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Scheurer v. Berryhill

United States District Court, W.D. New York

September 6, 2017

KIMBERLY JEAN SCHEURER, Plaintiff,
v.
NANCY A BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiff Kimberly Jean Scheurer ("Plaintiff) brings this action pursuant to 42 U.S.C. § 405(g) and seeks review of the final decision of Nancy A. Berryhill, Acting Commissioner of Social Security ("the Commissioner"), denying Plaintiffs application for Disability Insurance Benefits ("DIB"'). (Dkt. 1). Presently before the Court are the parties' opposing motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. 9; Dkt. 17).

         BACKGROUND

         I. Overview

         On October 26, 2010, Plaintiff filed a Title II application for a period of disability and disability insurance benefits. (Administrative Transcript ("Tr.") 151, 332). In her application, Plaintiff alleged that she had been disabled since January 1, 2010, due to symptoms arising from bipolar disorder. (Tr. 151, 332). Plaintiffs claim was initially denied on February 10, 2011. (Tr. 169). Plaintiff filed a timely request for a hearing before an Administrative Law Judge ("ALJ") on March 14, 2011. (Tr. 176). Plaintiff appeared and testified at a hearing in Rochester, New York on March 5, 2012, as did Mary Beth Kopar, a vocational expert ("VE"). (Tr. 41). ALJ Andrew Henningfeld presided over the hearing. (Id.). On April 6, 2012, ALJ Henningfeld issued a decision denying Plaintiffs claim. (Tr. 144-59). Plaintiff requested that the Appeals Counsel review ALJ Henningfeld's decision. (Tr. 165). The Appeals Counsel granted Plaintiffs request and remanded the matter to ALJ Connor O' Brien on September 13, 2013. (Tr. 165-67).

         Plaintiff appeared at a second hearing before ALJ O'Brien on December 17, 2014, in Rochester, New York, as did VE Carol G. McManus. (Tr. 104). ALJ O'Brien issued a decision denying Plaintiffs claim on May 12, 2015. (Tr. 17-33). Plaintiff once again sought review by the Appeals Council, which denied her request on January 11, 2016. (Tr. 5). Plaintiff commenced this action on March 7, 2016. (Dkt. 1).

         A. The Non-Medical Evidence

         1. First Hearing: March 5, 2012

         a. Plaintiffs Testimony

         On March 5, 2012, Plaintiff, who was 44 years old, appeared before ALJ Henningfeld. (Tr. 41, 50). She had completed two years of college, was 5'4" tall, and weighed 155 pounds. (Id.). Plaintiffs last job was with The Democrat and Chronicle, a newspaper located in Rochester, New York and owned by Gannett Newspapers. (Id.). Plaintiff held a sales and service position in classified advertising, where she took calls in a "call center environment." (Id.). The job ended in July 2009 after a "massive layoff of 1, 000 employees. (Tr. 51). Plaintiff was unable to find work since the layoff, explaining that she had not "been able to find anything that seemed to fit, and then [she] became very ill." (Id.). Plaintiff also stated that, had the layoff not occurred, she would have most likely been unable to continue at the job due to her reaction to Paxil, a drug she had taken for bipolar disorder. (Tr. 51-52).

         Plaintiff testified that she suffered from severe depression when she first filed for disability in January 2010, and that there had been "eight months where [she] couldn't even get out of bed." (Tr. 52-53). She had received unemployment benefits until 2011. (Tr. 53). During that time, Plaintiff continued to look for work "to the best of [her] ability, " (id.); she used job search websites and enlisted the help of her friends (Tr. 56). Plaintiff stated that if she had received a job offer, she would have pursued it despite her depression. (Tr. 56).

         For eight months, the only things Plaintiff could do, aside from lay in bed, were use the bathroom and get herself water. (Tr. 54). She tried to care for her children, but "did a pretty bad job of it" and relied on help from her husband, children, and mother-in-law. (Id.). In October 2010, Plaintiff started attending bipolar support groups. (Tr. 53).

         Before experiencing a depressive period, Plaintiff went through a manic period in the fall of 2009. (Tr. 54-55). During this time, she tried to start a business for spiritual consultations and felt "invincible, " but did not realize she was sick. (Id.). She rented office space, used money from her 401(k) to buy a car, and would hang out for drinks with friends. (Tr. 54-55, 80, 89). Plaintiff used funds from her unemployment compensation to pay for the rent in her office space. (Tr. 92-93).

