Hyer v. Astrue

Filing 21

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 10/28/2014. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

SUSAN HYER,
Plaintiff,

v.
CAROLYN W. COLVIN,
Defendant.

)
)
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) Civ. No. 12-591-SLR
)
)
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)

Angela Pinto Ross, Esquire of Doroshow, Pasquale, Krawitz & Bhaya, Wilmington,
Delaware. Counsel for Plaintiff.
Charles M. Oberly Ill, Esquire, United States Attorney, District of Delaware, and
Alexander L. Cristaudo, Esquire, Special Assistant United States Attorney, Office of the
General Counsel, Social Security Administration, Philadelphia Pennsylvania. Of
Counsel: Eric P. Kressman, Esquire, Regional Chief Counsel, Region Ill and Allyson
Jozwik, Esquire, Assistant Regional Counsel, Office of General Counsel, Social
Security Administration, Philadelphia, Pennsylvania. Counsel for Defendant

MEMORANDUM OPINION

October~'

2014
Dated:
Wilmington, Delaware

R~~TJUDGE
I. INTRODUCTION
Susan Hyer ("plaintiff) appeals from a decision of Carolyn W. Colvin, the
Commissioner of Social Security ("defendant"), 1 denying her application for disability
insurance benefits ("018") under Title II of the Social Security Act, 42 U.S.C. §§ 401433. (D.I. 1) Plaintiff has filed a motion for summary judgment asking the court to
remand for further proceedings. (0.1. 15,16, 20) Defendant has filed a cross-motion for
summary judgment, requesting the court to affirm her decision and enter judgment in
her favor. (0.1. 18, 19) The court has jurisdiction over this matter pursuant to 42 U.S.C.

§ 405(g). 2
II. BACKGROUND
A. Procedural History
Plaintiff filed a protective claim for 018 in April 2009, asserting disability as of
January 2, 2009, because of bipolar and major depression. (D.I. 13 at 160) Her claim
was denied initially and after reconsideration. (Id. at 79-84, 86-90) Plaintiff requested a

1

Carolyn W. Colvin became the Commissioner of Social Security on February 13,
2013, after this proceeding was initially filed. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Carolyn W. Colvin replaced the previous Commissioner,
Michael J. Astrue, as the defendant in this case.
2

Under § 405(g),

[a]ny individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party ... may obtain a
review of such decision by a civil action commenced within sixty days after
the mailing to him of notice of such decision .... Such action shall be
brought in the district court of the United States for the judicial district in
which the plaintiff resides ....
42 U.S.C. § 405(g).

hearing before an Administrative Law Judge ("ALJ"). A hearing was held on October
19, 2010. (Id. at 34-78) Plaintiff, represented by counsel, appeared and testified.
Vocational expert Tony Melanson ("VE") also testified. (Id. at 34-78)
In a decision dated November 8, 2010, the ALJ found that plaintiff had the
severe impairment of depression with a bipolar component. (Id. at 21) The ALJ further
found that plaintiff retained the residual functional capacity (RFC") 3 for employment and
was not disabled. (Id. at 23-28) The Appeals Council considered plaintiffs objections
to the ALJ's decision and denied her request for review on March 14, 2012. (Id. at 1-6)
Having exhausted her administrative remedies, plaintiff filed a civil action on May 11,
2012, seeking review of the final decision. (D.I. 1)

B. Factual Background
The record medical evidence reflects that in August 2008, at the age of 44,
plaintiff commenced treatment with Deborah Bernstein, M.D. ("Dr. Bernstein"), a
psychiatrist. (D.I. 13 at 280) Progress notes reveal that, at age 28 and while working
as a receptionist, plaintiff experienced depression. (Id.) She was prescribed
Trazodone 4 and resumed working some time later. Plaintiff reported feeling
depressed, irritable and unable to control her emotions and spending sprees. (Id.) Dr.
Bernstein diagnosed major depression and mood cycling with episodes of racing

3

RFC is the ability to work despite physical and/or mental limitations. 20 C.F.R. §
404.1545(a).
4

Trazodone is used to treat major depressive disorder. See http://drugs.com/
trazodone.html (Last visited October 6, 2014).

2

thoughts. Dr. Bernstein increased plaintiffs dosage of Effexor, 5 which was successful
in decreasing plaintiffs feelings of hopelessness, but interfered with her sleep. (Id. at
279) Notes from September 22, 2008 indicate that plaintiffs mood was stable, with a
decrease in mood cycling. (Id. at 279) During an October 16, 2008 appointment,
plaintiff reported that her mood was "completely stable." (Id. at 281)
In November 2008, plaintiff started psychotherapy treatment with Joan
Chatterton, RN, LCSW, CADC ("Ms. Chatterton"). 6 (Id. at 199-206) In a biopsychosocial evaluation form, Ms. Chatterton described plaintiff as having a "history of
mood stabilization problems" and as having a depressed mood with "a high degree of
irritability, poor concentration, some expressed hopelessness," with no evidence of
current suicidal intent. (Id. at 199) Ms. Chatterton also recorded that plaintiff had two
panic attacks that occurred on unspecified dates, several years prior. (Id. at 200)
Plaintiff had problems with anxiety in some work settings, but no phobias, trauma or
dissociate states were detected. Although some degree of "suspiciousness" was
reported, there were no paranoid statements. Ms. Chatterton assessed plaintiffs short
term memory as "impaired" and long term memory as "difficult to retrieve." She
characterized plaintiffs impulse control and frustration tolerance as "poor." (Id. at 201)
The presence of binge eating, late in the evening, resulting in a weight gain of 60-75 lbs

5

Effexor is an antidepressant. See http://www.drugs.com/effexor.html (Last
visited on October 6, 2014).
6

According to Ms. Chatterton, Dr. Bernstein "provided the initial evaluation and
continues to prescribe and actively monitor plaintiffs medications. Dr. Bernstein meets
with plaintiff on a periodic basis for ongoing medication management." (Id. at 318)
Contemporaneously, Ms. Chatterton (a registered nurse and clinical social worker)
provides individual psychotherapy for plaintiff. (Id.)

