Zuback v. Colvin

Filing 15

MEMORANDUM (Order to follow as separate docket entry).Signed by Magistrate Judge Gerald B. Cohn on 9/15/15. (ch1)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA ZUBACK,

CASE NO. 4:14-cv-00602-GBC

Plaintiff,
(MAGISTRATE JUDGE COHN)
v.
MEMORANDUM
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Docs. 1, 5, 6, 7, 9, 11, 12, 13, 14
Defendant.
MEMORANDUM
I.

Procedural Background

On April 11, 2011, and April 21, 2011, Patricia Zuback (“Plaintiff”)
respectively filed as a claimant for disability insurance benefits under Title II and
XVI of the Social Security Act, 42 U.S.C. §§ 401-34, 1181-1183f, with a date last
insured of September 30, 2010, 1 and claimed a disability onset date of May 31,
2009. (Administrative Transcript (hereinafter, “Tr.”), 13).
After the claim was denied at the initial level of administrative review, the
Administrative Law Judge (ALJ) held a hearing on July 19, 2012. (Tr. 27-51). On
1

Disability insurance benefits are paid to an individual if that individual is disabled and
“insured,” that is, the individual has worked long enough and paid social security taxes. 42
U.S.C. §§ 415(a) and 416(i)(1). The last date that a claimant meets the requirements of being
insured is commonly referred to as the “date last insured.” See 42 U.S.C. § 416(i)(2); accord
Renfer v. Colvin, No. 3:14CV611, 2015 WL 2344959, at *1 (M.D. Pa. May 14, 2015).
Page 1 of 50

August 29, 2012, the ALJ found that Plaintiff was not disabled within the meaning
of the Act. (Tr. 10-26). On October 22, 2012, Plaintiff sought review of the
unfavorable decision, which the Appeals Council denied on January 27, 2014,
thereby affirming the decision of the ALJ as the “final decision” of the
Commissioner. (Tr. 1-9).
On March 31, 2014, Plaintiff filed the above-captioned action pursuant to 42
U.S.C. § 405(g) and pursuant to 42 U.S.C. § 1383(c)(3), to appeal a decision of the
Commissioner of the Social Security Administration denying social security
benefits. (Doc. 1). On May 30, 2014, the Commissioner (“Defendant”) filed an
answer and an administrative transcript of proceedings. (Doc. 5, 6). July 9, 2014,
Plaintiff filed a brief in support of the appeal. (Doc. 7 (“Pl. Brief”)). On August 5,
2014, Defendant filed a brief in response. (Doc. 9 (“Def. Brief”)). On November
5, 2014, the Court referred this case to the undersigned Magistrate Judge. Both
parties consented to the referral of this case to the undersigned Magistrate Judge,
and an order referring the case to the undersigned Magistrate Judge was entered on
March 30, 2015. Doc. 11, 12, 13, 14.
II.

Relevant Facts in the Record

Plaintiff was born on November 27, 1976, and thus was classified by the
regulations as a younger person through the date of the ALJ decision rendered on

Page 2 of 50

August 29, 2012. 20 C.F.R. § 404.1563 (c); (Tr. 32). Plaintiff graduated high
school in 1995 and did not receive any additional training. (Tr. 131).
Earnings reports demonstrate that since high school, Plaintiff has worked
with several different employers as follows: 1) 1995: met earning threshold for one
quarters of coverage 2, totaling $813.38; 2) 1996: no earnings; 3) 1997: no earnings;
4) 1998: met earning threshold for four quarters of coverage with three employers,
totaling 8008.92; 5) 1999: met earning threshold for four quarters of coverage with
three employers, totaling $5372.84; 6) 2000: met earning threshold for four
quarters of coverage with two employers, totaling $3447.87; 7) 2001: met earning
threshold for four quarters of coverage with three employers, totaling $11285.50;
9) 2002 met earning threshold for four quarters of coverage with one employer,
2

After 1977, the Commissioner of the Social Security Administration determines the amount of
taxable earnings that will equal a credit for each year which is determined by using a formula in
the Social Security Act that reflects a national percentage increase in average wages. 42
U.S.C.A. § 413; 20 C.F.R. § 404.140; 20 C.F.R. § Pt. 404, Subpt. B, App.; “Quarters of
coverage,” 1 Soc. Sec. Disab. Claims Prac. & Proc. § 8:10 (2nd ed.) (list of earnings needed to
earn one quarter of coverage for years from 1975 to 2012); see also “Amount of earnings needed
to earn one quarter of coverage” https://www.socialsecurity.gov/oact/cola/QC.html#qcseries (last
accessed September 14, 2015) (list of required earnings through 2015) (list of required earnings
through 2015).
In a claimant’s earnings record, a “c” indicates that a claimant has earned enough to qualify for a
quarter of coverage and a “n” indicates that the threshold amount was not earned in a given year.
See “Understanding an earnings record,” 1 Soc. Sec. Disab. Claims Prac. & Proc. § 5:21 (2nd
ed.). For example, in 2000, “cccc” would indicate that a claimant has earned at least $780 each
quarter of 2000 and “cccn” would indicate that a claimant earned at least $780 for the first three
quarters of 2000. See “Understanding an earnings record,” 1 Soc. Sec. Disab. Claims Prac. &
Proc. § 5:21 (2nd ed.); “Amount of earnings needed to earn one quarter of coverage”
https://www.socialsecurity.gov/oact/cola/QC.html#qcseries (last accessed September 14, 2015)
(list of required earnings through 2015).
Page 3 of 50

totaling $4411.27; 10) 2003: met earning threshold for one quarter of coverage
with one employer, totaling $1762.34; 11) 2004: met earning threshold for four
quarters of coverage with two employers, totaling $3817.32; 12) 2005: did not
meet earning threshold for any quarter of coverage with one employer, totaling
$62.00; 13) 2006: met earning threshold for two quarters of coverage, with one
employer, totaling 2778.79; 14) 2007: met earning threshold for four quarters of
coverage with three employers, totaling $12265.01; 15) 2008: did not meet earning
threshold for any quarter of coverage with two employers, totaling $671.51; 16)
from 2009 to 2012: did not earn any income. (Tr. 116, 121-24).
A. Plaintiff’s Testimony
Plaintiff testified that she has felt the need to seek psychiatric
hospitalization, however, she was too afraid of what would happen to her children
if she sought the treatment, adding “[i]t scares me more than anything.” (Tr. 36).
Plaintiff testified that her eldest does “mostly all of the cooking,” bathes and feeds
the youngest child, does the laundry, and cleans the house. (Tr. 37, 39). Plaintiff
testified that she will make ramen noodles or pizza while her eldest child “does a
lot more, like hamburgers or she bakes, she cooks." (Tr. 39). Plaintiff testified
that her ex-husband takes her eldest child to the Laundromat her eldest child
washes the clothes, brings them and hangs them up. (Tr. 39). When questioned
more about who does the cleaning in her house, Plaintiff testified that her eldest
Page 4 of 50

did a lot of the picking up and the dishes, and her middle child vacuumed. (Tr.
39).
B. Relevant Treatment History and Medical Opinions
1. Meadows Psychiatric Center: Rashid S. Chaudhry, M.D.; Sarah E.
Boone
A discharge summary dated April 10, 2008, noted that Plaintiff was admitted
on March 28, 2008, and discharged April 10, 2008. (Tr. 190). Plaintiff voluntarily
admitted herself for inpatient treatment, stating that her chief complaint was her
“problem with drinking.”

(Tr. 190).

Plaintiff reported that she had been

depressed, shaking a lot, and could not stop crying. (Tr. 190). Plaintiff reported
she thought about hurting herself, wanted to kill herself, and she tried to kill herself
recently by overdosing on blood pressure medication. (Tr. 190). Plaintiff reported
feeling hopeless and helpless, with low concentration and inability to pay attention.
(Tr. 190). Plaintiff reported that her energy level was poor; she was tired all the
time, and experienced difficulty sleeping.

(Tr. 190).

Plaintiff reported

experiencing low self-esteem and lacking interest in daily activities. (Tr. 190).
Plaintiff reported no auditory or visual hallucinations, and no paranoia. (Tr. 190).
Plaintiff reported being sexually and physically abused from eight years old
until her teens. (Tr. 190). Plaintiff reported that her ex-husband also sexually and
physically abused her and she currently has a protective order against her exPage 5 of 50

husband. (Tr. 190). Plaintiff reported experiencing nightmares, flashbacks, and
intrusive thoughts about the past. (Tr. 190).
The discharge report noted that Plaintiff had self-injurious behavior, had
been cutting herself and she was found to be with a razor. (Tr. 190). Plaintiff
reported that she felt overwhelmed, was not able to keep herself safe, and that was
why she came to the hospital. (Tr. 190). The discharge report noted that Plaintiff
did not have any psychiatric provider and that she currently attended Crossroads
Drug and Alcohol Program.

