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Papp v. Commissioner of Social Security

April 18, 2006

GAIL R. PAPP, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

OPINION AND ORDER

Plaintiff Gail Papp, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny Papp disability insurance benefits. (Dkt. No. 1: Complaint.) The Commissioner has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) (Dkt. No. 11: Comm'r Notice of Motion), and plaintiff Papp has cross-moved for judgment on the pleadings (Dkt. No. 13: Papp Notice of Cross-Motion). The parties have consented to decision by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 8-9.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is GRANTED, and plaintiff's motion for judgment on the pleadings is DENIED.

FACTS

Procedural Background

On March 29, 2002, plaintiff Gail Papp applied for disability insurance benefits claiming that she became unable to work because of a disabling condition on August 31, 1996. (See Dkt. No. 12: Administrative Record filed by the Commissioner ("R.") at 51-53.) Papp's application was denied initially on May 10, 2002 (R. 25-30), and Papp requested a hearing before an Administrative Law Judge ("ALJ") (R. 31). The ALJ held a hearing on December 2, 2003, at which Papp appeared with counsel and testified. (R. 155-80.) At the hearing, Papp and her counsel amended her disability onset date to January 1, 2001. (R. 164-65; see also R. 34, R. 54.) It is also undisputed that Papp's "Date Last Insured" for benefits is June 30, 2001. (See R. 151; see pages 3, 14 below.) On January 30, 2004, the ALJ issued her decision, finding that Papp was not disabled.

(R. 12-24.) The ALJ's decision became the final decision when the Appeals Council denied Papp's request for review on June 3, 2005. (R. 4-6.)

The issue before the Court is whether the Commissioner's decision that Papp was not disabled is supported by substantial evidence. The Court finds that it was.

The Hearing Before the ALJ and Other Non-Medical Evidence in the Record Papp, a high school graduate, was born on December 12, 1946, and was fifty-four years old on June 30, 2001, the date that her insured status expired. (R. 51, 69, 80, 159.) From 1964 to 1994, Papp worked in the installation department at Verizon. (R. 75, 161-62.) For the last twenty years that Papp worked at Verizon, she was the manager of the installation department, which involved supervising a staff of ten people. (R. 161-63.) Physically, Papp spent about half the time on her feet and half the time sitting at the Verizon job. (R. 163.) Papp did not do any significant lifting or carrying on that job. (R. 163.) In 1994, Verizon underwent a corporate downsizing, during which Papp accepted a pension package and retired. (R. 52, 159, 164.)

Following her retirement, Papp worked part-time as a file clerk and receptionist at a doctor's office near her home for approximately nine months during 1995 to 1996. (R. 64, 165-66.) She worked approximately three days a week, seven hours each day, at this job. (R. 64, 165-66.) Papp stopped working at this job because her hours were cut to only one day a week and she was finding the job "difficult." (R. 167.)

During 1996, Papp worked full-time as a receptionist for Allstate Insurance for approximately three months. (R. 167-68.) Papp left this position because she could not handle its requirements, stating that "I thought I could handle it, but I couldn't . . . there were days that I couldn't get out of the bed. I was so sick." (R. 168.)

During 1997-2000, Papp worked one day a week as a receptionist at the Wave Hill Museum. (R. 52, 161.)

For all her jobs, Papp said it was an effort to get up and dressed and try to push herself to do the job; and while she tried to do her best, sometimes she made mistakes. (R. 177.) Despite her medical treatment, she feels "worse" now than before -- she "just want[s] to stay in bed." (R. 177-78.) Since the beginning of 2001, except for going to the doctor and buying groceries, she does not often leave her home. (R. 178.)

Papp's counsel conceded that Papp's date last insured was June 2001. (R. 169-70.)

Papp first started seeing her current psychiatrist in October 2000. (R. 168.) This was the first time that Papp had ever received mental health care. (Id.) At the time of the ALJ hearing on December 2, 2003, Papp regularly took a combination of antidepressant medications, including Lithium, Zoloft and Zyprexa, as well as Lipitor to lower cholesterol. (R. 170-71.) Papp weighed 183 pounds, having gained approximately forty-three pounds on her 5'1-1/2" frame as a result of taking the Zyprexa, but did not have any other side effects from taking those medications. (R. 171-72.) Papp said that she felt "a little better" when taking her medications but approximately three days a week she could not leave the house because of her symptoms. (R. 172-74.) On an "average" or "typical" day, Papp "might watch TV or read a book." (R. 174.) Papp does not see friends or family frequently, but does talk to them on the telephone. (R. 175.) Papp takes care of her own household, does her own cooking and cleaning, and bathes herself every day. (R. 175-76.)

