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Cerrone v. Astrue

July 7, 2010


The opinion of the court was delivered by: Judge Nora Barry Fischer



Jeanine Marie Cerrone ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f ("Act"). This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Nos. 9, 13). The record has been developed at the administrative level. (Docket Nos. 6 - 6-8). For the following reasons, Defendant's Motion for Summary Judgment is DENIED, Plaintiff's Motion for Summary Judgment is DENIED to the extent it seeks to award benefits, and GRANTED to the extent it seeks a remand for further administrative proceedings, the decision of the Administrative Law Judge, William E. Kenworthy, ("ALJ") is vacated, and the case REMANDED for further consideration.


Plaintiff submitted applications for SSI and DIB on July 25, 2007. (R. at 98-112)*fn1. She alleged entitlement to disability benefits as a result of bipolar disorder, depression, and epilepsy. (R. at 117). Plaintiff's claims for DIB and SSI were initially denied by the Social Security Administration on October 17, 2007. (R. at 69). She requested a hearing, which was held on April 9, 2009. (R. at 21). Her claims were denied in a decision dated April 20, 2009. (R. at 8). The Administrative Appeals Council denied Plaintiff's request for review on December 4, 2009, making the decision of the ALJ the final decision of the Commissioner. (R. at 1). Plaintiff brought the instant action in this Court by filing her Complaint on August 10, 2009. (Docket No. 1). Defendant filed his Answer on March 23, 2010. (Docket No. 10). Cross-motions for Summary Judgment followed. (Docket Nos. 13, 17).


A. General Background

Plaintiff's birthday is April 9, 1972, and at the time of application for SSI and DIB, she was 35 years of age. (R. at 98, 105). Plaintiff completed high school and two years of undergraduate study at Robert Morris College. (R. at 386). She claimed that her disability onset date was October 15, 2005, and further claimed that she was no longer able to work due to her disability on December 1, 2006. (R. at 98, 105). At the time of application, Plaintiff stated that she was married to John Robert Cerrone, and they had no children. (R. at 98, 106). Plaintiff lived in an institution known as "The Lighthouse," at 1633 Weirich Avenue, Washington, Pennsylvania 15301, where she claimed to be receiving treatment for bipolar disorder, alcoholism, and drug addiction. (R. at 99, 106, 147). Plaintiff expected to remain at the facility for three to six months. (R. at 147). At the time of the hearing with the ALJ, Plaintiff had divorced her husband, and was living with her boyfriend at 108 Pennsylvania Avenue, Pittsburgh, Pennsylvania 15202. (R. at 46, 147).

Over a period spanning 1991 to 2006, Plaintiff worked for approximately ten different employers. (R. at 118). Her jobs did not normally exceed several months to a year in duration. (R. at 118). Plaintiff's longest period of employment was 1999 through 2005, during which time she worked as a clerk at a local hospital. (R. at 118). As a clerk, Plaintiff worked eight hours a day, five days a week. (R. at 132-33). Plaintiff described her duties as including answering phones, dealing with other hospitals and doctors, copying medical records, and pulling and filing charts. (R. at 132-33).

B. Medical Background - Physical

Janette Partezana, M.D., Plaintiff's primary care physician, referred Plaintiff to neurologist George A. Small, M.D., at Allegheny General Hospital, for potential neurological issues. (R. at 120, 174). In a letter to Dr. Partezana following Plaintiff's first visit, dated October 18, 2001, Dr. Small opined that Plaintiff was likely suffering from generalized seizure disorder - particularly, petit mal epilepsy with generalization.*fn2 (R. at 174). Dr. Small noted that an EMG*fn3 was performed and the results were unremarkable. (R. at 174). An MRI*fn4 of Plaintiff's spine revealed mild spondylosis. (R. at 174). An EEG*fn5 showed evidence of petit mal epilepsy with eyelid fluttering and 3 per second wave discharges. (R. at 174). Dr. Small prescribed Depakote*fn6 for the epilepsy and Advil for back pain. (R. at 174). Dr. Small also recommended that Plaintiff refrain from driving until further testing was completed. (R. at 174).

Plaintiff continued to see Dr. Small through 2004. In a letter to Dr. Partezana dated October 21, 2004, Dr. Small explained that Plaintiff had missed numerous appointments, and recently had neglected to take two doses of Depakote, resulting in a "generalized fit" with significant head injury.

(R. at 173). After she was seen in the emergency room, a CT*fn7 scan of Plaintiff's head was performed with no abnormal results. (R. at 173). Dr. Small noted that the levels of Depakote in Plaintiff's bloodstream were low. (R. at 173). Dr. Small believed that if Plaintiff were totally compliant with her medical regimen, she would have no problems with seizures, and would be able to drive. (R. at 173).