(Tr. 190).

Plaintiff was currently on several

medications including Effexor XR and Ativan. (Tr. 191). Plaintiff reported having
previous prescriptions for other antidepressant medications but could not recall the
names of the medications. (Tr. 191). Plaintiff reported previous work as a CNA
and laborer. (Tr. 191). Plaintiff reported a recent history of drinking alcohol and
smoking marijuana, and having tried cocaine once. (Tr. 191). Plaintiff reported
that she had some DUI-related fines to pay. (Tr. 191). It was also noted that
Plaintiff had two children who lived with their father. (Tr. 190).
Upon examination Dr. Chaudhry observed that Plaintiff exhibited a labile
affect, sadness, and was positive for suicidal ideation and self-harm. (Tr. 191).
Dr. Chaudhry opined that Plaintiff’s insight was “fair” and capacity for activities of
daily living was “limited.” (Tr. 191-92). Dr. Chaudhry observed that Plaintiff’s
long term memory was intact and her short term memory was “poor” as she was
Page 6 of 50

unable to recall three out of three objects after five minutes. (Tr. 192). Dr.
Chaudhry also observed that Plaintiff’s concentration was “poor” given that she
was able to spell “World” forward, but not backward. (Tr. 192). Dr. Chaudhry
noted that Plaintiff was alert and oriented times three, cooperative and easy to get
along with. (Tr. 192).
During her inpatient psychiatric hospitalization, Plaintiff repeatedly
struggled with suicidal ideation, and clothing that she could hang herself with was
found with her. (Tr. 192-93). Plaintiff reported that she “a lot of nursing staff . . .
[were] against her and they [were] not dealing appropriately.” (Tr. 193).

For

admission diagnoses, Dr. Chaudhry listed: major depression, recurrent; posttraumatic stress disorder; and, alcohol abuse. (Tr. 193-94). Upon admission, Dr.
Chaudhry assessed Plaintiff with a GAF score of 10 and at discharged a GAF score
of 55. (Tr. 193).
In a discharge report dated June 23, 2008, Plaintiff was involuntarily
admitted from Lock Haven Hospital on June 7, 2008, and was discharged on June
23, 2008. (Tr. 197). The report indicated that Plaintiff’s chief complaint was that
she was “having a bad day.” (Tr. 197). It was noted that Plaintiff’s two children
live with their father. (Tr. 197). Plaintiff reported that she told her friend that she
wanted to “end it all,” the friend reported it to police who found Plaintiff
unresponsive next to an empty medication bottle, with a blood alcohol level of
Page 7 of 50

0.07, and a laceration of wrist. (Tr. 197). Although Patient reported that it was
accidental, she almost killed herself, wrote will, and detailed how she wished to be
disposed of and a goodbye note to her family. (Tr. 197, 200). Plaintiff reported
feeling tired all of the time. (Tr. 197). The discharge report noted that Plaintiff
saw Dr. Nicotera at Universal Community Behavioral Health (“UCBH”) and also
goes to Crossroads for drug and alcohol treatment. (Tr. 198). For treatment
history, it is noted that Plaintiff has had “multiple admissions in the past” and has
been at Geisinger Medical Center as well as Meadows Outpatient and Inpatient
treatment, noting that she was at Meadows earlier that year. (Tr. 198). Plaintiff
reported a history of and current alcohol use. (Tr. 198).
Upon examination, Dr. Chaudhry noted that Plaintiff was “extremely
disheveled and had poor cognitive process, She looked extremely depressed and
hard a hard time staying awake.” (Tr. 198). Dr. Chaudhry further noted that
Plaintiff had “poor cognitive process,” “psychomotor slowness,” “soft and slow”
speech, and labile affect. (Tr. 198). Plaintiff reported suicidal and homicidal
ideation, and continued to have flashbacks and nightmares.

(Tr. 199).

Dr.

Chaudhry opined that Plaintiff had the capacity to harm self and others, possessed
limited judgement and insight, and had an inadequate capacity for activities of
daily living. (Tr. 199). Dr. Chaudhry noted that Plaintiff was oriented to time,
place, and person; long term memory was partly intact and her short term memory
Page 8 of 50

was “poor” as she was unable to recall three out of three objects after five minutes;
and, her concentration was poor given her inability to spell “WORLD” backwards.
(Tr. 199). Dr. Chaudhry noted that Plaintiff’s urine drug screen showed nothing
detected. (Tr. 200).
Dr. Chaudhry noted that Plaintiff “tried to minimize everything” and
Plaintiff was told that she was minimizing the situation and that husband also had
problems [with drinking alcohol] and that was not helping. (Tr. 200-01). Dr.
Chaudhry opined that Plaintiff had “problems with drinking because of depression
and other psychiatric symptomatology” and “tends to overdose on medication
because she becomes disinhibited.”

(Tr. 200).

Plaintiff “was not able to

understand that it was hard for her grasp that idea.”

(Tr. 200).

Plaintiff’s

diagnoses remained the same with the addition of bipolar disorder, depressed
episode. (Tr. 201-02). Plaintiff’s admission GAF score was 10 and her discharge
GAF score was 50. (Tr. 202).
2. Lock Haven Hospital: Dr. Bharat Adroja, M.D.; David Gingrinch,
M.D.; Carmen Ferrigno, M.D.; Tammy Mackey, R.N.
On January 27, 2011, Plaintiff presented to the emergency department with
complaints of sharp chest pain of nine out of ten (with ten indicating the greatest
severity) radiating into the left arm. (Tr. 207, 211). Plaintiff was able to ambulate
independently and could perform all activities of daily living without assistance.
Page 9 of 50

(Tr. 211).

Upon examination, Plaintiff was in mild distress and was mildly

anxious. (Tr. 207). Plaintiff had an unremarkable EKG, chest X-ray revealed no
acute disease, and all the laboratory work did not reveal any significant
abnormalities. (Tr. 207). Clinical impression was “chest wall pain.” (Tr. 207).
On June 19, 2012, Plaintiff reported generalized weakness, fatigue, and
trouble at times with balance. (Tr. 320). On June 28, 2012, Plaintiff sought
treatment following a motor vehicle accident and complained of anxiety and
related injuries. (Tr. 323-26). Clinical impression was contusion, ligamentous
strain, acute cervical strain, and acute lumbar strain. (Tr. 323, 326). On June 28,
2012, A CT of Plaintiff’s lumbar spine revealed normal alignment of the lumbar
spine without a fracture deformity and “status-post posterior spinal fusion of L5S1. The hardware appears in good position with no evidence of migration or
breakage of the hardware.” (Tr. 317). On July 10, 2012, Plaintiff sought treatment
for frequent headache and right shoulder blade pain after a recent motor vehicle
accident, rating her pain as ten out of ten. (Tr. 318). Upon examination, Plaintiff
had spams of the paraspinal muscles of the neck on the left occipital area and right
trapezius. (Tr. 319). Clinical impression was cervical strain. (Tr. 319).
3. SHMG/Lock Haven Family Practice: Thane N. Turner, M.D.
From May 15, 2009, to March 7, 2011, Plaintiff followed-up on a monthly
basis with her primary care physician Dr. Turner. (Tr. 224-43). On May 15, 2009,
Page 10 of 50

Plaintiff sought to reestablish care with Dr. Turner after not seeing her since the
prior summer. (Tr. 243). After she last saw Dr. Turner the previous summer
Plaintiff “had a period of hospitalization for psychiatric issues” and “[f]ollowing
all of that, she actually got pregnant.” (Tr. 243). Dr. Turner noted that as a result
of the pregnancy, Plaintiff no longer used any substances, alcohol, or illegal drugs.
(Tr. 243). Plaintiff denied being suicidal or homicidal. (Tr. 243). Dr. Turner
observed that Plaintiff was tearful at times. Plaintiff stated that she would like to
try to avoid medicines currently especially since she was breastfeeding. (Tr. 243).
In a treatment record dated June 9, 2009, Plaintiff reported that after one of
her recent counseling sessions, she just became more easily upset, more anxious,
panicky, and ended up in the emergency room. (Tr. 242). Plaintiff was given
Ativan and although initially hesitant to consider medications, due to the fact that
counseling was bringing up a lot of difficult issues, Plaintiff reported that she
would consider more pharmaceutical treatment. (Tr. 242). Plaintiff denied any
suicidal or homicidal ideation. (Tr. 242).
On July 10, 2009, Plaintiff followed-up for emotional issues, borderline
personality disorder, anxiety, and depression. (Tr. 241). Plaintiff reported seeking
treatment with Dr. Roy MHMR and continuing Paxil. (Tr. 241). Plaintiff reported
that she tried Geodon, but could not tolerate the sedative side-effects and her
providers recommended that she start lithium. (Tr. 241). Plaintiff denied any
Page 11 of 50