3

was noted. (Id. at 204) Ms. Chatterton's diagnosed plaintiff with "bipolar disorder, type
1" and "major depressive disorder." She assessed plaintiffs Global Assessment
Functioning ("GAF") 7 score at 52, with a past GAF of 70. (Id. at 206) Ms. Chatterton
recommended a consultation with a neuro-psychiatrist for complete assessment,
weekly psychotherapy sessions, and family therapy.
Dr. Bernstein's notes dated January 12, 2009 reflect that plaintiff had recently
lost her job, but did not suffer any symptoms of depression and was "doing well." (Id. at
281) Dr. Bernstein recommended that plaintiff continue taking her medications and
return in March for a follow-up appointment. (Id.) During a March 29, 2009
appointment, plaintiff complained to Dr. Bernstein of "mild anhedonia," with no other
depression symptoms. (Id.)
Psychotherapy notes dated March 31, 2009 depict plaintiff as "very defensive"
about her boyfriend and easily agitated by Ms. Chatterton's suggestion that the
relationship take a slower course. (Id. at 297)

7

"The GAF scale is a metric used by the American Psychiatric Association to
assess an individual's psychological, social and occupational functioning." Saucedo v.
Astrue, 2011 WL 3651790, at *4 (D. Del. 2011). A "GAF score of 21-30 suggests a
serious impairment in communication and judgment, or a severe inability to function."
McNatt v. Barnhart, 464 F. Supp.2d 358, 361 fn.3 (D. Del. 2006). "A GAF score of 4150 indicates serious symptoms or any serious impairment in social, occupational, or
school functioning." Lee v. Colvin, 2014 WL 2586935, at *2 fn. 1 (E.D. Pa. 2014). A
rating between 51 and 60 on the GAF scale indicates either "moderate symptoms (e.g.
flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g. few friends, conflicts with peers or coworkers)." American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders, Text Revision, 34 (41h ed. 2000).

4

Progress notes dated April 14, 2009 reflect that Ms. Chatterton called several
times to discuss rescheduling appointments that plaintiff had previously cancelled. (Id.
at 298) Progress notes taken on May 4, 2009 indicate that plaintiff's depression
symptoms decreased in intensity in response to an increase in the dosage of Effexor.
(Id. at 281) In a letter dated May 4, 2009, Dr. Bernstein wrote:
Plaintiff is a patient under my care. It is my professional opinion,
that due to plaintiff's mental health disorder, she is unable to perform
work-related mental activities, including activities relating to
understanding and memory, sustained concentration and
persistence, social interaction and adaptation.
(Id. at 208) During an appointment on July 7, 2009, plaintiff complained to Dr.
Bernstein about a reduction in sleep and an increase in mood cycling. (Id. at 282) Dr.
Bernstein found plaintiff "stabilized," without additional complaints.
Dr. Richard Ivins, Ph.D. ("Dr. Ivins"), a clinical neuro-psychologist, conducted a
consultative psychological examination on July 8, 2009. (Id. at 212-15) Plaintiff
reported having a "mental collapse" during a semester at college, resulting in her
leaving school and returning home to work as a waitress. (Id. at 212) She experienced
another emotional breakdown in 1992, while working for a law firm. She was diagnosed
with major depressive disorder. Plaintiff reported that she had never been hospitalized
for psychiatric reasons. (Id. at 212) She sees a psychiatrist for medication
management and a nurse practitioner/social worker for psychotherapy.
As a result of the mental status examination, Dr. Ivins found that plaintiff
"appeared to be quite overweight" and was fairly well-spoken during the interview. Her
"stream of thinking was good and she was able to answer the questions fairly well." (Id.

5

at 212-13) She described having difficulty focusing and experiencing depression, which
goes up and down. No delusional thinking was noted. She was oriented, with good
remote and past memory recall. Plaintiff reported that her attention and concentration
were mildly impaired. Her "verbal abstract reasoning was quite good, and she was able
to interpret several proverbs." (Id. at 213) She had difficulty with math problems,
especially multiplication and division. Plaintiff's stated that "her impulse control is good"
and that she is now "better able to control it," however, she sometimes becomes
"verbally hostile." (Id. at 213) Dr. Ivins concluded that plaintiff's responses seemed
reliable. He diagnosed her as having major depressive disorder, recurrent, with a GAF
of 50 and a guarded prognosis. (Id. at 213) Dr. Ivins assessed plaintiff as competent to
manage her own funds.
With respect to plaintiff's functional capacity, Dr. Ivins rated plaintiff's ability to
understand simple primarily oral instructions as "mild," 8 with mild limits in carrying out
instructions. (Id. at 214-14) He characterized as "moderate" 9 plaintiff's abilities to
sustain work performance and attendance, cope with pressures associated with
ordinary work, and to perform routine repetitive tasks.
Ms. Chatterton's progress notes from July 2009 reflect that plaintiff cancelled her
previous psychotherapy session because she was away on vacation. (Id. at 299)

8

"[S]uspected impairment of slight importance which does not affect ability to
function." (Id. at 215)
9

"[A]n impairment which affects but does not preclude ability to function." (Id. at

215)

