Button v. Astrue

Filing 12

MEMORANDUM (Order to follow as separate docket entry) re 1 Complaint filed by Lawrence Lee Button. Signed by Honorable John E. Jones, III on 12/20/13. (pw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LAWRENCE LEE BUTTON,
Plaintiff
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

:
:
:
:
:
:
:
:
:
:
:

CIVIL No. 3:12-CV-00866
Hon. John E. Jones III

MEMORANDUM
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Lawrence Lee Button’s claim for social security
supplemental security income benefits. Button contends that he
suffers from both physical and mental disabling impairments. The
physical conditions alleged are asthma and “back impairments” and
the mental conditions are bipolar disorder and a learning disorder.
Doc. 10, Plaintiff’s Brief, p. 6.
Supplemental

security

income

is

a

federal

income

supplement program funded by general tax revenues (not social
security taxes).

It is designed to help aged, blind or other

disabled individuals who have little or no income.

Button

protectively

filed1

his

application

for

supplemental security income benefits on March 29, 2006. Tr. 18,
68 and 107-109.2

The application was initially denied by the

Bureau of Disability Determination3 on August 4, 2006. Tr. 18 and
70-74.

On September 25, 2006, Button requested a hearing before

an administrative law judge. Tr. 18 and 78.

After over 26 months

had elapsed, a hearing was held before an administrative law judge
on December 3, 2008. Tr. 27-66.
at the hearing. Id.

Button was represented by counsel

On February 26, 2009, the administrative law

judge issued a decision denying Button’s application. Tr. 18-26.
As will be explained in more detail infra the administrative law
judge, after considering the medical records and the testimony of
Button and a vocational expert, found that Button could perform a
limited range of unskilled, medium work,4 specifically the jobs of

1

Protective filing is a term for the first time an individual
contacts the Social Security Administration to file a claim for
benefits. A protective filing date allows an individual to have an
earlier application date than the date the application is actually
signed.
2

References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of the Answer on July 11,
2012.
3

The Bureau of Disability Determination is an agency of the
state which initially evaluates applications for supplemental
security income benefits on behalf of the Social Security
Administration. Tr. 70.
4

The terms sedentary, light, medium and heavy work are defined
in the regulations of the Social Security Administration as
follows:
2

packing machine operator and hand packer. Tr. 22, 26 and 58-59.
(a) Sedentary work. Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
(b) Light work. Light work involves lifting no more
than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is
in this category when it requires a good deal of
walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a
full or wide range of light work, you must have the
ability to do substantially all of these activities.
If someone can do light work, we determine that he or
she can also do sedentary work, unless there are
additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more
than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she
can do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more
than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds. If
someone can do heavy work, we determine that he or she
can also do medium, light, and sedentary work.
(e) Very heavy work. Very heavy work involves lifting
objects weighing more than 100 pounds at a time with
frequent lifting or carrying of objects weighing 50
pounds or more. If someone can do very heavy work, we
determine that he or she can also do heavy, medium,
light and sedentary work.

20 C.F.R. § 416.967.
3

On April 27, 2009, Button filed a request for review with
the Appeals Council of the Social Security Administration’s Office
of Disability Adjudication and Review, and on November 6, 2009, the
Appeals Council concluded that there was no basis upon which to
grant Button’s request for review. Tr. 10-13.

On November 19,

2009, Button requested that the Appeals Council reopen the case to
allow him to submit additional information in support of his
request for review. Tr. 9.

On March 11, 2010, the Appeals Council

granted Button’s request to reopen and gave him 25 days to submit
any additional arguments and information he deemed appropriate. Tr.
7.
On March 23, 2010, Button submitted to the Appeals Council
a letter brief outlining his contentions. Tr. 168-171. One of the
contentions raised by Button was that the administrative law judge
failed to consider or ignored a statement (which primarily was a
checkbox

assessment

form)

of

Button’s

mental

work-related

functional abilities (Administrative Hearing Exhibit 10F) completed
on behalf of Button by Sampath Neerukonda, M.D., a treating
psychiatrist. Tr. 169.

After considering Button’s arguments, the

Appeals Council on March 6, 2012, again concluded that there was
no basis upon which to grant Button’s request for review. Tr. 1-5.
The Appeals Council in its notice of denial of Button’s request for
review

“gave

particular

attention

to”

the

argument

that

Dr.

Neerukonda’s assessment was overlooked or ignored. Tr. 1. The

4

Appeals Council indicated that Dr. Neerukonda’s assessment was
inconsistent with Dr. Neerukonda’s treatment notes and specifically
stated that the “treatment notes do not suggest that [Button was]
disabled and [that its] comparison of Dr. Nee[r]ukonda’s assessment
on the checkbox assessment form do[es] not suggest that [Button]
lacked the capacity for the specific jobs that the vocational
expert identified as appropriate.” Tr. 2.

As a result of the

Appeals Council’s denial of review, the administrative law judge’s
decision stood as the final decision of the Commissioner.
Button then filed a complaint in this court on May 9,
2012.

Supporting and opposing briefs were submitted and the

appeal5 became ripe for disposition on October 8, 2012, when Button
elected not to file a reply brief.
Button was born in the United States on October 11, 1976,
and at all times relevant to this matter was considered a “younger
individual”6 whose age would not seriously impact his ability to
adjust to other work. 20 C.F.R. § 404.1563(c). Tr. 34, 62, 130 and
137.
Button stated in documents filed with the Social Security

5

Under the Local Rules of Court “[a] civil action brought to
review a decision of the Social Security Administration denying a
claim for social security disability benefits” is “adjudicated as
an appeal.” M.D.Pa. Local Rule 83.40.1.
6

The Social Security regulations state that “[t]he term
younger individual is used to denote an individual 18 through 49.”
20 C.F.R., Part 404, Subpart P, Appendix 2, § 201(h)(1).
5

Administration

that

he

attended

the

Wellsville

High

School,

Wellsville, New York, from September, 1991 to June, 1992; he
obtained a General Equivalency Diploma (GED) in 1994; and he can
read, write, speak and understand the English language. Tr. 120 and
125-126.

Button testified at the administrative hearing that he

withdrew from high school while attending the 11th grade. Tr. 53.
He further indicated that he had difficulty with math and that he
was in special education classes as a result of that deficiency.
Tr. 52-53, 125 and 249.

Button reported that after obtaining a

GED, he did not complete “any type of special job training, trade
or vocational school.”7 Tr. 126.
Button has a very limited work and earnings history. Tr.
Button testified that he had 30 to 35 jobs but all of relatively
short duration. Tr. 53-54.

He stated that the longest job lasted

for 4 to 5 months. Tr. 55. The records of the Social Security
Administration reveal that Button had earnings in the years 1997
through 2003.8 Tr. 112.

Button’s annual earnings range from a low

of $298.65 in 1999 to a high of $11,783.50 in 2002. Id.

Button’s

total earnings during those 7 years were $20,620.09. Id.

