Lippincott v. Comm'r of Soc. Sec.

• Decision Date: 08 November 2013
• Docket Number: Civil No. 12–7175 (JBS).
• Parties: Elaine LIPPINCOTT, et al., Plaintiffs, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — District of New Jersey

982 F.Supp.2d 358

Elaine LIPPINCOTT, et al., Plaintiffs,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

Civil No. 12–7175 (JBS).

United States District Court, D. New Jersey.

Nov. 8, 2013.

Brian G. Smith, Esq., Community Health Law Project, Inc., Collingswood, NJ, for Plaintiffs Elaine Lippincott and Laurence Lippincott.

Katrina Marie Lederer, Esq., Social Security Administration, New York, NY, for Defendant Commissioner of Social Security.

OPINION

SIMANDLE, Chief Judge:

I. Introduction

This matter comes before the Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c) for review of the final decision of the Commissioner of the Social Security Administration denying original Plaintiff Scott Lippincott's application for disability insurance benefits under Title II of the Social Security Act (the “Act”) and supplemental security income under Title XVI of the Act. Elaine and Laurence Lippincott were substituted as Plaintiffs in this matter following their son's death in January 2013 pursuant to a consent order signed on April 10, 2013.¹ [Docket Item 12.]

Plaintiffs challenge the decisions of Administrative Law Judge, Frederick Timm (“the ALJ”), at steps three, four, and five of the required five-step sequential analysis. Plaintiffs also argue that the ALJ failed to consider counsel's letter brief submitted after the administrative hearing, but before the decision. While the Court finds substantial evidence in the record to support the ALJ's determination that Lippincott failed to satisfy the requirements of Listing 12. 04 in step three, the ALJ's conclusory statement regarding Listings 1.04 and 11.00 is insufficient to allow judicial review. For the reasons discussed below, the Court will vacate the Commissioner'sfinal decision and remand the matter for further proceedings.

II. BackgroundA. Procedural Background

Scott Lippincott of Delmont, New Jersey, was 45 years old on February 26, 2008 when he filed his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (R. 281–86.) Lippincott alleged disability based on herniated discs, fractured vertebrae, and mental disabilities. (R. at 305.) His claims were denied initially on September 25, 2008, and upon reconsideration on February 11, 2009. (R. at 151–68.) Lippincott subsequently requested a hearing on March 17, 2009. (R. at 169–70.) The ALJ held a hearing on March 10, 2011 during which Lippincott appeared in person and was represented by counsel. (R. at 85.) Lippincott and his mother, Elaine Lippincott testified at this first hearing. (R. at 83–132.) The ALJ held a supplemental hearing on April 15, 2011 during which a vocational expert, Patricia Sasona, testified.² (R. at 53–82.) The ALJ's decision suggests that Lippincott was present and testified at the supplemental hearing as well, but the transcript states that he was not present and does not contain any such testimony. (R. at 19.) On June 3, 2011, the ALJ found that Lippincott was not disabled and denied his application for Social Security benefits. (R. at 19–29.) The Appeals Council denied Lippincott's request for review on September 14, 2012. (R. at 1–6.) Plaintiffs filed this action, and the parties completed briefing on June 21, 2013.

B. Medical History

The record in this case is voluminous and contains medical evidence from various sources. Neither Plaintiffs, nor Defendant provide an overview of Lippincott's medical history. The Court notes the relevance of the following medical evidence because it provided the basis for the ALJ's determination.

1. Dr. Zechowy

Upon referral by his primary care physician, Dr. William Hingston, Lippincott underwent a neurological evaluation in September 2004 performed by Dr. Allen C. Zechowy. (R. at 554.) At the time, Lippincott reported being assaulted in May 2004 and being struck on the head with a shotgun. ( Id.) Since the incident, Lippincott stated that he became very irritable quickly and suffered panic attacks. ( Id.) The clinical impression was concussion, post-concussion syndrome, rule/out seizure disorder vs. post-traumatic sleep disturbances, and personality change as a result of head trauma. (R. at 555.) An abnormal EEG from this same period revealed a single slow sharp diffuse paroxysmal discharge compatible with cerebral cortical irritability. (R. at 579.)

2. Cooper University Hospital

Records from Cooper University Hospital indicate that Lippincott reported to the emergency department in May 2006 for a laceration under his right eye after being struck with a gun. (R. at 524.) He declined to be evaluated. (R. at 520.) Additional records from the Cooper University Hospital document an inpatient stay from December 1, 2008 to December 4, 2008 for acute bronchitis. (R. at 665–66.) A physical examination showed no spinal tenderness and no neck rigidity. (R. at 665.)