6

Progress notes dated August 20, 2009 reveal that plaintiff had cancelled two
appointments. (Id. at 275)
In a Medical Source Statement completed on August 24, 2009, Dr. Bernstein
concluded that plaintiff's "mental illness interferes with her ability to carry out workrelated tasks." (Id. at 248) Dr. Bernstein rated plaintiff's ability to carry out complex
work instructions and to make judgments on complex work-related decisions as
"markedly impaired." 10 Dr. Bernstein diagnosed plaintiff with "bipolar disorder- most
recent episode depressed." (Id. at 250) She further remarked: "I feel [plaintiff] has
been unable to work for quite some time, but managed to keep working until now." (Id.)
In an August 24, 2009 Psychiatric Assessment Form, Dr. Bernstein recorded
plaintiff's chief complaint as "mood cycling with racing thoughts," sleep problems,
depression and an inability to get out of bed. (Id. at 251) Plaintiff was reported as
taking the following prescription medications: Lamictal, 11 Effexor, and Depolate. 12 (Id. at
251) Dr. Bernstein assessed plaintiff's attitude and behavior as appropriate. (Id. at
252) Plaintiff's mood was dysthymic, affect constricted and mood congruent. Her
thought processes were intact and she had good insight and fair judgment. Dr.

10

Listed as moderately impaired: (1) the ability to make judgments on simple
work-related decisions; and (2) understand and remember complex instructions. (Id. at
248)
11

Among its uses, Lamictal is used to "delay mood episodes in adults with bipolar
disorder (manic depression)." See http://www.drugs.com/lamictal.html (last visited on
October 23, 2014).
12

0ne of the uses of Depakote is to "treat manic episodes related to bipolar
disorder (manic depression) and to treat migraine headaches." See
http://www.drugs.com/depakote.html (Last visited on October 23, 2014).

7

Bernstein ranked her GAF at 55. (Id. at 253) Dr. Bernstein concluded plaintiff "can
manage her own interests but not in a work environment." (Id. at 254)
On August 27, 2009, Janet Brandon, Ph.D. ("Dr. Brandon") conducted a
psychiatric review. (Id. at 255) She found the presence of "organic mental disorders"
and "affective disorders." In the residual functional capacity assessment, Dr. Brandon
ranked only three areas as "moderately limited," 13 the remaining 17 were assessed as
"not significantly limited." (Id. at 266) Dr. Brandon summarized, in part, plaintiff's
functional capacity as follows:
She has a history (remote and current) of depressive disorder but was
able to perform workplace tasks throughout her employment. Field
Office noted no mental problems. She is diagnosed with a learning
disability which appears to be the inability to think through a problem
that for her is challenging. She cannot deal with stress too efficiently.
Sometimes she does not follow instructions. AOL's are independent
and sustaining. Evidence in file indicates that the limitations from
[plaintiff's] condition do not preclude [her] from performing simple routine
workplace tasks.
(Id. at 268) Dr. Brandon's findings were subsequently affirmed by Pedro M. Ferreira,
Ph.D, M.B.A. (Id. at 286)
On September 27, 2009, Dr. Bernstein composed the following letter:
Plaintiff is a patient under my care. Plaintiff has a diagnosis of Bipolar
Disorder. Plaintiff applied for disability and was rejected. In my medical
opinion, plaintiff is unable to sustain substantial work of any kind, now or
in the foreseeable future. Her last two employment positions ended in
termination due to her illness. Plaintiff has been more stable psychiatrically
while currently unemployed. I believe plaintiff would only be able to work
very part-time with very frequent breaks and with many illness-related
work absences.
13

The three were: (1) the ability to understand and remember detailed
instructions; (2) the ability to carry out detailed instructions; and (3) the ability to
maintain attention and concentration for extended periods. (Id. at 266)

8

(Id. at 269)

On October 5, 2009, Ms. Chatterton wrote a letter to the Social Security
Administration concerning a reconsideration of plaintiff's denial of benefits. (Id. at 271)
She had seen plaintiff for 12 therapy sessions, up to that point, which showed
emotional deregulation, mood swings, defensiveness with external blame, limited
receptivity to feedback for change, compulsive overeating/compulsive shopping and low
stress tolerance. (Id. at 270-71) She noted that plaintiff experiences "extreme mood
swings during which she is either hypo-manic (forgetting appointments and becoming
overwhelmed) or highly depressed (not getting out of bed, experiencing migraines and
missing appointments due to inability to leave the house)." (Id. at 270)

Ms. Chatterton

stated that plaintiff's treatment had "been interrupted numerous times" due to her
difficulty in addressing "numerous somatic complaints and emotions issues." (Id.) She
opined that plaintiff "would benefit greatly" from receiving disability benefits while
engaged in treatment of her mental health problems. (Id. at 271)
Progress notes dated October 6, 2009 suggest that, in response to an
appointment cancellation in September, Ms. Chatterton discussed the importance of
consistency in therapy and the need to attend all scheduled sessions. (Id. at 275) On
October 27, 2009, plaintiff reported a decrease in hand tremors. (Id. at 276) Progress
notes dated November 4, 2009 reveal that plaintiff's mood was "brighter and more goal
directed." (Id.) On January 20, 2010, plaintiff cancelled a scheduled appointment.

