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Piper v. Astrue

United States District Court, Western District of Pennsylvania

March 20, 2014

STEPHANI DAWN PIPER, on behalf of B.M.P., Plaintiff,
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.


David Stewart Cercone United States District Judge


Stephani Dawn Piper (“Plaintiff”) brings this action on behalf of her minor daughter (“B.M.P.”) pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security (“Defendant” or “Commissioner”) denying B.M.P.’s application for supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381–1383f (the “Act”). This matter is before the court on cross motions for summary judgment. (ECF Nos. 11, 14). The record was developed at the administrative level. For the following reasons, Plaintiff’s Motion for Summary Judgment will be granted to the extent it seeks a remand for further proceedings consistent with this opinion and Defendant's Motion for Summary Judgment will be denied.


B.M.P. was born on April 4, 2001 and was 10 years of age at the time of the hearing. B.M.P. suffers from and has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Gastroesophageal Reflux Disease (“GERD”), and Cyclothymic Disorder (“CD”). (R. at 16-25).[1] In addition to these three impairments, she also had been diagnosed with a myriad of other ailments including anxiety disorder, benign heart murmur, chronic motor or vocal tic disorder, duodentitis, enuresis, esophagitis, fatigue, insomnia, lactose intolerance, night terrors, oppositional defiance disorder, and somnambulism. (R. at 16-25).

A. Medical Records

B.M.P. was diagnosed with ADHD on September 26, 2007 by Sara C. Hamel, MD of Children’s Hospital of Pittsburgh. B.M.P. was referred to Dr. Hamel by her primary care physician (PCP), James P. Mortimer, M.D., following Plaintiff’s receiving a call from B.M.P.’s kindergarten teacher about her difficulties with focusing and paying attention in class. (R. at 148-50, 191). In her evaluation notes, Dr. Hamel highlighted B.M.P.’s difficulties in paying attention to tasks, finishing class work on time and staying focused. (R. at 149). Dr. Hamel also had B.M.P. complete a Kaufman Survey of Early Academic and Language Skills test (K-SEALS), wherein B.M.P. scored moderately for signs of ADHD, and had Plaintiff complete a Connor’s Parent Rating Scale, wherein B.M.P. scored very high for signs of ADHD. (R. at 149). Taking into account this information, Dr. Hamel noted that while B.M.P. did not exhibit any major symptoms of ADHD, B.M.P. did display nervousness, irritability, and her behavior was consistent with a diagnosis of an ADHD combined subtype. (R. at 149). Dr. Hamel prescribed 18mg Concerta and recommended medication management along with behavioral management at school in the form of a 504 Plan. (R. at 149).

During an October 18, 2007 medication recheck, Dr. Mortimer noted B.M.P.’s ADHD symptoms decreased with medication, but increased her dosage of Concerta from 18mg to 27mg because he suspected she “may be metabolizing the medication very quickly.” (R. at 186). In a subsequent June 11, 2008 medication recheck, Plaintiff reported B.M.P. did well on medication and her grades had improved from the Cs and Ds range to the As and Bs range. (R. at 186). Dr. Mortimer refilled B.M.P.’s prescription of Concerta at 36mg. (R. at 186).[2]

Dr. Mortimer increased B.M.P.’s Concerta prescription again on February 11, 2009, from 34mg to 54mg, after Plaintiff reported B.M.P. still could not stay focused in class. (R. at 178). Dr. Mortimer also prescribed Bactroban to treat “scabbed postules on left hand and forearm.” (R. at 178). On August 27, 2009, at B.M.P.’s 8-year physical, Dr. Mortimer noted that B.M.P. did well in school, had positive teacher feedback, enjoyed reading, and was usually well regarded by peers. (R. at 174-78). Dr. Mortimer refilled B.M.P.’s Concerta at 54mg and added a booster dosage of 10mg of Ritalin to help with afternoon homework. (R. at 171-74).

