Frye v. Colvin

Filing 24

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 10/3/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CRYSTAL FRYE ,
Plaintiff

:

NANCY A. BERRYHILL,
Defendant

CIVIL ACTION NO. 3:16-1482

:

v.

:

JUDGE MANNION

:
:
MEMORANDUM

Pending before the court is the report of Magistrate Judge Karoline
Mehalchick which recommends that the decision of the Commissioner of
Social Security, (“Commissioner”), be vacated and the matter remanded
for further consideration. (Doc. 22). The defendant has filed objections to
the report. (Doc. 23). Based upon the court’s review of the record in this
case, the report of Judge Mehalchick will be adopted in its entirety.
By way of relevant background, on July 19, 2013, the plaintiff filed
Title II and Title XVI applications with the Social Security Administration,
(“Administration”), seeking a period of disability, Disability Insurance
Benefits, (“DIB”), and supplemental security income, (“SSI”), for disability
beginning July 31, 2011. (Doc. 1, ¶5). The plaintiff’s applications for DIB
and SSI were denied by the Administration on October 25, 2013. (Doc. 1,
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¶6). On December 6, 2013, the plaintiff requested a hearing before an
Administrative Law Judge, (“ALJ”). (Doc. 1, ¶7). At the hearing set in July
2014, the plaintiff amended her onset date to September 16, 2012. (Doc.
9-2, p. 11). The plaintiff’s hearing was continued to February 17, 2015.
(Doc. 1, ¶7). On July 21, 2015, the ALJ issued a decision finding that the
plaintiff was not disabled within the meaning of the Social Security Act,
(“Act”). (Doc. 9-2, p. 26). The plaintiff appealed the decision of the ALJ to
the Social Security Administration Appeals Council, (“Appeals Council”),
which denied her appeal on June 24, 2016. (Doc. 1, ¶ 9).
On July 19, 2016, the plaintiff filed the instant action in which she
argues that she has been disabled since September 16, 2012; she has
not engaged in any substantial gainful activity since that date; and that the
decision of the ALJ is not supported by substantial. (Doc. 1, ¶¶11-13).
The plaintiff requests that the court either reverse the decision of the ALJ
and award benefits or, in the alternative, remand the matter for a new
hearing. (Doc. 1, ¶14). The Commissioner filed an answer to the plaintiff’s
complaint with necessary transcripts on September 21, 2016. (Doc. 8,
Doc. 9).

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The plaintiff’s brief in support of her appeal was filed on December
5, 2016. (Doc. 13). On January 3, 2017, the defendant’s brief followed.
(Doc. 15). The plaintiff filed a reply brief on January 27, 2017, (Doc. 18).
On August 18, 2017, Judge Mehalchick issued the instant report in
which she recommends that the decision of the Commissioner be vacated
and the case be remanded to the Commissioner to conduct a new
administrative hearing and appropriately evaluate the evidence pursuant
to sentence four of 42 U.S.C. §405(g). (Doc. 22). The Commissioner filed
objections to Judge Mehalchick’s report on August 31, 2017. (Doc. 23).
When objections are timely filed to the report and recommendation
of a magistrate judge, the district court must review de novo those
portions of the report to which objections are made. 28 U.S.C. '636(b)(1);
Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard
is de novo, the extent of review is committed to the sound discretion of
the district judge, and the court may rely on the recommendations of the
magistrate judge to the extent it deems proper. Rieder v. Apfel, 115
F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz, 447
U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, Asatisfy
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itself that there is no clear error on the face of the record in order to
accept the recommendation.@ Fed. R. Civ. P. 72(b), advisory committee
notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d
465, 469 (M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878
(3d Cir. 1987) (explaining judges should give some review to every report
and recommendation)). Nevertheless, whether timely objections are made
or not, the district court may accept, not accept, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge. 28
U.S.C. '636(b)(1); Local Rule 72.31.
In