(Id. at 301) During a February 9, 2010 therapy session, plaintiff was feeling "useless"
and hopeless. Progress notes of February 18, 2010 reveal that plaintiff was having

9

difficulty finding the correct word to express her thoughts. (Id. at 301) On February 28,
2010, plaintiff's difficulty with verbalization had improved. She reported that she was
continuing to work out at the YMCA (Id. at 302)
During a March 16, 2010 therapy session, plaintiff said she was working on
starting a job search. (Id. at 302) Notes dated March 23, 201 O reveal that plaintiff was
developing and practicing what to say to employers when calling for job opportunities.
On April 20, 2010, plaintiff reported seeing Dr. Bernstein for, inter alia, an evaluation of
her prescription medications. (Id. at 339) Ms. Chatterton observed that plaintiff was
having migraines and that her affect was flat. On April 29, 2010, plaintiff indicated she
was recently depressed and was sleeping during the day. (Id. at 340) She was
concerned about her finances and was having problems sleeping. Plaintiff intended to
start taking walks when the weather was good.
Progress notes dated May 6, 2010 reflect that plaintiff's sleep problems had
improved, but she was feeling stressed over the prospect of her boyfriend's daughters
visiting over the summer. (Id. at 340) On May 11, 2010, plaintiff told Ms. Chatterton
about an hand injury she suffered after falling. During a May 18, 2010 therapy session,
plaintiff was experiencing conflict with her mother, who was spending more time with
and helping plaintiff. As a result, plaintiff felt depressed and unable to express her
feelings.
On May 27, 2010, Ms. Chatterton conducted a family therapy session with
plaintiff and her mother to address their problems and formulate a plan. Progress notes
dated June 10, 2010 indicate that plaintiff did not appear for a scheduled appointment.

10

During a June 15, 2010 appointment, plaintiff told Ms. Chatterton that she missed the
previous appointment because she forgot and "overslept." (Id. at 341) Plaintiff
expressed continued stress over the impending visit of her boyfriend's children. At their
July 8, 2010 therapy session, plaintiff said she was trying to supervise her boyfriend's
children, but found it highly stressful, resulting in plaintiff retreating to bed. During an
August 12, 2010 appointment, plaintiff said the children had returned to their home, but
she was extremely tired.
In a Medical Source Statement dated August 25, 2010, Ms. Chatterton stated
that she had 37 therapy sessions with plaintiff. (Id. at 321) Ms. Chatterton diagnosed
plaintiff with bipolar type 1 and obesity. She assessed plaintiff's GAF at 55. (Id.) Ms.
Chatterton found the following symptoms present: (1) poor memory; (2) appetite
disturbance with weight change; (3) sleep disturbance; (4) emotional !ability; (5)
anhedonia or pervasive loss of interest; (6) social withdrawal or isolation; (7) decreased
energy; (8) difficulty thinking or concentrating; (9) somatization unexplained by organic
disturbance; (10) hostility and irritability; and (11) pathological dependence or passivity.

(Id. at 321-322) Ms. Chatterton listed plaintiff's medication side effects as lethargy,
hand tremor, slowed cognitive processing and difficulty with word finding. (Id. at 323)
She remarked that plaintiff over focuses on medical complaints and "frequently cancels
appointments due to cold/flu and migraine symptoms." (Id. at 323) She noted that
plaintiff's mother has financial guardianship over plaintiff. (Id. at 324)
Ms. Chatterton completed a Psychiatric Review Technique form on August 25,
2010, indicating that plaintiff has mood disturbances, emotional !ability and impaired

11

impulse control. (Id. at 326) Ms. Chatterton noted that plaintiff has moderate
restrictions on activities of daily living, moderate difficulties maintaining social
functioning, marked difficulties in concentration, persistence or pace in a work
environment and three episodes of decompensation, each of extended duration. (Id. at
335)
On September 1, 2010, Ms. Chatterton wrote a letter summarizing plaintiff's
psychotherapy treatment. (Id. at 318-320) She assessed plaintiff's current GAF at 55,
and her highest GAF in the past year at 59. (Id. at 318) Ms. Chatterton remarked that
plaintiff had extreme mood swings, with brief periods of emotional stabilization. (Id. at
319) She observed improvement in plaintiff's ability to identify mood changes as well
as "some strengthening of her capacity to seek help with symptoms," instead of
retreating to bed. (Id.) Ms. Chatterton added that plaintiff's progress has been
"complicated by frequent interpersonal crisis and mood destabilization." (Id.) She
noted that plaintiff is compliant with medication, attends therapy, and has accepted her
diagnosis.
On October 12, 2010, Dr. Alexandra Landen, D.O., examined plaintiff for
migraine headaches. (Id. at 342) Dr. Landon recommended switching one of plaintiff's
medications in order to treat the migraines and eliminate her hand tremors.

C. Administrative Hearing
1. Plaintiff's testimony
Plaintiff testified that she born on November 12, 1963 and was 46 years of age
at the time of the hearing. (Id. at 38) She completed high school. (Id. at 38) She

12

weighs 242 pounds and her weight increased by 100 pounds over the previous 18
months because of the prescription medications. (Id. at 39) Plaintiff is unmarried and
has resided with her fiance for two years. (Id. at 40)
Plaintiff was last employed on January 2, 2009. Prior to that time, she worked as
a receptionist starting in 1990 to June 1999 when she left to take a position as an
administrative support assistant which she held until January 2007. (Id. at 40-41) From
July 2007 to January 2009, plaintiff worked as a customer service representative. (Id.
at 41-42) She testified about having difficulties performing her responsibilities, and
struggled concentrating and dealing with the stress of the busy office. (Id. at 44) She
reported becoming "very snippy" with her manager and co-workers, resulting in some
type of "trouble" or correction. (Id. at 51-52) The job ended because she was not
"getting things." (Id. at 44)
She testified that she started seeing a therapist and a psychiatrist in 2008, prior
to stopping work. (Id. at 44-45) Plaintiff was in the process of finding a different
psychiatrist because her Medicaid insurance was no longer accepted. She has been
seeing the therapist, Ms. Chatterton, for over two years. (Id. at 45)
Plaintiff stated that she was currently unable to work because there were days
that she could not get out of bed, days when she could not concentrate, and days when
she just did not feel like doing anything. (Id. at 46) She does not have the energy to get
out of bed and feels "like what's the point" when there is nothing to do. (Id. at 47) One
of her prescription medications (Depakote) causes tremors in both hands, which
interferes with plaintiffs ability to write, use utensils, hold glasses and the remote, and

13

to use zippers and buttons. (Id. at 46-47) Because Depakote is effective in treating
plaintiff's mood swings, her doctor does not want to change the medication. Other
medication side effects that plaintiff experiences are problems concentrating and blurry
vision. (Id. at 59) Plaintiff also experiences migraine headaches and extreme fatigue.

