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Svalde v. Colvin

United States District Court, D. Maryland, Southern Division

August 29, 2016

ARMAND SVALDE, [1] Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Thomas M. DiGirolamo United States Magistrate Judge

         Plaintiff Armand Svalde (or Armands Svalbe) seeks judicial review under 42 U.S.C.§ 405(g) of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 10) and Defendant's Motion for Summary Judgment (ECF No. 11).[2] Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner's decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant's Motion for Summary Judgment (ECF No. 11) is GRANTED, Plaintiff's Motion for Summary Judgment (ECF No. 10) is DENIED, and the Commissioner's final decision is AFFIRMED.

         I

         Background

         Plaintiff was born in 1980, has a high-school education, and previously worked as a driver/courier, cashier, cashier/checker, stock clerk, and sales attendant. R. at 21, 143, 147. Plaintiff filed an application for DIB on February 9, 2012, alleging disability beginning on November 1, 2011, due to Crohn's disease, diabetes, hepatitis C, depression, ADHD, anxiety, hypercholesterolemia, and psoriasis. R. at 127-28, 143, 146. The Commissioner denied Plaintiff's application initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 46-71, 74-81. On February 6, 2014, ALJ Tom Duann held a hearing at which Plaintiff and a vocational expert (“VE”) testified. R. at 28-45. On February 24, 2014, ALJ Irving A. Pianin issued a decision finding Plaintiff not disabled from the alleged onset date of disability of November 1, 2011, through the date of the decision. R. at 8-27. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on May 18, 2015. R. at 2-7. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. § 404.981; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).

         On July 16, 2015, Plaintiff filed a complaint in this Court seeking review of the Commissioner's decision. Upon the parties' consent, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case subsequently was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.

         II

         Summary of Evidence

         The Court reviews here and in Part VI below Plaintiff's relevant medical evidence.

         A. Cheryl H. Jaworski, M.D.

         Cheryl H. Jaworski, M.D., had been Plaintiff's treating psychiatrist since May 13, 2011. R. at 349. On May 13, 2011, Dr. Jaworski's diagnoses included a GAF score of 55.[3] R. at 286. On December 20, 2011, Plaintiff reported that he was spending most of his day programming music for a friend and that his medications “definitely allow him to concentrate much better.” R. at 299. On January 19, 2012, Plaintiff reported that he was “doing better” and that his “anxiety is much better” and “not really a problem right now.” R. at 300, 320. On March 1, 2012, Plaintiff reportedly continued to have issues with fatigue and felt that he could not work a full day. R. at 301, 321. On March 16, 2012, Plaintiff reported that his mood had been worsening in the previous two weeks, and he was feeling sadder and more anxious in general. R. at 302, 322. He was not doing much at home besides lying in bed and watching television. R. at 302, 322.

         On April 13, 2012, Plaintiff reported that his symptoms of depression were “definitely better” but that his anxiety was worse. R. at 323. He was sleeping about 10 hours per day. R. at 323. His motivation and energy were a little better, and he was a little less unstable. R. at 323. Plaintiff did not believe that a decrease in his medication dosage had worsened his focus and attention much up to that point. R. at 323. On May 11, 2012, Plaintiff reported that his anxiety had decreased from his last visit, but he continued “to feel anxious about everything all the time.” R. at 324. His depression was under control, and his motivation was “a little improved.” R. at 324. Plaintiff felt that his focus and attention were “sort of OK.” R. at 324.

         On June 8, 2012, Plaintiff reported that his anxiety was “somewhat better” since an increase in his medication dosage. R. at 325. His anxiety was “still there, but there's improvement.” R. at 325. He denied having depression, and his energy, motivation, and irritability were better than before. R. at 325. His attention and focus were “a little bit” better on his medication regimen, but the “effect still doesn't last much more than 6 hours.” R. at 325.