In the 2007 to 2009 timeframe B.M.P. also was diagnosed and treated for several other medical conditions. On March 27, 2008, B.M.P. was seen by Prapti M. Kanani, M.D. for evaluation of a potential heart murmur. (R. at 182-84). B.M.P. was diagnosed with an “innocent heart murmur, ” with no exercise activity restrictions or cardiology follow-ups required. (R. at 182-84).

During an August 11, 2009 visit to Dr. Mortimer, B.M.P. complained of constant abdominal pain that had lasted several weeks. (R. at 176-77). Dr. Mortimer noted that while B.M.P.’s pain was alleviated by “tums, ” B.M.P. had a strong family history of GERD. (R. at 177). Dr. Mortimer prescribed Omeprazole 20mg for this condition. (R. at 177). In a follow-up evaluation at Children’s Hospital on April 1, 2010, Amy Williams, LPN, discussed B.M.P.’s symptoms of GERD in the form of vomiting, abdominal pain, acid reflux and difficulty maintaining sleep throughout the night. (R. at 151-60). Although B.M.P.’s vomiting seemed to be well controlled by 20mg of Prilosec which had been started 6 weeks prior, Nurse Williams recommended B.M.P. undergo a full blood-work panel and return for a check-up in four months. (R. at 155). Nurse Williams’ report was signed by Ram Chandra, M.D. (R. at 156).

On May 17, 2010, B.M.P. presented to Dr. Mortimer with complaints of urinating herself constantly for a period of one week and unspecified constipation. (R. at 164). Dr. Mortimer recommended using Miralax, an over the counter laxative, and directed Plaintiff to contact him if B.M.P.’s conditions did not improve in 48 hours. (R. at 164).

Two weeks after B.M.P.’s most recent visit to Dr. Mortimer, Plaintiff filed an application with the Commissioner for SSI. (R. at 93-99). She supplemented that application with a function report. (R. at 116-25). In that report Plaintiff described B.M.P.’s difficulties by answering “no” to the following “does your child” inquiries: deliver phone messages, explain why he or she did something, use conditional sentences, read capital and small letters of the alphabet, add and subtract numbers over 10, understand money and make correct change, tell time, get along with you or other adults, get along with teachers, play team sports, pick up and put away toys, hang up clothes, perform household chores, accept criticism and correction, and finish things he or she starts. (R. at 119-24).

On June 21, 2010, B.M.P.’s application was reviewed by Edward Zuckerman, Ph.D., and Rama Kumar, M.D., on behalf of the Administration. (R. at 235-40). In finding B.M.P. suffered “marked” limitations in the domain of “Attending and Completing Tasks, ” the review team reasoned “[s]chool has not provided records but information is available in records of Dr. Mortimer and CHP evaluation in 9/07. She has responded well to meds and grades are at least adequate. She has a Title 15 agreement but no IEP.” (R. at 237). In finding B.M.P. suffered “less than marked” limitations in the domain of “Health and Physical Well-Being, ” the review team proffered the following:

9 year old female was diagnosed with Reflux Esophagitis, GERD, gastritis, Functional heart murmur, chronic abdominal pain. 3-08=Heart= grade 2-6 systolic murmur at the left sterna border. Lungs=clear, Abdomen=soft, NT, ND, no masses. Neurologically and developmentally appropriate for age. 4-10=EGD= Gastritis, Duodenitis, Esophagitis.

(R. at 238). The review team found “no limitation” in the four other domains. (R. at 237-38).

On August 23, 2010, B.M.P. reported to Family Counseling Center of Armstrong County (“Family Counseling”) for an intake evaluation. (R. at 280-83). In providing a historic overview, Plaintiff noted B.M.P.’s difficulty sleeping stemming from night-terrors, difficulty staying on task and doing homework, general poor grades, and physical tics such as skin picking at scabs. (R. at 280-83). Plaintiff further described a long family history of behavior problems with all of her children. (R. at 280-83). She also noted that her husband was disabled stemming from a serious car accident leading to open heart surgery. (R. at 281). She described B.M.P. as being her “daddy’s baby, ” and noted that the B.M.P. was often worried about her father’s health. (R. 281). Regarding B.M.P.’s ADHD treatment, she emphasized that these had only been minimally successful with medication because it only provided “short term minimal positive effects.” (R. at 280, 282).

