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Burke v. Berryhill

United States District Court, D. New Jersey

October 29, 2018

MARY BURKE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Mary Burke (“Plaintiff”), appeals from the final decision of the Acting Commissioner of Social Security, Nancy A. Berryhill (“Defendant”), denying Plaintiff disability benefits under Title XVI of the Social Security Act (the “Act”). After reviewing the Administrative Record (“A.R.”), the Court finds that the Administrative Law Judge's (“ALJ”) determination of the residual functional capacity (“RFC”) was not based on substantial evidence, because the A.R. does not substantially support that Plaintiff retains the physical capacity to perform medium work. Accordingly, remand is warranted.


         Plaintiff was born on October 11, 1959 and was 53 years old on the alleged disability onset date of January 25, 2013. A.R. 79. Plaintiff graduated from high school and completed 4 or more years of college; however, based on the record, Plaintiff does not appear to hold a college degree. A.R. 210. Prior to her alleged disability, Plaintiff worked as a systems analyst and assembler of electric accessories. A.R. 210.

         On March 18, 2013, Plaintiff applied for supplemental security income, alleging disability beginning on January 25, 2013. A.R. 174-82. Plaintiff's claims were denied on June 14, 2013, A.R. 93-97, and again upon reconsideration on August 27, 2013. A.R. 101-105. Thereafter, Plaintiff requested a hearing, which was held by video conference on February 26, 2015, before ALJ Dennis Katz. A.R. 40, 42. The ALJ determined that Plaintiff was not disabled and denied her claims for supplemental security income. A.R. 34. Plaintiff requested review by the Appeals Council, which was denied on January 11, 2017. A.R. 1-4. On March 16, 2017, Plaintiff filed the instant appeal.

         A. Review of the Medical Evidence

          On March 9, 2013, Plaintiff admitted herself to the Emergency Department at Barnabas Hospital with complaints of depression and suicidal ideation without a plan or intent. A.R. 310. Plaintiff was described as a “poor historian” because of “acute intoxication”; however, during an examination, she indicated that she suffers from alcoholism, bipolar disorder, anemia, regularly uses tobacco, but refrained from any intravenous drug use. A.R. 310-311, 315. Plaintiff stated that her bipolar disorder caused her to experience “fluctuating suicidal ideation for many years, ” which symptom was exacerbated by alcohol use. A.R. 317. However, Plaintiff never acted or intended to act on her suicidal thoughts, which her adult son and significant other, with whom she lived, corroborated. A.R. 317, 319. Despite Plaintiff's suicidal ideation, they stated that she “never made any suicide attempt in the past, ” and her son “never [saw] any sign or indication that she would act” on such thoughts. A.R. 317.

         Plaintiff also reported various “stressors” during the examination, including: unemployment, financial strain, the recent death of her brother-in-law, and Hurricane Sandy's severe impact on her family. A.R. 317. Plaintiff stated that she had been unemployed for the past seven years and worries excessively; however, her son and significant other provide support and she sells her art as a freelancer. A.R. 317, 319. Although a mental status evaluation revealed that Plaintiff's appearance was disheveled and her sleep quality was poor; her behavior was appropriate and cooperative; her speech was normal in tone and rhythm; her thought process was logical and coherent; her mood was euthymic; her memory, knowledge, and orientation were adequate and oriented in all three spheres; her impulse control was normal; her reasoning, judgment, insight, and perception were all fair; and she did not suffer from any delusional thoughts or hallucinations. A.R. 320. The examining physician determined that Plaintiff did not present a danger to herself or others, and that she would benefit from mental health treatment. A.R. 319. Plaintiff agreed to obtain such treatment at Ocean Mental Health. A.R. 319.