7

Button told Dr. Neerukonda at their first encounter on March
13, 2006, that he was “self-employed most of the time” but
presently unemployed and that “[h]e used to work in computer
maintenance and repair.” Tr. 174. He also told a physician who
examined him on June 29, 2006, that he had “some technical training
in computers.” Tr. 177.
8

Button testified that he last worked in 2004 as a janitor
through a temporary employment agency. Tr. 33-34.
6

A vocational expert described Button’s work history as
follows: (1) a taxicab driver, semi-skilled, medium work;(2) a
janitorial worker, semi-skilled, medium work; (3) a telemarketer,
semi-skilled, sedentary work; (4) an amusement ride operator,
unskilled, light work; (5) a garbage collector, unskilled, very
heavy work;

(6) a fast food worker, unskilled, light work; (7) an

assembly line worker, unskilled, light work; and (8) as a road
repair worker, semi-skilled, heavy work. Tr. 56-57 and 122. The
administrative law judge found that Button’s past relevant work9
was as a taxicab driver and janitor. Tr. 25.
The record reveals that Button has a history of alcohol

9

Past relevant employment in the present case means work
performed by Button during the 15 years prior to the date his claim
for disability was adjudicated by the Commissioner. 20 C.F.R. §§
404.1560 and 404.1565. To be considered past relevant work, the
work must also amount to substantial gainful activity. Pursuant to
Federal Regulations a person’s earnings have to rise to a certain
level to be considered substantial gainful activity. The official
website of the Social Security Administration reveals that in 2002
that amount was $780 per month ($9360 per year) and in 2003 the
amount was $800 per month ($9600 per year). Substantial Gainful
Activity, http://www.ssa.gov/oact/cola/sga.html (Last accessed
December 16, 2013). The record reveals that Button’s earnings only
rose to the level of substantial gainful activity in 2002 when he
was working as a taxicab driver and earned a total of $11,783.50.
Tr. 112 and 114-115. There are discrepancies in the record. It is
not clear why the administrative law judge found that Button’s past
relevant work included the position of janitor. It appears that in
addition to working as a taxicab driver (apparently self-employed)
in 2002 he also worked as a telemarketer for a cable company in
Coudersport, Pennsylvania, and for a temporary employment agency
located in Wellsville, New York. Tr. 114-115. His work (apparently
as a janitor) and earnings of $3984.88 in 2003 for Gulf Coast
Temporaries, Inc., does no amount to substantial gainful activity.
Tr. 115 and 122. These discrepancies do not impact our disposition
of this case.
7

and drug abuse10 as well as criminal convictions. Tr. 51, 221, 244
and 249.

Button also reported smoking one pack of cigarettes per

day for 20 years.11 Tr. 228.
Button claims that he became disabled on February 1,
2006.12 Tr. 32 and 116.

In a document filed with the Social

Security Administration he stated that he suffers from “bi-polar
(sic) disorder, kidney problems, asthma, back problems [and a]
learning

disability.”

Tr.

121.

Button

stated

that

he

“was

diagnosed with bi-polar (sic) in [February, 2006]” and that he has
“always had problems keeping a job because [he] couldn’t handle
stress in the workplace.” Id. He further contended that he “thinks
about things differently than a normal person would because of the
bi-polar (sic) disorder,” “sometimes” has “pain . . . from the back
problems” and “never really understood why [he] was different from
other people.” Id.
At the administrative hearing, Button was asked why he set

10

Dr. Neerukonda stated in a psychiatric evaluation dated April
27, 2007, that Button “has an extensive history of alcoholism and
drug abuse in the past where he was using a lot of heroin, alcohol
and marijuana. He says that he is currently sober from heroin seven
years ago and marijuana six years ago. He says that he occasionally
drinks beer. He also says that he overdosed one time with alcohol
and heroin one time.” Tr. 249.
11

On July 19, 2007 a treating physician reported that Button
suffered from asthma and tobacco abuse and prescribed the drugs
Singulair, Albuterol and Chantix. Tr. 229
12

Button was only 29 years of age on his alleged disability
onset date.
8

February 1, 2006, as his alleged disability onset date. Tr. 32.
The

following

exchange

took

place

between

Button

and

the

administrative law judge:
Q . . . I’m curious as to that date, what kind of problems
were you experiencing as of February 1st, 2006?
A
I was easily distracted. When I would have to do
something. I had a hard time following through, keeping
my mind on one thing. I had times of severe depression,
where I couldn’t even hardly get out of bed because I
was just so depressed.
Q And had this been a problem for (sic) prior to the date,
February the 1st, 2006?
A Yes, sir.
Q Okay. In other words, this problem had existed for
some time, but you continued to try to work as best you
could?
A Correct.
Q. Okay. Can you give me an idea as to any other problems
besides this depression and difficulty concentrating, that
you might have been experiencing or that may have
contributed to these problems in thinking?
A Frustration, I would get frustrated with a vast number
of things, such as on a job, for instance, my
telemarketing job, I got to the point where I got so
frustrated that I was going away from my job station just
to get away from the pressure.
Tr. 32-34.

Button went on to testify that his last job was in 2004

as a janitor in Florida which he obtained through a temporary
employment agency and that the employment as a janitor lasted for
three months. Tr. 33.

Button further stated that the janitor

position was his last employment. Tr. 34.
Although Button testified that he last worked in 2004, in
9

a document entitled “Disability Report - Adult - Form SSA-3368"
(“Disability Report”)

Button stated that he stopped working on

December 31, 2003, and that he worked as a janitor in 2003.13 Tr.
121-122. Earnings records from the Social Security Administration
are consistent with what Button reported in the Disability Report.
Tr. 115. The earnings record indicates that Button last worked for
Gulf Coast Temporaries, Inc., in 2003. Id.
The alleged disability onset date of February 1, 2006, has
no impact on Button’s application for supplemental security income
benefits because supplemental security income is a needs based
program and benefits may not be paid for “any period that precedes
the first month following the date on which an application is filed
or, if later, the first month following the date all conditions for
eligibility are met.”

See C.F.R. § 416.501.

As stated above

Button’s SSI application was filed on March 29, 2006. Consequently,
Button is not eligible for SSI benefits for any period prior to
April 1, 2006.
During his testimony at the administrative hearing and in
an untitled and undated document filed with the Social Security
Administration, Button indicated that he lives with his girlfriend
and three minor children; Children and Youth Services assists him
with parenting and housekeeping classes in his home; his neighbors

13

Button stated that he “quit the job because [he] thought they
were being unfair to a co-worker” and that he “ended up getting
into an argument over it with a manager.” Tr. 121.
10

assist him with babysitting; and he is able to care for his
children, including getting them up in the morning, bathing and
feeding them and getting them on the bus for school. Tr. 44-46 and
128.

Button further indicated he is able to go grocery shopping

although he rests while doing so and he is able to carry about 4
bags of groceries; his hobbies include reading and “playing” with
computers; he does housecleaning, including sweeping; he is able
to climb 40 steps without resting; he has no problems sitting
“unless it’s a hard surface;” he can lift and carry “about 40 lbs”
but his “back starts to hurt;” he is able to take care of his
personal needs, such as dressing himself and taking a shower; he
can change and make a bed; he is able to use a regular touch tone
telephone, a standard size TV remote control, and a knife and fork;
he is able to fasten buttons, snaps, etc., and tie shoes; he is
able to go swimming and camping which he engages in a few times
during the summer; he is able to make decision on his own; and he
stated that he suffers from headaches caused by standing, walking
and bright lights but that medicine relieves the pain,

Tr. 129-

136.
For

the

reasons

set

forth

below we will

affirm the

decision of the Commissioner denying Button’s application for
supplemental security income benefits.
STANDARD OF REVIEW
When considering a social security appeal, we have plenary

11

review of all legal issues decided by the Commissioner. See Poulos
v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007);
Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431
(3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir.
1995).

However, our review of the Commissioner’s findings of fact

pursuant to 42 U.S.C. § 405(g) is to determine whether those
findings are supported by "substantial evidence."

Id.; Brown v.

Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994
F.2d 1058, 1064 (3d Cir. 1993).

Factual findings which are

supported

must

§405(g);

by

substantial

Fargnoli

2001)(“Where

the

v.

evidence

Massanari,

ALJ’s

findings

be

upheld.

42

U.S.C.

247

F.3d

34,

38

(3d

of

fact

are

supported

Cir.
by

substantial evidence, we are bound by those findings, even if we
would have decided the factual inquiry differently.”); Cotter v.
Harris, 642 F.2d 700, 704 (3d Cir. 1981)(“Findings of fact by the
Secretary must be accepted as conclusive by a reviewing court if
supported by substantial evidence.”);

Keefe v. Shalala, 71 F.3d

1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001);

Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11

(11th Cir. 1990).
Substantial

evidence

“does

not

mean

a

large

or

considerable 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)(quoting

12

Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938));
Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d
Cir. 2008);

Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

Substantial evidence has been described as more than a mere
scintilla of evidence but less than a preponderance.
F.2d

at

1213.