         Plaintiff testified that her medication for her illness was "still a process." (Tr. 58). In 2007, she was incorrectly diagnosed with seasonal affective disorder, for which she was prescribed anti-depressants. (Id.). The anti-depressants made her become psychotic. (Id.). Three years later, she was diagnosed with bipolar disorder, for which she was prescribed a mood stabilizer, and later, Paxil-an anti-depressant. (Id.). Paxil helped her out of her initial depression, but it kept her mood cycling. (Id.). In December 2011, she was taken off Paxil and given a different mood stabilizer. (Tr. 59). She was currently taking Depakote, which was helpful, but she believed the dosage was a little high. (Id.).

         The ALJ asked Plaintiff about a specific note from a doctor's visit on January 12, 2012, where Plaintiff had reported doing well and had refused an increase in Depakote. (Tr. 60). Plaintiff was unsure of exactly what the note meant, but she believed that the doctor was commenting on her dosage because "that's really ... the only thing [Plaintiff] would say anything positive about because . . . that particular visit there was a lot of crisis that [she] had just come out of." (Tr. 65). Plaintiff also stated that sometimes when she believed she was doing well or she felt that the medication was working, she was "completely wrong." (Tr. 65-66).

         Plaintiff testified that her family had been experiencing conflict; in particular, her husband was at times fearful of and angry about her manic episodes, and they faced financial difficulty. (Tr. 66). Plaintiff testified that her daughter had slapped her because her daughter was "still very angry about the time [Plaintiff] left" and did not understand that it was Plaintiffs illness-specifically a manic episode-that caused Plaintiff to leave her family. (Tr. 67-68). After her daughter slapped her, Plaintiff called the police because she was stressed and wanted her husband to stop yelling; she felt threatened. (Id.). After this incident, she left to reside with a friend. (Tr. 70). She came back home after she had a conflict with the friend, who purportedly came home in an "alcoholic rage" and became embroiled in a physical altercation with Plaintiff. (Tr. 71).

         The ALJ further questioned Plaintiff about the period in the fall of 2009 when she left the family home. (Tr. 69). Plaintiff would go home to see her children and to shower, but she slept at her office space. (Id.). She returned to the home in December of 2009. (Tr. 70). Plaintiff believed her bipolar disorder exacerbated her marital difficulties, and that conflict in her family began to increase in the fall of 2009. (Id.). Plaintiff viewed "the family problems and illness as interchangeable." (Tr. 71).

         Plaintiff could read but had difficulty concentrating, and she could care for herself but also had trouble doing so on occasion. (Tr. 72). Her only activity was participating in her self-help group, and she usually could complete household chores. (Tr. 73). Her husband did most of the cooking and, aside from simple things such as making sandwiches, Plaintiff would just reheat food he had made. (Tr. 75). Plaintiff could drive, but she did not do so because she was uncomfortable driving on her medication. (Tr. 76). However, Plaintiff did drive to her support group and to run errands. (Id.).

         Plaintiff testified that she used marijuana socially before her diagnosis, from the age of 20 until December of 2009, (Tr. 77), but she had not used marijuana or alcohol since December of 2009 (Tr. 80).

         Plaintiffs attorney then questioned Plaintiff. (Tr. 82). Plaintiff testified that she had left a job as a leasing agent at Waverly Wood Apartments for a better position with higher pay because she was manic. (Id.). Plaintiff had trouble getting along with coworkers and supervisors due to her symptoms, and any sort of stress made her symptoms worse. (Tr. 83). Plaintiff tried to remove herself from stressful situations and find a way to calm down. (Id.). She also testified that sometimes, when she thought that her symptoms were under control, others would tell her they were not. (Tr. 84).

         During Plaintiffs eight-month period of depression, she testified that she attempted to hurt or kill herself by jumping from a moving car. (Tr. 87). Plaintiffs mother-in-law prevented her from jumping by pulling the car over, and then she took Plaintiff back home. (Id.). Plaintiff believed that she should have been hospitalized, but no one understood what was going on with her illness. (Id.)

