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Sandra Lee Miller v. Michael J. Astrue

June 22, 2012

SANDRA LEE MILLER, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER OF COURT

I. Introduction

Plaintiff, Sandra Lee Miller, brought this action pursuant to 42 U.S.C. " 405(g) and 1383(c), for judicial review of the final determination of the Commissioner of Social Security ("Commissioner") which denied her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. " 401-403; 1381-1383(f).

II. Background

A. Facts

Miller, born on February 28, 1963, has obtained both a high school education, as well as a two-year associate's degree in horticulture. (R. 36, 207). Her past relevant work experience includes twenty-eight (28) years of employment as a gardener at Carnegie Mellon University. Her employment ended on April 24, 2008, when she was terminated from her employment after missing too many days of work. (R. 36-37, 45, 375).

Plaintiff alleges disability as of April 24, 2008, due to depression, anxiety and arthritis. (R. 13, 202). The record reflects that she has not engaged in substantial gainful work activity since having alleged disability in April 2008. (R. 16). Medical evidence indicates that Miller has been diagnosed with several mental and physical impairments, which include bipolar disorder, obsessive-compulsive disorder, agoraphobia, anxiety, depression, thyroid disease, high cholesterol, gastroesophageal reflux disease, and arthritis.*fn1 (R. 16). She also has a long history of alcohol abuse, for which she has sought treatment through various programs over the years. (R. 45).

Plaintiff's mother, for whom she rendered care for from October 2007 to December 2007, died on January 10, 2008, approximately four (4) months prior to the termination of Plaintiff's employment. (R. 46). On the day of her mother's funeral, Miller drank to cope with her loss, was arrested for drunk driving and subsequently received a DUI conviction.

(R. 46). Plaintiff claims that the death of her mother threw her into a deep depression and she attributes the worsening of her impairments to that event. (R. 202).

The record medical evidence indicates that Plaintiff first complained of depression to her family doctor, Bernard J. Bernaki, D.O., on February 14, 2008. (R. 327). Upon examination, Dr. Bernaki found Miller's general health to be good, that she had a cooperative attitude, and that her thought processes demonstrated coherence and logic. (R. 327). Dr. Bernaki found that the onset of Plaintiff's depression was gradual following the death of her mother. He diagnosed her with alcohol abuse, unspecified; depressive disorder, not elsewhere specified; and adjustment reaction. (R. 328). Dr. Bernaki encouraged her to participate in Alcoholics Anonymous ("AA"). (R. 328).

On April 24, 2008, Miller lost her job after having used all of her leave time, which she claims further contributed to her depressed state. She returned to Dr. Bernaki's office on June 11, 2008 and again complained of depression. (R. 325). The doctor's findings in June 2008 were similar to those he previously noted in February 2008. Dr. Bernaki diagnosed Plaintiff with alcohol abuse, depression disorder, and adjustment reaction and again advised her to participate in AA. (R. 325-326).

While intoxicated on July 13, 2008, Plaintiff made suicidal comments, in which she stated that she wished to "join her parents on Calvary and was going to take pills." (R. 434, 445, 477). At the request of her AA sponsor, Miller presented herself to Western Psychiatric Institute and Clinic ("WPIC") where she reported binge drinking a half of a fifth of liquor one to two times per week. (R. 433, 445). The record reflects that once Miller became sober, she denied both the suicidal intentions and the taking of any pills, but did admit to binge drinking the night before. (R. 434, 445, 477). Plaintiff did not require inpatient admission and made an appointment for both treatment of her depressive symptoms secondary to grief reaction and her alcohol dependence. (R. 477).

Between July and October of 2008, friends of Plaintiff called WPIC three (3) different times to report her drunken behavior, whereupon staff members arriving at Plaintiff's home found her intoxicated and unstable with impaired orientation, memory, attention, concentration, insight and judgment. (R. 410, 415, 419, 424, 428). Plaintiff presented herself to WPIC a second time on December 23, 2008, complaining of depression and anxiety. (R. 478). During this visit, she admitted to consuming twelve (12) beers a few times per month, but also claimed to have been "clean" since December 17, 2008. (R. 405, 478). Upon examination, the attending physician, Kenneth Richmond, M.D., found that Miller had "mild depressive symptoms at the time, which seem situational in nature." (R. 405, 479). He also determined that she did not qualify for inpatient treatment and encouraged her to attend AA. (R. 405. 479).

Plaintiff returned to Dr. Bernaki's office on February 5, 2009 with complaints of depression. (R. 323, 458). She appeared to be healthy, clean, properly dressed, alert and oriented, and demonstrated both coherence and logic in her thought processes. (R. 323). Miller reported having suicidal thoughts during this visit, whereupon Dr. Bernaki diagnosed her with alcohol abuse, depressive disorder and adjustment reaction, and once more encouraged her to continue her participation in AA. (R. 323-324, 458).