Papp's attorney agreed that the ALJ had all the medical records needed. (R. 158.)*fn1

Medical Evidence Prior to Papp's Alleged Onset of Disability (January 1, 2001)

Dr. Philip F. Saltiel, a licensed psychiatrist, began treating Papp upon referral from her internist (Dr. Lebowitz) on October 27, 2000.*fn2 (R. 124.) Papp visited Dr. Saltiel for treatment monthly. (Id.) During a visit on November 21, 2000, Papp stated that she first saw a doctor for depression approximately six years earlier, who had prescribed Zoloft. (R. 113.) Papp complained to Dr. Saltiel on November 21, 2000 that she felt very depressed, that she just wanted to lay in bed, that she had poor sleep, loss of 30 pounds due to loss of appetite, anhedonia, morbid thoughts, hopelessness, poor concentration, and frequent crying. (Id.) She stated that she was single, lived with her elderly aunt, had no siblings or other family, and was receiving a pension of $1,900 per month. (Id.) She reported having suicidal ideation, but had never attempted suicide. (Id.) Papp had experienced hypomanic spending in 1999 and stated that she had "last felt well in 4/00." (Id.) Dr. Saltiel indicated that Papp was dysphoric, his impression was "Bipolar II," and he prescribed the medications Zoloft, lithium, Zyprexa, and Klonopin. (Id.)

On December 6, 2000, Papp visited Dr. Saltiel and stated that she was still depressed and anxious. (R. 114.) Dr. Saltiel noted that Papp experienced decreased self-esteem. (Id.) Dr. Saltiel increased the dosages of lithium, Zoloft and Zyprexa. (Id.) On December 28, 2000, Dr. Saltiel noted that Papp was "doing well" and "tolerating" her medications. (Id.) Dr. Saltiel continued her medications and supportive treatment. (Id.)

Medical Evidence After Papp's Alleged Onset of Disability and Before the Expiration of Her Insured Status (January 1, 2001 - June 30, 2001)

Dr. Saltiel continued to observe that Papp was "doing well" during visits on March 1, 2001 and April 19, 2001. (R. 114.) Papp received supportive therapy and was advised to continue her medications. (Id.) Medical Evidence After the Expiration of Papp's Insured Status on June 30, 2001

On July 23, 2001, Dr. Saltiel indicated that Papp's mood was "OK." (R. 115.) Papp reported weight gain, and Dr. Saltiel decreased her dose of Zyprexa. (Id.) Papp also started taking Synthroid. (Id.)

On September 19, 2001, Papp told Dr. Saltiel that she was more depressed and had continued to gain weight. (Id.) She also told Dr. Saltiel that she was grieving over her aunt's death. (Id.) Dr. Saltiel discontinued Papp's prescription for Zyprexa, and advised her to take Geodon if she became more dysphoric. (Id.) On September 24, 2001, Dr. Saltiel increased Papp's lithium dosage. (Id.)

On October 31, 2001, Papp complained that she was feeling "low," but said that she was tolerating Geodon. (Id.) Dr. Saltiel checked her lithium level and increased the level of Geodon. (Id.)

On December 19, 2001, Papp did not report any new issues. (Id.) Dr. Saltiel again increased Geodon and continued Papp's other medications. (Id.)

On January 20, 2002, Papp complained of increased depression because it was her deceased aunt's birthday and because she had received an eviction notice. (R. 116.) Dr. Saltiel indicated that Papp was "functioning" and continued her medications. (Id.) On March 6, 2002, Papp complained that she was depressed because of "home issues." (Id.) Dr. Saltiel increased her dosages of lithium and Geodon. (Id.) On April 10, 2002, Dr. Saltiel noted that Papp was "stable" and continued her medications. (Id.) On May 29, 2002, Dr. Saltiel indicated that Papp seemed "depressed" due to her family moving out. (Id.) Dr. Saltiel increased Papp's lithium dosage and Zoloft dosages and prescribed Ambien, a sleep aid. (Id.)

On June 28, 2002, Dr. Saltiel noted that Papp had tremors and seemed very depressed and withdrawn. (R. 117.) Dr. Saltiel discontinued Geodon, restarted Zyprexa, and decreased Zoloft and lithium. (Id.)

On July 15, 2002, Dr. Saltiel completed a Psychiatric/Psychological Impairment Questionnaire that he indicated applied to Papp's present condition. (R. 98-105.) Dr. Saltiel gave a "fair" prognosis, stating that Papp's "[l]ack of support[] would suggest slow recovery." (R. 98.) Dr. Saltiel diagnosed: Axis I - bipolar, depressed; Axis II -dependent traits; Axis III - none; Axis IV - mild chronic illnesses, no social support; Axis V - current 55/75; highest GAF over the past year - 75.*fn3 (R. 98.) Clinical findings included mood disturbance, emotional lability, anhedonia or pervasive loss of interests, psychomotor agitation or retardation, feelings of guilt or worthlessness, difficulty thinking or concentrating, suicidal ideation or attempts, social withdrawal or isolation, decreased energy, generalized persistent anxiety, and pathological dependence or passivity. (R. 99.)

Papp's "primary symptoms" were "labile mood, depressed mood, [feelings of] worthlessness, excessive dependence, lack of motivation, [and] severe anxiety." (R. 100.)