3. New Jersey Department of Corrections

The record includes treatment notes from the New Jersey Department of Corrections from two periods: 1) April 2005 to February 2008; and 2) August 2010 to February 2011. These records document treatment for a variety of conditions including insomnia (chronic, secondary to years of substance abuse), mood disorder, personality disorder NOS, polysubstance dependence, seizure disorder, blunt head trauma, hepatitis C, herniated cervical disc, arthritis, back pain, herniated lumbosacral disc, MRSA infection, dermatitis, glucose intolerance, dyslipidemia, smoker, obesity, hyperopia, and presbyopia. (R. at 414.)

Notes from an office visit on November 23, 2010 indicate that Lippincott reported numbness and tingling in his legs. (R. at 1990.) He was wheeled into the office in a wheelchair, but had no problem removing his shoes and socks. (R. at 1991.) Notes from another office visit on November 8, 2010 document a normal physical examination with no acute distress. (R. at 2003–04.)

4. Kennedy Health System Behavioral Health Services

Records from Kennedy Health System Behavioral Health Services indicate that Lippincott was evaluated in April 2008 and reported feeling depressed and anxious because he had been off his medications. (R. at 536.) He also reported being shot in the back of the head in 2004. ( Id.) He was diagnosed with depression disorder NOS and PTSD based on his reported history. (R. at 537.) He was assigned a GAF of 56. ( Id.)

Additional records from Kennedy Behavioral Health indicate that Lippincott attended an intensive outpatient treatment program from June 2008 to August 2008. (R. at 1860.) Lippincott was discharged upon completion of the program with diagnoses of major depressive disorder (recurrent), PTSD, rule out cocaine abuse, and a GAF of 50. (R. at 1862.) Upon discharge, it was recommended that Lippincott follow up with a bipolar/depression support group. ( Id.)

5. Steiner Behavioral Health

Lippincott also received treatment at Steiner Behavioral Health from July through September 2009. (R. at 1937–66.) A comprehensive intake assessment completed on July 10, 2009 indicates diagnoses of mood disorder NOS and PTSD with a GAF of 50. (R. at 1950.) The assessment identified strengths of self-care skills, language skills, and past work history. (R. at 1961.) After failing to follow up with the program, Lippincott was discharged with the same diagnoses. (R. at 1937.)

6. Dr. Rosenberg

In addition to the behavioral health treatment above, the record contains a psychiatric evaluation from Dr. Leon I. Rosenberg at the Center for Emotional Fitness in Cherry Hill, NJ from April 2008. (R. at 587–89.) This evaluation notes that Lippincott was seen on an emergency basis after being released from Southern State Correctional Facility and being without medications. (R. at 587.) Lippincott received initial diagnoses of major depressive episode, rule out PTSD, and a GAF of 55. (R. at 589.) The record only contains one follow-up note that Lippincott asked to continue his medications. (R. at 590.)

7. MRIs of Back and Spine

The record contains numerous MRIs of Lippincott's back and spine spanning a period from April 2003 to July 2009. A MRI of the cervical spine from April 2003 revealed moderately large right sided post lateral disc herniation at C5–C6 with narrowing of the neuroforamen associated with some slight osteophyte. (R. at 559–60.) This MRI also revealed some uncinated process hypertrophy with minimal encroachment on the neural foramina on the left side at C5–C6 and bilaterally at C6–7. ( Id.)

A MRI of the cervical spine from July 2005 revealed C5–C6 right-sided bony ridging with an associated right-sided disc protrusion/herniation with flattening of the right side of the spinal cord resulting in mild central canal stenosis. (R. at 1857.) This MRI further revealed mild narrowing of the right neural foramina, mild bulging disc T2–T3, bulging disc and degenerative end plate ridging, C6–C7, and no disc herniation or spinal stenosis. ( Id.)

A MRI of the lumbosacral spine from April 2008 revealed L5–S1 right lateral recess disc extrusion impinging the descending right S1 nerve root and mild foraminal narrowing. (R. at 576.) A MRI of the cervical spine from this same period revealed C5–C6 degenerative disc disease with osteophytic ridging and uncovertebral joint hypertrophy resulting in foraminal narrowing and indentation of the ventral thecal sac. (R. at 578.)

Lippincott received a L5–S1 lumbar epidural steroid injection on September 12, 2008 at the Cooper Surgery Center. (R. at 608–11.)

A cervical MRI from July 2009 resulted in a clinical impression of degenerative disc disease C5–6 with considerable right foraminal stenosis and mild bilateral foraminal stenosis at C6–7.³ (R. at 1925–26.) A lumbar MRI from this same period resulted in a clinical impression of large right foraminal disc herniation L5–S1 with associated findings of degenerative disc disease, resulting in right foraminal stenosis but only minimal central stenosis. (R. at 1926.)

8. State Consultative Exams

Lippincott was examined by state examiner, T.J....