Durden v. Colvin

JACKIE DURDEN, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OFSOCIAL SECURITY, Defendant.

CASE NO. 1:15-cv-00118-SHR-GBC

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

January 25, 2016

(JUDGE RAMBO)

(MAGISTRATE JUDGE COHN)

REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL

Docs. 1, 12, 13, 16, 17, 20

REPORT AND RECOMMENDATION

I. Procedural Background

On April 16, 2012, Jackie Durden ("Plaintiff") filed as a claimant for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, 1181-1183f, with a date last insured of December 31, 2012,¹ and claimed an amended disability onset date of August 26, 2011. (Administrative Transcript (hereinafter, "Tr."), 13).

After the claim was denied at the initial level of administrative review, the Administrative Law Judge (ALJ) held a hearing on August 5, 2013. (Tr. 52-96).On August 8, 2013, the ALJ found that Plaintiff was not disabled within the meaning of the Act. (Tr. 32-49). On August 30, 2013, Plaintiff sought review of the unfavorable decision, which the Appeals Council denied on November 18, 2014, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 13-18).

On January 19, 2015, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) and pursuant to 42 U.S.C. § 1383(c)(3), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. (Doc. 1). On March 27, 2015, the Commissioner ("Defendant") filed an answer and an administrative transcript of proceedings. (Doc. 12, 13). On June 9, 2015, Plaintiff filed a brief in support of the appeal. (Doc. 16 ("Pl. Brief")). On June 29, 2015, the Court referred this case to the undersigned Magistrate Judge. On July 7, 2015, Defendant filed a brief in response. (Doc. 17 ("Def. Brief")). On October 12, 2015, Plaintiff filed a reply brief. (Tr. 20 ("Reply")).

II. Relevant Facts in the Record

A. Education, Age, and Vocational History

The relevant period begins on August 26, 2011, Plaintiff's alleged onset date, and ends on December 31, 2012, Plaintiff's date last insured. Supra note 1. Plaintiff was born in May 1961, and thus was classified by the regulations as a person closely approaching advanced age as of the last insured date of December31, 2012. 20 C.F.R. § 404.1563(d); (Tr. 47). Plaintiff graduated high school in 1979 (Tr. 62, 214) and obtained employment with the Pennsylvania Department of Transportation ("DOT"). (Tr. 62, 202, 214). Plaintiff entered the military in January of 1980 and was discharged in August of 1980. (Tr. 64, 329). She reported being discharged after a sexual assault and pelvic pain. (Tr. 64, 329).

Plaintiff returned to work at the DOT in July of 1981 and remained there for almost twenty-five years. (Tr. 202, 329). She worked in a position classified as a general clerk, a light, semi-skilled position. (Tr. 46-47, 214).The DOT reported that she took maternity leave in September of 2004 and "never came back." (Tr. 202). She was terminated from employment in March of 2005. (Tr. 202). Plaintiff reported in October of 2011 that "she had quit because she trusted that her child's father would take care of her," but left her child's father when her daughter was one and a half years old. (Tr. 297-98, 325). She explained that he became abusive after they moved in together and never divorced his first wife. (Tr. 297-98). She indicated in April of 2009 that she was single and lived with her four-year old daughter. (Tr. 818).

Medical records dated April 21, 2009, and June 19, 2010 note that Plaintiff reported working part time at a local newspaper. (Tr. 682, 781). She stoppedworking at the newspaper in August of 2010.² She earned $6,731.98 in 2008, $13,729.50 in 2009, and $9,312.50 in 2010. (Tr. 190, 193). As of May 8, 2012, she was also receiving $743.92 per month in retirement pension from the DOT. (Tr. 250). She received unemployment through May of 2012, when she "had exhausted all of the programs." (Tr. 58-59, 196). In 2011, Plaintiff applied for VA benefits due to physical and mental impairments. In January of 2012, Plaintiff's child's father was diagnosed with a brain tumor, and he passed away in March of 2012. Plaintiff assumed all the child-care duties. She obtained counsel to apply for Social Security benefits in March of 2012 and applied in April of 2012. Plaintiff testified and reported to medical providers that, on December 12, 2012, the VA awarded her a 70% disability rating. ("70% Rating").

B. Relevant Treatment History and Medical Opinions

1. Lebanon VA Medical Center: Andrea N. Raker, Social Worker; Dwight

L. Klopp, L.C.S.W.; Ronald S. Johnson, Ph.D.; Robert G. Stephens IV,

Ph.D.; Victoria M. Acker, P.A.-C.; Paul Tiger, M.D.; Elizabeth A.

Miller. P.A.-C; Shubha R. Acharya, M.D.; Katherine Mulligan, M.D.