(Id. at 48)
Plaintiff testified that she sleeps during the day because she is unable to sleep at
night due to a rapid cycling disorder, which makes her "brain hurt" because "it does not
shut off." (Id. at 49) She watches television in bed and can remain focused on a
program for about 20 minutes before using the remote to "flip the channels" to
something else. (Id. at 50)
She avoids being around people and does very little socializing. (Id. at 52, 6263) She has been in a relationship (and lived) with her fiance for two years. (Id. at 40)
About once a month, plaintiff has lunch or does something else with a girlfriend. She
admits yelling at and becoming irritated with family members. (Id. at 50-51) She said
that she showers and gets dressed every two days. (Id. at 53) Plaintiff does not cook,
clean, or do laundry on a daily basis. (Id. at 54) She cooks, mainly using the
microwave. (Id. at 54) Her mother comes over about twice a month to assist plaintiff
with house cleaning. (Id. at 56) She does not drive because it makes her nervous. (Id.
at 54) She shops for groceries with her fiance.
She described "mood cycling" as going "from very up one minute and down the
next minute, and it can go from pleasant to extremely unpleasant and that can happen
within minutes of someone asking [plaintiff] something." (Id. at 57-58) She testified to

14

having destructive, unhealthy relationships with men, and being suspicious of other
people. (Id. at 53, 60-61) She feels like her family blames her for her problems over
which she has no control. (Id. at 61) She has not seen her 22 year old daughter for
about a year. (Id. at 62) Although plaintiff's medications help, she still has mood
swings. (Id. at 58-59) She has missed therapy appointments because she was not
feeling well or was unable to get out of bed. (Id. at 60) She can walk 20 feet, lift 10
pounds, stand 10-15 minutes and sit for Yi hour. (Id. at 65-66)
Plaintiff further testified that she collected unemployment benefits beginning in
January 2009 and represented (in unemployment benefit forms) that she was able to
work full-time and that she did in fact look for work. (Id. at 67-68) After receiving notice
that she should not have received unemployment benefits, plaintiff started the process
of repaying those funds. (Id. at 70-71)

2. VE's testimony
Following plaintiff's testimony, the ALJ consulted VE Tony Melanson. (Id. at 71)
In determining whether jobs existed in significant numbers in the regional and national
economies that plaintiff could perform given her RFC, the ALJ posed a hypothetical
question to the VE. (Id. at 72-73) In response, the VE testified that an individual with
such a restricted vocational profile could nonetheless still perform a representative
sample of jobs, including officer helper, security monitor, and clerical sorter, all of which
exist in significant numbers in the regional and national economies. (Id. at 73-74) The
VE further testified that a person who missed two days a month would be
unemployable. (Id. at 77)

15

l

?

D. The ALJ's Findings
The ALJ made the following findings:
1. [Plaintiff] meets the insured status requirements of the Social Security
Act through December 31, 2013.
2. [Plaintiff] has not engaged in substantial gainful activity since January 2,
2009, the alleged onset date (20 C.F.R. 404.1571 et seq.).
3. [Plaintiff] has the following severe limitations: depression with a bipolar
component (20 C.F.R. 404.1520(c)).
4. [Plaintiff] does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 C.F.R.
Part404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525 and
404.1526).
5. After careful consideration of the entire record, the undesigned finds
that [plaintiff] has the residual functional capacity to perform sedentary
work as defined in 20 C.F.R. 404.1567(a) except she is limited to simple
routine unskilled jobs; low concentration, low memory, low stress, no
decision making, limited to no production or rate work, 1 or 2 step tasks;
can stand for an hour and sit for an hour alternately for 8 hours a day 5
days a week; jobs should allow avoiding fine dexterity, manipulation and
little writing ability due to tremors; should avoid hazardous machinery and
heights due to blurriness; and only occasional with interaction with co-workers
and the public;
6. [Plaintiff] is unable to perform any past relevant work (20 C.F.R. 404.1565).
7. [Plaintiff] was born on November 12, 1963 and was 45 years old, which is
defined as a younger individual age 45-49, on the alleged disability onset date
(20 C.F.R. 404.1563).
8. [Plaintiff] has at least a high school education and is able to communicate
in English (20 C.F.R. 404.1564).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that [plaintiff] is "not disabled," whether or not [plaintiff]
has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart
P, Appendix 2).

16

10. Considering [plaintiffs] age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 C.F.R. 404.1569 and
404.1569(a)).
11. [Plaintiff] has not been under a disability, as defined in the Social Security
Act, from January 2, 2009, through the date of this decision (20 C.F.R.
404.1520(g)).
(Id. at 21- 29)

