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Filbrun v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

March 29, 2018

MATTHEW W. FILBRUN, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.

ENTRY ON JUDICIAL REVIEW

          TANYA WALTON PRATT, JUDGE

         Plaintiff Matthew W. Filbrun (“Filbrun”) requests judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), denying his applications for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), and Supplemental Security Income (“SSI”) under Title XVI of the Act.[2]For the following reasons, the Court AFFIRMS the decision of the Commissioner.

         I. BACKGROUND

         A. Procedural History

         On November 6, 2013, Filbrun filed applications for DIB and SSI, alleging a disability onset date of October 23, 2009, due to short term memory problems, reoccurring cancer, thyroid cancer, and general affective disorders. Filbrun's claim was initially denied on January 16, 2014, and again on reconsideration on April 2, 2014. On April 3, 2014, Filbrun filed a written request for a hearing.

         A hearing was held before Administrative Law Judge Daniel J. Mages (the “ALJ”) on August 26, 2015. Filbrun was present and represented by counsel, J. Frank Hanley, II. Dewey Franklin, an impartial vocational expert (the “VE”), appeared and testified at the hearing. On September 24, 2015, the ALJ denied Filbrun's applications for DBI and SSI. Following the ALJ's decision, on October, 7, 2015, Filbrun requested review by the Appeals Council. On July 25, 2016, the Appeals Council denied Filbrun's request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. On September 28, 2016, Filbrun filed this action for judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         B. Factual Background

         Filbrun was born in 1977 and at the time of his alleged disability onset date, he was thirty-two years old. He was thirty-eight years old at the time of the ALJ's decision. He completed his high school education and has taken some college classes. Prior to the onset of his disability, Filbrun performed various jobs including, retail sales clerk, customer service manager, cashier, and packing and shipping clerk.

         Filbrun's medical records indicate that he had a brain tumor during his youth, so he received radiation treatment, which resulted in remission of the tumor (Filing No. 12-7 at 4-5, 13, 39-46). In the fall of 2009, Filbrun was diagnosed with papillary thyroid carcinoma, which had not metastasized. He underwent total thyroidectomy and subsequent whole body imaging, which revealed no abnormal extra thyroid uptake following the surgery to remove his thyroid. Filbrun was prescribed medications following his thyroidectomy. Id.; id. at 23.

         In November 2011, Filbrun presented to Saint John's Digestive Disease Center with complaints of swallowing difficultly and discomfort as well as gastroesophageal reflux disease. He underwent a GI endoscopy to determine the cause of his dysphagia. Filbrun's GI endoscopy revealed hiatus hernia, Barrett's esophagus, Barrett's ulcer, and gastric polyps. Filbrun was prescribed Omeprazole to treat his symptoms, and he was counseled regarding an anti-reflux diet (Filing No. 12-8 at 55-56).

         On October 23, 2012, Filbrun underwent a consultative mental status examination with Brandon Robbins, Psy.D. HSPP. (“Dr. Robbins”), as part of his previously-rejected disability application. Filbrun reported to Dr. Robbins that he was seeking disability benefits because of his reoccurring cancer, thyroid cancer, chest pain and burning sensations, short term memory problems, and depression. Filbrun complained that he had had problems with short term memory for many years because of his brain tumor and treatment. He also reported that he had struggled with depression for many years but that he had not sought counseling or been hospitalized for psychiatric reasons. Dr. Robbins diagnosed Filbrun with major depressive disorder of moderate severity with a global assessment of functioning (“GAF”) score of 58 (Filing No. 12-8 at 67-69).

         Dr. Robbins opined that Filbrun “did not present with psychological impairments related to understanding or memory . . . that would impact his ability to obtain or maintain employment in a variety of settings” based on Dr. Robbins' observation that Filbrun's “[l]ong term memory appear[ed] intact” and his “[p]rocessing speed was within limits.” Id. at 69. Dr. Robbins also noted that Filbrun's “[a]ttention and concentration were both sufficient for employment. He presented with adequate social skills and appears capable of interacting with coworkers and supervisors.” Id. Dr. Robbins opined, “[p]ersistence appears to be impacted by fatigue.” Id.

         On December 4, 2013, Filbrun underwent a second mental status examination with Dr. Robbins as part of his current disability applications. Filbrun reported to Dr. Robbins that he was seeking disability benefits because of his reoccurring cancer, thyroid cancer, and short term memory problems. He again reported a history of depression but denied seeking counseling or hospitalization. Dr. Robbins again diagnosed Filbrun with major depressive disorder of moderate severity with a GAF score of 55 (Filing No. 12-8 at 73-75). Dr. Robbins concluded that Filbrun “did not present with psychological impairments related to understanding that would impact his ability to obtain or maintain employment.” Id. at 75. Dr. Robbins opined that Filbrun's ability to concentrate and his memory skills were fair, so he would likely benefit from repetitive occupational tasks. He also opined that Filbrun's level of persistence would be impacted by fatigue, so he would benefit from low-energy job tasks. Id.

         In December 2013, William A. Shipley, Ph.D., a non-examining state-agency psychologist, opined that Filbrun did not have a “severe” mental impairment (Filing No. 12-3 at 18-19). In April 2014, Joelle J. Larsen, Ph.D., another non-examining state-agency psychologist, also opined that Filbrun did not have a “severe” mental impairment. Id. at 31-33.

         On December 22, 2013, Filbrun sought emergency treatment for an acute confusional migraine. He reported a history of migraines, headaches, confusion, and associated visual difficulty. He underwent an MRI and CT scan, which did not reveal any acute findings. Filbrun's TSH level was abnormal at 50, and his wife reported that he had hypothyroidism and had not been taking his medication. Filbrun told the health care providers that he was unable to afford his medication. He was restarted on his thyroid medication and also given medication to help with his migraines and then discharged the next day (Filing No. 12-9 at 5-10).

         In February 2014, Filbrun presented to family physician Chad Lamb, M.D. (“Dr. Lamb”), as a follow-up to his hospital visit. Filbrun reported that he continued to have daily headaches since his hospital discharge, and he was taking Tylenol to help with the headaches. Dr. Lamb directed Filbrun to discontinue his daily use of Tylenol, continue using Verapamil, and increase his thyroid medication (Filing No. 12-9 at 44-45).

         In February 2015, Filbrun suffered a cerebrovascular accident (stroke) and presented to the emergency room where he was admitted to the hospital (Filing No. 12-10 at 40). His symptoms resolved over a three-day period, but following the incident, he did not feel as sharp and his hearing was worse. Filbrun returned to Dr. Lamb in June 2015 as a follow-up to his hospitalization. On examination, Filbrun showed good insight and judgment, normal mood, and no abnormalities. His mental status examination was normal. Dr. Lamb adjusted medications and referred Filbrun to a neurologist. Id. at 39-42. During another doctor's appointment at the end of June 2015, Filbrun reported symptoms of depression and anxiety; however, the mental status examination revealed normal results. Id. at 2-3.

         Filbrun saw a neurologist in July 2015. He reported his stroke, ongoing headaches, and difficulty with memory and concentration, but he also reported that he was doing well overall following the stroke. On examination, Filbrun appeared fully oriented, showed no recurring cranial nerve impairments, had proper sensation, and had normal muscle functioning. He was referred for occupational, speech, and physical therapy (Filing No. 12-10 at 45-53).

         On August 26, 2015, the same day as the hearing before the ALJ, Dr. Lamb provided a medical source statement, opining that Filbrun was seriously limited or unable to meet competitive standards in a number of areas concerning mental abilities and aptitudes. Dr. Lamb opined that Filbrun would be off task ...


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