         On April 21, 2013, Thomas Plahovinsak, Ph.D., performed a consultative psychological evaluation on Plaintiff, during which Plaintiff was interviewed on matters in relation to her childhood, education, employment, health, and history of alcohol abuse. A.R. 331. Dr. Plahovinsak subsequently performed an assessment of Plaintiff's activities of daily living (“ADL”):

Ms. Burke is capable of performing all ADL skills independently and maintains a good regimen of doing them. She does not have any physical problems that limit her ability to stand, lift, walk, or bend. Household chores are shared with her boyfriend; she also prefers to have his company when going to the supermarket because crowds cause her to become anxious. Ms. Burke is not in possession of a driver's license because she allowed it to expire and is now fearful to go to motor vehicle to have it renewed. Recreation time is spent engaged in artwork or playing the guitar either alone or with several friends.

A.R. 332. Dr. Plahovinsak continued the examination by performing an assessment of Plaintiff's mental status, noting:

Ms. Burke is a 53-year-old, twice divorced, Caucasian female, who was driven to the evaluation by her boyfriend and arrived punctually for it. She presented as anxious and tense, with bouts of coughing occurring that she attributed to allergies; the level of anxiety and coughing decreased as the interview progressed. Overall, she was cooperative and enabled rapport to be established. Ms. Burke appeared her stated age, was attired in clean, casual clothing, and displayed satisfactory grooming and hygiene; a strong smell of cigarettes emanated from her. Ms. Burke was able to sit throughout the evaluation without displaying any fidgeting or odd mannerisms, rose from the chair unassisted, and displayed a steady gait. She was verbal and served as a credible historian.

A.R. 332-33. Dr. Plahovinsak also made the following observations: Plaintiff was oriented in all three spheres; she had a clear sensorium; her speech was lucid and goal directed; her thought processes were clear and coherent; she did not show signs of a formal thought disorder; and she denied hallucinations, delusions, and flashbacks, nor were they suspected. However, Plaintiff experienced racing thoughts that were intensified by her pattern of worrying, and Plaintiff's speech was over productive and pressured. A.R. 333. Dr. Plahovinsak further observed:

She acknowledged that she prefers predictability and is a self-proclaimed ‘control freak.' She tends to anticipate worse case scenarios, which increases her level of anxiety. Crowds also cause her to become anxious because she does not like to have people touching her or invading her space. A history of compulsions/rituals was denied. Ms. Burke has historically had mild to moderate problems managing money.
Ms. Burke displayed a tearful and tense affect that was congruent to her mood, which was anxious and depressed. She tends to become quickly and easily irritated, which includes being impatient with herself. Anger results in bouts of ‘going off.' Ms. Burke sleeps in blocks of 3-4 hours, but has a history of insomnia in which she has been awake for 72 hours consecutively. Her energy is currently low while her appetite and libido are fair. She weighs 125 pounds while standing 5'3''; she weighed 111 pounds last year.

A.R. 333. Towards the end of the examination, Dr. Plahovinsak assessed Ms. Burke's level of cognitive functioning, determining that it falls within “the average range.” A.R. 333. Dr. Plahovinsak ultimately diagnosed Plaintiff with generalized anxiety disorder, bipolar disorder, and ruled out personality disorder not otherwise specified. A.R. 333. In his concluding remarks, Dr. Plahovinsak attested to the following: “[t]he prognosis for Ms. Burke is favorable with treatment. She would be able to follow directions at a complex level of difficulty and would demonstrate moderate-significant problems interacting with others. She would be able to manage her own funds if money were awarded.” A.R. 333. Plaintiff was ultimately assessed a GAF[1] score of 60.