Ill. STANDARD OF REVIEW
Findings of fact made by the ALJ, as adopted by the Appeals Council, are
conclusive if they are supported by substantial evidence. Accordingly, judicial review of
the ALJ's decision is limited to determining whether "substantial evidence" supports the
decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In
making this determination, a reviewing court may not undertake a de novo review of the
ALJ's decision and may not re-weigh the evidence of record. See id. In other words,
even if the reviewing court would have decided the case differently, the ALJ's decision
must be affirmed if it is supported by substantial evidence. See id. at 1190-91.
The term "substantial evidence" is defined as less than a preponderance of the
evidence, but more than a mere scintilla of evidence. As the United States Supreme
Court has noted, substantial evidence "does not mean a large or significant amount of
evidence, but rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
The Supreme Court also has embraced this standard as the appropriate standard for
determining the availability of summary judgment pursuant to Federal Rule of Civil
Procedure 56. The inquiry performed is the threshold inquiry of determining whether
17

there is the need for a trial - whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.
This standard mirrors the standard for a directed verdict under Federal Rule of
Civil Procedure 50(a), "which is that the trial judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the verdict. If
reasonable minds could differ as to the import of the evidence, however, a verdict
should not be directed." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51,
(1986) (internal citations omitted). Thus, in the context of judicial review under§
405(g), "[a] single piece of evidence will not satisfy the substantiality test if [the ALJ]
ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is
evidence substantial if it is overwhelmed by other evidence - particularly certain types of
evidence (e.g., that offered by treating physicians) - or if it really constitutes not
evidence but mere conclusion." See Brewster v. Heckler, 786 F.2d 581, 584 (3d
Cir.1986) (quoting Kentv. Schweiker, 710 F.2d 110, 114 (3d Cir.1983)). Where, for
example, the countervailing evidence consists primarily of the plaintiff's subjective
complaints of disabling pain, the ALJ "must consider the subjective pain and specify his
reasons for rejecting these claims and support his conclusion with medical evidence in
the record." Matullo v. Bowen, 926 F .2d 240, 245 (3d Cir.1990).
"Despite the deference due to administrative decisions in disability benefit cases,
'appellate courts retain a responsibility to scrutinize the entire record and to reverse or
remand if the [Commissioner's] decision is not supported by substantial evidence."'

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d
18

968, 970 (3d Cir. 1981)). "A district court, after reviewing the decision of the
(Commissioner] may, under 42 U.S.C. § 405(g) affirm, modify, or reverse the
[Commissioner's] decision with or without a remand to the (Commissioner] for
rehearing." Podedwomy v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).

IV. DISCUSSION
A. Regulatory Framework

Social Security Administration regulations incorporate a sequential evaluation
process for determining whether a claimant is under a disability. 20 C.F.R. § 404.1520.
The ALJ first considers whether the claimant is currently engaged in substantial gainful
activity. If he is not, then the ALJ considers in the second step whether the claimant
has a "severe impairment" that significantly limits his physical or mental ability to
perform basic work activities. If the claimant suffers a severe impairment, the third
inquiry is whether, based on the medical evidence, the impairment meets the criteria of
an impairment listed in the "listing of impairments," 20 C.F.R. pt. 404, subpt. P, app. 1
(1999), which result in a presumption of disability, or whether the claimant retains the
capacity to work. If the impairment does not meet the criteria for a listed impairment,
then the ALJ assesses in the fourth step whether, despite the severe impairment, the
claimant has the residual functional capacity to perform his or her past work. If the
claimant cannot perform his or her past work, then step five is to determine whether
there is other work in the national economy that the claimant can perform. Sykes v.
Apfel, 228 F.3d 259, 262-63 (3d Cir.2000) (citing 20 C.F.R. § 404.1520). If the ALJ

finds that a claimant is disabled or not disabled at any point in the sequence, review

19

does not proceed to the next step. 20 C.F.R. § 404.1520(a). It is within the ALJ's sole
discretion to determine whether an individual is disabled or "unable to work" under the
statutory definition. 20 C.F.R. § 404.1527(e)(1 ).
The ALJ is required to evaluate all of the medical findings and other evidence
that supports a physician's statement that an individual is disabled. The opinion of a
treating or primary physician is generally given controlling weight when evaluating the
nature and severity of an individual's impairments. However, no special significance is
given to the source of an opinion on other issues which are reserved to the ALJ, such
as the ultimate determination of disablement. 20 C.F.R. §§ 404.1527(e)(2) &
404.1527(e)(3). The ALJ has the discretion to weigh any conflicting evidence in the
case record and make a determination. 20 C.F.R. §§ 404.1527(c)(2).

8. Arguments on Appeal
On appeal, plaintiff contends the ALJ's decision is not supported by substantial
evidence because the ALJ: (1) did not follow the treating provider rules while
mischaracterizing evidence from treating sources; (2) failed to evaluate all relevant
evidence; and (3) failed to properly consider plaintiff's work history.

(D.I. 16, 20)

Defendant counters that the ALJ properly weighed the opinions of record, considered
all relevant evidence and correctly assessed plaintiff's credibility. (D.I. 19)

1. Treating Sources
Plaintiff first asserts that the ALJ did not follow the treating provider rules while
mischaracterizing evidence from treating sources. (D.I. 16, 20) More specifically,
plaintiff contends the ALJ improperly disregarded the opinions of her treating therapist

20

I
!
'

(Ms.Chatterton) and psychiatrist (Dr. Bernstein). Generally, the weight afforded to any
medical opinion is dependent on a variety of factors, including the degree to which the
opinion is supported by relevant evidence and consistent with the record as a whole. 20
C.F.R. § 404.1527(c)(3)-(4). To that end, the more consistent an opinion is with the
record as a whole, the more weight is given to that opinion. 20 C.F.R. § 404.1527(c)(4).
A treating physician's opinion does not warrant controlling weight under the
regulations unless it is well supported by clinical and laboratory diagnostic findings and
consistent with other substantial evidence. Fargnoli v. Massanari, 247 F.3d 34, 42 (3d
Cir. 2001); 20 C.F.R. § 404.1527(c)(2). The more a treating source presents medical
signs and laboratory findings to support his/her medical opinion, the more weight it is
given. Id. Likewise, the more consistent a treating physician's opinion is with the record
as a whole, the more weight it should be afforded. Id. An ALJ may only outrightly reject
a treating physician's assessment based on contradictory medical evidence or a lack of
clinical data supporting it, not due to his or her own credibility judgments, speculation or
lay opinion. Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000); Lyons-Timmons v.
Barnhart, 147 F. Appx. 313, 316 (3d Cir.2005).