her

objections,

the

Commissioner

provides

that

Judge

Mehalchick recommended that this matter be remanded to the agency for
further consideration of the medical opinion of Dr. Harvey Shapiro. The
Commissioner argues that the ALJ’s evaluation of Dr. Shapiro’s opinion
was proper under the applicable regulations and Third Circuit precedent
and, therefore, remand is improper. The Commissioner requests that the
court decline to adopt Judge Mehalchick’s report and deny the plaintiff’s
appeal.
In her appeal, the plaintiff raised five arguments for consideration by
the court. Judge Mehalchick focused on the second which contended that
the ALJ improperly weighed the medical opinion of her treating physician,
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Dr. Harvey Shapiro. In addressing the plaintiff’s argument and the
Commissioner’s response thereto, Judge Mehalchick provided the
following discussion:
The ALJ also considered the medical opinion proffered by
treating physician Dr. Harvey Shapiro. (Doc. 9-2, at 22). Frye
first saw Dr. Shapiro on August 14, 2013. (Doc. 9-14, at 55;
Doc. 9-21, at 27). At this initial visit, Dr. Shapiro observed that
Frye presented with a depressed mood and reported panic
attacks occurring four times per week with each lasting thirty
minutes. (Doc. 9-14, at 57). Frye reported symptoms of
depression and anxiety including self-castigation, anhedonia,
hopelessness, hypomanic episodes, social phobia preventing
her from going to crowded places, senseless and constant
worries, frequently checking to see if anyone is outside of her
home, and hearing voices/seeing dark shadows. (Doc. 9-14, at
57-58). Dr. Shapiro conducted a psychiatric evaluation and
diagnosed Frye with cyclothymic disorder, panic disorder, GAD,
OCD, ADHD, social phobia, dissociative disorder with probable
elements of DID, PTSD, migraines, hypertension, and diabetes.
(Doc. 9-14, at 58). Dr. Shapiro opined that Frye “obviously has
a very heavy burden of mood disorder spectrum illnesses.
Clearly a strong antidepressant is needed . . . [e]ven harder
may be to deal with the PTSD and probably dissociative
disorder (which probably has elements of DID). There is little
medicinally to be done for that, but an alpha agonist is
possible.” (Doc. 9-14, at 58). Dr. Shapiro prescribed three
medications, Celexa, Imitrex, and Effexor, with Effexor dosage
to be increased progressively from 37.5 mg to 150 mg. (Doc. 914, at 58-59). At the first follow-up on September 10, 2013, Dr.
Shapiro noted Frye’s mood as depressed, with flat affect,
diagnosing bipolar disorder with continuing symptoms. (Doc. 914, at 60-61). Dr. Shapiro noted that Effexor helped Frye’s
mental energy, but had no effect on her feelings of panic, GAD,
social phobia, and OCD. (Doc. 9-14, at 61). He increased her
dosage of Effexor and began Xanax. (Doc. 9-14, at 61).
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On July 1, 2014, Dr. Shapiro conducted a mental
impairment questionnaire. (Doc. 9-21, at 21-32). In a
symptomatic check-box portion of the worksheet, Dr. Shapiro
identified Frye’s symptoms as anhedonia, appetite
disturbances, decreased energy, thoughts of suicide, blunt, flat
or inappropriate affect, feelings of guilt or worthlessness,
generalized persistent anxiety, mood disturbance, difficulty
thinking or concentrating, recurrent and intrusive recollections
of a traumatic experience, psychomotor agitation or retardation,
persistent disturbances of mood or affect, apprehensive
expectation, recurrent obsessions or compulsions, emotional
withdrawal, bipolar syndrome with a history of episodic periods
manifested by the full symptomatic picture of both manic and