suicidal or homicidal ideation and reported feeling less panicky while on Paxil.
(Tr. 241).
On August 5, 2009, Plaintiff followed-up from an ER visit stemming from
an altercation with her boyfriend. (Tr. 240). Plaintiff reported that her boyfriend
hit her, she then grabbed a knife, and her children called 9-1-1. (Tr. 240). When
the police arrived, the boyfriend stated that Plaintiff was threatening to kill herself,
while Plaintiff reported that such was not the case, rather she was just protecting
herself from the boyfriend. (Tr. 240). Plaintiff reported that she had been out
drinking that evening and there was evidence of alcohol consumption when she
arrived to the ER. (Tr. 240).
In a treatment record dated August 28, 2009, Plaintiff was following up
regarding an “episode of abuse,” and also a history of personality disorder, anxiety,
depression, history of asthma, remote history of hypertension and Grave's disease.
(Tr. 239). Plaintiff reported that she was doing a little better and in a little safer
situation. (Tr. 239). Plaintiff reported that her previous boyfriend had not been
around and that there were no further altercations. (Tr. 239). Plaintiff reported
taking Paxil and had weaned off the Lithium because of its side-effects. (Tr. 239).
In a treatment record dated October 13, 2009, Plaintiff reported that with
regards to the borderline personality disorder, she continued to follow-up with her
psychiatrist. (Tr. 238). Plaintiff reported that she was currently on just Paxil, did
Page 12 of 50

not lithium and she uses clonazepam as needed. (Tr. 238). Plaintiff was scheduled
to see her psychiatrist later in the month. (Tr. 238). In a treatment record dated
December 14, 2009, Plaintiff reported much less anxiety following the recent
surgical removal of her thyroid. (Tr. 237).
In a treatment record dated July 26, 2010, Plaintiff followed-up for
hypertension, hypothyroidism, and anxiety disorder. (Tr. 234). Plaintiff stated that
she was struggling a little bit the last couple of days and had been through some
stressful situations followed by experiencing some chest pain, back pain, and some
shortness of breath. (Tr. 234). Dr. Turner noted that the chest pain may be due to
many factors including stress and anxiety attacks. (Tr. 234).
In a treatment record dated August 23, 2010, Plaintiff presented for a sexual
abuse examination, reporting that on August 6, 2010, she was raped by three
unknown men. (Tr. 233). Plaintiff initially did not seek any medical attention, and
later went to the ER about five days later where they did gave her antibiotics but
did not do an internal exam. (Tr. 233).

Plaintiff reported of some injury to left

hand, and that her fourth and fifth fingers were also numb. Dr. Turner noted that
they extensively discussed her emotional issues and that Plaintiff was still
following through with treatment at Universal Community Behavioral Health. (Tr.
233).

Page 13 of 50

In a treatment record dated September 16, 2010, Plaintiff followed-up with
regards to the recent rape and stated that she discontinued perusing legal recourse
since doing so caused too much distress and anxiety, and she wanted to move on.
(Tr. 232). In a treatment record dated October 29, 2010, Plaintiff reported that she
is adjusting to her psychiatry medication and was currently on Paxil, Risperdal,
Prazosin, and Ativan. (Tr. 230).
In a treatment record dated November 29, 2010, Plaintiff reported that she
still experiences headaches on and off for years of her headaches, however now,
she is not sure whether it was allergy or sinus related. (Tr. 229). Plaintiff was
trying not to take over-the-counter medicine, but was struggling with the
headaches. (Tr. 229). In a treatment record dated December 22, 2010, Dr. Turner
noted that he started Plaintiff on verapamil the last visit to address the headaches
but she was still experiencing the headaches, though not as much as previously.
(Tr. 228). Plaintiff reported stopping Risperdal due concern regarding the sideeffects. (Tr. 228).
In a treatment record dated February 2, 2011, Plaintiff followed up from an
ER visit for severe chest pain.

(Tr. 227).

Plaintiff reported continuously

experiencing back pains, a history of lumbar disc disease, and a laminectomy in the
past. (Tr. 227). During the ER visit, it was noted that her X-ray revealed evidence

Page 14 of 50

of scoliosis, and the Vicodin administered in the ER helped somewhat with the
pain. (Tr. 227).
Upon evaluation, Dr. Turner observed regular rhythm and rate of the heart
beat and “[p]alpation of the left lateral chest wall [revealed] reproducible pain
along the ribcage” and examination of the thoracic spine revealed tenderness along
the thoracic spine, especially in between the scapulae. (Tr. 227).
In a treatment record dated March 2, 2011, Plaintiff sought follow-up
treatment for back pain. (Tr. 226). Plaintiff reported that she was doing physical
therapy, and experiencing a little more of a problem in the lower lumbar region
even she shifts positions. (Tr. 226). Plaintiff reported hearing a pretty loud pop or
crack in the low back. (Tr. 226). Plaintiff reported undergoing a previous lumbar
disc surgery at the Orthopedic Institute of Pennsylvania in Camp Hill, PA. (Tr.
226). Plaintiff reported that she was fairly stable emotionally. (Tr. 226).
Upon examination, Dr. Turner observed that it was “easy to hear the crepitus
that occurred when she shifted her lower back.” (Tr. 226). Dr. Turner noted that
Plaintiff had a known history of lumbar disc disease; also scoliosis noted on x-rays,
Plaintiff experienced chronic headaches, and borderline personality disorder. (Tr.
226).
///
///
Page 15 of 50

4. Universal Community Behavioral Health (UCBH): Punyabrata Roy,
M.D.
A treatment record dated July 1, 2009, noted that Plaintiff lived with her
children, was unemployed and supported by welfare. (Tr. 245). At the time of the
visit Plaintiff had two-month-old baby from a C-section. (Tr. 245). Plaintiff
reported that she had a history of mood swings, sometimes she felt depressed,
hopeless, helpless, lonely, and cries. (Tr. 245). While at other times, Plaintiff felt
she was on top of everything. (Tr. 245). Plaintiff reported that sometimes she felt
it was difficult for her to slow herself down. (Tr. 245).
Plaintiff reported that she was abused physically by her first boyfriend and
by the ex-husband. (Tr. 245). Plaintiff reported that as a result of the abuse
sometimes she feels numb and shaky when she remembers those things. (Tr. 245).
Plaintiff reported that she was raped at the age of 17 and did not know who raped
her. (Tr. 245). Plaintiff stated that she did not want to remember past trauma
because trying to recall it causes her shakiness and nervousness and sometimes she
gets flashback of the trauma. (Tr. 245).
For psychiatric history Plaintiff has had “multiple psychiatric admissions.”
(Tr. 245). Plaintiff was admitted twice to The Meadows in 2008 and was admitted
in Geisinger in February 2008. Plaintiff reported that she would cut herself to take
the pain away when she was abused by her boyfriend. (Tr. 245). Plaintiff reported
Page 16 of 50

that she overdosed on Ativan in May 2008 when she was admitted in The
Meadows. (Tr. 245). Plaintiff had started therapy with Lisa at UCBH. (Tr. 245).
Plaintiff reported that she started drinking alcohol since the age of thirteen,
that she used to drink alcohol during the weekend and currently does not drink
alcohol. (Tr. 246). The last time she drank alcohol was September 2008. (Tr.
246). Plaintiff reported a history of one DUI in 2006. (Tr. 246). Plaintiff reported
smoking marijuana since the age of 17, but she smokes marijuana very
occasionally and the last time she smoked marijuana was two years ago. (Tr. 246).
Plaintiff reported that she completed twelfth grade, worked in different places,
worked as certified nursing assistant (CNA) on and off, worked as a housekeeper,
bartender, and also she worked in a window factory. (Tr. 246).
Upon examination Dr. Roy opined that Plaintiff’s judgment and insight were
limited, her impulse control was adequate, and thought process was within normal
limits. (Tr. 246). Plaintiff reported that she had no major physical problem. (Tr.
246).