         On May 28, 2013, Alexander Hoffman, M.D., a state agency medical consultant, conducted a physical examination on Plaintiff. A.R. 334-336. Dr. Hoffman described Plaintiff as a “thin [and] slightly hyper individual” who is cooperative, good-natured, and capable of both following directions and responding to questions in a lucid manner. A.R. 335. During the examination, Plaintiff walked normally without a cane and was capable of getting on and off the medical table without requiring assistance. A.R. 335. Plaintiff's skin appeared clear, with the exception of a raised, discolored lesion on her left shoulder. A.R. 355. Dr. Hoffman attested to the following:

Her head is normocephalic. Her pupils are equally reactive. The extraocular movements full. Sclerea, cornea, and conjunctivae were clear. Anterior chambers and fundi look normal. Tympanic membranes clear. Pharynx clear. Dentition, very poor with a lot of rotted teeth. The neck is supple. There are no bruits. Chest is clear to percussion and auscultation. No audible wheezes, rales, or rhonci. Examination of the heart, regular rate and rhythm. Normal S1, S2. No murmur. No friction rub. Abdomen is soft. Bowel sounds present. No masses. No organomegaly. No CVA tenderness. Lower extremities, no edema. No trophic change. Intact pulses. Normal dorsiflexion and plantar flexion of the toes. Straight leg raising goes to at least 65-70 degrees bilaterally. Flexion at the knee is full. No swelling. No crepitus. She is right-hand dominant.

A.R. 335. Plaintiff had excellent grip, biceps, and triceps strength, and displayed a full range of motion at the wrist, elbow, and shoulder. A.R. 335. Plaintiff was capable of bearing weight on both legs and performing a complete deep knee bend, flexing fully at the waist, and walking on her heels and toes. A.R. 335. Dr. Hoffman also administered an EKG, yielding borderline results. A.R. 335.

         On June 13, 2013, George Bousvaros M.D., a state agency medical doctor, independently reviewed Plaintiff's medical records, and rendered an opinion as to Plaintiff's exertional efforts. A.R. 73-74. In doing so, he determined that Plaintiff was capable of performing a light range of work, including: occasionally lifting and/or carrying up to 20 pounds, frequently lifting and/or carrying up to 10 pounds, standing and/or walking (with normal breaks) for a total of approximately 6 hours in an 8-hour work day, sitting (with normal breaks) for a total of approximately 6 hours in an 8-hour workday, and pushing and/or pulling objects without limitation. A.R. 73-74. Plaintiff did not have any postural, manipulative, visual, communicative, environmental, understanding, or memory limitations. A.R. 74.

         On August 26, 2013, Brady Dalton, Psy.D., a state agency psychologist, independently reviewed Plaintiff's medical records and rendered an opinion as to Plaintiff's ability to perform sustained work activities over the course of a normal workday/week. A.R. 84-91. In doing so, Dr. Dalton adopted the prior medical findings, such as Plaintiff was confined to the performance of light work, i.e., lifting and/or carrying up to 20 pounds and frequently lifting and/or carrying up to 10 pounds. Specifically, Dr. Dalton concluded that Plaintiff was not significantly limited in her capacity to perform the following tasks: carry out very short and simple instructions; carry out detailed instructions; sustain an ordinary routine without special supervision; make simple work-related decisions; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; recognize normal hazards and take appropriate precautions; travel in unfamiliar places or use public transportation; and set realistic goals or make plans independently of others. A.R. 89.

         On the other hand, Dr. Dalton concluded that Plaintiff was moderately limited in her capacity to perform the following tasks: maintain attention and concentration for extended periods; perform activities within a schedule; maintain regular attendance, and being punctual within customary tolerance; work in coordination with or in proximity to others without being distracted by them; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without unreasonable number and length of rest periods; interact appropriately with the general public; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and respond appropriately to changes in the work setting. A.R. 87-89. Dr. Dalton concluded his assessment by indicating that Plaintiff, “[a]lthough anxious and depressed, . . . retains the ability to understand, remember, and execute instructions. She can adapt to change and adjust to supervision in environments where the emotional demands are modest.” A.R. 89.