Even when the treating source opinion is not afforded controlling weight, it does
not follow that is deserves zero weight. Instead, the ALJ must apply several factors in
determining how much weight to assign it. Gonzalez v. Astrue, 537 F. Supp. 2d 644,
662 (D. Del. 2008). These factors include the nature and extent of the treatment
relationship, the length of the treatment relationship, the frequency of examination,
supportability of the opinion afforded by the medical evidence, consistency of the

21

opinion with the record as a whole, and the specialization of the treating source. Id. If
an ALJ does not conduct this analysis, a reviewing court cannot determine whether the
ALJ actually considered all the relevant evidence, and the ALJ's decision cannot stand.
Id.

Considering this authority against the instant record, the court finds that the ALJ
did not err in considering the opinions from Ms. Chatterton or Dr. Bernstein. With
respect to Ms. Chatterton, the ALJ recognized that, in order to consider whether Ms.
Chatterton's (a registered nurse and licensed social worker) opinion could be accepted
and outweigh other acceptable medical source opinions, an analysis of the factors
identified in SSR 06-03p 14 was warranted. (Id. at 26) After applying these factors, the
ALJ concluded:
Ms. Chatterton's opinion should be afforded little weight, as it is not
supported by the medical evidence of record. The medical record as
a whole shows that [plaintiffs] symptoms improve when she is in
treatment and taking medication. Ms. Chatterton herself described
[plaintiffs] 'symptomatic cycle.' Further, Ms. Chatterton does not
specifically state that the claimant is unable to work.
(Id. at 26)
The court concludes that the ALJ's reasons for discounting Ms. Chatterton's
opinion on the basis of improvement while medicated and inconsistent symptoms is

14

SSR 06-03p lists the following factors for review:

(1) how long the source has known and how frequently the source

has seen the individual; (2) how consistent the opinion is with other
evidence; (3) the degree to which the source presents relevant
evidence to support an opinion; (4) how well the source explains the
opinion; (5) whether the source has a specialty or area of expertise
related to the individual's impairment(s); and (6) any other factors
that tend to support or refute the opinion.
22

supported by the record. Since taking the medications prescribed by Dr. Bernstein,
plaintiffs symptoms have improved. (Id. at 279, 281) During her testimony at the
administrative hearing, plaintiff acknowledged that she has been compliant with taking
the medications as prescribed, on a daily basis. (Id. at 60) She testified that Depolate
helped with mood cycling and that without the medication she would be unable to
function. (Id. at 59)
With respect to inconsistent symptoms, Ms. Chatterton's treatment notes reflect
that plaintiffs mental health symptoms varied, to wit: (1) in January 2009, plaintiff did
not suffer depressive symptoms after losing her job; (2) in July 2009, a therapy session
was canceled because plaintiff was away on vacation; (3) in October 2009, plaintiff
reported a decrease in hand tremors; (4) in November 2009, plaintiffs mood was
brighter and more goal oriented; (5) on February 9, 2010, plaintiff was feeling useless
and hopeless; (6) on February 18, 2010, plaintiffs problems with verbalization had
improved and she was continuing to work out at the YMCA; (7) in March, 2010, plaintiff
was working on a job search and practicing a speech to use when calling potential
employers; and (8) in June 2010, plaintiff was having problems dealing with her
boyfriend's three adolescent daughters. These notes demonstrate that plaintiffs
symptoms varied and were not continuously disabling.
Turning to plaintiffs objection of the ALJ's statement that "Ms. Chatterton does
not specifically state that [plaintiff] is unable to work," the court finds that Ms. Chatterton
notes, letters and associated documentation reveal specific concerns over plaintiffs
ability to be employed. The ALJ's decision reflects that he considered this material, as
well as the entire record, in reaching his decision. (Id. at 26) Whether Ms. Chatterton

23

specifically stated "plaintiff is unable to work" (as noted by the ALJ) is inconsequential
and has no affect on the court's conclusion that the ALJ's decision to afford little weight
to Ms. Chatterton's opinion is supported by the record. Moreover, the ALJ's reasons for
rejecting Ms. Chatterton's opinions were sufficiently stated to allow for judicial review.
See Cotterv. Harris, 650 F.2d 481, 482 (3d Cir. 1981); Fargnoli, 247 F.3d 34 at41;
Burnett v. Commissioner of Social Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
With regard to plaintiffs contention that the ALJ erred by observing that plaintiff
missed appointments in October 2009, 15 the court finds that plaintiff has not
demonstrated how the fact that plaintiff did, in fact, attend therapy in October 2009
would have changed the ALJ's decision or was otherwise material to the disability
determination process. Shineseki v. Sanders, 556 U.S. 396, 409 (2009) 16 (the burden
of showing that an error is harmful falls on the party attacking the agency's ruling)).
With respect to plaintiffs treating psychiatrist, Dr. Bernstein, the ALJ considered

15

The record reflects that plaintiff attended appointments with Ms. Chatterton on
October 4, 13 and 27, 2009. (Id. at 275-76) During the October 4th visit, Ms. Chatterton
discussed the importance of consistency in treatment and attending scheduled
appointments. On October 13th, Ms. Chatterton noted that plaintiff was more focused
and goal oriented. On October 27th, plaintiff reported a decrease in hand tremors and
improvement in her mood. (Id. at 275-276) Considering that these notes are more
favorable to defendant's position, the court concludes that the ALJ's mischaracterization
of missed October appointments did not prejudice plaintiff.
16