In

an

adequately

developed

Brown, 845

factual

record

substantial evidence may be "something less than the weight of the
evidence,

and

the

possibility

of

drawing

two

inconsistent

conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence."
Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in relationship to all the other
evidence in the record," Cotter, 642 F.2d at 706, and "must take
into account whatever in the record fairly detracts from its
weight."
(1971).

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488
A single piece of evidence is not substantial evidence if

the Commissioner ignores countervailing evidence or fails
resolve a conflict created by the evidence.

to

Mason, 994 F.2d at

1064. The Commissioner must indicate which evidence was accepted,
which evidence was rejected, and the reasons for rejecting certain
evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707.
Therefore, a court reviewing the decision of the Commissioner must
scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968,
970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d

13

Cir. 1979).
SEQUENTIAL EVALUATION PROCESS
To

receive

disability

benefits,

the

plaintiff

must

demonstrate an “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 12 months.”

42 U.S.C. § 432(d)(1)(A).

Furthermore,

[a]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any
individual), “work which exists in the national economy”
means work which exists in significant numbers either in
the region where such individual lives or in several
regions of the country.
42 U.S.C. § 423(d)(2)(A).
The

Commissioner

utilizes

a

five-step

evaluating supplemental security income claims.
416.920; Poulos, 474 F.3d at 91-92.

process

in

See 20 C.F.R. §

This process requires the

Commissioner to consider, in sequence, whether a claimant (1) is
engaging in substantial gainful activity,14 (2) has an impairment

14

If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation proceeds
no further. Substantial gainful activity is work that “involves
14

that is severe or a combination of impairments that is severe,15
(3) has an impairment or combination of impairments that meets or
equals the requirements of a listed impairment,16 (4) has the
residual functional capacity to return to his or her past work and
(5) if not, whether he or she can perform other work in the
national economy. Id.

As part of step four the administrative law

judge must determine the claimant’s residual functional capacity.

doing significant and productive physical or mental duties” and “is
done (or intended) for pay or profit.” 20 C.F.R. § 416.910.
15

The determination of whether a claimant has any severe
impairments, at step two of the sequential evaluation process, is a
threshold test. 20 C.F.R. § 416.920(c). If a claimant has no
impairment or combination of impairments which significantly limits
the claimant’s physical or mental abilities to perform basic work
activities, the claimant is “not disabled” and the evaluation
process ends at step two. Id. If a claimant has any severe
impairments, the evaluation process continues. 20 C.F.R. §
416.920(d)-(g). Furthermore, all medically determinable
impairments, severe and non-severe, are considered in the
subsequent steps of the sequential evaluation process. 20 C.F.R.
§§ 416.923 and 416.945(a)(2). An impairment significantly limits a
claimant’s physical or mental abilities when its effect on the
claimant to perform basic work activities is more than slight or
minimal. Basic work activities include the ability to walk, stand,
sit, lift, carry, push, pull, reach, climb, crawl, and handle. 20
C.F.R. § 416.945(b). An individual’s basic mental or nonexertional abilities include the ability to understand, carry out
and remember simple instructions, and respond appropriately to
supervision, coworkers and work pressures. 20 C.F.R. § 416.945(c).
16

If the claimant has an impairment or combination of
impairments that meets or equals a listed impairment, the claimant
is disabled. If the claimant does not have an impairment or
combination of impairments that meets or equals a listed
impairment, the sequential evaluation process proceeds to the next
step.
15

Id.17
Residual functional capacity is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis.

See Social

Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular
and continuing basis contemplates full-time employment and is
defined as eight hours a day, five days per week or other similar
schedule. The residual functional capacity assessment must include
a discussion of the individual’s abilities.

Id; 20 C.F.R. §

416.945; Hartranft, 181 F.3d at 359 n.1 (“‘Residual functional
capacity’ is defined as that which an individual is still able to
do despite the limitations caused by his or her impairment(s).”).
MEDICAL RECORDS
Before we address the administrative law judge’s decision
and the arguments of counsel, we will review in detail Button’s
medical records.
On March 13, 2006, a little over a month after Button’s
alleged disability onset date of February 1, 2006, Button underwent
a

psychiatric

evaluation

at

Dickinson

Mental

Health

Center,

Coudersport, Pennsylvania, performed by Dr. Neerukonda at the
request of Button’s therapist. Tr. 174-175.

The administrative

record contains a list of therapy sessions and other appointments

17

If the claimant has the residual functional capacity to do
his or her past relevant work, the claimant is not disabled.
16

Button had at Dickinson Mental Health from December 5, 2005,
through April 17, 2006, but the therapy session notes are not
contained within the record.

Tr. 176.

Button appears to have had

an initial assessment by a therapist on December 5, 2005, and
sessions were scheduled for December 12 and 19, 2005 and January
6, 18 and 23,

and February 15, 2006. Id.

Button did not appear

for the therapy sessions scheduled for December 12, 2005, and
January 6 and 23, 2006. Id.

On March 13, 2006, as noted above,

Button was evaluated by Dr. Neerukonda, and after that evaluation,
therapy sessions were scheduled for March 29, 2007, and April 17,
2006. Id.

The record indicates that the therapy session of April

17, 2006 was cancelled because Button apparently was late for it.
Id.

At the psychiatric evaluation on March 13, 2006, Button told

Dr. Neerukonda, inter alia, that he was “depressed, down in the
dumps” and tired, irritable, grouchy and having mood swings. Tr.
174.
Dr.

Button indicated that the depression “comes and goes.” Id.
Neerukonda

noted

that

Button

was

never

evaluated

by

a

psychiatrist but that he had a history of alcoholism and marijuana
use which ended purportedly five years prior to the date of the
evaluation. Id.

Button told Dr. Neerukonda that “[h]e was self-

employed most of the time” but presently unemployed and that he
“used to work in computer maintenance and repair.” Id.

A mental

status examination of Button performed by Dr. Neerukonda was
essentially normal other than Button exhibited a depressed mood and

17

an anxious affect. Id.

Dr. Neerukonda’s diagnostic assessment was

that Button suffered from depressive disorder, not otherwise
specified, and bipolar disorder, depressed, and gave Button a
Global Assessment of Functioning (GAF) score of 50-60.18 Id.

Dr.

Neerukonda recommended that Button start taking the psychotropic
medication Celexa, 20 mg per day.19 Tr. 175.

18

The GAF score allows a clinician to indicate his judgment of
a person’s overall psychological, social and occupational
functioning, in order to assess the person’s mental health illness.
Diagnostic and Statistical Manual of Mental Disorders 3–32 (4th ed.
1994). A GAF score is set within a particular range if either the
symptom severity or the level of functioning falls within that
range. Id. The score is useful in planning treatment and predicting
outcomes. Id. The GAF rating is the single value that best
reflects the individual’s overall functioning at the time of
examination. The rating, however, has two components: (1) symptom
severity and (2) social and occupational functioning. The GAF is
within a particular range if either the symptom severity or the
social and occupational level of functioning falls within that
range. When the individual’s symptom severity and functioning
level are discordant, the GAF rating reflects the worse of the two.
Thus, a suicidal patient who is gainfully employed would have a GAF
rating below 20. A GAF score of 21-30 represents behavior
considerably influenced by delusions or hallucinations or serious
impairment in communication or judgment or inability to function in
almost all areas. A GAF score of 31-40 represents some impairment
in reality testing or communication or major impairment in several
areas, such as work or school, family relations, judgment,
thinking or mood. Id. A GAF score of 41-50 indicates serious
symptoms or any serious impairment in social, occupational or
school functioning. Id. A GAF score of 51 to 60 represents
moderate symptoms or any moderate difficulty in social,
occupational, or school functioning. Id. A GAF score of 61 to 70
represents some mild symptoms or some difficulty in social,
occupational, or school functioning, but generally functioning
pretty well with some meaningful interpersonal relationships. Id.
19

Celexa “is an antidepressant medication in a group of drugs
called selective serotonin reuptake inhibitors (SSRIs).” Celexa,
Drugs.com, http://www.drugs.com/celexa.html (Last accessed December
18, 2013).
18

On the same day that Dr. Neerukonda evaluated Button, Dr.
Neerukonda completed a document on behalf of Button entitled
“Pennsylvania

Department

of

Assessment Form.” Tr. 172-173.