         On June 28, 2012, Plaintiff reported that his “anxiety now sometimes spikes to 7/10 ‘for no reason.'” R. at 325. He was “more aware of some sadness again, ” and he described his anxiety as generalized. R. at 326.

         On July 24, 2012, Plaintiff reported no problems with sadness and that his anxiety was “low-level.” R. at 327. On August 21, 2012, Plaintiff reported that the effects of his medications lasted six or seven hours. R. at 328. On September 18, 2012, Plaintiff reported that his focus and attention were “pretty good for the bulk of the day.” R. at 329, 353. On November 2, 2012, Plaintiff reported that his “general mood has been fine” and that his focus and attention were “pretty good.” R. at 355.

         On January 4, 2013, Plaintiff reported that his mood was “pretty good” and that his overall mood had been fine. R. at 356. Plaintiff's depression and anxiety symptoms were “under pretty good control, ” and his attention and focus were good with his current stimulants. R. at 356. His energy level was better, and his motivation was “OK.” R. at 356. Plaintiff's orientation, judgment and insight, and recent and remote memory were grossly intact. R. at 356. He also reported improvement with his current treatment program. R. at 357. Dr. Jaworski noted that Plaintiff was seeing a psychotherapist at the Community Counseling Center to work on his OCD-related issues, which Plaintiff said was helpful. R. at 357.

         On April 5, 2013, Plaintiff reported being a little more anxious and more depressed since the previous visit. R. at 358. Plaintiff also reported that his mood had not been as good over the last two months or so and went “up and down.” R. at 358. Plaintiff was not able to find any work and “kind of ‘gave up' after a while.” R. at 358. His mood was more anxious and sad, “but not every day.” R. at 358. Plaintiff also reported that his focus and attention were best in the morning with his stimulants, but he admitted that he did not have much structure in his day, exacerbating his problems. R. at 359. He tried to do household chores, but was inconsistent because of “feeling crappy sometimes” and not being physically up to it. R. at 359.

         The ALJ reviewed in his decision Dr. Jaworski's opinion on April 8, 2013:

On April 8, 2013, Dr. Jaworski opined the following: [Plaintiff] has deficiencies of concentration, persistence, or pace, that result in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); [Plaintiff] has repeated episodes of deterioration or decompensation in work or work-like setting [sic] that cause [Plaintiff] to withdraw from the situation or experience exacerbation of signs and symptoms (which may include deterioration of adaptive functioning); and [Plaintiff] has mostly moderate and marked limitations regarding his ability to work.

R. at 20; see R. at 349-52. According to Dr. Jaworski, Plaintiff was markedly limited in the ability to (1) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (2) interact appropriately with the general public; and to (3) travel in unfamiliar places or use public transportation. R. at 351-52. Dr. Jaworski explained her opinion: “These ratings are based on [patient's] report of his function during medication evaluation [and] follow-up [appointments]. I have not observed his behavior directly in the workplace, nor do I have access to evaluations of his performance by his previous employers.” R. at 352.

         On June 7, 2013, Plaintiff reported that “maybe the depression is a little better.” R. at 360. He noted fewer days of sadness than before, and he seemed to have less anxiety. R. at 360. His energy was still low, but his motivation had improved; his daily activities were not as difficult as before. R. at 360. Plaintiff also reported that he had been “working on his music a lot” and that he “felt more creative lately.” R. at 361. He had not followed through, however, with volunteer jobs at the animal shelter and Meals on Wheels because “it's hard to make myself do it.” R. at 361. On May 10, 2013, Plaintiff reported little relief from his symptoms of depression and anxiety. R. at 362.

         On July 12, 2013, Plaintiff reported that his mood was “OK most of the time.” R. at 364. His energy was “a little better, ” and his motivation was “OK now.” R. at 364. Dr. Jaworski noted that Plaintiff's attention and concentration were intact during the session. R. at 364. Plaintiff also reported that his wife had added some structure to his daily routine, giving him specific chores for specific days, which helped him stay on track and be more productive. R. at 365.