Dr. Roy diagnosed Plaintiff with posttraumatic stress disorder; bipolar

disorder, not otherwise specified (NOS); and, borderline personality disorder. (Tr.
247). Dr. Roy assessed Plaintiff with a GAF score of 55. Plaintiff reported that
she was prescribed Klonopin for anxiety and Paxil by her primary care physician
and that the medication was helping her. (Tr. 247). Plaintiff was also given

Page 17 of 50

Geodon for her mood swings and after being informed of the potential side-effects,
Plaintiff wished to continue the prescribed medications. (Tr. 247).
In a treatment record dated April 6, 2011, Plaintiff brought her youngest
daughter with her for the visit and reported that she occasionally felt anxious
especially in social situations or any situation where there is crowd or a lot of
people she feels really embarrassed and anxious. (Tr. 249). Plaintiff reported that
he mood was not great. (Tr. 249). Dr. Roy observed that Plaintiff looked anxious.
(Tr. 249). Dr. Roy continued the same diagnoses, noted that she had a history of
alcohol abuse until Plaintiff became pregnant, that she lived alone with her three
children, and was recently raped. (Tr. 249). Dr. Roy assessed Plaintiff with a
GAF score of 58 and increased her dosage of Paxil to address her anxiety. (Tr.
249).
5. Tiadaghton Health Services; Elaine Dorney, P.T.; Susan Smith, P.T.
In an intake record dated February 17, 2011, noted that Plaintiff’s posture
and alignment were generally normal with a more prominent left waist crease and
depression of the right inferior and medial scapular angles as well as the right
shoulder with respect to the left. (Tr. 261). Trunk extension was up to twenty
degrees with pain in lumbar spine, range of motion for bilateral side bending and
rotation was within normal limits. (Tr. 261). Plaintiff’s bilateral hip flexion, knee

Page 18 of 50

flexion and extension, dorsiflexion, plantar flexion and great toe extension were
five out of five and abdominal strength was three out of five. (Tr. 261).
On March 21, 2011, Plaintiff reported improvement in her ability to stand
long enough to wash dishes without increasing back discomfort and has not yet
attempted to walk to pick up her child in school. (Tr. 253). Ms. Dorney noted that
Plaintiff had made some progress in performing functional activities and the goal
to decease pain to five out of ten had not been met. (Tr. 253).

On March 28,

2011, Plaintiff reported that once she stopped sleeping on an air mattress and slept
on a firm normal mattress, she was able to sleep well. (Tr. 252). Ms. Dorney
noted that Plaintiff was able to go through all of the exercises without significant
difficulty or problems. (Tr. 252). On March 30, 2011, Plaintiff reported that she
almost fell off a step stool and down a flight of stairs and was helped by her son.
(Tr. 251).
In a discharge report dated April 28, 2011, Ms. Dorney noted that Plaintiff
was last seen on March 30, 2011, but failed to attend her next scheduled
appointment on April 5, 2011, and had not called to schedule further appointments.
(Tr. 250). “When she was last seen she was performing a comprehensive exercise
program for core stabilization and back strengthening, and was able to do all of the
exercises without significant problems. (Tr. 250).
///
Page 19 of 50

6. Orthopedic Institute of Pennsylvania: Raymond E. Dahl, D.O.
In a treatment record dated April 26, 2011, Plaintiff reported having
undergone posterior spinal fusion at L5-S1 for grade1 spondylolisthesis at L5-S1.
(Tr. 265). Plaintiff reported that she had been experiencing a lot of pain involving
her low back and had been managing her pain with Vicodin. (Tr. 265). Plaintiff
reported experiencing numbness and tingling radiating down both legs and that her
left leg was much worse than the right. (Tr. 265). Dr. Dahl diagnosed Plaintiff
with “[l]ow back pain status post posterior spinal fusion L5-S1.” (Tr. 265).
7. Jersey Shore Hospital Department of Radiology: Nicholas Fasano,
M.D.; Lisa K. Strawser, D.O.
In a record dated February 2, 2011, Dr. Strawser interpreted X-rays of
Plaintiff’s spine and her impressions were scoliotic curvature of the spine and
surgical hardware in place at the lumbosacral junction. (Tr. 273). In a record
dated March 2, 2011, Dr. Strawser interpreted subsequent X-rays with the
following impressions: 1) Grade 1 bordering on grade 2 spondylolisthesis of LS on
S1 which remains unchanged throughout the study; 2) surgical changes with
pedicle screw placement from LS through S1; 3) stable scohotic curvature of the
thoracolumbar spine. (Tr. 274).
In a record dated May 3, 2011, Dr. Fasano interpreted an MRI. (Tr. 271).
Dr. Fasano’s impressions were: 1) status post L5 laminectomy with spinal
Page 20 of 50

stabilization hardware at the L5-S I level. There is a Grade 1 anterolisthesis of LS
on S1, without evidence of recurrent disc herniation or disc bulge at that level; 2)
small central disc protrusion at L4-L5 with mild indentation on the ventral thecal
sac; 3) otherwise unremarkable appearance of the lumbar spine. (Tr. 272).
8. Psychological Consultative Examination: David Smock, Ph.D.
On August 19, 2011, Plaintiff presented for a psychological consultative
examination with Dr. Smock. (Tr. 283-85). Plaintiff reported that she drove
herself to the evaluation and lived with her 11-year-old son and 2-year-old
daughter. (Tr. 283). Dr. Smock observed that “there was a clear emphasis in her
voice on the things that distressed her,” at one point Plaintiff “broke into tears,
clearly overwhelmed by the emotions regarding what she was talking about,” and
“there was a clear neediness about her throughout the presentation.” (Tr. 283).
Plaintiff reported that she last worked in 2008 as a housekeeper in a hotel and was
fired after she wrecked her husband's truck and was unable to get to work. (Tr.
284).

Prior to that, she was able to do the task as assigned and got along

adequately with others. (Tr. 284). She reported that she has worked as a nursing
assistant between the years 1998 and 2004, and there were times that she took time
off to be with her children. (Tr. 284). Plaintiff reported that she was able to do
jobs as assigned, and for the most part, got along well with others. (Tr. 284). She

Page 21 of 50

reported that in her jobs she would stay to herself because of the anxiety and that
helped her to get along adequately with people. (Tr. 284).
Plaintiff reported that she began experiencing mental health symptoms when
she was five years of age when her father died. (Tr. 284). Plaintiff reported that
she did not get into regular treatment until 2008, in which she was hospitalized
three times, once in February at Geisinger Medical Center for a week, once at the
Meadows in March for a few weeks, and in June she an involuntary hospitalization
at the Meadows. (Tr. 284). Plaintiff reported being in treatment from the time of
the hospitalizations in 2008 until about six months prior to the consultative
evaluation. (Tr. 284).
Plaintiff reported having trouble recalling all of her current medications.
(Tr. 284). Plaintiff said that she takes her medications as prescribed and they help
her somewhat. (Tr. 284). Plaintiff reported that her only medical problem was
hypothyroidism. (Tr. 284). Plaintiff reported that she drank alcohol socially, but
not in excess and that she had a history of drinking on a daily basis and to excess
but no longer consumes to the same degree as in the past. (Tr. 284-85).
Dr. Smocked observed that Plaintiff’s affect was somewhat labile and mood was
“low.” (Tr. 285). Plaintiff reported periods of depression where she cries, loses
interest in everyday activities, loses motivation to act, and isolates herself from
others. (Tr. 285). Plaintiff reported that she wished that she was dead and often
Page 22 of 50

experienced suicidal thoughts with an impulse to act on them. (Tr. 285). Plaintiff
stated that when it gets that bad, she writes as a way of coping and then the suicidal
thoughts would pass. (Tr. 285). Plaintiff reported experiencing suicidal thoughts
daily and has considered readmitting herself into a hospital. (Tr. 285). Plaintiff
also daily experiences anxiety, where she shakes, sweats, feels chest pain, feel
shortness of breath and an increased heart rate. (Tr. 285). Plaintiff denied any
problems of anger. Plaintiff reports infrequent bouts of high energy levels. (Tr.
285).
Plaintiff reported episodes of anxiety, suicidal thoughts, and vague
auditory/visual hallucinations.

(Tr. 285).

Dr. Smock observed her to have

appropriate dress and grooming, good eye contact, no pressured speech, and clear
and coherent thought processes. (Tr. 285). Dr. Smock opined that Plaintiff’s
reality testing was distorted; her attention and concentration showed some
impairment, and her recent and remote memory were only mildly impacted by her
ability to pay attention. (Tr. 285). Dr. Smock observed that Plaintiff was able to
say the letters of the alphabet fairly quickly, smoothly and accurately. (Tr. 285).
Dr. Smock observed that Plaintiff was able to correctly make simple
calculations, although she needed one of the questions repeated. (Tr. 285-86).
Plaintiff was able to count backwards from 30 by 3s correctly, recalled four of four
objects immediately after they were said to her and all four of them 5 minutes later.
Page 23 of 50

