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Nomes v. Astrue

August 3, 2010


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.



Plaintiff Krista L. Nomes ("Nomes") commenced the instant action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits under Titles II and XVI of the Social Security Act ("Act") [42 U.S.C. §§ 401-433, 1381-1383f].


Nomes protectively applied for DIB and SSI benefits on April 12, 2006, alleging disability as of November 5, 2005 (AR 45; 51; 180). The applications were administratively denied on July 19, 2006 (AR 41; 186). Nomes requested an administrative hearing and on October 24, 2007, a hearing was held in Erie, Pennsylvania, before an Administrative Law Judge (the "ALJ") (AR 40; 191). Nomes, who was represented by counsel, appeared and testified at the hearing, as did an impartial vocational expert (AR 194-226). In a decision dated November 27, 2007, the ALJ determined that Nomes was not "disabled" within the meaning of the Act (AR 10-20). The Appeals Council denied Nomes' request for review on March 20, 2009, thereby rendering the ALJ's decision the final decision of the Commissioner in this case (AR 4). The instant action challenges the ALJ's decision. Presently pending before the Court are cross-motions for summary judgment. For the reasons that follow, the Commissioner's motion will be denied and Nomes' motion will be granted only to the extent she seeks a remand for further consideration.


Nomes has a history of using drugs such as heroin, crack and cocaine (AR 204).*fn1 After being imprisoned in January 2006, she was sent to the Deerfield Dual Diagnosis Center for inpatient rehabilitation (AR 90, 204). Treatment notes dated February 16, 2006 through March 12, 2006 reflect that she reportedly last abused drugs in January 2006 (AR 91). Progress notes show that she tolerated treatment "well" and by March 3, 2006 her mood was reported as "good" with no suicidal or homicidal thoughts (AR 88-89).

Following her release from inpatient rehabilitation, Nomes lived at a halfway house and sought mental health treatment at the Stairways Behavioral Health Outpatient Clinic ("Stairways") (AR 81-83). On May 9, 2006, Robin Bailey, M.D. performed a psychiatric examination and evaluation (AR 83-89). Nomes relayed a long history of psychiatric hospitalizations, the first of which occurred when she was only thirteen years old (AR 84). She reported "lifetime symptoms" of suicidal thoughts, events and repetitive self-injury dating back to age fourteen (AR 83). She had also tried to commit suicide by means of a drug overdose at one point (AR 84). At the time of the evaluation, she stated that her mood was stable and she was doing "pretty well" with only mild symptoms of suspiciousness (AR 83). She was on Celexa, Depakote and Risperdal with minimal side effects (AR 84). She denied any recent suicidal thoughts, but had some self-injurious thoughts in March 2006 (AR 84). She reported that her symptoms of paranoia were improving, but she still had some auditory hallucinations which sounded like her own voice (AR 84). Dr. Bailey did not believe these were "true" auditory hallucinations in the "psychotic sense" (AR 84).

Dr. Bailey noted that Nomes had experienced mood swings and full-blown manias and depressions, including during the time she was not taking drugs (AR 83). She further noted that Nomes had vague paranoia and atypical auditory hallucinations, also while abstinent from drugs and alcohol (AR 83). On mental status examination, Dr. Bailey observed that Nomes was neatly groomed, wearing appropriate makeup and fashionable clothing (AR 86). She was cooperative during the evaluation and maintained good eye contact (AR 86). She exhibited an appropriate affect, except when she laughed inappropriately while discussing prior physical abuse; her thought pattern was logical and goal-directed; and her memory was "grossly normal" (AR 86). Dr. Bailey found her thought content was remarkable for vague suspiciousness and some atypical auditory hallucinations described as "her own voice arguing in her head" (AR 86).