         On August 23, 2013, Plaintiff reported that he was “doing OK” and that his “mood has been OK most of the time.” R. at 366. He denied having depression and reported that his anxiety was “actually a little less than when last seen.” R. at 366. Plaintiff's motivation was “OK, ” and his focus and attention were “OK for most of the day” with his current medications. R. at 366. He continued to have more structure in his daily routine with his wife's help. R. at 367.

         On November 14, 2013, Plaintiff reported that he thought “things have been pretty stable.” R. at 368. His mood continued to be fine “more days than not.” R. at 368. He denied having depression and reported that his anxiety remained unchanged but had improved. R. at 368. His energy, motivation, attention, and focus remained the same from his previous visit. R. at 368. Dr. Jaworksi noted that Plaintiff's attention and concentration were good during the appointment, but that his judgment and insight were only fair. R. at 368. Plaintiff described his symptoms as being in good control while on his current medication regimen. R. at 369. Plaintiff was changing the frequency of his visits to his psychotherapist from every two to three weeks to every month because he felt “things are stabilizing” and “we are running out of stuff to talk about.” R. at 369.

         B. State Agency Medical Consultants

         On May 17, 2012, a state agency consultant, Lawrence Annis, Ph.D., using the psychiatric review technique (“PRT”) under 20 C.F.R. § 404.1520a, evaluated Plaintiff's mental impairments under Listings 12.02 and 12.04 relating to organic mental disorders and affective disorders (R. at 49-50). See 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.02, 12.04. Dr. Annis opined that, under paragraph B of the applicable listing, Plaintiff's mental impairments caused him to experience (1) moderate restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 50. Dr. Annis did not find evidence to establish the presence of the criteria under paragraph C of the applicable listing. R. at 50. Dr. Annis thus assessed Plaintiff's mental residual functional capacity (“RFC”) (R. at 52-55) and opined that he was moderately limited in his ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) 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) interact appropriately with the general public; (5) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; (6) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; and to (7) respond appropriately to changes in the work setting. Plaintiff otherwise was not significantly limited. R. at 53-54.

         On June 20, 2012, another state agency consultant, A. Serpick, M.D., assessed Plaintiff's physical RFC. R. at 51-52. Dr. Serpick opined that Plaintiff could (1) lift and/or carry fifty pounds occasionally and twenty-five pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 52. Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations. R. at 52. On November 30, 2012, another state agency consultant, W. Hakkarinen, M.D., expressed the same opinion about Plaintiff's physical RFC. R. at 64-65.

         On December 21, 2012, another state agency consultant, Maurice Prout, Ph.D., again used the PRT to evaluate Plaintiff's mental impairments under Listings 12.02 and 12.04. R. at 62-63. Dr. Prout opined that, under paragraph B of the applicable listing, Plaintiff's mental impairments caused him to experience (1) moderate restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no episodes of decompensation of extended duration. R. at 62-63. Dr. Prout did not find evidence to establish the presence of the criteria under paragraph C of the applicable listing. R. at 63. Dr. Prout thus assessed Plaintiff's mental RFC (R. at 65-68) and opined that he was moderately limited in his ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) 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) interact appropriately with the general public; (5) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; (6) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; and to (7) respond appropriately to changes in the work setting. Plaintiff otherwise was not significantly limited. R. at 66-67.

         Both Drs. Annis and Prout expressed the same opinions about Plaintiff's sustained concentration and persistence limitations:

[Plaintiff] should be mentally able to sustain concentration and persist at simple and repetitive tasks within physical tolerances and skill levels for at least two hours at a time through an 8 hour workday. Additional supervision may be required when working on multi-step assignments. There may be occasions during which [Plaintiff] experiences some decrease in concentration, but he can attend to and complete simple tasks in routine settings as needed. [Plaintiff] is mentally able ...

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