One week later, on February 12, 2009, Plaintiff, was incarcerated for violating the terms of her house arrest punishment from her previous DUI. (R. 18, 308-320). While imprisoned, she submitted to a psychiatric evaluation, which noted that she was a binge drinker; that she had last consumed alcohol the day before her incarceration; and that she exhibited signs and symptoms of alcohol withdrawal. (R. 317-18). That evaluation also diagnosed Miller with bipolar disorder, obsessive-compulsive disorder, substance dependence and arthritis and reported a Global Assessment of Functioning ("GAF") score of 40, which indicates serious limitations or symptoms. (R. 314-15). While incarcerated, Plaintiff attended also detoxification and received mental health services. (R. 317-18).

Plaintiff visited Dr. Bernaki again in June and September 2009, during which she complained of depression and dizziness. (R. 362-65). During Plaintiff's June visit, Dr. Bernaki once again diagnosed her with alcohol abuse and depression, advised her to participate in AA, and prescribed new medication for her depression.*fn2 (R. 362-64). At her September 2009 appointment, Miller requested to have her medication changed, whereupon Dr. Bernaki referred her to WPIC for psychiatric involvement regarding the psychiatric medications prescribed to her. (R. 362-363, 373).

When Plaintiff presented to WPIC in November 2009 for medication management, she reported that she had been "clean" for a month. Amie Salamon, MSW, who is neither a psychiatrist nor a psychologist, found Plaintiff to have depressive disorder and alcohol dependence, and ruled out both anxiety disorder and bipolar disorder. (R. 381). Plaintiff returned to WPIC for medication management again in January 2010, and again self-reported to be "clean" and sober. (R. 369). The attending physician Joshua Frank, M.D., noted that Plaintiff's mood was good and that she had no suicidal ideations. (R. 370-71). Dr. Frank diagnosed her with mood disorder and alcohol dependence and also assessed her with a GAF score of 55, which indicates moderate limitations or symptoms. (Id.).

After reviewing the record medical evidence and also allowing Plaintiff to submit additional medical evidence, the ALJ engaged Stuart Gitlow, M.D., a board-certified physician in general medicine, addiction and forensic psychiatry to perform an independent medical examination. (R. 13). On May 30, 2010, Dr. Gitlow responded to interrogatories, in which he determined that "there is no objective evidence of dysfunction in the absence of ongoing alcohol use." (R. 13, 461-62). He also found that Plaintiff's bereavement following the death of her mother "is complicated and lasts longer than typical (12 months) due to the ongoing use of high volumes of alcohol." (R. 461). Dr. Gitlow concluded that there is "no evidence whatsoever to support a claim of permanent impairment, particularly given [Plaintiff's] good response to the combination of sobriety and her current treatment regimen."

(R. 461-462).

After Dr. Gitlow's report was proffered to Miller's representative, she requested a supplemental hearing which was held on July 30, 2010. Three days before the hearing, on July 27, 2010, Plaintiff submitted as additional evidence a three-sentence letter from Dr. Bernaki, which stated in its entirety:

Sandra Miller has been a patient of our practice for many years. Based on our evaluations as well as evaluations by other physicians, we agree that Sandra would still be disabled even if she stopped using alcohol. Please contact our office if you would like any further information.

(R. 473). Dr. Bernaki did not provide any explanation to support his opinion, nor did he identify the "other physicians" referenced in the letter. (R. 473). Dr. Bernaki also provided an undated public welfare form on which he checked a box indicating that Miller is permanently disabled due to depression, alcoholism and bipolar disorder. (R. 360).

B. Procedural History

Plaintiff initially filed an application for SSI/DIB on December 19, 2008, in which she claimed total disability since April 24, 2008. (R. 13). A video hearing was held on January 29, 2010 before Administrative Law Judge Rosanne M. Dummer ("ALJ"). (R. 13). Miller was represented by counsel and testified at the hearing. Beth Kopar, a vocational expert, also testified. (R. 13).

Before rendering a decision, the ALJ allowed the administrative record to be held open for Plaintiff to submit additional evidence, which was later received and added to the record. (R. 13). Upon review of the record and testimony from the hearing, the ALJ referred the objective medical evidence by query to medical expert Stuart Gitlow, M.D., M.P.H., who provided a response to the interrogatories on May 30, 2010. (R. 13). Upon receipt of Dr. Gitlow's responses, Miller requested a supplemental hearing and also provided additional documentation, including Dr. Bernaki's July 2010 letter. (R. 13, 473). A second video hearing was thereafter held on July 30, 2010, at which Plaintiff's attorney again submitted additional documentation, including records from WPIC. (R. 13).

On August 2, 2010, the ALJ rendered an unfavorable decision to Plaintiff. (R. 13-25). In reaching her conclusion, the ALJ stated that "the Plaintiff is under a disability, but that a substance use disorder is a contributing factor material to the determination of disability." (R. 14). The ALJ's decision became the final decision of the Commissioner on August 16, 2010, ...


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