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Corona v. Astrue

November 20, 2008


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


I. Introduction

Pending now before the court are cross-motions for summary judgment based on the administrative record: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Document No. 10) and DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Document No. 8). The motions have been fully briefed and are ripe for resolution.

Plaintiff, Judith Corona, (hereinafter "Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g) to seek review of the final determination of the Commissioner of Social Security (hereinafter "Commissioner") which denied her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-433.

At the outset, the Court notes Plaintiff's late filing of her Motion for Summary Judgment and Brief in Support (Document No. 9) and the Government's objection in its Reply Brief to Plaintiff's Motion for Summary Judgment (Document No. 13).*fn1 The Court is not inclined to sanction Plaintiff for the tardy filing by her attorney and will therefore, consider Plaintiff's Motion for Summary Judgment in addition to the Defendant's Motion and his Reply Brief. The Court, however, will disregard Plaintiff's Reply Brief in support of her Motion for Summary Judgment (Document No. 14). Plaintiff's reply brief does not address any of the Government's arguments and contains various erroneous assertions concerning a different plaintiff and unrelated cases.

II. Background*fn2

A. Facts

Plaintiff was born on September 22, 1958, was 48 years old during the period at issue, and was considered to be a "younger individual" as defined in 20 C.F.R. § 404.1563(b). R. 6, at 43. Plaintiff completed high school and worked as a laundry laborer for over twenty years. R. 6, at 21, 49, 54.

Plaintiff alleges disability, as of May 11, 2005, due to bipolar disorder and status post left hip injury. R. 6, at 30, 43. She later amended her onset date of disability to June 18, 2005 due to a motor vehicle accident on the same day. R. 6-7, at 42. Plaintiff went to the emergency room at the Westmoreland Regional Hospital (hereinafter "Westmoreland") on June 19, 2005 as a result of injuries incurred in the accident. R. 6-2, at 31. She was diagnosed with a shoulder strain, back strain, a contusion, and a nasal fracture. R. 6-2, at 38-39. X-rays of her left shoulder and hip revealed no fractures or dislocation. R. 6-2, at 44-45. Plaintiff returned to the hospital on June 22, 2005 complaining of headaches. R. 6-2, at 48, 55. A CT scan of her brain revealed no acute or significant intracranial abnormality and an x-ray of her cervical spine presented no acute skeletal findings. R. 6-3, at 2-3. There were minimal to moderate degenerative changes between C5/C6 with the mild bony encroachment of their corresponding neural foramen. R. 6-2, at 111. Plaintiff was discharged on the same day and advised to follow up with her primary care physician, Dr. Jill M. Constatine (hereinafter "Dr. Constantine"). R. 6-2, at 55.

Plaintiff saw Dr. Andrew Stroh (hereinafter "Dr. Stroh") on June 23, 2005. R. 6-3, at 4. He observed that Plaintiff became dizzy when she had to perform a range of motions. Id. Plaintiff also complained of an increase in pain in her neck and shoulder. Id. Dr. Stroh recommended that Plaintiff receive physical therapy from her family physician and he noted that Plaintiff was to return to work. Id., 6-4, at 33.

Plaintiff saw Dr. S.P. Barua (hereinafter "Dr. Barua") the following day, on June 24, 2005, complaining of headaches, neck pain, and stiffness. On June 27, 2005, Plaintiff saw Dr. Mark R. Klingensmith (hereinafter "Dr. Klingensmith"). R. 6-3, at 12-13. Dr. Klingensmith reviewed Plaintiff's CT scan which did not show the presence of any significant fracture. R. 6-3, at 13. He observed that Plaintiff had a post nasal injury but she was not suffering from a nasal fracture. Id. Dr. Barua also noted that Plaintiff had remarkable restriction of lumbar motion in flexion, tenderness, and muscle spasm in her lower back. R. 6-4, at 33. The Patrick, straight leg raise, and Lasegue tests and neurologic exams were negative. Id. Plaintiff was also experiencing tenderness in the dorsal spine and lower lumbar area. Id. Dr. Barua recommended that Plaintiff not return to work and instead go to physical therapy for three weeks. This recommendation was contrary to Dr. Stroh's order, the day before, for Plaintiff to return to work. Id.

The record reflects that Plaintiff saw Dr. Barua again on July 25, 2005 and he noted Plaintiff's continuing physical therapy. Id. Plaintiff also continued to experience headaches with pain in her neck. Id. On examination, Dr. Barua observed there was a 30% limitation of the cervical spine motion although her neurological examination was negative. Id. Dr. Barua gave her trigger point injections and advised her to continue with the physical therapy in the neck only. Id. Plaintiff received more trigger block injections on her visit to Dr. Barua on August 22, 2005.

R. 6-4, at 31.

On September 6 and 21, 2005, Plaintiff presented to Dr. Barua with a complaint of pain dispersed throughout the dorsal spine area of her lower back. Id. Dr. Barua did not think that there was any disc involvement. Id. Plaintiff was neurologically stable and he recommended a dorsal lumbar corset and that Plaintiff continue with her physical therapy regime. R. 6-4, at 30-31. Dr. Barua eventually concluded that Plaintiff was suffering from chronic myofascial pain. R. 6-4, at 30.

On November 11, 2005, Dr. Barua noted that the dorsal lumbar corset was working although Plaintiff's pain was still quite severe and the prescribed lithium she was taking was contributing to her depression. R. 6-6, at 37. Plaintiff was still neurologically stable and Dr. Barua observed that if Plaintiff was feeling better, she could return to some form of lighter duty work and eventually, if possible, move toward full duty. Id. In December 2005, Plaintiff mentioned the subject of joining a gym to Dr. Barua who encouraged her to do so and to become active. Id. He noted that she had stopped taking lithium and was on a different medication for depression. Id.