Dr. Bailey noted that her primary presenting issue was due to polysubstance dependency, but that her history was "strongly suggestive of bipolar type I, in addition, due to her history of marked manic symptoms in the absence of substances" (AR 86). Although Nomes complained of some vague psychotic symptoms, Dr. Bailey found that these symptoms had largely improved with her current medication regimen (AR 86). She diagnosed her with polysubstance dependency, bipolar type I, and "rule out schizoaffective disorder" (AR 86). Dr. Bailey assigned her a Global Assessment of Functioning ("GAF") score of 47-50 (AR 87).*fn2

Progress notes from Stairways dated May 23, 2006 indicate that Nomes apparently secured a night shift job while living at the halfway house (AR 164). On June 13, 2006, she had moved to the Mercy Center and was reportedly working a second shift factory job (AR 164). On mental status examination, her mood was reported as euthymic (normal), she was cooperative, and she denied suffering from any psychosis or suicidal thoughts (AR 164). Dr. Bailey reported her bipolar disorder as "stable" and continued her medications (AR 164).

Roger Glover, Ph.D., a state agency reviewing psychologist, reviewed the psychiatric medical evidence of record on July 12, 2006 and concluded that Nomes was only mildly restricted with respect to her activities of daily living, had moderate difficulties in maintaining social functioning and in maintaining concentration, persistence or pace, and had no repeated episodes of decompensation of extended duration (AR 112). Dr. Glover completed a mental residual functional capacity assessment form and opined that Nomes was not significantly limited or only moderately limited in all areas of work functioning (AR 115-116). According to Dr. Glover, Nomes remained capable of understanding and remembering instructions, concentrating, interacting appropriately with people, adapting to changing activities within the workplace, could maintain regular attendance and be punctual, and maintain socially appropriate behavior (AR 117). Dr. Glover found she could function in production oriented jobs requiring little independent decision-making (AR 117). He concluded that Nomes could "meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from her impairment" (AR 117).

On August 25, 2006, Nomes presented to the emergency room at Saint Vincent Health Center complaining of an increase in her depression, suicidal thoughts and "vague assaultive ideations" (AR 118). She was evidently thinking about cutting herself at the time of her admission (AR 118). She stated that her primary stressor was a recent stay at the Mercy Center as part of her recovery program, and described the environment as extremely "stressful" (AR 118). Nomes reported that she had been sober since January 2006, but still had problems with anger and poor impulse control (AR 118). She further reported that her depressive symptoms had decreased during a prior two and one-half year period of sobriety (AR 118). Treatment notes reflect however, that she reportedly "continued to experience periods lasting for up to one week during which she had increased psychomotor agitation (bouncing off walls, euphoric affect, restlessness, and increased energy)" (AR 118). Hema Iyer, M.D., admitted Nomes to the hospital for inpatient treatment (AR 119). Nomes indicated that her medications (Depakote, Celexa and Risperdal) were not working, so Dr. Iyer started her on Neurontin, Abilify and Effexor (AR 119). By August 28, 2006 Nomes was reportedly "feeling better" and participating in individual and group therapy (AR 119). On mental status examination at the time of discharge, Dr. Iyer reported that Nomes had regular speech, a "better" mood and a "near euthymic" affect (AR 120). Her thoughts were sequential and goal-directed and she denied suicidal thoughts, hallucinations and delusions (AR 120). Her psychomotor activity was within normal limits (AR 120). Dr. Iyer diagnosed Nomes with bipolar affective disorder and polysubstance abuse in early remission (AR 120). She assigned her GAF score of 60 (AR 120).*fn3 She was discharged from St. Vincent on August 31, 2006, with prescriptions for Neurontin, Abilify and Effexor (AR 120).

During the fall of 2006, Nomes spent ninety days in prison for violating the terms of her probation by failing to notify her probation officer that she had changed her living arrangement (AR 203). Following her release, she returned to Stairways for treatment on December 20, 2006 and stated that she wanted to resume her medications (AR 159). She complained of symptoms of depression and impulsiveness, i.e,. shopping and cleaning for extended periods of time (AR 159). She further complained of experiencing flashbacks (AR 159). Treatment notes indicate that Nomes was reportedly quiet and reserved (AR 159). She reported that although her mood was stable, she was depressed more than usual with no interest in activities (AR 159). She denied having any suicidal or homicidal thoughts, hallucinations or delusions, and had no feelings of paranoia or persecution (AR 159). She was restarted on Abilify and Effexor and scheduled to see Dr. Bailey (AR 159).