(Tr. 286). She recalled five digits forward, but only three of five in reverse. (Tr.
286). Dr. Smock noted that it was “noteworthy she was able to recall more than
five digits forward and more than three digits in reverse, but would get them out of
sequence, a function of inattention.” (Tr. 286).
Dr. Smock opined that Plaintiff’s insight into her illness and need for
treatment was quite limited as she was aware of some of the symptoms, but has
“very little in the way of coping strategies at this point.” (Tr. 286). Dr. Smock
opined that:
[Plaintiff] would have some difficulty sustaining attention to work,
and for this reason, would have some difficulty following and
understanding directions. She would have difficulty dealing with the
stress of a workplace. Her affect is labile and only marginally under
control. She would have difficulty maintaining a regular schedule. She
would have some difficulty making appropriate decisions except in a
very simple environment. She could do simple tasks independently,
but would have trouble with complex tasks. She would have some
difficulty with learning new tasks. She would have some difficulty
relating effectively to peers, supervisors and customers. It is felt that
she could manage her own funds.
(Tr. 286). Dr. Smock assessed Plaintiff with bipolar disorder and generalized
anxiety disorder and recommended that she restart mental health treatment. (Tr.
286). Dr. Smock stated that Plaintiff’s prognosis was guarded given that she had a
“history of struggling now for several years, with three hospitalizations early in
that sequence” and “[s]he actually has had emotional problems much much
longer.” (Tr. 286-87). Dr. Smock added that Plaintiff clearly gets overwhelmed
Page 24 of 50

by her affect and has minimal strategies for coping at this point and “[a]s a result,
her ability to cope with her world is quite limited.” (Tr. 287).
Along with this examination, Dr. Smock completed a questionnaire
indicating that Plaintiff had slight restrictions understanding, remembering, and
carrying out short, simple instructions; moderate limitations understanding,
remembering, and carrying out detailed instructions; and marked difficulty
interacting appropriately with the public, supervision, and co-workers and
responding appropriately to work pressures in a work setting. (Tr. 279).
9. Agency Opinion: Anne C. Zaydon. M.D.
On July 15, 2011, Dr. Zaydon filled a questionnaire indicating that Plaintiff
did not have any limitations in understanding and memory and had limitations in
ability to sustain concentration and persistence. (Tr. 62). Dr. Zaydon opined that
Plaintiff did not have any significant limitations in ability to: 1) carry out very
short and simple instructions; 2) sustain an ordinary routine without special
supervision; 3) work in coordination with or in proximity to others without being
distracted by them; 4) ask simple questions or request assistance; 5) maintain
socially appropriate behavior and to adhere to basic standards of neatness and
cleanliness; 6) be aware of normal hazards and take appropriate precautions; 7)
travel in unfamiliar places or use public transportation; and, 7) set realistic go al s
or make plans independently of others. (Tr. 63-64).
Page 25 of 50

Dr. Zaydon opined that Plaintiff had moderate limitations in her ability to: 1)
carry out detailed instructions; 2) make simple work-related decisions; 3) The
ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; 4) inter act appropriately with the
general public; 5) accept instructions and respond appropriately to criticism from
supervisors; 6) get along with coworkers or peers without distracting them or
exhibiting behavioral extremes; and, 7) respond appropriately to changes in the
work setting. (Tr. 63-64).
Dr. Zaydon opined that Plaintiff had marked limitations in the ability to: 1)
maintain attention and concentration for extended periods; 2) perform activities
within a schedule, maintain regular attendance, and be punctual within customary
tolerances. (Tr. 63). In support of her opinion, Dr. Zaydon elaborated:
[Plaintiff’s] ability to understand and remember complex or detailed
instructions is limited, however, he/she would be expected to
understand and remember simple, one and two-step instructions. The
claimant is able to carry out very short and simple instructions.
[Plaintiff] is capable of asking simple questions and accepting
instruction. The claimant is able to maintain socially appropriate
behavior and can perform the personal care functions needed to
maintain an acceptable level of personal hygiene. The Claimant would
be able to make simple decisions. Review of the medical evidence
reveals that the claimant retains the abilities to manage the mental
demands of many types of jobs not requiring complicated tasks.

Page 26 of 50

Based on the evidence of record, the claimant's statements are found
to be partially credible.
[Plaintiff] is able to meet the basic mental demands of competitive
work on a sustained basis despite the limitations resulting from her
impairment. [PLAINTIFF] IS CAPABLE OF SIMPLE, ROUTINE
WORK.
(Tr. 64) (emphasis in original).
10. Clinton Medical Associates
In a treatment noted dated August 15, 2012, Plaintiff followed-up from an
ER visit due to her panic disorder where she complained of shortness of breath,
chest pain and tremors. (Tr. 338). It was noted that Plaintiff suffered from PTSD
due to a rape and beating a year prior. (Tr. 338). She was prescribed medication
to help with mood stabilization and recommended to contact psychiatrist regarding
her depression and anxiety. (Tr. 338).
In a treatment note dated September 27, 2011, Plaintiff indicated that she felt
like she was taking too many medications and wanted to decrease them. (Tr. 337).
She reported that she was seeing a doctor at UCBH but that she “doesn’t get along”
with him and wants a new psychiatrist. (Tr. 337). Plaintiff reported still taking
Paxil and other medications and that she had no suicidal ideation. (Tr. 337).
In a treatment note dated January 24, 2012, Plaintiff sought to follow-up
from an ER visit on January 18, 2012, seeking treatment for a rape. (Tr. 334, 342).
In a treatment note dated March 16, 2012, it was indicated that Plaintiff’s mood
Page 27 of 50

and affect were normal. (Tr. 333). In a treatment record dated June 8, 2012, it was
indicated that Plaintiff’s bipolar disorder was stable with psychiatric medication
and that Plaintiff had not experienced any “highs and lows” or suicidal or
homicidal ideation recently. (Tr. 313). Treatment notes indicated that on July 2,
2012, Plaintiff was a part of a motor vehicle accident where she rear-ended another
car, her airbags did not deploy. (Tr. 311). Plaintiff reported pain down her neck
and arms. (Tr. 311). On July 10, 2012, and July 16, 2012, Plaintiff complained of
severe headache and neck pain with pain level at four on a scale where ten is the
most severe. (Tr. 310).
11. Susquehanna Behavioral Health: Stephanie King, C.R.N.P
On October 17, 2011, Plaintiff reported experiencing a lot of trouble
sleeping, and thought that she was on too many medications. (Tr. 387). She was a
former patient of Dr. Roy at the Meadows. (Tr. 387). Plaintiff wanted to get her
medications straightened out as she felt overmedicated. (Tr. 387). Plaintiff had
stopped taking Chlorpromazine and cogentin due to side effects and sedation. (Tr.
387). Plaintiff reported current symptoms include difficulty falling and staying
asleep, mood swings, depression and tearfulness, and anxiety and panic attacks.
(Tr. 387). Plaintiff also reported some symptoms of PTSD including panic attacks,
and flashbacks when she is around men. (Tr. 387). Plaintiff reported being raped

Page 28 of 50

a year ago by two men and describes flashbacks and nightmares regarding the
incident. (Tr. 387).
Plaintiff reported a history of cutting, suicidal ideation and attempts, and
multiple inpatient hospitalizations.

(Tr. 387).

Current medications include

Prazosin 1 mg daily for PTSD, Paxil 20 mg daily, Topamax 50 mg BID, Klonopin
1 mg daily PRN as needed for anxiety. (Tr. 387). Plaintiff was not taking
chlorpromazine or cogentin as ordered. (Tr. 387).
Ms. King noted that Plaintiff came with her two-year-old who was “quite
agitated and crying throughout the entire interview, making the interview difficult.
It was difficult to obtain accurate history.” (Tr. 387). Ms. King noted that the
“[i]nterview was difficult to complete due to her 2 year old who was screaming
and wanted to leave during entire interview. Patient was quite distracted by her
child and as a result assessment was limited.” (Tr. 391). Diagnoses included
bipolar disorder, borderline personality disorder, depression, anxiety, and PTSD.
(Tr. 387). Plaintiff’s history of medications included: Effexor; Seroquel, which
was too sedating; Geodon; Depakote; Lexapro; Zoloft; Wellbutrin; Risperdal;
Abilify; Trazodone; Chlorpromazine; Cogentin; Topamax; Klonopin; and, Ativan.
(Tr. 388). Ms. King opined that Plaintiff’s ability to perform ADL’s was fair. (Tr.
388).