depressive syndromes, perceptual or thinking disturbances,
hyperactivity, emotional lability, flight of ideas, manic syndrome
(hypomanic), pressures of speech, easy distractibility, memory
impairment (dissociative), sleep disturbance, and recurrent
severe panic attacks. (Doc. 9-21, at 22).
In a check-box evaluation of Frye’s ability to do workrelated activities on a day-to-day basis in a regular work setting
for unskilled positions, Dr. Shapiro opined Frye would be
seriously limited but not precluded in: remembering work-like
procedures; sustaining an ordinary routine without special
supervision; and performing at a consistent pace without an
unreasonable number and length of rest periods. (Doc. 9-21, at
23). He further opined Frye would be unable to meet
competitive standards in working in coordination with or
proximity to others without being unduly distracted, and Frye
would have no useful ability to function in maintaining attention
for two hour segments or completing a normal workday and
workweek without interruption from psychologically based
symptoms. (Doc. 9-21, at 23). In separate boxes considering
semi-skilled and skilled work, or particular types of jobs, Dr.
Shapiro found Frye would be unable to understand and
remember detailed instructions, carry out instructions, deal with
the stress of semi-skilled and skilled work, and interact
appropriately with the general public. (Doc. 9-21, at 24). Dr.
Shapiro summarized Frye’s mental functional limitations as
moderate restriction in activities of daily living, extreme
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difficulties in maintaining social functioning, extreme difficulties
in maintaining concentration, persistence, or pace, and four or
more episodes of decompensation within a 12 month period,
each of at least two weeks in duration. (Doc. 9-21, at 25).
Dr. Shapiro attached a six-page narrative summary to his
evaluation. (Doc. 9-21, at 27-32). He stated that he had seen
Frye every 2-4 weeks since the beginning of their treatment
relationship, reiterating the same diagnoses as found in his
treatment history. (Doc. 9-21, at 27). He stated his treatment
had consisted of medication and psychotherapy, with response
“meagre and limited.” (Doc. 9-21, at 27). Dr. Shapiro found
Frye’s prognosis “poor,” noting that while psychiatric medication
had provided some response, the response was disappointing
in light of Frye’s Effexor prescription being the “very top dose”
of “the most powerful of the modern antidepressants.” (Doc. 921, at 29). Dr. Shapiro expanded on each of his findings on
Frye’s limitations, and severely criticized the opinion of Dr.
Digamber. (Doc. 9-21, at 31).
The ALJ notes that he considered the opinions of Dr.
Shapiro, however affording them little weight. (Doc. 9-2, at 23).
The ALJ described Dr. Shapiro’s form as “conclusory” and with
“very little explanation of the evidence relied upon in forming”
the opinion. (Doc. 9-2, at 23). The ALJ then cited Dr. Shapiro’s
medication management notes, focusing on notations of Frye’s
mood and affect being generally within normal limits. (Doc. 9-2,
at 23; Doc. 9-21, at 19-20; Doc. 9-22, at 8-10).1 The ALJ also
found Dr. Shapiro’s treatment notes inconsistent with his
findings on Frye’s functional limitations, further describing
Frye’s treatment as “routine and conservative” and belied by
her activities of daily living. (Doc. 9-2, at 23). The ALJ then
discredited Dr. Shapiro’s criticism of Dr. Digamber, as Dr.
Digamber’s findings on Frye’s physical limitations were outside
the scope of treatment provided by Dr. Shapiro. (Doc. 9-2, at
23). Finding Dr. Shapiro’s opinion unsupported by objective
evidence, the ALJ afforded little weight to the opinion.
1