         Plaintiff was initially treated by Dr. Wendy Rosen, a psychiatrist, but she had to change to Nurse Practitioner ("NP") Marilyn Sullivan because her insurance plan changed. (Tr. 90). Plaintiff was still struggling to control her symptoms, (Tr. 92), but she desired to return to work and be functional and productive (Tr. 101).

         b. Vocational Expert's Testimony

         VE Kopar described Plaintiffs work history, and the associated exertional levels required of an advertising clerk (semi-skilled, sedentary exertion) and a leasing agent (skilled, light exertion). (Tr. 95-96). The ALJ asked the VE to assume a person of Plaintiffs age, education, and work experience who could:

Perform work at all exertional levels, with no climbing of ladders, ropes, or scaffolds. Work involves understanding, carrying out and remembering no more than a few simple instructions. Work is routine and repetitive, involving only a few if any changes in the work setting, no fast paced production rate work, work does not involve hazards such as dangerous moving mechanical parts or machinery that could cause bodily injury or work in height exposed places. Work involves no more than occasional interaction with the public, supervisor or coworkers, and work tasks are well defined requiring no more than occasional simple decision making or use of independent judgment to compete tasks.

         (Tr. 96). The ALJ asked the VE whether such a hypothetical person could perform any of Plaintiff s past relevant work; the VE responded that such a person could not. (Tr. 96- 97). The ALJ then asked if there was other work in the national economy that this hypothetical person could perform. (Id.). The VE said that such a person could work as: (1) a laundry worker (unskilled, medium exertion), for which there were over 200, 000 positions in the national economy and 6, 000 in New York State; (2) a cleaner (unskilled, light exertion), for which there were over 1, 000, 000 positions in the national economy and 30, 000 in New York State; and (3) a sorter (unskilled, light exertion), for which there were over 300, 000 positions in the national economy and 72, 000 regionally. (Tr. 97).

         The ALJ then asked the VE about the customary tolerance levels of an employer regarding breaks and absences. (Id.). VE Kopar testified that for unskilled work, employers would typically tolerate one half day to one day per month of employee absence, totaling 6 to 12 days a year. (Id.). She further testified that an employer would customarily permit two 15-minute breaks and a half hour lunch during a work day, and would tolerate an employee being off task for 15 percent of a work day. (Tr. 98). Employer tolerances for unscheduled breaks would depend on the employer and whether the break took place at the employee's work station. (Id.).

         2. Second Hearing: December 17, 2014

         a. Plaintiff's Testimony

         At the time of the second hearing held before ALJ O'Brien, Plaintiff was 46 years old. (Tr. 109). Plaintiff reiterated her personal information, including her living situation, height, weight, and education. (Tr. 109-10). While working at The Democrat and Chronicle, Plaintiff received a certification in "Mac art, Mac design, " but since then, computer technology and graphic arts had changed significantly. (Tr. 110-11). Plaintiff could drive, but she would not drive on expressways or after dark. (Tr. 112).

         ALJ O'Brien next asked about Plaintiffs most recent job as a classified ad taker at the Democrat and Chronicle, as well as jobs she had previously held. (Tr. 113). At the newspaper, she would handle incoming calls for ads, and she sometimes had to make outgoing calls. (Id.). Plaintiff testified that this was the most difficult part of the job, and while she would do well during manic episodes, depressive periods made it impossible for her to "even lift the phone." (Id.). She performed her work while seated, and had to take a certain number of calls to meet a quota. (Id.).

         Prior to her job at The Democrat and Chronicle, Plaintiff worked "taking text" for Nothnagle for two months. (Tr. 113-14). Plaintiff would review real estate listings for typographical errors and send them to newspapers or other print sources. (Tr. 114).

         Prior to Nothnagle, Plaintiff held a positon at Webster Manor Apartments. (Id.). Plaintiff worked part-time as a rental agent, who would take prospective tenants to view apartments. (Tr. 115). She had also worked at Waverly Wood Apartments in a similar positon. (Id.). Plaintiff briefly worked at Greater Rochester Advertisers, and prior to that she held a part-time positon at Geva Theatre where she made sales calls. (Tr. 116). Plaintiff had also worked part-time at Rochester Info-Courses, where she registered guests, baked cookies, and worked in the bookstore. (Tr. 118-120).