Upon examination, Ms. King observed that Plaintiff was able to hold a

conversation, her concentration was poor, and was unable to complete serial 7's or
Page 29 of 50

days of the week in reverse order. (Tr. 391). Plaintiff’s remote memory was
normal, she was able to recall past events, recent memory was normal, Plaintiff
was able to recall events from last day, recent recall was poor, and Plaintiff was
unable to recall three words immediately after two rehearsals, and then again five
minutes later. (Tr. 391). Ms. King opined that Plaintiff’s judgment was poor and
she had a slight awareness of her illness. (Tr. 391).
On November 4, 2011, Plaintiff reported greatly improved sleep since
starting the Trazodone. (Tr. 385). However, Plaintiff said that depression, anxiety,
irritability, and anger persisted. (Tr. 385). Plaintiff reported that her mood had
been very unstable and felt sedated with current medications. (Tr. 385). Ms. King
observed that Plaintiff’s gait was noticeably slow, speech was slow, and Plaintiff
appeared to have difficulty focusing attention and thoughts. (Tr. 385). Plaintiff
stated that she wished to discontinue several medications and try a combination
that would better address anxiety and mood swings. (Tr. 385). Upon examination,
Ms. King observed that Plaintiff was able to hold a conversation, her concentration
was poor, and was unable to complete serial 7's and days of the week in reverse
order. (Tr. 385). Plaintiff’s remote memory was normal, she was able to recall
past events, recent memory was normal, Plaintiff was able to recall events from
last day, recent recall was poor, and Plaintiff was unable to recall three words
immediately after two rehearsals, and then again five minutes later. (Tr. 385). Ms.
Page 30 of 50

King opined that Plaintiff’s judgment was poor and she had a slight awareness of
her illness. (Tr. 385-86).
On November 17, 2011, Plaintiff reported greatly improved mood, energy
level, and improved depression. (Tr. 383). According to Plaintiff, her depression
was improving daily and she had been doing more with her daughter as a result.
(Tr. 383). She was sleeping through the night and felt more able to cope with life.
(Tr. 383). Plaintiff reported that tremors stopped after she stopped taking the
Topamax and sedation is improved. (Tr. 383). Plaintiff stated that her mind was
clearer with less sedation and improved clarity and concentration. (Tr. 383).
Examination findings were substantially verbatim to those made at the June 2012
visit with an added summary of the current subjective report of symptoms from the
visit. (Tr. 383-84).
On December 16, 2011, Plaintiff reported worsened depression, decreased
energy, increased anxiety, and insomnia since stopping the Cymbalta. (Tr. 381).
Plaintiff explained that her insurance would not cover Cymbalta.

(Tr. 381).

Plaintiff reported experiencing poor sleep, racing thoughts, and nightmares. (Tr.
381). Examination findings were substantially verbatim to those made at the June
2012 visit with an added summary of the current subjective report of symptoms
from the visit. (Tr. 381-82).

Page 31 of 50

In a treatment record dated January 6, 2012, Plaintiff reported slight
improvement in depression and felt like she wanted to do more with herself and
had improved energy. (Tr. 379). She reported that the racing thoughts were
slightly improved, acknowledge that she drank too much alcohol the prior week
and that possibly affected her mood and caused some depression. (Tr. 379).
Plaintiff stated that she would like to remain on current medication. (Tr. 379).
Examination findings were substantially verbatim to those made at the June 2012
visit with an added summary of the current subjective report of symptoms from the
visit. (Tr. 379-80).
In a treatment record dated January 25, 2012, Plaintiff reported worsening
anxiety after being raped the previous week, was very tearful and depressed. (Tr.
377).

Plaintiff reported her children witnessed the event and they were also

struggling and receiving therapy at school. (Tr. 377). Plaintiff reported getting
counseling at the women's shelter. (Tr. 377). Plaintiff reported her sleep had
worsened and she felt overwhelmed and depressed. (Tr. 377). Examination
findings were substantially verbatim to those made at the June 2012 visit with an
added summary of the current subjective report of symptoms from the visit. (Tr.
377-78).
In a treatment record dated February 13, 2012, Plaintiff reported slightly
improved anxiety since the last visit noting that the last two weeks had been
Page 32 of 50

difficult due to situational stressors involving the legal issues surrounding her rape.
(Tr. 375). Plaintiff reported that she has been able to do everything she needed to
do, and felt that her depression was manageable. (Tr. 375). Plaintiff denied
experiencing any panic attacks, reported that the current medications were helpful
for most of her symptoms, although her insomnia has worsened.

(Tr. 375).

Examination findings were substantially verbatim to those made at the June 2012
visit with an added summary of the current subjective report of symptoms from the
visit. (Tr. 375-76).
In a treatment record dated March 5, 2012, Plaintiff reported continued
anxiety and that she did not like the sedating side-effect of Remeron. (Tr. 373).
Plaintiff reported continued stress which included having to go to court the next
day regarding rape charges she filed against her child’s father. (Tr. 373). Plaintiff
reported that she started therapy with Keystone Counseling and that it was going
well. (Tr. 373). Plaintiff reported that her sleep and mood have been “ok” and her
current medications were working well. (Tr. 373). Examination findings were
substantially verbatim to those made at the June 2012 visit with an added summary
of the current subjective report of symptoms from the visit. (Tr. 373-74).
In a treatment record dated March 20, 2012, Plaintiff reported improved
anxiety but worsening depression and mood.

(Tr. 371).

Plaintiff reported

experiencing significant stress due to long court case and feeling impatient,
Page 33 of 50

irritable and snappy. (Tr. 371). Plaintiff reported much less patience, feeling
depressed and overwhelmed. (Tr. 371). Plaintiff reported that she was only
allowed six prescriptions monthly from “MA” and was already on six and Ms.
King discussed antidepressants that were on the $4.00 formulary. Ms. King noted
that she would start Plaintiff on a trial of Prozac since other antidepressants like
Lexapro and Paxil had not worked in the past. (Tr. 371). Examination findings
were substantially verbatim to those made at the June 2012 visit with an added
summary of the current subjective report of symptoms from the visit. (Tr. 371-72).
In a treatment record dated April 10, 2012, Plaintiff reported improvement
of anxiety and depression since starting Fluoxetinc and that irritability and anger
had also decreased. (Tr. 369). Plaintiff stated that she would like to continue
current medications and feeling stable. (Tr. 369).

Examination findings were

substantially verbatim to those made at the June 2012 visit with an added summary
of the current subjective report of symptoms from the visit. (Tr. 369).
In a treatment record dated May 10, 2012, Plaintiff reported stable
symptoms, felt that the medication was helping, and denied any depression. (Tr.
367). Plaintiff reported that her anxiety improved and had not needed the Vistaril.
(Tr. 367). Plaintiff reported continued situational stressors with her daughter's
father but was pleased that even with a significant stressor she did not engage in
self-injurious behavior.

(Tr. 367).

Examination findings were substantially

Page 34 of 50

verbatim to those made at the June 2012 visit with an added summary of the
current subjective report of symptoms from the visit. (Tr. 367-78).
In a treatment record dated June 7, 2012, Plaintiff reported some increase in
anxiety and that her daughter's father has his arraignment for her alleged rape next
month. (Tr. 365). Plaintiff reported that the father has been trying to see her
daughter and this was causing increased stress. (Tr. 365). Plaintiff was very
fearful of their court date and has been experiencing poor sleep and an increase in
tearfulness, but without any cutting or suicidal ideation. (Tr. 365). Ms. King
adjusted Plaintiff’s medications.

(Tr. 365).

Upon examination, Ms. King

generally noted normal findings with exception that Plaintiff’s affect was “anxious,
stable, and concordant” and mood was anxious. (Tr. 365). Ms. King observed that
Plaintiff was able to hold a conversation, her concentration was good, and was able
to complete serial 7's and days of the week in reverse order. (Tr. 365). Plaintiff’s
remote memory was normal, she was able to recall past events, recent memory was
normal, Plaintiff was able to recall events from last day, recent recall was good,
and Plaintiff was able to recall three words immediately after two rehearsals, and
then again five minutes later. (Tr. 365-66). Ms. King opined that Plaintiff’s
judgment was poor and she had a slight awareness of her illness. (Tr. 366).
In a treatment record dated July 5, 2012, Plaintiff reported continued anxiety
and depression. (Tr. 363). Ms. King observed that Plaintiff was wearing a neck
Page 35 of 50

brace because “she was hit by a hit and run driver and suffered whiplash.” (Tr.
363). Plaintiff reported “experiencing anxiety about driving and having people
pull out in front of her again” and had not been able to drive due to flashbacks and
panic attacks regarding the accident. (Tr. 363). Plaintiff stated that the rape trial
was extended now to the same date that her mother passed away. (Tr. 363). Ms.
King noted that Plaintiff had been experiencing significant financial issues and the
combined stressors left her depressed and anxious with poor motivation. Plaintiff
reported taking Trazodone, sleeping well and that Valium helped with the anxiety.
(Tr. 363).

Plaintiff reported that her mood was unstable with an increase in

irritability. (Tr. 363). Examination findings were substantially verbatim to those
made at the June 2012 visit with an added summary of the current subjective report
of symptoms from the visit. (Tr. 263-64).
III.