The Supreme Court made clear that the "harmless error" rule that court's apply
in "ordinary civil cases," is equally applicable to administrative cases. Under the
harmless error rule, an error warrants remand if it prejudices a party's "substantial
rights." An error implicates substantial rights if it likely affects the outcome of the
proceeding, or likely affects the "perceived fairness, integrity, or public reputation of
judicial proceedings." Sanders, 556 U.S. at 411-412. The holding applies to social
security proceedings. McLeod v. Astrue, 640 F.3d 881, 887 (91h Cir. 2011): Watts v.
Astrue, No. 12-4116, 2013 WL 2392909, at *3 (E.D. Pa. June 3, 2013).
24

her opinions and afforded some weight to those restrictions that were consistent with
RFC. The ALJ gave the remainder of Dr. Bernstein's opinions little weight because they
were not supported by the evidence of record and her own treatment records, which
establish that plaintiff's mental health symptoms were never consistently at a disabling
level of severity. The record also reflects that, as the psychiatrist responsible for
prescribing and monitoring the medications given to treat plaintiff's mental health
symptoms, Dr. Bernstein regularly evaluated and assessed plaintiff's condition. There
is nothing in Dr. Bernstein's notes to suggest that the medications were ineffective at
stabilizing plaintiff.
Plaintiff further asserts that the ALJ erred by affording significant weight to the
opinions of the consultative examiner (Dr. Ivins) and the state agency psychologist (Dr.
Brandon). Because evidence from non-examining sources is opinion evidence that will
be considered in the same manner as opinion evidence from other sources, including
treating sources, the court finds no error in the ALJ's consideration of their opinions. 20
C.F.R. § 404.1527(e). Moreover, the ALJ properly evaluated Dr. Ivins' examination
findings, which supported the RFC assessed to plaintiff.

2. Relevant Evidence
Plaintiff avers that the ALJ erred by failing to discuss plaintiff's GAF score of 50.
GAF scores do not have a "direct correlation to the severity requirements" under SSA
rules. West v. Astrue, 2010 WL 1659712, at *4 (Apr. 26, 2010 E.D. Pa) (quotations
omitted). However, a "GAF score constitutes medical evidence accepted and relied
upon by a medical source and must be addressed by an ALJ in making a determination

25

regarding a claimants disability." Colon v. Barnhart, 424 F. Supp.2d 805, 812 (E.D. Pa.
2006).
The record reflects that Dr. Ivins assessed plaintiff's GAF score at 50. 17 Despite
assigning plaintiff the lowest GAF of record, 18 Dr. Ivins concluded that plaintiff's
functional limitations did not preclude her ability to work. (Id. at 215) The court finds
that ALJ sufficiently evaluated the material reflecting all the GAF scores "during the
relevant period" ranging "from 50-55," including Dr. Ivins' report. (Id. at 24) Plaintiff has
failed to demonstrate how the ALJ's failure to specifically discuss the GAF of 50 would
have changed the outcome of the case. In light of the substantial evidence supporting
the ALJ's decision, the court finds that any error was harmless. Shineski v. Sanders,
556 U.S. at 409.
Plaintiff next asserts that the ALJ did not consider all relevant evidence. The
Third Circuit has stated that there is no requirement for the ALJ to discuss or refer to
every piece of evidence of the record, as long as the reviewing court can discern the
basis of the decision. Fargnoli v. Massanari, 247 F.3d at 42. The ALJ at bar stated that
he considered all the evidence of record. See Black v. Apfel, 143 F.3d 383, 386 (8th

17

"A GAF score of 41-50 indicates serious symptoms or any serious impairment
in social, occupational, or school functioning." Lee v. Colvin, 2014 WL 2586935, at *2
fn. 1 (E.D. Pa. 2014). A rating between 51 and 60 on the GAF scale indicates either
"moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic
attacks) or moderate difficulty in social, occupational, or school functioning (e.g. few
friends, conflicts with peers or co-workers)." American Psychiatric Ass'n, Diagnostic
and Statistical Manual of Mental Disorders, Text Revision, 34 (4th ed. 2000).
18

Dr. Bernstein assessed her GAF at 55 and Ms. Chatterton assessed her GAF
at 52. (Id. at 252, 206)
26

Cir. 1998) (the mere failure to cite to specific evidence does not establish that the ALJ
failed to consider it); Carlson v. Shala/a, 999 F.2d 180, 181 (71h Cir. 1993) (the ALJ
need not evaluate in writing every piece of evidence submitted). Having considered the
ALJ's decision, it is evident that he considered all the record evidence and provided
sufficient reasons for the court to discern his decision.

3. Plaintiff's work history
Plaintiff's final argument is that the ALJ erred by not recognizing that her
testimony was entitled to substantial credibility because of her long work record. (D.I.
16 at 29) In his decision, the ALJ found "numerous inconsistencies" between her
testimony and the evidence of record. (Id. at 27) Significantly, the ALJ referenced five
reasons for finding plaintiff's subjective complaints were "not fully persuasive:"
(1) her reported improvement while in treatment and on medication;
(2) her history of depression;
(3) her ability to work for lengthy periods of time while suffering from
depression;
(4) the fact that she has never been hospitalized for her mental impairments;
and
(5) the lack of evidence of an emotional break since 1992.

(Id. at 27) The ALJ's reasons are supported by the record evidence and the court finds
no reason to disturb the findings. See Metz v. Federal Mine Safety and Health Review

Com'n, 532 Fed. Appx. 309, 312 (3d Cir. 2013) ("Overturning an ALJ's credibility
determination is an 'extraordinary step,' as credibility determinations are entitled to a
great deal of deference.").

V. CONCLUSION

27

For the reasons discussed above, plaintiff's motion for summary judgment will be
denied and defendant's motion for summary judgment will be granted. An appropriate
order shall issue.:.

28