Public

Welfare[,]

Employability

In that document, Dr. Neerukonda

in a conclusory fashion without specifying any limitations in workrelated functional abilities stated that Button was temporarily
disabled, less than 12 months. Tr. 173. Dr. Neerukonda stated that
Button’s temporary disability began on March 13, 2006, and was
expected to last until March 13, 2007. Id.

Dr. Neerukonda noted

that his assessment was based upon Button’s clinical history. Id.
Button’s had follow-up appointments with Dr. Neerukonda on
May 8 and July 24, 2006. Tr. 208-209.
8th

At the appointment on May

Button told Dr. Neerukonda that he was “doing very well on the

current regimen;” he was “tolerating the medicines without any
problem;” and “things” were “not bothering him” as they were
previously. Id.

The results of a mental status examination were

essentially normal other than a somewhat depressed mood and an
anxious affect. Id.

Dr. Neerukonda’s diagnostic assessment was

that Button suffered from
specified. Id.
taking

depressive disorder, not otherwise

Dr. Neerukonda recommended that Button continue

Celexa,

20

psychotherapy.”

Id.

mg
At

per

day,

and

the

appointment

“provided
on

July

supportive
24th

Button

reported that “things [were] looking better and brighter.” Tr. 208.
Dr. Neerukonda noted that Button seemed to be doing very well on

19

the Celexa. Id. A mental status examination was essentially normal
other than Button had a depressed mood and an anxious affect. Id.
Dr. Neerukonda’s diagnostic assessment was that Button suffered
from

depressive

disorder,

not

otherwise

specified.

Id.

Dr.

Neerukonda recommended that Button continue taking Celexa, 20 mg
per day, and “provided supportive psychotherapy.” Id.
On June 29, 2006, Button was examined by Dilbach Singh,
M.D., on behalf of the Bureau of Disability Determination. Tr. 177180.

At that appointment Button told Dr. Singh that he was there

“for the Social Security Physical Exam” and that he “had asthma and
some flare-ups on exertion.” Tr. 177.

Button reported that “he

used to use some inhalers” but presently was not taking any
medications, including Celexa, because he could not afford them.
Id.

Button told Dr. Singh that he was not presently working but

that he had worked full-time and part-time jobs as a janitor and
as a laborer and that he had “seasonal jobs, doing grass cutting
and all kinds of things.” Id.
finished

high

computers.” Id.

school

and

Button also told Dr. Singh that he
had

“some

technical

training

in

Dr. Singh’s review of Button’s systems20 was

essentially negative with no abnormal items reported. Tr. 178.
Button did report “occasionally” having back pain. Id.

20

“The review of systems (or symptoms) is a list of questions,
arranged by organ system, designed to uncover dysfunction and
disease.” A Practical Guide to Clinical Medicine, University of
California, School of Medicine, San Diego, http://meded.ucsd.edu/
clinicalmed/ros.htm (Last accessed December 16, 2013).
20

The results of a physical examination of Button by Dr.
Singh

were

essentially

normal.

Tr.

178-179.

In

fact

the

musculoskeletal and neurological portion of the exam was noted to
be completely normal, including Button had normal motor strength
and sensation in his upper and lower extremities; Button was able
to sit, stand, walk, lift, grasp and bend normally. Tr. 178.
Button told Dr. Singh that he could lift 40 to 50 pounds. Id.

Dr.

Singh indicated that Button’s asthma was under control, his range
of motion was good, he had a normal gait, his mental status was
normal, and his fund of knowledge appeared to be normal. Tr. 178179.

As for evidence of Button’s asthma, Dr. Singh reported only

“[m]inimal expiratory wheezing[.]” Tr. 178.
Dr. Singh’s diagnostic impression was that Button had
exertional asthma which was stable but he would need to use an
inhaler; he had a history of bipolar disorder which was under
control as a result of the use of medications; he had a remote
history of a urinary tract infection but no such current problems;
he was overweight/obese but had no limitations as a result of that
obesity.21 Tr. 179.
On August 1, 2006, Frederick B. Myers, M.D., reviewed
Button’s medical records on behalf of the Bureau of Disability
Determination and concluded that Button had the physical ability
to engage in the full-range of medium work. Tr. 181-186.

21

It was reported that Button weighed 415 pounds. Tr. 178.
21

Also,

on

August

1,

2006,

Paul

A.

Perch,

Ed.D.,

a

psychologist, reviewed Button’s medical records on behalf of the
Bureau of Disability

determination and concluded that Button

suffered from mood disorder, not otherwise specified, but that it
was a non-severe impairment. Tr. 187-199.

Dr. Perch stated that

Button had no restrictions in activities of daily living; no
difficulties in maintaining social functioning; no difficulties
maintaining concentration, persistence or pace; and no repeated
episodes of decompensation, each of an extended duration. Tr. 197.
Dr. Perch indicated that Button had not been hospitalized for
psychiatric problems and that his current mental status showed no
significant abnormalities. Tr. 199.

He further opined that based

on the evidence of record, Button’s statements regarding his
limitations were only partially credible. Id.
After the evaluation by Dr. Perch, the record does not
reveal any contact Button had with a medical or mental health
provider until March 27, 2007. Tr. 251-252.

On that date, Button

had an “Initial Contact Assessment” with Amber M. Cooper, MSW, a
social worker located in Wellsville, New York. Tr. 251-252. At the
appointment with Ms. Cooper, Button reported that he had been with
his fiancé for eight years and that his relationship was “pretty
good.” Tr. 251. Button also told Ms. Cooper that he was fired from
jobs “many times” because of his “attitude and poor attendance” and
that

his

most

recent

employment

22

was

“for

a

temp

agency

in

Florida[.]”

Tr. 251.

During the assessment Button

“denie[d] any

problems with concentration and none were evident during the intake
interview.” Id.

The results of a mental status examination were

essentially normal other than Button had a blunted affect and he
was unable to describe his mood. Tr. 252. Button did note that “he
has vague thoughts about how people would be better if he was no
longer around.” Id.

After conducting the clinical interview and

mental status examination, Ms. Cooper’s diagnostic assessment was
that Button suffered from major depressive disorder, recurrent,
moderate, and she gave Button a GAF score of 53, representing
moderate symptomatology. Tr. 251.

Ms. Cooper opined that Button

“would benefit from individual therapy to learn and increase use
of healthy coping skills.” Tr. 252.

She also stated that Button

asked to resume services with Dr. Neerukonda. Id.
On
evaluation

April

27,

performed

by

2007,
Dr.

Button

underwent

Neerukonda.

Tr.

a

psychiatric

249-250.

At

the

evaluation Button told Dr. Neerukonda that he was depressed, and
down in the dumps; he felt hopeless, helpless and worthless;

and

he was irritable, grouchy and gets agitated. Tr. 249. Button also
reported that he was not sleeping well, he had racing thoughts, and
that he was having mood swings. Id.

Also in contrast to what

Button told Ms. Cooper that his relationship with his fiancé was
“pretty good,” he told Dr. Neerukonda that his relationship with
his “significant other” was “not quite up to it” and that he was

23

getting “very frustrated with her.” Id.

Oddly Dr. Neerukonda in

the report of the April 27th evaluation incorrectly noted that he
had only seen Button one time in the past when in fact as detailed
earlier he had seen Button on several previous occasions. Id.

Dr.

