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Keith v. Colvin

United States District Court, Third Circuit

April 26, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.




Kristal Gayle Keith ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 1383(c)(3), 405(g), seeking judicial review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying her application for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f ("Act"). The record has been developed at the administrative level, and the parties have brought cross-motions for summary judgment. For the following reasons, the Court finds that the decision of the Administrative Law Judge ("ALJ") is supported by substantial evidence. Accordingly, Plaintiff's Motion for Summary Judgment[1] (Docket No. 10) is denied, and Defendant's Motion for Summary Judgment (Docket No. 12) is granted.


Plaintiff applied for SSI on July 21, 2009[2], alleging both physical and mental impairments due to ADHD, with a disability onset date of February 1, 2007. (R. at 142, 199).[3] Plaintiff subsequently amended her alleged onset date, given the advice of counsel, to July 10, 2009. (R. at 235). Following the initial denial of her application on October 28, 2009 (R. at 98-102), a hearing was held before an ALJ on November 30, 2010 at which Plaintiff and a vocational expert appeared and testified (R. at 35-80). The ALJ denied SSI benefits to Plaintiff on January 3, 2011. (R. at 6-26). Thereafter, Plaintiff filed a request for review by the Appeals Council. (R. at 4-5). The Appeals Council denied Plaintiff's request on June 29, 2012, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 1-6). Having exhausted all administrative remedies, Plaintiff filed this petition for judicial review on August 23, 2012. (Docket No. 3) Defendant filed an Answer on December 20, 2012. (Docket No. 6). Subsequently, Plaintiff moved for judgment on the pleadings with a supporting brief on January 17, 2013. (Docket Nos. 10-11). Defendant filed a motion for summary judgment and a brief in support on February 7, 2013. (Docket Nos. 12; 13).

A. General Background

Plaintiff was born on February 16, 1989 and was twenty-one years of age at the time of her hearing.[4] (R. at 94). She resided with her fiance, her fiance's father, and her son in West Brownsville, Pennsylvania, in a duplex next to which her fiance's grandmother also resided. (R. at 46-68). Prior to her July 21, 2009 filing, Plaintiff had applied successfully for disability SSI in 2006, when she was a child, but these benefits were discontinued in May 2007. (R. at 135-141, 9). She had been unemployed for nearly two years by the time of the hearing. (R. at 53).

Plaintiff has completed ninth grade, but does not have a high school degree or a GED. (R. at 49-50). From first grade until completing the ninth grade, she was a special education student. (R. at 50). Since leaving high school, she has performed a number of unskilled, short-term and temporary jobs, all of which were in food preparation. (R. at 53, 218-226). Plaintiff's work history concluded in 2008 after a brief stint as a breakfast cook in a factory. (R. at 218). Her daily activities primarily consisted of watching television, interacting with her family, including her son, and taking walks. (R. at 61-63, 214).

B. Medical History

Plaintiff's medical history includes major depressive disorder, borderline intellectual functioning, personality disorder, attention-deficit hyperactivity disorder ("ADHD"), lumbago[5], supra patellar malalignment[6] of the left knee with a subluxing patella, [7] and obesity. (R. at 11). In her Disability Report, Plaintiff claimed that ADHD limits her ability to work because it makes her a slow learner, unable to count money, and unable to fill out job applications without help. (R. at 199). She wears glasses and contact lenses. (R. at 166). At the time of her hearing, she smoked about half of a pack of cigarettes per day. (R. at 49).

1. Mental Impairments

Although Plaintiff was not a child during the period at issue, school records are included because intellectual functioning and adaptive functioning before age 22 are at issue in this case. (R. 304-319). In 2004, when Plaintiff was in 8th grade, she received a Pennsylvania Parent Report, which indicated that she was "Below Basic" overall. (R. at 308). In 2005, Mars Area School District determined that Plaintiff had learning disabilities in basic reading and math reasoning. (R. at 446).

