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Holsinger v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

March 29, 2018

GINA HOLSINGER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Acting Commissioner of Social Security, [1] Defendant.

          OPINION AND ORDER

          Susan Collins United States Magistrate Judge

         Plaintiff Gina Holsinger appeals to the district court from a final decision of the Commissioner of Social Security (the “Commissioner”) denying her application under the Social Security Act (the “Act”) for Disability Insurance Benefits (“DIB”).[2] For the following reasons, the Commissioner's decision will be AFFIRMED.

         I. PROCEDURAL HISTORY

         On July 25, 2014, Holsinger filed her application for DIB, alleging disability as of August 15, 2008. (DE 5 Administrative Record (“AR”) 192-93). Holsinger was last insured for DIB on June 30, 2009 (the “DLI”) (AR 18), and therefore, she must establish that she was disabled as of that date. See Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997) (explaining that with respect to a DIB claim, a claimant must establish that she was disabled as of his date last insured in order to recover DIB).

         Holsinger's claim was denied initially on October 3, 2014, and again on June 20, 2015. (AR 127-35, 137-43). Holsinger filed a request for a hearing before an Administrative Law Judge. (AR 146-48). The hearing office staff indicated that Holsinger's claim was critical need because of her mental state:

After a review of the evidence, the record indicates that the claimant has two previous suicide attempts via overdose in 2008 and 2009 (Exhibit 16F, p.3). She also was admitted to the hospital in April 2014 with feeling of hopelessness and death wishes (Id.). She added that she was unsure whether or not she could guarantee her own safety (Id.). Accordingly, I have found that the record supports critical need at this time.

(AR 106). On May 12, 2015, Administrative Law Judge Terry Miller (the “ALJ”) held a hearing, at which Holsinger, Ann Flaningam, LMFT, LMHC, LSW, and Amy Kutschbach, a vocational expert (the “VE”), testified. (AR 36-105). Holsinger was represented by George Merkle, a non-attorney representative, at the hearing before the ALJ. (AR 36-37). On May 28, 2015, the ALJ issued an unfavorable decision, finding that Holsinger was not disabled because, through the DLI, she was capable of performing a significant number of jobs in the national economy. (AR 16-29). Holsinger requested that the Appeals Council review the ALJ's decision (AR 10), and the Appeals Council denied her request, making the ALJ's decision the final, appealable decision of the Commissioner (AR 1-5).

         On January 4, 2016, Holsinger filed a complaint with this Court seeking relief from the Commissioner's final decision. (DE 1). In her appeal, Holsinger alleges that the ALJ erred by: (1) not calling a medical expert to assess her conditions at step two, step three, and in the residual functional capacity (the “RFC”) determination; (2) impermissibly “playing doctor” at step three and in the RFC determination; (3) not properly considering evidence of her obesity; and (4) improperly evaluating her credibility. (DE 12 at 16-22).

         II. FACTUAL BACKGROUND[3]

         A. Background

         At the time of the ALJ's decision, Holsinger was 47 years old. (AR 43). She has a high-school education and has taken some college courses but did not finish any college programs. (AR 46). She has certificates for early childhood development and for substitute teaching. (AR 47). Holsinger's employment history includes work as an assistant at a residential treatment facility, a substitute teacher, arranging flowers, as a shipping clerk, and at other semi-skilled positions. (AR 47-52, 77).

         B. Holsinger's Testimony at the Hearing

         At the hearing Holsinger testified as follows: She lives with her elderly parents in a house that they own. (AR 45, 69). She is about five feet, four inches tall, and weighs approximately 200 pounds. (AR 43-44). She claims that she weighed 160 pounds in 2009. (AR 44). She divorced her former husband in 2009 and has not remarried. (AR 44). She has two adult children who do not live with her. (AR 45). Holsinger does not receive any financial assistance or food stamps. (AR 45). She has a driver's license and is able to drive. (AR 45).

         It is difficult for Holsinger to relate to others. (AR 64). Her mood fluctuates and she has strained relationships with her children. (AR 64). Holsinger also isolates herself two to three days a week and has trouble leaving her bed or showering. (AR 65). Two to three days a week Holsinger gets sidetracked when trying to complete tasks at home because she wants to retreat. (AR 66-67). Holsinger has one very good friend who comes over, and usually they stay in and talk. (AR 67-68). On bad days Holsinger does not answer her mobile phone. (AR 69).