Neerukonda also in the report of the evaluation noted Button’s
history

of

drug

and

alcohol

abuse

“occasionally drinks beer.” Id.

and

that

Button

still

In reviewing Button’s social,

personal and family history, Dr. Neerukonda reported Button’s selfreported problems with math and stated that Button told him that
he “had about over 100 jobs and the longest was six months.”22 Id.
When Dr. Neerukonda asked Button why he had so many jobs, Button
stated “I get frustrated and I get bored and I am not able to
function.”

Id.

A

mental

status

examination

of

Button

was

essentially normal other than Button’s mood was depressed and his
affect was anxious. Tr. 250. Button’s speech was coherent, logical
and relevant; he had no loosening of associations or flight of
ideas; there was no evidence of psychosis; he had good cognition;
and he denied suicidal and homicidal ideations. Id.
Dr. Neerukonda’s diagnostic impression was significantly
different from what he reported in 2006. Id.

Dr. Neerukonda could

not rule out bipolar disorder mixed and also found that Button
suffered from alcohol dependence in remission and marijuana and

22

As stated earlier in this memorandum, Button testified at the
administrative hearing that he had 30 to 35 jobs but all of short
duration and the longest lasting 4 to 5 months. Tr. 53-55.
24

heroin abuse in remission. Id.

Dr. Neerukonda also could not rule

out a learning disability.23 Id.

Dr. Neerukonda also gave Button

a GAF score of 50 to 55 which overlaps the top end of the range for
serious symptomatology and a portion of the range for moderate
symptomatology. Id.
medications

Celexa

psychotherapy.” Id.

Dr. Neerukonda prescribed the psychotropic
and

Seroquel24

and

provided

“[s]upportive

Dr. Neerukonda noted that he was prescribing

“Seroquel 25 mg at the nighttime for {Button] to sleep better[.]”
Id.

Follow-up appointments with Dr. Neerukonda were scheduled for

June

1

and

8,

2007,

but

Button

failed

to

appear

at

those

appointments. Tr. 247-248.
On July 19, 2007, Button had an appointment with Danielle
R. Kwayke-Berko, M.D., at Jones Memorial Hospital Medical Practice
located in Wellsville, New York. Tr. 227-230.
appointment

was

to

establish

care

The purpose of the

regarding

Button’s

asthma

condition and because Button was having “some intermittent left ear
23

The “rule-out” diagnosis is used inconsistently by different
physicians and psychologists and the context in which the “ruleout” diagnosis is made has to be closely scrutinized. The “ruleout” diagnosis can have two different meanings. It can mean that
the particular condition is in fact ruled out, i.e., the patient is
not suffering from the condition, but it also can mean that further
information is needed to evaluate whether the patient is in fact
suffering from the condition. In the present case it is clear that
Dr. Neerukonda could not definitely say that Button suffered from
bipolar disorder mixed or a learning disability.
24

Seroquel “is an antipsychotic medicine” used to treat several
conditions including bipolar disorder and in conjunction “with
antidepressant medications to treat major depressive disorder in
adults.” Seroquel, Drugs.com, http://www.drugs.com/seroquel.html
(Last accessed December 18, 2013).
25

pain for several months.” Tr. 227.
Button
hospitalized

told

for

Dr.

asthma

Kwakye-Berko
but

that

he

that
had

he

visited

was

never

emergency

departments and the last such visit “for an asthma exacerbation was
a year ago.” Id.

Button also told Dr. Kwakye-Berko that he “has

been without his Albuterol for some time” and “[h]e last saw a
[primary care physician] three to four months ago.”25 Id.
Dr. Kwayke-Berko noted that Button had a history of
depression, he was being followed and managed by Dr. Neerukonda and
that Button’s next appointment with Dr. Neerukonda was in two
weeks. Id.

Button told Dr. Kwayke-Berko that he stopped taking

Seroquel because of drowsiness but that he did not tell Dr.
Neerukonda. Tr. 228.

Button was advised by Dr. Kwayke-Berko to

call Dr. Neerukonda and inform him of the situation. Id.
In the report of this appointment, Dr. Kwayke-Berko under
social history noted that Button was smoking at least one pack of
cigarettes per day for 20 years and he was consuming two to three
alcoholic beverages every two months. Id.

When Button’s systems

were reviewed, Button denied suicidal and homicidal ideations and
anxiety. Id.
The results of a physical examination were essentially

25

Three to four months prior to this appointment would have
been in March or April, 2007, and our review of the administrative
record did not reveal any medical records from that time frame.
26

normal other than Button was morbidly obese,26 there was evidence
of a left middle ear infection (otitis media), he had swollen
glandular tissue in the neck area (cervical chain adenopathy), and
he had trace edema in the lower extremities. Id.
Dr. Kwakye-Berko’s diagnostic assessment was that Button
suffered from asthma, tobacco abuse and left otitis media. Tr. 229.
Dr. Kwakye-Berko further noted that Button had a history of
pneumonia and he was provided with a Pneumovax vaccine which he
tolerated well. Id. She also stated that Button had a family
history of amyotrophic lateral sclerosis (ALS), also known as Lou
Gehrig’s Disease, but that Button was denying symptoms of that
conditions,

including

difficulty

walking

or

bearing

weight,

dysarthria,27 difficulty chewing (mastication) or swallowing, and
shortness of breath other than associated with his asthma and
26

Button was 6 feet tall and weighed 397.6 pounds. An
individual of such height and weight has a body mass index of 53.9
and is considered morbidly obese. Center for Disease Control and
Prevention. Healthy Weight, Adult BMI Calculator, http://www.cdc.
gov/healthyweight/assessing/bmi/adult_bmi/english_bmi_calculator/bm
i_calculator.html (Last accessed December 18, 2013). “Doctors often
use a formula based on [the person’s] height and weight — called
the body mass index (BMI) — to determine if [the person is] obese.”
Obesity, Definition, Mayo Clinic Staff, MayoClinic.com, http://www.
Mayoclinic.com/health/obesity/DS00314 (Last accessed December 18,
2013). Adults with a BMI of 30 or higher are considered obese.
Extreme obesity, also called severe obesity or morbid obesity,
occurs when the person has a BMI of 40 or more. With morbid
obesity, the person is especially likely to have serious health
problems. Id.
27

Dysarthria is defined as “a speech disorder consisting of
imperfect articulation due to loss of muscular control after damage
to the central or peripheral nervous system.” Dorland’s Illustrated
Medical Dictionary, 572 (32nd Ed. 2012).
27

cigarette usage. Id.
asthma,

including

Button was prescribed medications for his

Singulair,

and

an

antibiotic

for

his

ear

infection. Id. Button was also prescribed the drug Chantix for his
tobacco abuse. Id.
On August 1, 2007, Button had an appointment with Dr.
Kwakye-Berko regarding upper respiratory symptoms of congestion and
cough but Dr. Kwakye-Berko “was running behind” that day and Button
left the office without having an examination performed. Tr. 225.
However, Button was given prescriptions for an antibiotic (Z-pak),
Carotin, Mitral-Dosepak (a steroid medication) and Robitussin. Id.
On August 3, 2007, Button had an appointment with Dr.
Neerukonda.

Tr.

246.

In

the

report

of

this

appointment

Dr.

Neerukonda stated that Button “carrie[d] the diagnosis of bipolar
disorder mixed” and that Button “seem[ed] to be doing the same.”
Id. Dr. Neerukonda noted that Button continued to take Celexa but
was no longer taking Seroquel “because it was making him groggy.”
Id.

Dr. Neerukonda stated that Button told him that he was

applying for disability but “on the other hand” Button stated “that
he is interested in digital art where he is doing a lot of things
on the computer[.]” Id.

Dr. Neerukonda noted that Button’s

“thought process seem[ed] to be doing pretty good.” Id.

The

results of a mental status examination were essentially normal
other than Button’s mood was depressed and his affect anxious. Id.
Button had good cognition. Id.

The report of this appointment

28

reveals that Dr. Neerukonda’s changed his diagnostic assessment to
bipolar

disorder

mixed.28

Id.