         On November 18, 2013, during a routine checkup, Plaintiff's mental health provider sent her to the emergency room for elevated blood pressure. A.R. 367, 369. Plaintiff had no complaints, was not in any distress, and denied all of the following symptoms: chest pain, headache, dizziness, abdominal pain, nausea, vomiting, shortness of breath, and palpitations, dysuria, muscle pain, or weakness. A.R. 369. Her condition improved on that same day and Plaintiff was discharged. A.R. 371.

         On November 20, 2013, Plaintiff underwent an intake assessment at Ocean Mental Health, during which Plaintiff exhibited “tangential speech, ” “racing thoughts, ” and a “somewhat elevated mood.” A.R. 391. Plaintiff described difficulty sleeping, indicated that she “sometimes forgets to eat, ” and presented the following changes in her health status: “itching, pain [in her] right shoulder[, ] and a teeth/gum problem.” A.R. 391. Plaintiff stated that she was active in “AA and would like to continue to be open to attending more social events and be active in her community, ” and that she was “taking care of her son who has William's Syndrome . . . .” A.R. 391. A mental status examination demonstrated that Plaintiff was alert and oriented to person, place and time; appropriately dressed and presented with good hygiene; cooperative; maintained good eye contact; well developed; well nourished; ambulatory and in no acute stress; denied auditory or visual hallucinations, paranoia or delusions; denied any suicidal or homicidal ideation or plan; and had intact insight. A.R. 391-392. However, Plaintiff displayed some short-term memory difficulty and poor judgment. A.R. 391-392. As treatment, the examiner recommended a five day a week partial care day program, as well as a psychiatric evaluation and medication monitoring. A.R. 392.

         On January 10, 2014, Krystin Prasad, APN, performed a psychiatric evaluation on Plaintiff. A.R. 396. As provided in the medical notes, Plaintiff was 87 days sober at that time, and, although she felt “off balance, ” she stated that “the cob webs are gone[.]” A.R. 396. Plaintiff recognized the she developed a drinking problem at the age of 26, and that she was “killing herself” as a result, but denied any current suicidal or homicidal ideation. A.R. 396. Plaintiff was living with her significant other, who she described as bipolar, as well as her permanently disabled, 29-year-old son, both of whom were unable to care for themselves. A.R. 396. Indeed, Plaintiff indicated that “she can't trust them to turn on the stove” and stated that she maintained the house, grocery shopped, and cooked, but did not drive. A.R. 396. During the examination, Ms. Prasad performed a mental status evaluation revealing that Plaintiff was orientated in person, place, and time; maintained good eye contact; her short and long term memory were intact; she was focused on the need to remain sober; she denied urges to cut herself or drink; her mood was euthymic; her affect was full; her cognitive functioning, knowledge, judgment, and insight were intact; her speech was intact, although hyperverbal and pressured; she appeared forthcoming and friendly; and she denied auditory and visual hallucinations. A.R. 397-398. The medical report also included a risk profile, demonstrating that Plaintiff was not currently homicidal, suicidal, assaultive, nor abusing any substances. A.R. 398. For treatment, Ms. Prasad recommended that Plaintiff continue with her recovery program and use Remeron, to which Plaintiff agreed. A.R. 399. Ms. Prasad assessed a GAF score of 50. A.R. 399.

         On January 27, 2014, Plaintiff was admitted to the emergency room with complaints of pain on the right side of her body, emanating from her shoulder down to her hip, difficulty breathing, and weakness in her legs. A.R. 364. A physical examination revealed that Plaintiff was alert and in mild distress, but did not look ill; had a normal range of motion in her right shoulder, with no swelling; her joints, pulses, speech, and gait were normal; her cranial nerves were intact; and her strength was symmetric. A.R. 364. Plaintiff underwent a chest x-ray and right shoulder x-ray which were both normal. A.R. 365. Prior to being discharged, Plaintiff was diagnosed with acute bronchitis and chronic right shoulder pain, and prescribed ibuprofen, antibiotics, and a cough syrup. A.R. 365-66.