Legal Standards and Review of ALJ Decision

To receive disability or supplemental security benefits, a claimant 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. § 423(d)(1)(A); accord 42 U.S.C. §
1382c(a)(3)(A). A claimant for disability benefits must show that he or she has a
physical or mental impairment of such a severity that:
Page 36 of 50

[H]e 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.
42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step evaluation process to determine if a
person is eligible for disability benefits. 20 C.F.R. § 404.1520; accord Plummer,
186 F.3d at 428. If the Commissioner finds that a Plaintiff is disabled or not
disabled at any point in the sequence, review does not proceed. 20 C.F.R. §
404.1520(a)(4). The Commissioner must sequentially determine: (1) whether the
claimant is engaged in substantial gainful activity; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment meets or equals a listed
impairment; (4) whether the claimant’s impairment prevents the claimant from
doing past relevant work; and, (5) whether the claimant’s impairment prevents the
claimant from doing any other work. 20 C.F.R. §§ 404.1520, 416.920. Before
moving on to step four in this process, the ALJ must also determine Plaintiff’s
residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e).
The disability determination involves shifting burdens of proof.

The

claimant bears the burden of proof at steps one through four. See Mason v.
Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). If the claimant satisfies this burden,

Page 37 of 50

then the Commissioner must show at step five that jobs exist in the national
economy that a person with the claimant’s abilities, age, education, and work
experience can perform. Id. The ultimate burden of proving disability within the
meaning of the Act lies with the plaintiff. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R.
§ 416.912(a).
When reviewing the Commissioner’s decision denying a claim for disability
benefits, the Court must uphold the findings of the Commissioner so long as those
findings are supported by substantial evidence. See Brown v. Bowen, 845 F.2d
1211, 1213 (3d Cir. 1988); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d
Cir. 2008). Substantial evidence is a deferential standard of review. See Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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, 564 (1988) (quoting Consolidated Edison Co. v.
N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence requires only ‘more
than a mere scintilla’ of evidence, Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)), and may be
less than a preponderance. Jones, 364 F.3d at 503. If a reasonable mind might
accept the relevant evidence as adequate to support a conclusion reached by the
Commissioner, then the Commissioner’s determination is supported by substantial
Page 38 of 50

evidence. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986);
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999); Johnson, 529 F.3d at 200.
A. Plaintiff’s Credibility
Where a medically determinable physical or mental impairment that could
reasonably be expected to produce the individual’s pain or other symptoms,
however, the severity of which is not substantiated by objective medical evidence,
the ALJ must make a credibility finding on the claimant’s subjective statements.
SSR 96-7p. The credibility finding must be based on a consideration of the entire
case record. SSR 96-7p. In determining a claimant’s credibility regarding the
severity of symptoms, the ALJ must consider the following factors in totality: 1)
the extent of daily activities; 2) the location, duration, frequency, and intensity of
pain or other symptoms; 3) precipitating and aggravating factors; 4) the type,
dosage, effectiveness, and side effects of any medication; 5) treatment other than
medication for the symptoms; 6) measures used to relieve pain or other symptoms;
and, 7) other factors concerning functional limitations and restrictions due to pain
or other symptoms. SSR 96-7p; 20 C.F.R. §§ 404.1529, 416.929; accord Canales
v. Barnhart, 308 F. Supp. 2d 523, 527 (E.D. Pa. 2004).
Evidence can be used to discount credibility if such evidence demonstrates a
true contradiction or inconsistency. See e.g. Horodenski v. Comm’r of Soc. Sec.,
215 F. App’x 183, 188 (3d Cir. 2007) (finding significant a plaintiff’s testimony
Page 39 of 50

about her daily activities was internally inconsistent, thus supporting the ALJ’s
determination of according her testimony little weight); Smith v. Astrue, 359 F.
App’x 313, 317 (3d Cir. 2009) (claimant’s testimony that she was essentially
bedridden contradicted by evidence that she had been primary caretaker for small
child for two years); Gleason v. Colvin, No. 3:14-CV-00021-GBC, 2015 WL
4232569, at *13 (M.D. Pa. July 13, 2015); see also Orn v. Astrue, 495 F.3d 625,
636 (stating that inconsistencies in testimony or between testimony and other
evidence is proper reason to discredit a social security plaintiff); Bauer v. Astrue,
532 F.3d 606, 608 (7th Cir. 2008) (ALJ erred in disregarding uncontradicted
evidence that a plaintiff’s thirteen-year-old son took responsibility for many of
plaintiff’s activities of daily living); Hernandez v. Astrue, No. CV 09-1626 SS,
2010 WL 1710350, at *4 (C.D. Cal. Apr. 26, 2010).
Activities of daily living can generally only support an adverse credibility
finding if (1) the activities of daily living indicate that “a claimant is able to spend
a substantial part of his day engaged in pursuits involving the performance of
physical functions that are transferable to a work setting” or (2) the activities of
daily living contradict other allegations by the claimant, rendering them internally
inconsistent. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); accord Gonzales v.
Colvin, No. 3:13-CV-02620, at ECF No. 26 (M.D.Pa. Feb. 17, 2015) (Adopting
recommendation ECF No. 24). This is because a finding of non-disability requires
Page 40 of 50

that a claimant be able to “do sustained work-related physical and mental activities
in a work setting on a regular and continuing basis. A ‘regular and continuing
basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.”
Titles II & Xvi: Assessing Residual Functional Capacity in Initial Claims, SSR 968P (S.S.A. July 2, 1996).
The Third Circuit has repeatedly reaffirmed that activities of daily living
which do not indicate transferable job skills for a regular and continuing basis
cannot be used as substantive evidence of non-disability. Smith v. Califano, 637
F.2d 968, 971-72 (3d Cir. 1981) (“Disability does not mean that a claimant must
vegetate in a dark room excluded from all forms of human and social activity….It
is well established that sporadic or transitory activity does not disprove
disability”); Kangas v. Bowen, 823 F.2d 775, 778 (3d Cir. 1987); Fargnoli v.
Massanari, 247 F.3d 34, 44 (3d Cir. 2001) (“Fargnoli's trip to Europe in 1988
cannot be the basis for a finding that he is capable of doing a light exertional job
because sporadic and transitory activities cannot be used to show an ability to
engage in substantial gainful activity.”) (internal citations omitted). “Generally,
we do not consider activities like taking care of yourself, household tasks, hobbies,
therapy, school attendance, club activities, or social programs to be substantial
gainful activity.” 20 C.F.R. § 404.1572.
///
Page 41 of 50

1. Caring for One’s Children
The ALJ erred in the negative inference drawn from the fact that Plaintiff
had custody of her three children ages eleven, six, and five. In the August 29,
2012, opinion the ALJ found:
[Plaintiff’s] allegations are just not fully credible. She has custody of her
three children. In a function report completed by the claimant in October
2010, she noted that she was still able to get her children on and off the bus,
thus having some routine during the day.
(Tr. 18). The ALJ also stated that the “examinations do not support physical or
mental disability. Her activities of daily living consist of taking care of her young
kids.” (Tr. 20).
The ability to care for children, alone, does not inherently indicate that a
claimant possesses the ability to perform on a regular and continuing basis in a
work-setting. First, the skills of caring for a child in one’s own home differ from
the stress of a work-setting. See Gonzales v. Colvin, No. 3:13-CV-02620, at ECF
No. 26 (M.D.Pa. Feb. 17, 2015); Harsh v. Colvin, No. 3:13-CV-42 GLS, 2014 WL
4199234, at *4 (N.D.N.Y. Aug. 22, 2014) (“[T]he ALJ placed undue emphasis on
[the plaintiff’s] ability to perform a ‘wide range of daily activities,’ including doing
some cooking, cleaning, laundry, and shopping, sitting on her porch, reading, and
caring for her kids. Under the circumstances and given the medical opinions of
record, it was error for the ALJ to infer an ability to handle the stress demands of

Page 42 of 50

competitive, remunerative employment on a sustained basis from the ability to
perform very basic activities of daily living.”); Draper v. Barnhart, 425 F.3d 1127,
1131 (8th Cir. 2005) (“[T]he test is whether the claimant has ‘the ability to perform
the requisite physical acts day in and day out, in the sometimes competitive and
stressful conditions in which real people work in the real world.’ In other words,
evidence of performing general housework does not preclude a finding of
disability.”) (internal quotations omitted).
Second, caring for children allows for flexibility and rest breaks. See
Gonzales v. Colvin, No. 3:13-CV-02620, at ECF No. 26 (M.D.Pa. Feb. 17, 2015);
Gentle v. Barnhart, 430 F.3d 865, 867-68 (7th Cir. 2005) (caring for a child “has a
degree of flexibility that work in the workplace does not”); Piatt v. Barnhart, 225
F. Supp. 2d 1278, 1291 (D. Kan. 2002) (remanding in part because “[a]lthough
Plaintiff cares for three children between the ages of 7 and 13, and cooks and
performs some household tasks, she is limited by her inability to stoop or reach
down; by back, leg and arm pain after a period of activity; and by her need to take
10 to 15 minute breaks while cooking and doing household tasks.”); Pen v. Astrue,
No. 12-CV-01041 NC, 2013 WL 3990913, at *10 (N.D. Cal. Aug. 2, 2013)
(Remanding where “the ALJ determined from [a plaintiff’s] statements that she is
able to care for her children, drive, and shop, that she is, therefore, more active
than she claims” but “the ALJ was incorrect in concluding that this is evidence of
Page 43 of 50