Dr.

Neerukonda

prescribed the

psychotropic medication Celexa and told Button to continue taking
Seroquel and provided “[s]upportive psychotherapy.” Id.

Button

failed to appear at an appointment with Dr. Neerukonda scheduled
for September 7, 2007. Tr. 245.
Button next appeared at an appointment with Dr. Neerukonda
on September 21, 2007. Tr. 244.

In the report of that appointment

Dr. Neerukonda indicated that Button still carried the diagnosis
of bipolar disorder mixed and that he was “doing very well on the
Celexa and Seroquel.” Id.

Button told Dr. Neerukonda that since

the last appointment which was on August 3rd he “ended up in jail
a couple times” but did not give any details. Id. According to Dr.
Neerukonda other than that incarceration Button was “coming along
very well.” Id. Button was sleeping and eating well and there was
“[n]o evidence of any irritability or grouchiness going on.” Id.
Button told Dr. Neerukonda that “things [were] definitely looking
better and brighter and things [were] not bothering him at all at
this time.” Id.
nervous. Id.

Button reported that he was less anxious and less
The results of a mental status examination were

28

There is no indication why Dr. Neerukonda changed the
diagnosis from a rule out diagnosis of bipolar disorder mixed of
April 27, 2007, to a definitive diagnosis of bipolar disorder mixed
at this appointment. The medical records reveal no real change in
Button’s condition from the April 27, 2007 appointment with Dr.
Neerukonda other than possibly for the better in that Button was
now expressing interest in digital art and computers.
29

essentially normal other than Button exhibited a “mildly depressed”
mood and an anxious affect. Id.

Button exhibited no psychosis and

his “[c]ognition [was] good.” Id.

Button’s speech was coherent,

logical and relevant; he had no loosening of associations or flight
of ideas; and he denied any suicidal thoughts. Id. The diagnostic
impression was bipolar disorder mixed and Dr. Neerukonda continued
Button’s

prescriptions

supportive

for

psychotherapy.

Celexa
Id.

and

Button

Seroquel
was

a

and
“no

provided
show”

at

appointments with Dr. Neerukonda scheduled for October 5 and
November 2, 2007. Tr. 242-243. It was noted on the record of the
November 2nd “no show” that Button would “not receive medicine
until he shows for [an appointment].” Tr. 242.
On November 14, 2007, Button had an appointment with Dr.
Kwakye-Berko regarding an upper respiratory infection. Tr. 221-222.
Button

was

diagnosed

with

an

upper

respiratory

infection

(sinusitis/bilateral otitis media/bronchitis), allergic rhinitis,
chronic obstructive pulmonary disease exacerbation, and tobacco
abuse. Tr. 222. The report of this appointment details the symptoms
of these conditions and the results of a physical examination are
consistent with the diagnosis.29 Tr. 221-222.

Medications were

prescribed by Dr. Neerukonda, including an antibiotic. Tr. 222.
It was noted that Button was still smoking and he was encouraged
29

The report of this appointment also notes that Button
“recently [came] out of the pen[itentiary]” and that “during the
time he was in the penitentiary . . . he was taken off of all of
his medications.” Tr. 221.
30

to stop smoking. Id.

Even though he was still smoking and

complaining of shortness of breath, his blood oxygen saturation
level was 96%.30 Id.
Button was a “no show” at an appointment with Dr. KwakyeBerko scheduled for November 30. 2007. Tr. 220.
Button

was

a

“no

show”

at

an

appointment

Neerukonda scheduled for December 7, 2007. Tr. 241.

with

Dr.

It appears,

however, that the “no show” was excused and rescheduled for January
11, 2008, and on that date Button did appear for an appointment
with Dr. Neerukonda. Tr. 240-241.

The report of the January 11th

appointment reveals that Button was “doing very well on the Celexa
and Seroquel.” Tr. 240.

Button told Dr. Neerukonda that he was

“coming along very well.” Id. Button was sleeping and eating well;
there was “[n]o evidence of any issues whatsoever;” there was “[n]o
evidence of any agitation whatsoever;” and Button stated that
“things [were] definitely looking better and brighter and things
[were] not bothering him like the way they were.” Id.

The results

of mental status examination were essentially normal other than
Button exhibited a depressed mood and an anxious affect. Id.
Button exhibited no psychosis and his “[c]ognition [was] good.” Id.
Button’s speech was coherent, logical and relevant; he had no
loosening of associations or flight of ideas; and he denied any
suicidal or homicidal thoughts. Id. The diagnostic impression was
30

Normal blood oxygen saturation ranges from 95% to 100% but
values down to 90% are common and not cause for alarm.
31

bipolar disorder, although the “mixed” designation was dropped, and
Dr. Neerukonda continued Button’s prescriptions for Celexa and
Seroquel and provided supportive psychotherapy. Id.

A 10-12 week

follow-up appointment was scheduled. Id.
Button was a “no show” at an appointment with a medical
provider at Jones Memorial Hospital Medical Practice (we assume Dr.
Kwakye-Berko) scheduled for February 12, 2008.31 Tr. 219.
Button next appeared at an appointment with Dr. Neerukonda
on March 7, 2008. Tr. 239.

In the report of that appointment Dr.

Neerukonda indicated that Button still carried the diagnosis of
bipolar disorder and that he was “doing pretty good at this time.”
Id.

Button was taking his medications as prescribed and he was

sleeping and eating well. Id.

Button did report that the Seroquel

was

Dr.

making

him

groggy

and

Neerukonda

discontinued

that

medication and prescribed the antidepressant Trazodone32 instead.
Id.

The results of mental status examination were essentially

normal other than Button exhibited a depressed mood and an anxious
affect. Id.

Button exhibited no psychosis and his “[c]ognition

[was] good.” Id.

Button’s speech was coherent, logical and

relevant; he had no loosening of associations or flight of ideas;

31

The record is a Jones Memorial Hospital Medical Practice form
on which there is handwriting by a registered nurse indicating that
Button did not call and did not appear at the scheduled
appointment. Tr. 219.
32

Trazodone, Drugs.com, http://www.drugs.com/trazodone.html
(Last accessed December 19, 2013).
32

and he denied any suicidal thoughts. Id. The diagnostic impression
was bipolar disorder mixed and Dr. Neerukonda continued Button’s
prescriptions

for

Celexa,

discontinued

Seroquel,

and

added

Trazodone as noted above, and provided supportive psychotherapy.
Id.
On March 11, 2008, Button had an appointment with Dr.
Kwakye-Berko for a physical. Tr. 216-217.

When Dr. Kwakye-Berko

reviewed Button’s systems, Button complained of bilateral ear pain
and

migraine

headaches

negative. Tr. 216.

but

the

remaining

systems

review

was

The results of a physical examination were

essentially normal other than Button was morbidly obese and there
was evidence of a middle ear infection and goiter.33 Id.

An

examination of Button’s extremities revealed no cyanosis, clubbing
or edema. Id. Button had normal motor strength and reflexes in his
upper and lower extremities. Id. Dr. Kwakye-Berko’s diagnostic
assessment was that Button suffered from goiter and bilateral
otitis media but noted that he was asymptomatic for asthma. Tr.
217.

In fact Button denied “any acute symptomatology or an

exacerbations” of asthma. Id.

Button was prescribed an antibiotic

for the ear infection and with respect to the goiter it was noted
that he had “never had any labs up until this point” and routine
blood work (a complete metabolic panel, a lipid profile and
thyroid stimulating hormone (TSH)) was ordered. Id.
33

Goiter is a swelling of the neck from an enlargement of the
thyroid gland.
33

Button was a “no show” at an appointment with Dr. KwakyeBerko scheduled for April 1, 2008. Tr. 215.
Button had appointments with Dr. Neerukonda on April 4 and
11,

2008.

diagnostic

Tr.

237-238.

assessment

On

was

both

bipolar

occasions
disorder

Dr.