Footnote omitted.
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The Court finds that the ALJ’s decision to afford little
weight to Dr. Shapiro to be improper given the explanation
provided. Even where not entitled to controlling weight, the
opinion of a treating source is generally afforded greater weight,
barring “good reasons” for affording reduced weight upon
consideration of the factors noted in § 404.1527. Many of these
factors weigh in favor of granting weight to the opinion of Dr.
Shapiro, including the length of the treatment relationship,
frequency of examination, nature and extent of the treating
relationship, consistency, and specialization. Dr. Shapiro was
uniquely positioned to posit on Frye’s mental limitations given
the scope, duration, and frequency of his treatment leading to
his assessment. In affording reduced weight to Dr. Shapiro’s
opinion, the ALJ cited a routine and conservative treatment
history of Frye, a lack of objective medical evidence supporting
the severity of her mental limitations, Frye’s activities of daily
living, and Dr. Shapiro’s opinions on restrictions outside the
scope of his expertise and treatment relationship. (Doc. 9-2, at
23).
Mental impairments such as depression and anxiety, both
diagnosed in Frye, may manifest in symptoms difficult to
quantify through objective medical evidence. A lack of objective
medical evidence is by itself insufficient to discredit claimant.
SSR 96-7p. As noted by other courts in the Third Circuit,
impairments such as depression and anxiety “while medically
determinable, are difficult to substantiate by objective medical
evidence.” Volage v. Astrue, No. 11-CV-4413, 2012 WL
4742373, at *7 (D.N.J. Oct. 1, 2012). “[T]he reports of treating
physicians, as well as the testimony of the claimant, become
even more important in the calculus for making a disability
determination” in circumstances involving impairments for
which objective medical testing may not demonstrate the
existence or severity of an impairment. See Perl v. Barnhart,
No. 03-4580, 2005 WL 579879, at *3 (E.D. Pa. March 10, 2005)
(citing Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir.
2002)). Thus, credibility becomes paramount in making the
disability determination without objective medical evidence to
refute the findings of a treating source. The treatment history,
supportability of observations, and Frye’s activities of daily
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living--the other three sources cited for discounting Dr.
Shapiro’s opinion--each evoke credibility considerations.
Observation of routine and conservative treatment alone
is insufficient to discredit the severity and disabling effect of
impairments identified by a claimant seeking disability. See
Sykes v. Apfel, 228, F.3d 259, 266 n. 9 (3d Cir. 2000). At
various times, Frye was prescribed between 17 and 21
medications to treat mental and physical symptoms. Dr.
Shapiro treated Frye with the highest dosage of Effexor--a drug
he deemed the strongest available at treating her symptoms-noting only limited benefit and thus restrictions mostly
unresponsive to medicinal intervention. (Doc. 9-21, at 29). Dr.
Shapiro noted that medication has little to no effect on some of
Frye’s most concerning impairments such as dissociative
disorder, which is only treatable through therapy. (Doc. 9-21, at
28). An updated treatment plan signed by Dr. Shapiro on
October 8, 2014 indicated increased psychiatric evaluation and
therapy sessions. (Doc. 9-22, at 3-6). The ALJ did not rely
solely on routine and conservative treatment to discount Dr.
Shapiro’s opinion, however the preceding makes consideration
of the other bases for discounting a treating source’s opinion
even more important.
In judging the credibility of this opinion and of Frye’s
subjective complaints generally, the ALJ identified neutral mood
and affect observed in the course of Dr. Shapiro’s treatment
history, and only mild restrictions in activities of daily living.
However, Dr. Shapiro is not the only physician to observe
consistently depressed mood and altered affect. Treatment
notes from Spectrum Health and Wellness following Dr.
Shapiro’s move to Florida repeatedly note Frye’s exhibited
depression and either flat or blunted effect at her appointments.
(Doc. 9-26, at 16, 27-29). These notes, which do not appear to
be referenced in the ALJ’s opinion, also corroborate some of
Dr. Shapiro’s on the effects of Frye’s mental impairments
including feelings of guilt, anxiety, and auditory hallucinations.
(Doc. 9-26, at 16, 27-29). While Dr. Shapiro’s notes indicate
some level of stability, they are not inherently inconsistent with
his opinion. Moreover, no medical source refutes Dr. Shapiro’s
mental diagnoses.
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The ALJ relied on Frye’s activities of daily living
throughout his opinion, having determined she had only mild
restrictions as a result of mental impairments. (Doc. 9-2, at 15).
The ALJ noted that Frye provided herself personal care,
prepared meals, performed household chores, launders and
irons clothing, and cleans dishes and the house for a couple of
hours day. 2 (Doc. 9-2, at 15-16). However, the ALJ’s findings
make no mention of the comparability of these activities to
being able to perform full-time work on a regular and consistent
basis, eight hours a day, five days a week as contemplated by
the Regulations. See SSR-96-8p. The ALJ’s restriction of Frye
to routine and repetitive work appears to comport with his
findings. However, given the opinion of treating source Dr.
Shapiro on Frye’s limitations, the restrictions found may not be
attainable.
(Doc. 22, pp. 11-17).
Upon review of the Commissioner’s objections to the report of
Judge Mehalchick, the Commissioner raises nothing regarding the
evaluation of Dr. Shapiro’s treating physician opinion that was not raised
in her brief opposing the plaintiff’s appeal. Upon review of the
Commissioner’s arguments and the reasoning provided in Judge
Mehalchick’s report for remand, the court finds that Judge Mehalchick has
addressed the concerns of the Commissioner to the court’s satisfaction
2

Here, Judge Mehalchick noted that “[a]t her second disability
hearing conducted July 31, 2014, Frye stated that she did not cook for
herself, do laundry, and performed household chores only once a week.
(Doc. 902, at 68). Further, she testified that she does not go shopping, go
to church, or to restaurants. (Doc. 9-2, at 69-70). Previously, Frye
indicated that she performed daily activities in accordance with the
findings of the ALJ. (Doc. 7, at 21-22).”
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and the court adopts the reasoning of Judge Mehalchick as its own. The
court also agrees that remand of the matter is appropriate to further
evaluate the medical opinion evidence. As such, the court will overrule the
objections of the Commissioner and adopt the report of Judge Mehalchick
in its entirety. An appropriate order shall issue.

s/Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: October 3, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-1482-01.docx

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