In August of 2011, Plaintiff underwent examinations to determine her eligibility for Veterans' (VA) benefits (compensation and pension (C&P)) for pelvic pain, muscle spasms, frequent urination, PTSD, and depression. (Tr. 331-49). Plaintiff reported that she left military service after being medicallydischarged due to chronic pelvic pain. (Tr. 347). Ms. Miller noted a medical record from 1980 where Plaintiff reported constant suprapubic pain, and was admitted to the hospital on September 2, 1980. (Tr. 347). Examination and diagnostic surgery during that hospitalization indicated normal pelvis and appendix. (Tr. 347). Upon physical examination Ms. Miller did not note anything abnormal. (Tr. 348). Plaintiff reported she was experiencing multiple subjective symptoms of PTSD "quite a bit" or to an extreme degree. (Tr. 336). For the Beck Depression Inventory-II, Plaintiff's raw score was 42, which Dr. Stephen stated was consisted with severe depression. (Tr. 337).

Plaintiff treated with Dr. Johnson, Ms. Acker, and Dr. Tiger from October 9, 2011, through her date last insured in December of 2012. (Tr. 317, 329). She treated with venlafaxine. (Tr. 299, 318). She reported gastrointestinal side effects in November of 2011, but by December of 2011 she was compliant with medication and calmer. (Tr. 299, 318). She discussed her abusive relationship with her child's father/ex-boyfriend and reported problems with weight gain, sleep, flashbacks, irritability, motivation, anger, completing tasks, anxiety, socializing, hobbies, shutting out the world, trust, doing activities for fun, staying home in bed, and frequent nighttime urination that impairs her sleep. (Tr. 298, 314, 317, 318, 329, 475-80). "[Plaintiff] denie[d] problems concentrating, manic symptoms, suicide attempt or ideation, hallucinations, delusions, nightmares, obsessions, orcompulsions." (Tr. 298). At every session with Dr. Johnson, on October 9, 2011, October 21, 2011, January 26, 2012, May 7, 2012, June 18, 2012, August 6, 2012, September 17, 2012, October 11, 2012, November 5, 2012, and throughout December of 2012, he observed that:

[Plaintiff] showed no signs of disturbances of thought processes or thought content. she showed no signs of perceptual disturbances and did not describe any history of same. [H]er expressive and receptive communication were intact. Her grooming and hygiene were [within normal limits] and indicated appropriate ADL functioning. [S]he was dressed appropriately. she was interpersonally appropriate and did not show any signs of impulsivity.

(Tr. 305, 310-13, 318, 330, 469, 479-80). At every visit with Ms. Acker, she observed that Plaintiff:

[Had] good hygeine, [sic] dressed appropriately for weather and situation. Was pleasant and cooperative with interview and maintained good eye contact. Pt is alert, calm and Ox3...Speech is regular rate, rhythm and volume, spontaneous and goal directed. Memory is fair and judgement and insight are [fair]. Denies elusions [sic], SI/HI.

(Tr. 299, 319, 466, 476). Ms. Acker observed mild to moderate psychomotor agitation and depressed and anxious mood during some visits. (Tr. 299, 319, 476). Dr. Johnson observed depressed mood during some visits. (Tr. 305, 310-12, 465-64, 469, 474-75, 479-80).

In March of 2012, Plaintiff's ex-boyfriend/child's father died after being diagnosed with a brain tumor in January of 2012. (Tr. 288-91, 303-10). Plaintiff reported increased symptoms, including suicide ideation, through May of 2012,and requested additional anti-anxiety medication and emergency therapy. (Tr. 288-91, 303-10). Plaintiff reported that she was overwhelmed and that there is no one to help with the child-rearing anymore. (Tr. 306). She agreed to an increased medication dosage. (Tr. 306-09). Neither Ms. Acker nor Dr. Johnson noted significant differences on mental status examination. (Tr. 305, 307).

On October 24, 2012, Plaintiff stated "I'm actually feeling better and I usually take the clonazepam just once per day." (Tr. 465). Ms. Acker noted that Plaintiff was tolerating the venlafaxine increase without upset stomach and reported that it helped her mood because she felt less depressed, anxious and overwhelmed. (Tr. 466). Plaintiff stated that she was going to the gym routinely and trying to engage more with her child. (Tr. 466). Plaintiff reported that she was only taking clonazepam once on most days as didn't need a second dose, to which Ms. Acker told her it was fine not to take a second dose. (Tr. 466).

On November 5, 2012, Dr. Johnson noted that Plaintiff was "doing reasonably well." (Tr. 465). Plaintiff began weekly "Prolonged Exposure" ("PE") therapy.³ (Tr. 460-64). On December 14, 2012 and December 21, 2012, Plaintiff's mood and affect were normal and she denied suicidal ideation. (Tr. 449, 460).

2. Lebanon VA Medical Center Opinion Evidence

On August 26, 2011, Dr. Stephens completed an examining source⁴ medical opinion. Dr. Stephens opined that Plaintiff's GAF⁵ scores were "consistent with serious impairment in social and occupational functioning." (Tr. 333). Dr. Stephen indicated that Plaintiff has "[o]ccupational and social...