C. Medical Background - Psychological

1. Clinical Treatment

Plaintiff sought psychiatric treatment for depression, anxiety, and stress at the Staunton Clinic, in McKees Rocks, Pennsylvania, from 2001 until 2009. (R. at 120, 262, 434-35). During her treatment at the Staunton Clinic, Plaintiff was seen by Phillip Mondoly, M.D., a psychiatrist, and by Jim Gigliotti, L.P.C., an adult psychotherapist. (R. at 120, 435). Plaintiff's first recorded visit with Dr. Mondoly was January 23, 2002, and last recorded visit was August 12, 2008 - though there was a large span of time between the last two appointments: November 27, 2006 and August 12, 2008.

(R. at 262, 271, 419-22). Dr. Mondoly diagnosed Plaintiff with dysthymic disorder,*fn8 major depression,*fn9 and bipolar disorder*fn10 over the course of his treatment of Plaintiff. (R. at 261-72). Plaintiff's initial Global Assessment of Functioning*fn11 ("GAF") score was 56 on January 23, 2002.

(R. at 262). By October 2, 2002, Plaintiff's GAF score was at 60, and until her last appointment with Dr. Mondoly, Plaintiff never received a GAF score other than 60. (R. at 261-72). At her final session with Dr. Mondoly, Plaintiff received a GAF score of 58. (R. at 419). Plaintiff was prescribed Prozac,*fn12 Xanax,*fn13 Effexor,*fn14 Abilify,*fn15 Cogentin,*fn16 Ambien,*fn17 and Trazodone*fn18 during the course of her treatment, and Dr. Mondoly consistently noted Plaintiff's stability on her prescribed maintenance medications. (R. at 261-272, 419). Dr. Mondoly also consistently noted that Plaintiff was alert and oriented times three, pleasant, cooperative, calm, and goal-oriented. (R. at 261-272). Plaintiff typically reported doing well and remaining active despite work and family-related stress. (R. at 261-272). However, Dr. Mondoly found that Plaintiff suffered from intermittent difficulty with sleep, and had issues with her weight, stress, and emotional stability. (R. at 261-272). After Plaintiff attempted suicide and was subsequently admitted to the UPMC Western Psychiatric Institute and Clinic, Dr. Mondoly also noted that Plaintiff was abusing crack cocaine. (R. at 270).

In his final session with Plaintiff on August 12, 2008, Dr. Mondoly completed a Mental Residual Functional Capacity Questionnaire. (R. at 419-22, 430-33). The RFC assessment indicated Plaintiff suffered from a pattern of depressive episodes, mood vacillations, and impulsivity, and that treatment had resulted in only some mood stability. (R. at 419-22). Plaintiff's symptoms included anhedonia,*fn19 thoughts of suicide, feelings of guilt or worthlessness, difficulty in thinking or concentrating, psychomotor agitation or retardation, persistent disturbances of mood or affect, emotional withdrawal or isolation, epilepsy, bipolar syndrome, hyperactivity, emotional lability, flight of ideas, maladaptive patterns of behavior, easy distractibility, sleep disturbance, and involvement in activities with a high probability of unrecognized, painful consequences. (R. at 420). Dr. Mondoly found that Plaintiff was unable to meet competitive standards or seriously limited in all categories under (1) Mental Abilities and Aptitudes Needed to do Unskilled Work, (2) Mental Abilities and Aptitudes Needed to do Semiskilled and Skilled Work, and (3) Mental Ability Needed to Do Particular Types of Jobs, with the exception of the ability to adhere to basic standards of neatness and cleanliness, ability to travel in unfamiliar places, and ability to use public transportation. (R. at 421-22). Dr. Mondoly indicated that Plaintiff would miss more than four days of work per month. (R. at 422). Dr. Mondoly did not find that Plaintiff's limitations included substance abuse. (R. at 422).

Plaintiff's first recorded therapy session with Mr. Gigliotti was March 29, 2006, and her last recorded session was March 9, 2009 - though there was a large gap in therapy sessions between November 27, 2006, and August 7, 2008. (R. at 273-279, 424-33). Plaintiff was assessed an initial GAF score of 60, which decreased to 53 on November 27, 2006. (R. at 273-279). Mr. Gigliotti typically found Plaintiff's psychological state to be unremarkable, though occasionally noting remarkable mood, affect, and speech, and once indicating Plaintiff showed compromised insight and impulsivity. (R. at 273-279, 424-33). With few exceptions, Mr. Gigliotti consistently indicated that Plaintiff was not abusing drugs or was in active recovery. (R. at 273-279). Following a relapse on November 8, 2006, Mr. Gigliotti recorded that Plaintiff's life had become characterized by drug abuse, poor decision making, anxiety, relationship stress, and unstable employment. (R. at 277). In subsequent meetings, Mr. Gigliotti's reports returned to the usual tone. (R. at 273-279, 424-33). In her six therapy sessions between August 7, 2008 and March 9, 2009, Plaintiff's GAF scores fluctuated between 57 and 64. (R. at 424-33).