Neerukonda’s

depressed

and

he

continued Button’s prescription for Celexa and provided supportive
psychotherapy. Id.

The record of the April 4th appointment reveals

that Button was “coming along very well” and that he was only
“getting frustrated once in awhile because he [was] not able to
work.” Tr. 238.

The results of a mental status examination on

April 4th were essentially normal other than Button exhibited a
depressed mood and anxious affect. Id.

The report of the April

11th appointment also reveals that Button was “doing very well[.]”
The results of a mental status examination on April 11th

Tr. 237.

were essentially normal other than Button exhibited a depressed
mood and anxious affect. Id.
good. Id.

Button’s cognition was noted to be

On both occasions, Button looked his stated age, he was

casually dressed, and he was alert, awake, responsive, and oriented
to person, place and time; Button’s speech was coherent, logical
and relevant; he exhibited no psychosis; and he had no loosening
of associations or flight of ideas. Tr. 237-238.
Button was a “no show” at appointments with Dr. Neerukonda
scheduled for May 9 and 16 and June 8, 2008. Tr. 234-236.
On July 8, 2008, Button had an appointment with Dr.

34

Kwakye-Berko

regarding

cold

symptoms

and

for

renewal

Chantix and Singulair prescriptions. Tr. 212-214.

of

his

In the report

of this appointment Dr. Kwakye-Berko noted that Button had been a
“no show” at several appointments and that he was “told if he has
another no show then he will need to be discharged from [the Jones
Memorial Hospital Medical Practice’s] service.” Tr. 212.

The

report of this appointment also notes that Button complained of
some right shoulder discomfort caused by heavy lifting and that the
results of a recent x-ray were unremarkable. Id.

Dr. Kwakye-Berko

further observed that she thought that it was “funny” that Button
stated that he had been given pain medication but her review of the
records revealed that she did not prescribe any such medication.
Button was asked what pain medication he was taking and he informed
Dr. Kwakye-Berko that he was taking Tramadol (Ultram), which is a
narcotic-like pain reliever used to treat moderate to severe
pain.34 Tr. 212.

The results of a physical examination were

essentially normal other than evidence of an upper respiratory
infection and a middle ear infection, morbid obesity, an elevated
temperature, and a rapid pulse. Tr. 212-213.

The diagnostic

assessment was that Button suffered from sinusitis, bronchitis, and
bilateral otitis media; a right shoulder sprain; allergic rhinitis;
asthma

and/or

history

of

thereof;

34

and

transient

high

blood

Tramadol, Drugs.com, http://www.drugs.com/tramadol.html (Last
accessed December 18, 2013). Our review of the administrative
record did not reveal any medical record indicating that Button was
prescribed Tramadol.
35

pressure.35 Tr. 213. Button was prescribed the antibiotic Augmentin
for the respiratory and bilateral ear infections; Chantix for
smoking cessation; Tylenol Extra Strength for the shoulder sprain;
Singulair for the allergic rhinitis; and

Combivent MDI and Advair

for the asthma. Id. Dr. Kwakye-Berko noted that Button’s asthma was
stable. Id.
Button was a “no show” at an appointment with Dr. KwakyeBerko scheduled for August 12, 2008. Tr. 211.
The last record that we encounter is a ”check-box” form
entitled

“Medical

Source

Statement

Regarding

the

Nature

and

Severity of an Individual’s Mental Impairment” with some barely
legible handwriting inserted on it which was completed on November
7, 2008, by Dr. Neerukonda on behalf of Button. Tr. 253-256. Prior
to completing this form the last time Dr. Neerukonda examined
Button was April 11, 2008, when he found that Button was “doing
very well[.]”36 Tr. 237.

The form required Dr. Neerukonda to rate

35

Normal blood pressure is below 120/80; prehypertension is
120-139/80-89; stage 1 hypertension is 140-159/90-99; and stage 2
hypertension is 160/100 or more. When the top number(systolic) is
in the abnormal range and the bottom number (diastolic) is normal,
the top number (systolic) is used to classify the patient’s
condition. See High blood pressure (hypertension), Mayo Clinic
Staff, http://www.mayoclinic.com/health/blood-pressure/
HI00043/ (Last accessed December 18, 2013). Button’s blood pressure
when initially taken was abnormal because it was 116/90. When
taken a second time his blood pressure was 116/88. Tr. 213. The
lower number was elevated and abnormal.
36

The record does contain a list of prescription refills and
that list indicates that either Dr. Neerukonda or someone working
for or with him called in a renewal of Celexa and Trazodone to a
Walgreen Pharmacy. The date of the call is handwritten and could
36

several areas of mental work-related functioning. Tr. 253-252. Dr.
Neerukonda found that Button was moderately limited in his ability
to (1) understand and remember short, simple instructions, (2)
carry out short, simple instructions, (3) understand and remember
detailed instructions, (4) carry out detailed instructions, (5)
make judgments on simple work-related decisions, and (6) interact
appropriately with co-workers, and markedly limited in his ability
to (1) interact appropriately with the public and supervisors and
(2) respond appropriately to work pressures in a usual work
setting. Tr. 253-254.

The form defined “moderate” as “[t]here is

moderate limitation in this area but the individual is still able
to function satisfactorily” and “marked” as “[t]here is serious
limitation in this area [and] [t]he ability to function is severely
limited but not precluded.” Tr. 253.

Dr. Neerukonda stated that

with respect to responding appropriately to work pressures in a
usual work setting Button would be off task 15-30 minutes per hour
and with respect to responding appropriately to changes in a
routine work setting Button would be off task 10-15 minutes per
hour. Tr. 254.

Dr. Neerukonda noted several factors that would

increase Button’s level of impairment, including production demands
and quotas. Id.

Dr. Neerukonda on the form did not state when

these impairments arose or that they had lasted a continuous period

possibly be either April 15 or September 15, 2008. Tr. 233.
However, there is no evidence in the record that Dr. Neerukonda
actually examined Button on either of those dates.
37

of 12 months or more or were expected to last a continuous period
of 12 months or more. Tr. 253-256.
DISCUSSION
The administrative law judge at step one of the sequential
evaluation process found that Button had not engaged in substantial
gainful work activity since March 29, 2006, the date Button filed
his application for supplemental security income benefits. Tr. 20.
At step two of the sequential evaluation process, the
administrative law judge found that Button had the following severe
impairments: “a bipolar disorder, asthma, back impairments, and a
learning disability.” Id.
condition

and

learning

In finding that Button’s asthma, back
problems

were

severe

impairments

the

administrative law judge gave Button the benefit of the doubt. Tr.
20-21.

In finding those condition severe, the ALJ stated in

pertinent part as follows:
The claimant has complained of low back pain. There are
no radiographic studies showing any significant
abnormalities such as disk herniation, spinal stenosis or
nerve root impingement. There are no EMG or nerve
conduction studies and the claimant has not complained
of any sensory or motor abnormalities. A consultative
physical examination of the claimant revealed no
abnormalities. . . In the absence of any supporting
medical evidence the claimant’s back impairment would
not be considered a medically determinable severe
impairment, but interpreting the facts in the light
most favorable to the claimant, I will accept that
the claimant may have a minor back impairment which
contributes to some level of lifting and carrying
limitations and therefore constitutes a portion of the
claimant’s combination of severe impairments. . . .
Although, like his back impairment, there is very little
evidence to support the claimant’s asthma as a severe
38

impairment in and of itself, I will accept that in
combination with his other impairments they constitute
a severe combination of impairments. . . The claimant
also has a reported history of learning problems. These
were not severe enough to interfere with the claimant’s
ability to obtain a high school equivalency diploma (GED),
but I will accept that the evidence indicates that the
claimant does have some level of learning limitation.
Tr. 20-21. Our detailed review of the medical records reveals that
the administrative law judge was correct in noting that there was
a lack of medical evidence relating to Button’s alleged back
impairment and he was extremely generous in finding that Button’s
alleged back impairment, asthma and learning disorder were in
combination a severe impairment.
At step three of the sequential evaluation process the
administrative law judge found that Button’s impairments did not
individually or in combination meet or equal a listed impairment.
Tr. 21-22.