Plaintiff saw Dr. Barua in March 2006. R. 6-6, at 34. Dr. Barua observed that although still in pain, primarily in the cervical dorsal area, Plaintiff had been going to aerobic exercise classes. Id. Plaintiff was not experiencing any muscle spasms but there was some general tenderness. Id He recommended that Plaintiff continue with her medication and exercises. Plaintiff returned on May 19, 2006, informing Dr. Barua of her intention to visit the Office of Vocational Rehabilitation (hereinafter "OVR") and find a job that accommodated her chronic pain. R. 6-6, at 33. Plaintiff had been using a brace which Dr. Barua observed was helping her posture. Id. He did recommend that Plaintiff cut back on her gym visitation to reduce the aggravation in the areas where she was experiencing pain. Id.

On July 12, 2005, Plaintiff went to the Western Psychiatric Institute and Clinic (hereinafter "WPIC") complaining of depression which she stated was exacerbated by the accident in June 2005. R. 6-3, at 18, 22. Plaintiff stated that she had not left the house since the June 18, 2005 accident, she slept eighteen (18) to twenty (20) hours a day and had gained fourteen (14) pounds due to an increased appetite. R. 6-3, at 19. She also stated that she had been previously diagnosed with depression and bipolar disorder and had been receiving psychiatric treatment for twenty-six (26) years. Id. Plaintiff was diagnosed with bipolar depression after Plaintiff checked herself in to WPIC on July 14, 2005. R. 6-3, at 19. She was discharged on July 22, 2005 and referred to Dr. Alexandre Dombrovski (hereinafter "Dr. Dombrovski"). R. 6-3, at 18.

Dr. Dombrovski followed up with Plaintiff after her WPIC discharge on July 25, 2005.

R. 6-4, at 51. Plaintiff reported that her mood had improved, her "negative thoughts" were resolving and she did not feel any hopelessness. Id. He prescribed a reduction in the strength of lithium that Plaintiff was taking. Id. Dr. Dombrovski spoke with Plaintiff the next day and she stated that her mood was "pretty good". R. 6-4, at 50. On August 2, 2005, Plaintiff felt a marked improvement and she was satisfied with the change in the lithium prescription. R. 6-4, at 47. Her outlook changed on August 9, 2005 when she reported having low morale, feeling scared and expressing thoughts of suicide. R. 6-4, at 46.

Plaintiff continued to experience a poor mood and on August 29, 2008, Dr. Dombrovski wrote a letter to Excela Health Westmoreland stating that Plaintiff was in the throes of a severe depression episode and required hospitalization and aggressive medication treatment. R. 6-4, at 41. He also stated that Plaintiff was unable to perform her work duties and anticipated her disability continuing for another four to six weeks. Id. He did indicate that once Plaintiff's mood had improved and was "better controlled", she would be able to return to work. Id. By October 15, 2005, Dr. Dombrovski reported that Plaintiff's mood had improved. R. 6-4, at 37. Again, on October 22, 2005, Dr. Dombrovski reported that Plaintiff would not be able to work but stated that she could return to work in two to three months' time. R. 6-5, at 55.

On February 6, 2006, Dr. Michael Niemiec (hereinafter "Dr. Niemiec") conducted a physical residual functioning capacity (hereinafter "RFC") assessment. He found that Plaintiff could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, sit and stand and/or walk for about six hours in an eight-hour workday. R. 6-5, at 17. Her postural limitations include occasional balancing, stooping, kneeling, crouching, and crawling. R. 6-5, at 18. Dr. Niemiec concluded that Plaintiff is able to take care of herself, maintain her home, and drive a car. R. 6-5, at 25. He also observed that Plaintiff had obtained various forms of treatment for her symptoms, all of which has been generally successful in controlling her symptoms. Id.

The record also reflects Plaintiff's visitations with Dr. Dombrovski in 2006. On March 4, 2006, Dr. Dombrovski reported that Plaintiff was feeling anxious but was otherwise doing well and was to marry in six months. R. 6-5, at 48. Plaintiff's condition had changed by the end of March and she was once again feeling depressed and suffering from chaotic sleep patterns and lack of motivation. R. 6-5, at 47.

By the beginning of May 2006, Plaintiff was feeling less depressed. R. 6-5, at 45. She continued to feel better in June 2006. R. 6-5, at 44. On July 15, 2006, Dr. Dombrovski noted that Plaintiff was still depressed. R. 6-5, at 43. There was also a note on the same July 15, 2006 report, stating that Dr. Dombrovski's office would have to construct a letter (hereinafter "Dombrovski record notation") to the OVR informing the OVR that Plaintiff was stable enough to be retrained for employment. Id.

On August 19, 2006, Dr. Dombrovski completed a functional capabilities evaluation in which he indicated that Plaintiff had an "attentional impairment" (in other words, her ability to comprehend and follow instructions was very low, at level two) and suffered from fatigue and poor motivation. R. 6-6, at 41-42. He concluded that he was not able to foresee when she could return to work. R. 6-6, at 42.

In September 2006, Plaintiff was referred to OVR where Dr. Scott Martin (hereinafter "Dr. Martin"), a certified psychologist, performed a vocational assessment. R. 6-6, at 52. Plaintiff stated she has trouble managing distractions and that she has never been treated for attentional disorder. R. 6-6, at 55. She rated her ability to focus, monitor herself, and complete tasks independently and after being interrupted as fair. Id. Dr. Martin observed that Plaintiff was friendly and cooperative although her "affective presentation was suggestive of a mild to moderate degree of anxiety and depression." R. 6-7, at 1. He noted that Plaintiff had significant learning disabilities in such areas as ...

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