         Holsinger recently held a job from September 2013 to February 2015 at A Friend's House Ministries, a residential treatment facility for women, helping prepare meals and providing other general assistance to residents. (AR 47-48). She stopped working there because she had difficulty working the hours that she was scheduled. (AR 48-49). Towards the end of her time with A Friend's House Ministries, Holsinger missed days frequently, but she handled the job despite problems interacting with residents. (AR 65). She was not fired, however, and left amicably. (AR 65).

         Additionally, between 2008 and 2010, Holsinger held positions as a substitute teacher and arranging flowers, among other semi-skilled positions. (AR 50-52). She left those positions due to stress or other difficulties caused by depression or anxiety. (AR 48-52, 77).

         Holsinger estimates that she can lift five to 10 pounds, walk two or three blocks, and has trouble sitting. (AR 57). She claims she was diagnosed with post-traumatic stress disorder (“PTSD”), a major depressive disorder with psychotic features, a borderline personality disorder with bipolar features, a generalized anxiety disorder, and agoraphobic tendencies. (AR 58). Due to her PTSD, she experiences night terrors three or four times a week. (AR 59).

         Depression causes Holsinger to have trouble leaving the house and to put things off. (AR 60). When Holsinger leaves the house, hears certain sounds, or smells certain scents, she begins to feel anxious, causing her hands to sweat. (AR 61). She sometimes has long periods of crying and has difficulty sleeping. (AR 61). Holsinger's night terrors wake her up frequently during the night, and she has to sleep during the day. (AR 72). When Holsinger naps or goes to bed, she usually sleeps for about four hours. (AR 73).

         Holsinger takes Trazodone and Minipress to aide with sleep. (AR 61). Holsinger has seen a therapist, Ms. Flaningam, for psychological counseling once or twice a month since 2008, and finds it helpful.[4] (AR 62). She takes Wellbutrin, a generic form of Remeron and Clonazepam, and a generic form of Zoloft. (AR 63). In 2008, Holsinger was taking Prozac and Xanax, which sometimes helped with anxiety. (AR 63-64).

         Holsinger does the dishes, the laundry, occasionally “swiffers, ” but no yardwork or gardening. (AR 71-72). She does not go to church or any type of religious service. (AR 72). Holsinger likes to scrapbook but does not do that any longer because it is hard for her to focus. (AR 72).

         In November 2008, Holsinger attempted suicide by overdosing on Trazodone. (AR 80). She did this after seeing her therapist and describing painful memories. (AR 80). In April 2014, Holsinger had suicidal thoughts but did not act on them. (AR 80). Since 2008, Holsinger has felt depressed about five to six days a week. (AR 74-75). She has difficulty working because she does not know if she is going to have a good day or a bad day. (AR 75-76). Even if she had a job where she could sit alone she would have a hard time concentrating. (AR 76).

         C. Ms. Flaningam's Testimony at the Hearing

         Ms. Flaningam testified as follows: She began seeing Holsinger in September 2008 and saw her extensively in 2009. (AR 82). However, Holsinger only saw Ms. Flaningam a little bit in 2010 and then did not see her again regularly until 2014. (AR 82). Ms. Flaningam does not believe that Holsinger saw another therapist in that time. (AR 82). Ms. Flaningam believes that Holsinger stopped therapy because “of the disorders that she was having.” (AR 82). Generally, Holsinger was not always compliant with treatment and Ms. Flaningam suspects this was due to Holsinger's symptoms and financial issues caused by overspending. (AR 82).

         Ms. Flaningam opined that Holsinger's depression and anxiety started around 2000 when her former husband, who Holsinger alleged was abusive, put stress on Holsinger and exacerbated her mental health issues. (AR 83-84). Holsinger reported to Ms. Flaningam that between 2004 and 2008 she was extremely depressed with anhedonia. (AR 85).

         When Holsinger began seeing Ms. Flaningam, she was “very anxious, she couldn't go places, she had not been sleeping, and would maybe only sleep for about an hour at a time . . . .” (AR 85-86). Holsinger reported that she had lost about 60 pounds towards the end of her marriage and felt helpless. (AR 86). Holsinger told Ms. Flaningam that she had suicidal ideation, and had made a plan. (AR 86). Ms. Flaningam opined that Holsinger was exhibiting symptoms typical of major depression, an anxiety disorder, and PTSD, despite taking Prozac, Cymbalta, and Klonopin. (AR 86).

         A few months after Holsinger began seeing Ms. Flaningam in November 2008, she overdosed on Trazodone and Klonopin, and contacted Ms. Flaningam. (AR 86). Ms. Flaningam insisted that Holsinger go to the emergency room, and Holsinger complied. (AR 86). There, Dr. Brown and Ms. Flaningam initiated a 72-hour period of detention to keep Holsinger in the hospital, and she was treated by a psychiatrist and prescribed antipsychotic medication. (AR 86-87).

