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Wahler v. Colvin

United States District Court, W.D. New York

November 17, 2014

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

For Justin Wahler, Plaintiff: Kenneth R. Hiller, LEAD ATTORNEY, Law Offices of Kenneth Hiller, Amherst, NY.

For Carolyn W. Colvin, Defendant: Jane B. Wolfe, LEAD ATTORNEY, Mary K. Roach, U.S. Attorney's Office, Buffalo, NY.


HONORABLE MICHAEL A. TELESCA, United States District Judge.

I. Introduction

Plaintiff Justin Wahler (" Plaintiff"), represented by counsel, brings this action pursuant to Title II and Title XVI of the Social Security Act (" the Act"), seeking review of the final decision of the Commissioner of Social Security (" the Commissioner")[1] denying his applications for Disability Insurance Benefits (" DIB") and Social Security Insurance (" SSI"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § § 405(g), 1383(c). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

II. Procedural History

On July 2, 2009, Plaintiff protectively filed concurrent applications for DIB and SSI, alleging disability since July 31, 2007, due to post-traumatic stress disorder (" PTSD"), agoraphobia, and panic attacks. T.151-52, 159.[2] These applications were denied. T.50-55. Plaintiff requested a hearing, which was held via videoconference before Administrative Law Judge Stanley K. Chin (" the ALJ") on March 29, 2011. T.12-31. On April 4, 2011, the ALJ issued a decision finding Plaintiff not disabled under the Act. T.36-49. The ALJ's decision became the final decision of the Commissioner on November 17, 2011, when the Appeals Council denied Plaintiff's request for review. This timely action followed.

III. Summary of the Administrative Record

A. Medical History

On October 5, 2007, Plaintiff presented for treatment at the ACT Corporation (" ACT") in Daytona Beach, Florida. See T.231-36. He reported a history of depression and anxiety since the fifth grade. He had bad dreams and only could sleep for two hours at a time. Plaintiff was previously treated by his primary care physician who had prescribed paroxetine (Paxil). Triage screener D. Walker noted that, on examination, Plaintiff appeared neat and clean, but had a depressed affect and a blunted mood. He had suicidal ideation but no plan. He had racing, confused thoughts, and poor impulse control. He had good short- and long-term memory and was able to stay on task. His speech was clear, and he had fair insight and judgment. Diagnoses were depressive disorder not otherwise specified (" NOS") on Axis I, and " deferred" diagnosis on Axis II. Therapy was recommended for his depression and anxiety. See T.231-36.

Plaintiff returned to ACT on November 7, 2007, complaining of depression, anxiety, panic attacks, and sleeplessness. See T.218-19, 223-30. Advanced Registered Nurse Practitioner Elissa Emerson (" ARNP Emerson") evaluated Plaintiff's mental status and cognitive functioning. Plaintiff was neat and cooperative; his speech was hyper and scattered, but relevant; he compulsively washed his hands and vacuumed; but his thoughts were linear and not psychotic. He had suicidal thoughts every day or two, a " horribly depressed" mood, and a nervous affect. He was easily distracted except when engaged in artistic activities. Plaintiff had fair insight, judgment, and impulse control, and was able to do abstract thinking. He had a good-to-excellent memory, and at least average intellectual functioning. ARNP Emerson diagnosed depressive disorder NOS, panic disorder with agoraphobia, obsessive compulsive traits, and PTSD as a " rule out" diagnosis. T.218, 226. Plaintiff was prescribed Wellbutrin, Paxil, and Sinequan.

ARNP Emerson next saw Plaintiff on December 19, 2007. T.215-16. He still had suicidal thoughts and a depressed and nervous affect, and newly present paranoid thought content. ARNP Emerson substituted Effexor for Paxil, and increased the dosages of Wellbutrin and Remeron.

On February 1, 2008, Plaintiff reported that his medications were causing increased anger, flashbacks, sleeplessness, and loss of appetite. See T.213-14. ARNP Emerson discontinued Effexor and prescribed Seroquel. Diagnoses were depressive disorder, NOS; panic disorder with agoraphobia, and PTSD as a " rule out" diagnosis. T.213.