her ability to work outside of the home when the demands of a workplace
environment do not afford the same opportunities for breaks, rest, or assistance”);
see generally Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (“The critical
differences between activities of daily living and activities in a full-time job are
that a person has more flexibility in scheduling the former than the latter, can get
help from other persons . . . and is not held to a minimum standard of performance,
as [one] would be by an employer. The failure to recognize these differences is a
recurrent, and deplorable, feature of opinions by administrative law judges in
social security disability cases.”); Moss v. Colvin, No. 1:13-CV-731-GHW-MHD,
2014 WL 4631884, at *33 (S.D.N.Y. Sept. 16, 2014) (“There are critical
differences between activities of daily living (which one can do at his own pace
when he is able) and keeping a full time job”); Cooke v. Colvin, No. 4:13-CV00018, 2014 WL 4567473, at *15 (W.D. Va. Sept. 12, 2014) (“[D]aily activities
differ from the requirements of gainful employment in several important respects.
A person has flexibility in scheduling his daily activities, can get help from other
persons, and is not held to a minimum standard of performance; by contrast, an
employer expects an employee to perform tasks proficiently, independently, and in
a timely manner”) (internal citations omitted).
Moreover, parents may go to great lengths to care for their children that
would not be sustainable in the workplace, and should not be discouraged from
Page 44 of 50

doing so. See, e.g. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)
(“[D]isability claimants should not be penalized for attempting to lead normal lives
in the face of their limitations.”); Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir.
2005) (Claimant “must take care of her children, or else abandon them to foster
care or perhaps her sister, and the choice may impel her to heroic efforts. A person
can be totally disabled for purposes of entitlement to social security benefits even
if, because of an indulgent employer or circumstances of desperation, he is in fact
working.”) (emphasis in the original) (internal citations omitted); Vergara v.
Astrue, No. 1:10-CV-00341, 2011 WL 4452198, at *7 (N.D. Ind. Sept. 26, 2011)
(“[D]ire circumstances can force an individual to perform work activities that he
may not be able to otherwise sustain.”); McHenry v. Astrue, No. CIV.A. 07-1360,
2008 WL 3068864, at *13 (W.D. Pa. Aug. 5, 2008) (Caring for elderly parents
does not negate disability, as it may be the result of “heroic efforts”); Moss v.
Colvin, No. 1:13-CV-731-GHW-MHD, 2014 WL 4631884, at *33 (S.D.N.Y. Sept.
16, 2014) (“[P]eople should not be penalized for enduring the pain of their
disability in order to care for themselves.”) (internal citations omitted).
Moreover, the ALJ overemphasized Plaintiff’s testimony of taking her
children to a bus stop while ignoring testimony of Plaintiff’s dependence on her
eldest child and her ex-husband to care for the household and the younger children.
(Tr. 36-37, 39). Plaintiff testified that her eldest does “mostly all of the cooking,”
Page 45 of 50

bathes and feeds the youngest child, does the laundry, and cleans the house. (Tr.
37, 39). Plaintiff testified that she will make ramen noodles or pizza while her
eldest child “does a lot more, like hamburgers or she bakes, she cooks." (Tr. 39).
Plaintiff testified that her ex-husband takes her eldest child to the Laundromat her
eldest child washes the clothes, brings them and hangs them up. (Tr. 39). When
questioned more about who does the cleaning in her house, Plaintiff testified that
her eldest did a lot of the picking up and the dishes, and her middle child
vacuumed. (Tr. 39).
An ALJ cannot rely only on the evidence that supports his or her conclusion,
but also must explicitly weigh all relevant, probative, and available evidence; and
provide some explanation for a rejection of probative evidence which would
suggest a contrary disposition. See Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.
1994); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). Based on the foregoing,
the Court find the ALJ erred and the case should be remanded.
B. Weight to Medical Opinions
The ALJ found:
Dr. Smock also opined that the claimant has marked limitations in her
ability to interact appropriately with the public, supervisors, coworkers and respond to work pressures and changes in a usual and
routine work setting. The undersigned Administrative Law Judge
gives limited weight to Dr. Smock's findings in his mental status
examination and his opinions on the 'Medical Source Statement' since
they are not supported by the other evidence in the record. For
Page 46 of 50

instance, the claimant has an 11 year old and a 2 year old whom she
admits that she cares for both adequately.
(Tr. 20) (internal citation omitted). As discussed above, the ALJ’s adverse
inferences from Plaintiff’s custody of her children in this instance amounted to
error. As such, it was error for the ALJ to give limited weight to Dr. Smock’s
findings of marked limitations based on Plaintiff’s custody of her children.
C. Episodes of decompensation
In the August 2012 decision, the ALJ stated that Plaintiff “has experienced
no episodes of decompensation, which have been of extended duration.” (Tr. 17).
The ALJ further found that:
[Plaintiff] has a problem with alcohol abuse. She was an inpatient at
The Meadows Psychiatric Center from March 28, 2008 to April 10,
2008. Upon discharge her diagnoses were major depression, recurrent,
post-traumatic stress disorder and alcohol abuse with a current GAF
of 50 and the highest GAF in the past year at 55.
(Tr. 19) (internal citation omitted).
It was error for the ALJ disregard Plaintiff’s three lengthy psychiatric
hospitalizations and to mischaracterize Plaintiff’s predominantly psychiatric
hospitalization as solely due to alcohol treatment. As the Seventh Circuit has
observed, “bipolar disorder can precipitate substance abuse, for example as a
means by which the sufferer tries to alleviate her symptoms. . . . the fact that
substance abuse aggravate[s] [one’s] mental illness does not prove that the mental

Page 47 of 50

illness itself is not disabling.” Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir.
2006).
Moreover, given that the ALJ erred in her allocation of weight to Dr. Smock,
it was also error not to credit Dr. Smock’s assessment of the significance of
Plaintiff’s lengthy prior psychiatric hospitalizations. Based on the foregoing, the
ALJ erred in failing to acknowledge Plaintiff’s three psychiatric hospitalizations.
D. Step Five Burden
The Commissioner must show at step five that jobs exist in the national
economy that a person with the claimant’s abilities, age, education, and work
experience can perform. See Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.
1993). In this instance, the ALJ erred in failing to address and develop evidence
that regarding Plaintiff’s limitations in regular attendance and ability to work with
men. Dr. Zaydon opined that Plaintiff had marked limitations in the ability to
“perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances.” (Tr. 63). Dr. Smock opined that Plaintiff “would
have difficulty maintaining a regular schedule.” (Tr. 268). In a treatment record
dated October 17, 2011, Plaintiff reported panic attacks and flashbacks when she
was around men. (Tr. 387).
During the hearing the ALJ asked the Vocational Expert (“VE”) if a person
took an extra work break of forty-five minutes to an hour per day or was off task
Page 48 of 50

twenty percent of the work day, would there be any jobs available. (Tr. 49). The
VE responded, “No.” (Tr. 49). Plaintiff’s attorney asked for the VE to review the
marked limitations opined by Dr. Smock, in particular, the marked limitations of
Plaintiff to interact with the public, coworkers or supervisors, and marked
limitation in ability to deal with work stresses. (Tr. 49-50). Plaintiff’s attorney
asked if someone with those marked limitations could do any of the jobs
previously identified by the VE and the VE responded, “No.” (Tr. 49-50). At no
point was the VE asked regarding limitations identified by Drs. Zaydon and Smock
regarding Plaintiff’s ability to keep regular attendance for work, or any PTSD
limitations she may have working with men.
The Court finds that evidence was not adequately developed or discussed
with regard to these limitations and the Commissioner’s burden was not met in
establishing whether jobs existed in the national economy for Plaintiff in light of
her limitations. Thus, remand is necessary for the ALJ to address in the first
instance.
E. Remaining issues
Because Plaintiff’s case will be remanded for the ALJ's failure to further
development and to consider and analyze all relevant medical evidence, it is
unnecessary to examine Plaintiff’s remaining claims. A remand may produce
different results on these claims, making discussion of them moot. See LaSalle v.
Page 49 of 50

Comm'r of Soc. Sec., No. CIV.A. 10-1096, 2011 WL 1456166, at *7 (W.D. Pa.
Apr. 14, 2011).
IV.

Conclusion

Based on the foregoing, the Court finds that the ALJ’s decision lacks
substantial evidence.

Pursuant to 42 U.S.C. § 405(g), the decision of the

Commissioner is vacated, and this case is remanded for further proceedings.
An appropriate Order in accordance with this Memorandum will follow.

Dated: September 15, 2015
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE

Page 50 of 50