Dr. Saltiel reported that Papp was "mildly limited," meaning that her condition "does not significantly affect the individual's ability to perform the activity," in the following activities: the ability to remember locations and work-like procedures; the ability to understand and remember one or two step instructions; the ability to carry out simple one or two-step instructions; the ability to interact appropriately with the general public; the ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; the ability to respond appropriately to changes in the work setting; the ability to be aware of normal hazards and take appropriate precautions; and the ability to travel to unfamiliar places or use public transportation. (R. 100-03.) Dr. Saltiel reported that Papp was "moderately limited," meaning that her condition "significantly affects but does not totally preclude the individual's ability to perform the activity," in the following activities: the ability to understand and remember detailed instructions; the ability to carry out detailed instructions; the ability to maintain attention and concentration for extended periods; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; the ability to work in coordination with or proximity to others without being distracted by them; the ability to make simple work related decisions; the ability to ask simple questions or request assistance; the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and the ability to set realistic goals or make plans independently. (Id.)

Dr. Saltiel reported that Papp was "markedly limited," meaning that her condition "effectively precludes the individual from performing the activity in a meaningful manner," in the ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and the ability to accept instructions and respond appropriately to criticism from supervisors. (R. 100-02.) Dr. Saltiel reported that Papp had no evidence of limitation in her ability to sustain an ordinary routine without supervision. (R. 101.)

Dr. Saltiel opined that Papp did not experience episodes of deterioration or decompensation in work or work like settings that caused her to withdraw and/or experience exacerbations of signs and symptoms, because she was "too anxious and passive to engage in such situations." (R. 103.) Papp's medications included Lithium, Klonopin, and Zoloft. (Id.) Dr. Saltiel indicated that Papp's impairments were expected to be ongoing for twelve months or more, and that she was capable of low work stress levels. (R. 104.) Dr. Saltiel noted that Papp's impairments were likely to produce "good days" and "bad days." (Id.) Dr. Saltiel estimated that Papp would be absent from work, on average, more than three times a month as a result of her impairments or treatment.

(R. 105.) In response to Question 21, "In your best medical opinion, what is the earliest date that the description of symptoms and limitations in this questionnaire applies?," Dr. Saltiel answered: "Presently." (R. 105.)

On August 2, 2002, Dr. Saltiel saw Papp and noted that Papp's mood had increased and that she was tolerating her medications. (Id.) Dr. Saltiel prescribed Provigil and recommended ongoing supportive therapy. (Id.)

On August 2, 2002, Dr. Saltiel also completed a narrative report on Papp's condition.

(R. 106-07.) Dr. Saltiel reported that Papp was referred to him by her primary care physician, Dr. Lebowitz, "for evaluation of a six-year history of bipolar disorder." (R. 106.) Dr. Saltiel's narrative report noted that Papp's first psychiatric contact was in 1994 and that she had a long history of feeling very depressed. (Id.) Dr. Saltiel noted that Papp's symptoms included "severely depressed mood, severe anxiety, severe lethargy, finding all tasks difficult, difficulty sleeping, loss of weight with poor appetite, and difficulty enjoying anything." (Id.) Papp also had occasional morbid thoughts, felt hopeless, cried frequently, and had poor concentration. (Id.) Dr. Saltiel stated that Papp's depression worsened in 1997 after she had a hysterectomy. (Id.)

Dr. Saltiel reported that when Papp came to see him in November 2000, she was taking lithium, Zoloft and Klonopin, which was prescribed after an "episode of mania in 1999 . . . characterized by impulsive spending, practically depleting her savings." (Id.) Papp "has not had a manic episode since then." (Id.)

Dr. Saltiel reported that Papp "has had episodes of severe depression in the past two years, but generally had been maintained at a dysthymic level." (Id.) Dr. Saltiel noted that Papp was usually "bored, lethargic and not motivated to branch out and pursue other interests or tasks." (Id.) Papp's concentration was "quite impaired" and she had a "hard time following directions, mostly due to anxiety." (Id.) Dr. Saltiel reported that Papp was "unable to handle the stress of looking for work" and that during the periods of depression work would be "nearly impossible" for her. (R. 106-07.) Dr. Saltiel expressed the hope that Papp would improve within twelve to twenty-four months and could resume working. (R. 107.) Dr. Saltiel noted that Papp was compliant with her medications and visits to him on a monthly basis. (Id.)

On September 5, 2002, Papp complained of increased depression because her family was moving out and she was "anxious about being alone." (R. 117.) Papp had stopped taking Provigil because of an upset stomach. (Id.) Dr. Saltiel continued Zoloft, Zyprexa and lithium, and started Seroquel. (Id.) On October 11, 2002, Dr. Saltiel noted that Papp was improving, and he continued Zoloft, Zyprexa, Seroquel and lithium and started Lexapro. (Id.)

On November 25, 2002, Papp complained of increased depression secondary to the stresses of family in home, decreased money, and her disability hearing. (R. 118.) Dr. Saltiel discontinued Zyprexa and continued Seroquel, ...


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