; anxiety disorder, not otherwise specified; episodic alcohol dependence; nicotine dependence; and remote cocaine abuse that was in remission. (Tr. at 383).

         Claimant followed up with Ms. Wilson the day after his discharge from St. Mary's Medical Center. (Tr. at 450). Claimant stated that he was glad that he went to the hospital and that his medications were stabilizing again. (Id.). He explained that he ended up in the hospital after he went on a “drinking binge” because his lithium had been out of balance, which rendered him manic for quite some time. (Id.).

         The next month, Claimant saw Dr. Razavipour on December 4, 2008. Dr. Razavipour took note of the fact that Claimant had been in Florida off of his medications, became very manic, was drinking excessively, and then became suicidal. (Tr. at 464). Dr. Razavipour's diagnoses of Claimant remained bipolar disorder; alcohol dependence; and anxiety disorder, not otherwise specified. (Id.). Dr. Razavipour prescribed Tegretol, Seroquel, and propranolol. (Id.). Dr. Razavipour reevaluated Claimant on December 18, 2008. (Tr. at 465). Claimant ...

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