Nomes returned to Stairways on February 27, 2007 for follow up and reported to Dr. Bailey that "[a] lot [had ] happened" since her last appointment (AR 158). She stated that since her release from incarceration, her boyfriend had broken her nose and she was staying in a shelter (AR 158). She relayed a recent Hepatitis C diagnosis (AR 158). Dr. Bailey reported that Nomes was adequately groomed, talkative and anxious, but denied suffering from suicidal or homicidal thoughts or symptoms of psychosis (AR 158). It was noted that Nomes wanted to "get [a] job" (AR 158). She was diagnosed with a mood disorder not otherwise specified and polysubstance dependency due to a "recent relapse" (AR 158). Dr. Bailey adjusted her medications; the Effexor dosage was increased, she was restarted on Neurontin, the Abilify was discontinued, and the Geoden dosage was adjusted (AR 158).

On April 3, 2007, Jill A. Rys, a certified physician's assistant affiliated with Bayfront Digestive Disease Associates, noted that Nomes' medical history was remarkable for bipolar disorder with drug induced schizophrenia and previous suicide attempts, as well as hospitalizations for psychiatric illness (AR 140). It was noted that Nomes had been in recovery from substance abuse for approximately three months (AR 140). Ms. Rys opined that Nomes was a potential candidate for hepatitis C therapy, but she "preferred" that Nomes be further along in her drug recovery program prior to proceeding with treatment (AR 140-141; 143). She recommended laboratory studies and a liver biopsy for staging purposes (AR 140). Nomes subsequently underwent a liver biopsy on May 7, 2007 (AR 139).*fn4

Stairways treatment notes indicate that Nomes' Neurontin dosage was increased on April 9, 2007 after she complained that the Geoden was not working (AR 156). On April 26, 2007, Nomes complained to Dr. Bailey that she was suffering from nightmares and "paranoia" (AR 154). She was living in transitional housing, and stated she felt fine on some days and on other days she did not (AR 154). She indicated she was "fighting" depression and had fleeting thoughts of cutting herself (AR 154). Dr. Bailey noted that Nomes had been engaged in volunteering activities (AR 154). Dr. Bailey reported that she was talkative and anxious, but she denied suicidal/homicidal thoughts (AR 154). She diagnosed her with a mood disorder not otherwise specified, post traumatic stress disorder and substance abuse (AR 154). Her Geoden dosage was increased due to her symptoms of anxiety, paranoia and post traumatic stress nightmares, and she was continued on Neurontin and Effexor (AR 154).

Nomes returned to Stairways on June 4, 2007 and Dr. Bailey's treatment notes state that Nomes was "5 months clean" (AR 153). Nomes reported that she could stay in transitional housing for up to one year (AR 153). She was reportedly distressed over her health issues and issues related to her ex-husband (AR 153). Dr. Bailey reported on mental status examination that Nomes was neatly groomed with "dramatic makeup" (AR 153). She had increased "suspiciousness" and she complained of flashbacks from prior drug use (AR 153). Dr. Bailey reported she was tense and euthymic (AR 153). She was diagnosed with a mood disorder not otherwise specified and polysubstance dependency (AR 153). Dr. Bailey continued her on Effexor and increased her Neurontin and Geoden dosages (AR 153).

Nomes was voluntarily admitted to Millcreek Community Hospital ("Millcreek") in Erie on August 7, 2007 (AR 172-176). She indicated that she had not used any illegal drugs or alcohol since January 2007 (AR 175). Nomes reported experiencing auditory and visual hallucinations, and "vaguely" claimed she had problems with hallucinations (AR 175). She further complained of depression, mood instability and paranoia for a "long time" (AR 175). She reported the occurrence of "disturbing visions" in which she could see herself "cutting herself and committing suicide" (AR 175). Her medications upon admission were Effexor, Neurontin and Geoden (AR 172). Mental status examination upon admission revealed that Nomes was "generally uncooperative," she refused to answer most questions, she appeared paranoid and suspicious and her judgment and insight were significantly impaired (AR 176). Dr. Sean Su, her treating psychiatrist, assigned her a GAF score of 35-40 upon admission (AR 176).*fn5 During her hospitalization, he discontinued the Geoden since Nomes claimed it was "not helpful" and added Invega for her psychotic symptoms (AR 172-173). Nomes also participated in individual and group therapy, and was subsequently discharged from Millcreek on August 9, 2007, after showing ...

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