         Holsinger continued to see Ms. Flaningam after the emergency room visit, and she exhibited mood instability, sleep disturbance, anger, and lethargy, began to cut herself, and sometimes binged and purged. (AR 87). Holsinger was suspicious and anxious to the point of being psychotic and paranoid. (AR 87). Holsinger had a couple of dating relationships with men, but they were superficial and made Holsinger anxious. (AR 88). Generally, Holsinger had difficulty forming relationships with other people. (AR 87-88). During the period where Holsinger did not see Ms. Flaningam, Holsinger dated a man, and Ms. Flaningam believed that this may have made Holsinger happy. (AR 91-92).

         Holsinger was hospitalized once in 2011 and twice in 2014. (AR 88). The second hospitalization in 2014 was the result of Holsinger being depressed, cutting herself, experiencing flashbacks, hallucinating, and being suicidal. (AR 88). Holsinger continued to see Ms. Flaningam in 2014, but found it difficult to be compliant with therapy. (AR 89). Holsinger also exhibited difficulty paying bills due to overspending, and she acted out sexually with men on a superficial level. (AR 89).

         Holsinger moved in with her parents in 2014. (AR 90). Ms. Flaningam explained that Holsinger lives with her elderly parents, not because they need physical care, but so that she is around in case of an emergency. (AR 90). Ms. Flaningam also believes that Holsinger's financial need prompted her to move in with her parents. (AR 92). Holsinger lives on the second floor of her parents' house, which allows her to isolate herself from others. (AR 90). Prior to living with her parents, Holsinger lived alone in an apartment. (AR 92).

         Ms. Flaningam opined that Holsinger's anxiety and extreme dysfunction make it difficult for her to interact with society or develop “good relationships” with other people. (AR 94). Ms. Flaningam reasons that Holsinger's symptoms would likely cause her difficulty traveling to and from work, given that she has trouble getting to Ms. Flaningam's office. (AR 94-95). In Ms. Flaningam's opinion, the severity of Holsinger's symptoms from 2008 to the present makes it impossible for her to work. (AR 95).

         D. Relevant Medical Evidence

         1. Prior to the DLI

         On September 1, 2008, Holsinger went the emergency room at Bluffton Regional Medical Center, and presented with anxiety and depression. (AR 302-04). Holsinger was in the midst of divorcing her husband at the time, and reported suicidal ideation but had no plan. (AR 303). Holsinger reported that she was not sleeping or eating, but she had no self-inflicted injuries or hallucinations. (AR 303). Although she had prescriptions for Xanax and Cymbalta, she had not taken either in a few days. (AR 303). Holsinger reported weighing 190 pounds. (AR 305). Steven Price, M.D., diagnosed her with depression and hypokalemia; instructed her to stay with family until she was better; recommended that she follow up with David Brown, D.O.; and prescribed Xanax and Cymbalta. (AR 304).

         On September 18, 2008, Holsinger began seeing Ms. Flaningam, having been referred by Dr. Brown. (AR 736). Holsinger presented with daily depression, insomnia, weight loss, and suicidal ideation with intent. (AR 736). Ms. Flaningam reported that Holsinger felt that she could not face tomorrow and was “thinking of wrecking her car.” (AR 736). At the time Holsinger was taking Xanax, Cymbalta, and Klonopin. (AR 737). Ms. Flaningam's report indicates that Holsinger had no auditory or visual hallucinations. (AR 740). Ms. Flaningam diagnosed Holsinger with depressive and anxiety disorders, rule out panic disorder, and rule out major depression. (AR 741). Ms. Flaningam assigned Holsinger a Global Assessment of Functioning (“GAF”) score of 43, [5] and noted that her highest GAF score in the past year was 65. (AR 741). Ms. Flaningam developed a treatment plan for Holsinger including continued therapy, medication, a suicide prevention plan, and divorce care. (AR 741).

         On November 13, 2008, Holsinger went to the emergency room and later was admitted to the intensive care unit at Bluffton Regional Medical Center for overdosing on Trazodone; she had intentionally ingested nine Trazodone pills at once. (AR 285-302). Holsinger reported that, just prior to taking the Trazadone pills, her then-husband told her he was going to leave for a long weekend with his mistress, prompting Holsinger to file for divorce. (AR 289). Holsinger's stress had been increasing up until then due to emails and text messages involving her children. (AR 289). Holsinger reported that she had lost “60 pounds in this whole event.” (AR 289). Holsinger was tearful and ...


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