         On April 8, 2014, Plaintiff scheduled an appointment with Bernard Wayman, M.D, seeking a referral to an orthopedic doctor for right shoulder and joint pain. A.R. 377. Plaintiff stated that the was experiencing these symptoms for five months and described their severity as a seven. A.R. 377. Plaintiff's “constant, localized, sharp, and dull” joint pain worsened with activity and weight bearing, and improved with rest and acetaminophen. A.R. 377. A general physical examination revealed that Plaintiff's right anterior shoulder exhibited tenderness and a reduced range of motion, although Plaintiff denied any cardiovascular, respiratory, gastrointestinal, and psychological symptoms, including chest discomfort, racing/skipping heartbeat, leg pain on walking, insomnia, anxiety, and thoughts of suicide. A.R. 378. Additionally, Plaintiff's head, eyes, ears, nose, mouth, neck, lungs, heart, pulses, extremities, attention span, and concentration were normal. A.R. 378-79. Dr. Wayman ultimately diagnosed Plaintiff with a right shoulder strain, depression, and a tobacco dependency. A.R. 380-81. Dr. Wayman prescribed Tylenol Arthritis Pain and Remeron, encouraged Plaintiff to stop smoking, and referred her to an orthopedist. A.R. 381. Plaintiff was scheduled for a follow-up appointment in three months' time.

         On July 28, 2014, during her follow up appointment, Plaintiff indicated that she felt well and was applying Voltaren gel, which “work[ed] for her shoulder [osteoarthritis].” A.R. 372. Although Plaintiff expressed dissatisfaction with her living and working situations, she denied insomnia, depression, anxiety, and thoughts of suicide, as well as cardiovascular, respiratory, and gastrointestinal symptoms. A.R. 373. Dr. Wayman determined that Plaintiff's tobacco dependency was “unchanged, ” but her depression and alcoholism “improved, ” as she reported being seven months sober, was seeking counseling five days a week, and denied “feeling down” and a sense of “hopelessness.” A.R. 372, 374-75. Dr. Wayman encouraged Plaintiff to stop smoking, lose weight, and exercise regularly. A.R. 375.

         On August 2, 2014, Plaintiff was admitted to the hospital after experiencing chest pain. Plaintiff's EKG revealed an “acute inferior myocardial infarction with ST reciprocal ST-depression” and she was subsequently brought to the catherization lab, where Dr. Sanjiv Sobti, M.D., performed a cardiac catheterization procedure with stent placement. A.R. 347, 351-52. A cardiac catheterization study showed multivessel coronary artery disease. A.R. 355. Following the procedure, Plaintiff was admitted to the hospital, where she “did well” and “gradually ambulated.” A.R. 352. Plaintiff was discharged ten days later, instructed to stop smoking, and prescribed various medications, including Metoprolol, Vistaril, Remeron, Ecotrin, Effient, and Lipitor. A.R. 363. Dr. Sobti scheduled a follow-appointment approximately one week later, during which a physical exam revealed: Plaintiff's breathing sounds were clear; her cardiac rhythms were regular; her heart sounds were normal; and she did not have murmurs. A.R. 349. Dr. Sobti determined that Plaintiff's “condition was stable, ” and he recommended that she continue her medications. A.R. 349-50.

         On August 27, 2014, Renuka Tank, M.D., a psychiatrist at Ocean Mental Health, completed an examination report form on Plaintiff's behalf. A.R. 394. Dr. Tank indicated that Plaintiff had a history of alcohol abuse, developed a dependency on alcohol, was bipolar, was ambulatory, was unable to work for a twelve-month period, and was a likely candidate for Supplemental Security Income. A.R. 394-95.

         B. Review of Disability Determinations

          On March 18, 2013, Plaintiff applied for social security disability benefits, alleging disability beginning on January 25, 2013. A.R. 174-82. On June 14, 2013, the Social Security Administration denied Plaintiff's claim for disability benefits. A.R. 93-97. The ...

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