However, following a March 9, 2009 therapy session, Mr. Gigliotti completed a Mental Functional Capacity Questionnaire showing a recent suicide attempt by Plaintiff, as well as more severe mood vacillations, despair, and anxiety. (R. at 430). Specifically, Mr. Gigliotti found that Plaintiff suffered from decreased energy, impairment in impulse control, persistent anxiety, mood disturbance, difficulty thinking or concentrating, psychomotor agitation or retardation, disturbance of affect, change in personality, bipolar syndrome, intense and unstable personal relationships, hyperactivity, emotional lability, flight of ideas, maladaptive patterns of behavior, illogical thinking, pressures of speech, sleep disturbance, and involvement in activities that have a high probability of unrecognized, painful consequences. (R. at 431). Mr. Gigliotti determined that Plaintiff was seriously limited, unable to meet competitive standards, or without useful ability to function in all categories under (1) Mental Abilities and Aptitudes Needed to do Unskilled Work, (2) Mental Abilities and Aptitudes Needed to do Semiskilled and Skilled Work, and (3) Mental Ability Needed to Do Particular Types of Jobs. (R. at 432-33). He further opined that Plaintiff was likely to miss four or more days of work per month. (R. at 433). Substance abuse was not considered to contribute to any of Plaintiff's limitations. (R. at 433).

Mr. Gigliotti and Dr. Mondoly jointly submitted a letter on March 16, 2009, in support of Plaintiff's claim for DIB and SSI benefits. (R. at 434-35). The letter stated that Plaintiff had been receiving treatment at Staunton Clinic since October 3, 2001, and indicated that Plaintiff was diagnosed with bipolar disorder, polysubstance abuse, and personality disorder*fn20. (R. at 434). Both Mr. Gigliotti and Dr. Mondoly found that Plaintiff was extremely unlikely to maintain competitive employment due to the persistent nature of her bipolar symptoms and her pathogenic patterns of engaging in unhealthy relationships. (R. at 435). They believed that Plaintiff concealed her distress with an affable demeanor, and was quite adept at misleading others into believing she was happy.

(R. at 435). They concluded that Plaintiff's inability to adequately cope with work stress, her impulsivity, mood vacillations, pervasive despair, irregular life rhythms, self-destructive behavior, and poor decision making precluded her from gainful employment. (R. at 434-35).

2. Hospital and Out-Patient Treatment

On May 31, 2005, Plaintiff was admitted to the UPMC Western Psychiatric Institute and Clinic after being transferred from the UPMC Presbyterian Hospital following an attempted polypharmacy overdose. (R. at 249). In the Discharge Summary Report of Western Psychiatric, clinician James W. Stein, M.S.N., and physician Robert S. Dealy, M.D. noted Plaintiff's history of treatment for psychological disorders and suicide attempts. (R. at 249, 255). Following a confrontation with her husband, Plaintiff allegedly attempted to overdose using a variety of drugs over a period of several days. (R. at 249). Having awakened without being discovered after two overdose attempts, Plaintiff made a third attempt and was discovered unconscious by her grandmother. (R. at 249).

At discharge on June 7, 2005, Plaintiff showed moderate improvement, was advised to engage in individual, group, and family therapy, and was counseled to continue taking prescription antidepressants. (R. at 250). Plaintiff also showed good attention to personal hygiene, and no abnormal behavior. (R. at 251). She was euthymic*fn21 and without abnormality in speech or thought, and was without perceptual distortion. (R. at 251). Plaintiff was alert and oriented in three spheres, and had reasonably good insight as to her condition. (R. at 251). Plaintiff was diagnosed as having a depressive disorder, and was given a GAF score of 39. (R. at 252-53). The discharge report stated that Plaintiff was prescribed Effexor and Xanax. (R. at 249).

Plaintiff was next admitted to Genesis House Recovery in Lakeworth, Florida, for substance abuse treatment on January 8, 2007. (R. at 282-83). Plaintiff completed the program on March 12, 2007. (R. at 299). There she received treatment and counseling for cocaine and alcohol abuse, depression, sexual abuse issues, self-esteem issues, and long-term aftercare. (R. at 309). Plaintiff successfully completed 67 days of treatment. (R. at 330). It was recommended that Plaintiff pursue out-patient care two times a week at Mercy Behavioral Health in Pittsburgh, seek a sponsor and group home, and avoid all exposure to addictive substances. (R. at 330). Once in Pennsylvania, Plaintiff was admitted to Greenbriar Treatment Center in Washington, Pennsylvania, for in-patient treatment on June 28, 2007, and completed its program ...

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