Plaintiff returned to ACT on March 28, 2008, with complaints of variable sleep, decreased appetite, anxiety, heart flutter, " lots of breakthrough symptoms", " horrible panic", and paranoia. See T.211-12. On examination, Plaintiff's mood was very anxious and his affect, mildly depressed. He had good attention, memory, and concentration; and his thoughts were stable with no cognitive deficits. He exhibited good impulse control, insight, and judgment, and reported no suicidal ideation. Seroquel was discontinued, Wellbutrin was increased, and Celexa was added. Diagnoses were depressive disorder, NOS; panic disorder with agoraphobia; and " poss[ible] PTSD ([following] attempted rape)." T.211.

On June 20, 2008, Plaintiff had an appointment at ACT and reported that he was " stressed out" and very anxious. See T.208-09. He currently was enrolled in cosmetology school. On examination, Plaintiff had a depressed mood, fair attention and concentration, intact memory, and no suicidal ideation. His speech, affect, and impulse control were normal, and his thoughts were relevant and organized. The diagnosis was depressive disorder, NOS. T.208.

Clinical psychologist Ivan Fleishman, Psy. D., evaluated Plaintiff on September 10, 2008. Dr. Fleishman stated that Plaintiff had experienced " significant depressive episodes unrelated to life circumstances, suggesting an underlying biological or genetic component to his mood disorder." T.296. Based on Plaintiff's reported psychiatric history, Dr. Fleishman diagnosed dysthymia[3] and panic disorder and referred Plaintiff to a psychiatric nurse practitioner. T.296.

On September 17, 2008, Plaintiff presented for a psychiatric evaluation with Marianne McCool, ARNP (" ARNP McCool"), at Behavioral Health Ormond Beach. T.250-52, T.289-91. Plaintiff reported that his panic disorder had recurred in the past year, becoming more severe, with episodes occurring once per week. The panic attacks had caused him to pass out several times. Plaintiff also complained of generalized anxiety and a fear of crowds. About a year ago, he had isolated himself for several months. In recent weeks, his anxiety prevented him from attending classes. His current medications were Seroquel, Celexa, and Depakote. On examination, Plaintiff had a slightly worried mood and a mildly restricted affect. His thoughts included obsessive features, but he exhibited no hallucinations, delusions, or paranoia. He was not a danger to himself or others. Diagnoses were panic disorder with agoraphobia (300.21); generalized anxiety disorder (300.02); and PTSD (309.81). T.252. ARNP McCool prescribed Prozac, Xanax, and Seroquel and recommended therapy. T.252.

Plaintiff returned to see ARNP McCool on October 15, 2008. T.249, 288. He reported that Xanax was helping his mood but he still had panic attacks when he had attended class. On examination, Plaintiff had an anxious affect, and was still " negative about his ability to attend class" . T.249. ARNP McCool increased Plaintiff's Prozac dosage and prescribed Niravam for panic attacks. Diagnoses were panic disorder with agoraphobia; generalized anxiety disorder; and PTSD.

On November 19, 2008, ARNP McCool noted that Plaintiff had experienced significant improvement on fluoxetine. T. 248, 287. On examination, Plaintiff had a euthymic mood and a full-range affect. His insight and judgment were improving. Plaintiff had responded very well to medication and had decided to return to school for his associate's degree. Diagnoses were panic disorder with agoraphobia, generalized anxiety disorder, and MDD (major depressive disorder). T.248.

Plaintiff returned to ARNP McCool on January 19, 2009, reporting that his partner had been incarcerated for marijuana possession and that his mother recently had been hospitalized. Despite these stressors, ARNP McCool noted, Plaintiff was coping well. His mental status examination showed normal findings. ARNP McCool noted that Plaintiff's condition was much improved and that his panic attacks were less frequent. Diagnoses were panic disorder with agoraphobia; generalized anxiety disorder; and major depressive disorder. T.247, 286.

On March 16, 2009, Plaintiff reported to ARNP McCool that he had taken a whole bottle of Xanax during a panic attack in January, had never refilled the prescription and had since experienced terrible anxiety and sleeplessness. On examination, Plaintiff had an anxious mood, a nervous and serious affect, fair insight and judgment, normal cognition, and no suicidal ideation. ARNP McCool restarted Xanax, continued fluoxetine, and prescribed Trazodone. ...

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