Button has not challenged the administrative law

judge’s step three analysis.
At step four of the sequential evaluation process the
administrative law judge found that Button could not perform his
past relevant work as a taxicab driver and janitor but that he
could perform a limited range of unskilled, medium work which
allowed him to avoid hazards, exposure to respiratory irritants
such as fumes, dust and airborne particles and would be limited to
simple, routine and repetitive tasks involving use of independent
judgment or discretion and changes in the workplace no more than
1/6 of the time, and there would be no interaction with the general
39

public. Tr. 22.

In setting Button’s residual functional capacity,

the administrative law judge relied on the opinions of the state
agency consultants and the forms completed by them but also as
noted above gave Button the benefit of the doubt. Id.
In

setting

administrative

law

the

judge

residual
reviewed

functional
the

medical

capacity, the
records

and

considered several other items including the opinions of the state
agency consultants and the opinion of Dr. Neerukonda. Tr. 22-25.
Also,

in

arriving

at

this

residual

functional

capacity

the

administrative law judge found that Button’s statements about his
functional limitations were not credible to the extent they were
inconsistent with the above residual function capacity. Tr. 23.
At step five, the administrative law judge based on the
above

residual

functional

capacity

and

the

testimony

of

a

vocational expert found that Button had the ability to perform
work such as a packing machine operator and a hand packer,37 and
that there were a significant number of such jobs in the regional
and national economies. Tr. 26.

37

The vocational expert testified that the packaging machine
operator position as listed in the Dictionary of Occupational
Titles was unskilled, medium work but there were a lot of such
positions at the light exertional level. Tr. 58. He also noted
that because such positions were single operator machines, the
person would be working alone. As for the hand packer position, the
vocational expert testified that it was unskilled, medium work. Tr.
58-59.
40

The administrative record in this case is 256 pages in
length, primarily consisting of medical and vocational records.
The administrative law judge did an adequate job of reviewing
Button’s medical history and vocational background in his decision.
Tr. 18-26.

Furthermore, the brief submitted by the Commissioner

sufficiently reviews the medical and vocational evidence in this
case. Doc. 11, Brief of Defendant.
Button

makes

a

broad

and

general

argument

that

the

administrative law judge failed to properly consider the medical
evidence of record but essentially focuses on the alleged failure
of the administrative law judge to consider administrative hearing
Exhibit 10F which was Dr. Neerukonda’s assessment of Button’s workrelated mental functional abilities which he completed on November
7, 2008. We have thoroughly reviewed the record in this case and
find that the alleged failure of the administrative law judge to
consider Exhibit 10F is not a basis to find that his decision is
not supported by substantial evidence.
The Social Security regulations require that an applicant
for

disability

insurance

benefits

come

forward

with

medical

evidence “showing that [the applicant] has an impairment(s) and how
severe it is during the time [the applicant] say[s] [he or she is]
disabled”

and

“showing

how

[the]

impairment(s)

affects

[the

applicant’s] functioning during the time [the applicant] say[s] [he
or she is] disabled.”

20 C.F.R. § 404.1512(c).

41

No treating or examining physician has indicated that
Button suffers from physical or mental functional limitations that
would preclude him from engaging in the limited range of

work set

by the administrative law judge in his decision for the requisite
statutory 12 month period.38

No physician indicated that Button

was incapable of engaging in the limited range of work set by the
administrative law judge on a full-time basis.
Although giving Button the benefit of the doubt, the
administrative law judge relied on the opinions of Dr. Singh and
Dr. Myers, the state agency physicians, and Dr. Perch, the state
agency psychologist. The administrative law judge’s reliance on
those opinion was appropriate. See Chandler v. Commissioner of Soc.
Sec., 667 F.3d. 356, 362 (3d Cir. 2011)(“Having found that the
[state agency physician’s] report was properly considered by the
ALJ, we readily conclude that the ALJ’s decision was supported by
substantial

evidence[.]”).

The

record

does

not

contain

any

statement from a treating physician that Button had physical
limitations that would preclude him from engaging in work as a
packing machine operator or as a hand packager and the bare medical
records do not provide support for such a conclusion. Furthermore,
as noted above Dr. Neerukonda did not indicate that Button from a
38

To receive disability benefits, the plaintiff must
demonstrate an “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 12 months.” 42 U.S.C. § 432(d)(1)(A).
42

mental standpoint was disabled for the requisite 12-month period.
Furthermore, Dr. Neerukonda treatment records do not support his
marked limitations which he set forth in Exhibit 10F and also as
noted that assessment was completed several months after he last
saw Button.
The

administrative

law

judge

rejected

the

limitations set forth in Dr. Neerukonda’s assessment.

marked

The Court

of Appeals for this circuit has set forth the standard

for

evaluating the opinion of a treating physician in Morales v. Apfel,
225 F.3d 310 (3d Cir. 2000).

The Court of Appeals stated in

relevant part as follows:
A cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating
physicians’ reports great weight, especially “when
their opinions reflect expert judgment based on a
continuing observation of the patient’s condition
over a prolonged period of time.” . . . The ALJ
must consider the medical findings that support a
treating physician’s opinion that the claimant is
disabled. In choosing to reject the treating
physician’s assessment, an ALJ may not make
“speculative inferences from medical reports” and
may reject “a treating physician’s opinion outright
only on the basis of contradictory medical evidence”
and not due to his or her own credibility judgments,
speculation or lay opinion.
Id. at 317-18 (internal citations omitted). The administrative law
judge is required to evaluate every medical opinion received. 20
C.F.R. § 404.1527(d). In the present case, the administrative law
judge in his decision specifically addressed the opinions of Dr.
Neerukonda as well as the credibility of Button. Tr. 23-24.

43

The social security regulations specify that the opinion
of a treating physician may be accorded controlling weight only
when it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in the case. 20 C.F.R. § 404.1527(d)(2); SSR
96-2p.

Likewise, an administrative law judge is not obliged to

accept the testimony of a claimant if it is not supported by the
medical evidence.

An impairment, whether physical or mental, must

be established by “medical evidence consisting of signs, symptoms,
and laboratory findings,” and not just by the claimant’s subjective
statements.

20 C.F.R. § 404.1508 (2007).

The administrative law

judge appropriately considered the contrary medical opinion of the
state agency physicians and psychologist and the objective medical
evidence

and

concluded

that

the

disability

opinion

of

Dr.

Neerukonda was not adequately supported by the objective medical
evidence.
As for the claim that the ALJ ignored or overlooked
Exhibit 10F, the ALJ referenced that exhibit number in his decision
when performing his analysis at step three of the sequential
evaluation process. Tr. 22. The ALJ in setting the residual
functional capacity at step 4 stated that he had “given significant
consideration to the various statements made by the claimant’s
treating psychiatrist, Dr. Neerukonda.” Tr. 24.

Also, the ALJ was

well-aware of Exhibit 10F because at the administrative hearing

44

counsel

for

Button

used

information

from

that

Exhibit

in

questioning the vocational expert and counsel also referred to it
in his closing argument after which the ALJ indicated he would take
those arguments (which relied on Exhibit 10F) into consideration
when rendering a decision. Tr. 66.
Finally, as noted earlier the Appeals Council specifically
addressed Button’s contention relating to Exhibit 10F when denying
his request for review and noted that Dr. Neerukonda’s treatment
records did not support the conclusion that Button lacked the
capacity to perform the specific jobs identified by the vocational
expert.
Our review of the administrative record reveals that the
decision of the Commissioner is supported by substantial evidence.
We will, therefore, pursuant to 42 U.S.C. § 405(g) affirm the
decision of the Commissioner.
An appropriate order will be entered.

Dated: December 20, 2013

45