Dr. Randon C. Simmons conducted a psychiatric evaluation of Plaintiff on May 4, 2005 at the Irene Stacy Community Mental Health Center. (R. at 248). Plaintiff told Dr. Simmons that she was experiencing difficulty with friends, conflicts with her grandmother, trouble with her grades in high school, and an inability to focus. ( Id. ) Dr. Simmons diagnosed Plaintiff with depressive disorder, ADHD, and found that her psychological stressors included her lack of a relationship with her mother, and her grandmother's health problems. (R. at 249). He also noted that Plaintiff's teachers seemed to have little sympathy for her condition, and hoped that an outpatient therapist would be able to intervene in that area. (R. at 250). Plaintiff returned to Dr. Simmons periodically between June 23, 2005 and March 9, 2006. (R. 251-54). Dr. Simmons noted that she was doing better with medication, though it is unclear what the medication was. ( Id. )

A teacher questionnaire was completed by her school counselor Tina Bigante, as well as special education teachers Mike Deldrum and Michele Goodworth on May 2, 2006. (R. at 191-197). They had known Plaintiff for two years and found a "very serious problem" in understanding school and content vocabulary, reading and comprehending written material, comprehending and doing math problems, providing organized oral explanations and adequate descriptions, recalling and applying previously learned material, and applying problem solving skills in class discussions. (R. at 191). They reported "a serious problem" in understanding and participating in class discussions, expressing ideas in written form, and learning new material. ( Id. ) She had "a very serious problem" working without distracting herself or others and working at a reasonable pace or finishing on time. (R. at 192). There was "a serious problem" carrying out multi-step instructions, completing class/homework assignments, and completing work accurately without careless mistakes. ( Id. ) She also had "a very serious problem" identifying and appropriately asserting emotional needs, responding appropriately to changes in her own mood, and in using appropriate coping skills to meet daily demands of the school environment. (R. at 195).

On April 11, 2007, Plaintiff underwent psychological testing with Vocational Psychological Services, administered by Drs. Martin Meyer, Ph.D. and Julie Uran Ph.D. (R. at 326). Plaintiff took the WAIS-III exam, [8] which yielded results of 69 (verbal); 76 (performance); and 79 (full scale). (R. at 327). The doctors observed that Plaintiff's ADHD caused her to be inattentive and that she suffered from cognitive delay, which affected her ability to learn. (R. at 329). The doctors put her at "fourth grade levels of scholastic achievement, " but noted that one of her strengths was that she was "motivated toward employment." ( Id. ) Their final diagnosis was that Plaintiff suffered from Major Depressive Disorder (Severe without Psychotic Features), ADHD, and Mild Mental Retardation. (R. at 330).

On October 18, 2009, Dr. David Prybock, Ph.D. administered to Plaintiff a clinical psychological examination for the Bureau of Disability Determination. (R. at 389-395). She told Dr. Prybock that she has depression, and that she has two to three crying spells during the week, during which she feels helpless and hopeless. (R. at 389). She also explained that she has sudden mood swings and can be irritable without warning. ( Id. ) She claimed that she was experiencing decreased motivation, a loss of interest in activities, a fluctuating appetite, and difficulty sleeping. ( Id. ) Plaintiff advised Dr. Prybock that she suffered from a learning disability that "makes it hard for [her] to think and learn quickly." ( Id. ) She claimed to drink only on occasion, though admitted first smoking marijuana at age 15. ( Id. ) She used cannabis "once or twice a day, " but claimed not to have smoked for two years at the time of the evaluation. ( Id. ) Plaintiff additionally told Dr. Prybock that she experienced auditory hallucinations briefly after her grandmother died. (R. at 391). Plaintiff claimed to have heard her grandmother calling her name. ( Id. )

Dr. Prybock found that Plaintiff had an average ability to think in the abstract, had a poor general fund of information, and was impaired in her ability to concentrate. (R. at 391-92). He then diagnosed her with Major Depressive Disorder, Recurrent, Severe, Without Psychotic Features; Cannabis Abuse by History; Rule Out Learning Disorder; and Personality Disorder Not Otherwise Specified. (R. at 392). Dr. Prybock classified her prognosis as "fair." (R. at 393).

2. Back Problems

Plaintiff has had intermittent back problems throughout her life. Dr. Andrew Fackler ordered her to undergo an x-ray of her back on February 10, 2005, which showed no fracture or malalignment in the thoracic spine. (R. at 276). However, the x-ray did reveal a mild narrowing at S1-S2. (R. at 275). Dr. Sarah Gilmour ordered Plaintiff to undergo a scoliosis study on April 14, 2005, which showed mild thoracolumbar S-shaped scoliosis. (R. at 274).