         ALJ O'Brien asked Plaintiff why she felt she could not work. (Tr. 120). Plaintiff stated:

[F]rom day to day I don't know where I'm going to be. I don't know emotionally what state I'm going to be in. Currently I'm very weepy. I have actually said to my husband that I am suicidal, within the last month. . . . I have a very limited capacity to be around people. I don't-at my best I believe I could be around people for maybe an hour or so, and then I need to go home. I need to retreat and kind of rebuild my strength, my energy. Even on my best days I have to lay down for two hours a day and recharge . . . . It's just that not knowing if I'm going to have an up or a down day. . . . I don't know how I, I come cross to people. Sometimes I, I believe I'm really doing very well, and I realize later on that I didn't come across as doing very well at all.

         (Tr. 121). Plaintiff indicated that she was on Depakote and was taking Klonopin as needed. (Tr. 121-22). Plaintiff also testified that she used to participate in self-help groups, but had been doing so less frequently. (Tr. 123). Plaintiff stated further that she had held a leadership role in her self-help groups for about two months, but she had stopped because it "became exhausting" for her. (Id.). She also attempted to start a meditation group which she said "kind of fell apart too." (Tr. 124).

         Plaintiff testified that there was still a lot of stress in her home, but she and her husband had been trying to keep things calm for her daughter's sake during the holidays. (Tr. 125). She stated that she and her husband had been attending counseling together, but she did not find it helpful. (Id.).

         ALJ O'Brien then asked Plaintiff about her health care providers. (Tr. 126). Dr. Rosen was Plaintiffs first psychiatrist to diagnose her with bipolar disorder. (Id.). Plaintiff transferred from Dr. Rosen to NP Sullivan due to an insurance issue. (Id.). While receiving treatment from NP Sullivan, Plaintiff went to Dr. Jennifer Fleeman for therapy. (Tr. 127). At the time of the hearing, Plaintiffs psychiatrist was Dr. Eric Rennert. (Tr. 126).

         The ALJ asked about a specific note written by NP Sullivan, which stated that Plaintiff was in remission. (Tr. 127). Plaintiff said that she "did not agree with anything that Lyn Sullivan did when she was [Plaintiffs] doctor." (Tr. 128). According to Plaintiff, NP Sullivan's records were inaccurate. (Id.). ALJ O'Brien mentioned that NP Sullivan noted that Plaintiff used marijuana twice in 2011, even though other evidence in the record indicated that she stopped using marijuana in December of 2009. (Id.).

         Plaintiff then testified about the time she had left the family home due to a manic episode. (Tr. 128-29). Plaintiff stated that she was "sure there was alcohol and marijuana use" during this time, but she did not remember it well. (Tr. 129). She testified that she had not used marijuana since 2009. (Tr. 130). In 2011, she had a conversation with Dr. Rosen relating to her past marijuana use, and Dr. Rosen became upset because marijuana could conflict with Plaintiffs medication. (Id.).

         ALJ O'Brien asked Plaintiff to describe a typical day. (Tr. 131). Plaintiff said:

I get up in the morning at 6:00. I make sure that my son is up. I usually go in a few times and make sure that he is. I try to get him to eat breakfast, but he usually doesn't. So I make sure he leaves with a water bottle ... I feel it's important to be there when he wakes up in the morning and when he comes home from school, so I try and arrange my day so that I'm there for that. Once he's off to school I usually have a cup of coffee to wake up, and that's when I just start to pick up around the house. Depending on my energy level, sometimes I can do that pretty quickly, and other times I have to take a lot of breaks. I try to plan my day around whatever has to be done outside of the house.

(Id.). Plaintiff would drive, but she was only comfortable driving to her two doctors' offices and to group therapy. (Id.). Plaintiff stated that after her son came back from school, she would usually make him soup, and then they would both nap. (Tr. 132). Her husband prepared dinner, and depending on how she felt, she would clean up after dinner or leave it for the next day. (Id.). Plaintiffs "biggest goal" at the time was being present for her children. (Tr. 133). Plaintiffs circle of friends consisted mostly of people she met through her self-help group. (Id.). She did not participate in any religious groups, clubs, or activities, and attended only required school events for her son. (Tr. 134).

         Plaintiff believed that her illness negatively affected her job performance at The Democrat and Chronicle. (Id.).

There were times that just showing up was the most I could do. There were times just sitting at the desk and kind of try [sic] to figure out what I'm doing. I was spending a lot more time conversationally with people. That was something I was told was a problem because they wanted me to move quicker on the calls. And I was doing more talking than actually moving people through. Making the outbound calls became a problem.

         (Tr. 134-35). Plaintiff confirmed that other employees in similar positions kept ...


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