B.M.P. received an initial psychiatric evaluation at Family Counseling on November 10, 2010 by Mahendra L. Patil, M.D. (R. at 285-89). The evaluation noted that B.M.P. was referred to the agency by Dr. Mortimer due to only a “partial response” to her ADHD medication regimen. (R. at 285). Evaluating her overall limitations, Dr. Patil assigned B.M.P. a GAF score of 65.[3] (R. at 288). Dr. Patil’s recommendation was to add Strattera 10mg with an increase to 18mg in two weeks if B.M.P.’s response was limited. She also prescribed 3mg melatonin before bed to counter B.M.P.’s difficulty sleeping. (R. at 288).

B.M.P. was seen on March 3, 2011 for a GERD follow-up appointment with Dr. Chandra. (R. at 269-273). Dr. Chandra described B.M.P. as “doing well if on meds, ” with instructions to continue Prilosec twice daily and 30 minutes prior to meals, and to continue a low-fat anti-reflux and lactose restricted diet. (R. at 269-73).

In a March 16, 2011 medicine management visit at Family Counseling, Plaintiff complained of B.M.P.’s low grades, constant distraction, excessive talking, and significant difficulty falling asleep. (R. at 290-93). Despite adding Strattera Plaintiff reported that B.M.P. continued to experience ADHD side-effects at home and school. (R. at 290-93). Dr. Patil increased B.M.P.’s Strattera to 18mg; added Focalin 10mg, Focalin XR 20mg, and Remeron 15mg for ADHD; and discontinued Concerta, Ritalin and Melatonin “due to [only] a partial response at the maximum dose.” (R. at 292). Dr. Patil again assessed B.M.P. with a GAF score of 65. (R. at 292).

On April 15, 2011, B.M.P. was seen at UPMC Western Psychiatric Institute and Clinic (“WPIC”) by Christine Hoover, MSN for a psychiatric evaluation. (R. at 312-23). B.M.P. had been referred to WPIC by her father’s counselor for evaluation of a possible bi-polar disorder. (R. at 312). Plaintiff described to Nurse Hoover B.M.P.’s pro-longed mood swings, which lasted from one and a half to two and a half weeks on average. (R. at 312). She also noted B.M.P.’s hyperactivity, impulsiveness, bedwetting, recklessness, silliness, fearfulness and anxiety. (R. at 312-13). Based upon these and other behaviors, Nurse Hoover opined that B.M.P. met the criteria for Cyclothymic Disorder, ADHD, Anxiety Disorder, Enuresis, and Chronic Motor or Vocal tic Disorder, and assigned a GAF score of 55.[4] (R. at 321). She did not believe, however, that B.M.P.’s hypomania and depression were severe or long enough to diagnose her with BiPolar Disorder. (R. at 321). To assess B.M.P.’s baseline, Nurse Hoover gave instructions to discontinue all medications which targeted ADHD and for B.M.P. and her parents to assess medication efficacy and complete mood diaries. (R. at 322-23). This plan was approved by Boris Birmaher, MD. (R. at 324-27).

During a May 6, 2011 treatment plan review at Family Counseling, Plaintiff reported that B.M.P. had been diagnosed with Bi-Polar Disorder by WPIC. (R. at 305). She indicated there had been significant changes in B.M.P.’s mood, behavior and focus after B.M.P. had been taken off stimulant medications. Plaintiff noted that B.M.P. quit picking her skin, she was more outgoing and assertive with peers, and she did not have any temper tantrums. (R. at 305). Despite these apparent improvements, B.M.P. was still experiencing “manic moods” lasting approximately 2 weeks at a time. Plaintiff indicated she ...

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