Buckner v. Colvin, CASE NO. 1:15-cv-00175-YK-GBC

• Decision Date: 30 March 2016
• Docket Number: CASE NO. 1:15-cv-00175-YK-GBC
• Parties: KIMBERLY BUCKNER, Plaintiff, v. CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

KIMBERLY BUCKNER, Plaintiff, v. CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

CASE NO. 1:15-cv-00175-YK-GBC

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

March 30, 2016

(JUDGE KANE)

(MAGISTRATE JUDGE COHN)

REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL

Docs. 1, 9, 10, 15, 18, 21

REPORT AND RECOMMENDATION

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Defendant") denying the application of Kimberly Buckner ("Plaintiff") for supplemental security income ("SSI") and disability insurance benefits ("DIB") under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the "Act") and Social Security Regulations, 20 C.F.R. §§404.1501 et seq., §§416.901 et. seq.¹ (the "Regulations"). Plaintiff asserts that the ALJ erred in assessing her mental limitations. Plaintiff relies primarily on her subjective reports, third-parties' subjective reports, and an opinion from a one-timeconsultative examiner. (Pl. Brief); (Pl. Reply). However, the ALJ properly relied on two medical opinions from reviewing psychologists to assign limited weight to the one-time consultative examiner. (Tr. 9-28). The ALJ properly found Plaintiff to be less than fully credible based on these two medical opinions, her conservative treatment, non-compliance with treatment, drug-seeking behavior, and activities of daily living, including working full-time. Id. The ALJ properly assessed the third-party reports. Id.

The Court reviews the ALJ's denial under the deferential substantial evidence standard, where the Court affirms the denial unless no reasonable person would have denied benefits. See Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion") (internal citations omitted). "Stated differently, this standard is met if there is sufficient evidence 'to justify, if the trial were to a jury, a refusal to direct a verdict.'" Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Here, Plaintiff fails to demonstrate that no reasonable person would deny her benefits. (Pl. Brief); (Pl. Reply). The Court would refuse to direct a verdict in Plaintiff's favor "if the trial were to a jury." Id. The Court recommends that Plaintiff's appeal be denied, the decision of the Commissioner be affirmed, and the case closed.

II. Procedural Background

On June 17, 2010, Plaintiff applied for SSI and DIB. (Tr. 176-84). On October 17, 2011, the Bureau of Disability Determination ("state agency") denied Plaintiff's application (Tr. 77-124), and Plaintiff requested a hearing. (Tr. 125-28). On May 6, 2013, an ALJ held a hearing at which Plaintiff's husband, Plaintiff—who was represented by an attorney—and a vocational expert ("VE") appeared and testified. (Tr. 35-68). On May 8, 2013, the ALJ found that Plaintiff was not entitled to benefits. (Tr. 9-28). Plaintiff requested review with the Appeals Council (Tr. 6-8), which the Appeals Council denied on December 9, 2014, affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-5). See Sims v. Apfel, 530 U.S. 103, 107 (2000).

On January 26, 2015, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On April 8, 2015, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 9, 10). On August 4, 2015, Plaintiff filed a brief in support of the appeal ("Pl. Brief"). (Doc. 15). On October 8, 2015, Defendant filed a brief in response ("Def. Brief"). (Doc. 18). On October 28, 2015, Plaintiff filed a brief in reply ("Pl. Reply"). (Doc. 21). On June 29, 2015, the Court referred this case to the undersigned Magistrate Judge. The matter is now ripe for review.

III. Standard of Review and Sequential Evaluation Process

To receive benefits under the Act, a claimant must establish 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); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits show that:

He is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

The ALJ uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520. The ALJ 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 from 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listing"); (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. See 20C.F.R. §§ 404.1520. Before step four in this process, the ALJ must also determine Plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e).

The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that the claimant can perform. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability under the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

The Court reviews the ALJ's decision under the deferential substantial evidence standard. Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). Substantial evidence supports the ALJ decision unless no "reasonable mind might accept [the relevant evidence] as adequate to support a conclusion." Id. (internal citations omitted). "Stated differently, this standard is met if there is sufficient evidence 'to justify, if the trial were to a jury, a refusal to direct a verdict.'" Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

IV. Relevant Facts in the Record

Plaintiff was born in 1974 and was classified by the Regulations as a younger individual through the date of the ALJ decision. (Tr. 22); 20 C.F.R. § 404.1563. Plaintiff has at least a high school education and past relevant work as a nursing assistant and a materials handler. (Tr. 22). Plaintiff applied for benefits in May of 2008, and her application was denied in October of 2008. (Tr. 80). She alleges onset of disability under the present application as of July 28, 2010. (Tr. 14). The relevant period runs through May 8, 2013, the date of the ALJ decision. (Tr. 14).

In connection with Plaintiff's previous application for benefits under the Act, she underwent a consultative examination with state agency psychologist Dr. Christopher Royer, Ph.D. (Tr. 508). She reported "very infrequent alcohol use and no substance abuse...a history of some cannabis use." (Tr. 509). She denied "perceptual disturbances or other gross psychopathology." (Tr. 510). Her judgment was fair, her recent and immediate recall were intact, her attention was fair, she made no errors on a serial 3 test of concentration, her reasoning by analogy was within normal limits, she was able to adequately generate abstract characterizations, her fund of information was adequate, and she exhibited tension, anxiety, and psychomotor agitation. (Tr. 510-11).

On February 18, 2010, Plaintiff followed-up with her primary care physician, Dr. Louis Hieb. (Tr. 655). Plaintiff was "basically just out of prison" for "misusing opiates." (Tr. 655). Plaintiff had tested positive for cocaine and opiates in December and October of 2009. (Tr. 692, 695). Examination indicated "[s]he looks pretty good. She is calm and coherent. There is no agitation. Her thought process is fairly good, not tremendously insightful but pretty good and I think overall she has really had a significant improvement since getting back on her psych meds. She refused to go to psychiatry. Her lungs are clear. Patient breathing easily. Psychiatrically she is stable." (Tr. 655). On March 19, 2010, Dr. Hieb observed that Plaintiff had normal judgment, insight, orientation, memory, mood, and affect. (Tr. 653).

On March 22, 2010, Plaintiff had a psychosocial evaluation at Roxbury Treatment Center for opiate abuse. (Tr. 592). She was "neatly dressed and cooperative...remained focused and her mood was broad. Her remote memory was poor, but current is good. Her judgment has improved and she is desirous of help." (Tr. 591, 593). Plaintiff attended sessions at Roxbury Treatment Center through August 3, 2010. (Tr. 581-82). On May 4, 2010, Plaintiff reported that her "best friend with whom she lived for 10 years was admitted to the hospital in a diabetic coma on 4/7/10, He died on 5/3/10." (Tr. 595).

On May 7, 2010, Plaintiff followed-up with Dr. Hieb. (Tr. 652). He noted that she was "little anxious today, but overall again, much, much better than she was a year or two ago. Much more coherent." (Tr. 652). He continued, "Psychiatrically, she is essentially stable. She has a little bit of situational stress. Sh...