Dr. Richard D. Bruehlman saw Plaintiff at Renaissance Family Practice in Gibsonia on April 27, 2005. (R. at 246). She reported upper back discomfort that worsened with certain activities. ( Id. ) He recommended physical therapy, which Plaintiff and her mother agreed to undergo. ( Id. ) Dr. Bruehlman told Plaintiff to see him again if she felt no improvement after one month, at which point he would refer her to an orthopedic spine doctor. ( Id. )

Dr. James B. Minshull ordered Plaintiff to undergo a pelvic CT scan for urolithiasis[9] on August 11, 2005. (R. at 272). The scan showed a 2-mm mildly obstructing right UPJ calculus[10]. ( Id. )

On September 15, 2005, when Plaintiff was 16, she presented to Dr. Matthew D. Goldinger following an episode of significant right back pain. (R. at 264). She had an unenhanced CT scan, which showed a 2 millimeter right UPJ calcification. ( Id. ) Dr. Goldinger recommended that Plaintiff undergo a cysto[11] with retrograde pyelogram, [12] right uteroscopy[13] with possible stone extraction and possible stent placement. (R. at 265). Plaintiff accepted the recommendation and underwent the surgery on October 7, 2005. ( Id. ) The procedure was performed by Dr. Mark Musmanno, M.D., and it resolved Plaintiff's flank pain but did not uncover any ureteral stones. (R. at 263).

Dr. Musmanno ordered a RT uteral pelvic junction stone on CT on August 18, 2005. (R. 270). Eight days later, Dr. Mary Diana Davis ordered Plaintiff to undergo a CR of the abdomen and pelvis to rule out a kidney stone. (R. at 268). On review, there was no evidence for left renal stones or ureteral stone. ( Id. ). Then, on September 15, Dr. Mark Musmanno ordered an x-ray of Plaintiff's abdomen on September 15. It was read as inconclusive but may have shown a left ureteral calculus. (R. at 267). Subsequently, Plaintiff underwent a right retrograde urogram[14]. (R. at 266).

Plaintiff was next seen by Dr. Stephanie A. Gill for a gynecology/contraceptive counseling exam at UPMC St. Margaret Family Health Centers in Lawrenceville on February 18, 2009. (R. at 363). Plaintiff had given birth six weeks earlier, and received counseling on, among other things, contraceptive options, smoking cessation, nutrition, and breast self-exams. (R. at 365). She returned to the Family Health Centers on March 17, 2009 to begin receiving Depo-Provera[15], and Medroxyprogesterone[16] for birth control. (R. at 372). Then, Plaintiff underwent a colposcopy on March 23, 2009. (R. at 355). She returned to the Family Health Centers on April 14, 2009 for the results of the colposcopy and was diagnosed with Cin-III.[17] (R. at 367). As a result, Dr. Gill ordered her to have a LEEP, [18] which Plaintiff was cleared for physically by Dr. Gill on June 10, 2009. (R. at 335).

On August 5, 2010, Plaintiff visited Dr. Pam Weakland, to whom she transferred for her Depo Provera injections. (R. at 472). Dr. Weakland noted that Plaintiff complained of lower back pain for many years. ( Id. ) Accordingly, Dr. Weakland ordered an x-ray and advised her that if the results of the x-ray did not preclude it, Plaintiff should embark on enter physical therapy. (R. at 474). The x-ray showed a normal lumbar spine series, so Plaintiff returned to Dr. Weakland on October 1 and agreed to begin physical therapy. (R. at 465-468).

Plaintiff presented to the Uniontown Hospital emergency room, complaining of whitish discharge, back pain, and lower abdominal pain on both sides on October 10, 2010. (R. at 454). She was seen by Dr. Cataldo F. Corrado, who diagnosed her with pelvic inflammatory disease, [19] prescribed doxycycline[20] and Flagyl[21], and then ordered her to follow up with her gynecologist. (R. at 455).

Plaintiff returned to Dr. Weakland on November 8, 2010, and he noted that Plaintiff had been to the ER, been diagnosed with pelvic inflammatory disease and given antibiotics. (R. at 450). Dr. Weakland also noted that Plaintiff had taken the antibiotics and her pain was "not as bad as before." ( Id. )

Plaintiff attended physical therapy sessions under the supervision of Dr. Marvin McGowan, as ordered by Dr. Weakland, at Orthopedic & Sports Physical Therapy Associates, Inc. in Brownsville, PA beginning on October 13, 2010. (R. at 482). On her first visit, Plaintiff told Dr. McGowan that she had constant pain and was unable to walk, lift her son, or sleep through the night. (R. at 482). Dr. McGowan determined that she had severe pain, moderate range of motion deficits, and mild strength deficits. ( Id. ) He reported that her rehabilitation potential was good, and that she should engage in physical therapy twice a week for four weeks. ( Id. ) Plaintiff attended each of her physical therapy sessions following this visit. (R. at 476-479). She ...

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