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Harper v. Colvin

United States District Court, W.D. Pennsylvania

March 27, 2014



TERRENCE F. McVERRY, District Judge.

I. Introduction

Plaintiff, Gina May Harper, 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

Plaintiff was born on May 21, 1977. (R. 42). She graduated from high school and thereafter received training to become a certified nursing assistant ("CNA"). (R. 42-43). She has past relevant work experience as a fast food worker (light, unskilled work); bartender (light, semi-skilled work); van driver (medium, semi-skilled work); and CNA (medium, semi-skilled work).

Plaintiff alleges disability as of October 27, 2009, due to major depression, post-traumatic stress disorder ("PTSD") from a van accident in which Plaintiff was involved when she was five years old; anxiety; and lower back pain radiating down her legs. She has not engaged in substantial gainful work activity since her alleged onset date.

1. Physical Impairments

Plaintiff has a history of chronic pain in her hips, shoulders, and legs. Dylan Deatrich, M.D., [1] served as Plaintiff's primary care physician from January 2009 to November 2010. (R. 284-339, 368-93, 486-519). Plaintiff began seeing Dr. Deatrich on January 26, 2009, at which time she complained of lower back pain and right shoulder pain, which had been present for years. (R. 321). She also reported occasional pain radiating into her hips and down the back of her legs. (R. 321). Dr. Deatrich recommended physical therapy, ordered x-rays, and prescribed Ultram and Lodine to manage Plaintiff's pain. (R. 322). The x-rays were performed a few days later and were unremarkable. Nevertheless, on January 30, Dr. Deatrich prescribed Plaintiff with Vicodin for use only with severe pain. (R. 319).

Thereafter, Plaintiff received in-office care from Dr. Deatrich only a few times, but did phone into the office several times to request refills for her pain medications. (R. 296, 298-99, 375, 378-79, 382-83, 497-502). She also cancelled or missed several appointments. (R. 295, 297, 377, 503). During her April 23, 2010, visit, Plaintiff complained-for the first time-of depression and anxiety and indicated that she was currently seeing a therapist. (R. 380). Consistent with those complaints, Dr. Deatrich completed a Pennsylvania Department of Welfare Medical Assessment Form in which he indicated that Plaintiff was temporarily disabled due to depression with anxiety. (R. 391).

On November 4, 2010, Plaintiff was informed that she would be discharged from Dr. Deatrich's office for violating her drug contract because a drug screening had returned negative for Vicodin but positive for cocaine and marijuana. (R. 492-93, 513). Plaintiff later told her psychiatrist, Melissa Albert, M.D., that she was upset that Dr. Deatrich considered her to be a drug user and that she believed she tested positive for illicit substances because she had been unwittingly drugged at a Halloween party. (R. 690).

In February 2011, Plaintiff established care with Amy Diamond, M.D., [2] from whom she received treatment until October 2011. (R. 610-57). At a handful of office visits during this six-month period, Dr. Diamond recorded normal physical examination findings and noted that Plaintiff appeared alert and oriented. (R. 612-13, 624-35, 640-41, 646, 654-55). She diagnosed Plaintiff with migraine headaches, gastritis, myalgia, fatigue, anxiety, leg cramps, PTSD, depression, and chronic sinusitis. (R. 611). She also indicated at times that Plaintiff was reluctant to speak and was tearful. (R. 627). In September 2011, Plaintiff began seeing a pain management specialist at the request of Dr. Diamond. (R. 50).

In March 2011, Plaintiff underwent a lumbar spine MRI, which revealed multiple levels of degenerative disk disease with left paracentral disk protrusion causing moderate left neutral foraminal stenosis and mild spinal stenosis. (R. 615-16). A brain MRI revealed mastoid sinus disease, mild prominence of the adenoid tissue, and no acute intercranial abnormality or enhancing mass lesion. (R. 617-18). Furthermore, the results of an abdominal ultrasound were unremarkable. (R. 619-20). In June 2011, Plaintiff underwent EMG studies which showed no evidence of radiculopathy, plexopathy, neuropathy, or myopathy. (R. 622-23). A sleep study revealed mild obstructive sleep apnea. (R. 633-39).

2. Mental Impairments

Plaintiff sought mental health treatment from Cornerstone Care in January 2010, with complaints of feeling overwhelmed, depressed, and helpless.[3] (R. 276). On January 12, 2010, she underwent an intake/assessment interview with Susan Swala, LSCW, who diagnosed Plaintiff with major depressive disorder, borderline intellectual functioning, and borderline personality disorder and assessed a current GAF score of 50. (R. 278). Thereafter, Plaintiff attended monthly counseling sessions at Cornerstone with Swala. (R. 275-283).

On May 25, 2010, Plaintiff underwent her first psychiatric evaluation with Dr. Albert. (R. 701). Plaintiff reported significant anxiety and mood symptoms. (R. 701). Dr. Albert noted that Plaintiff appeared mildly disheveled and restless. (R. 704). Furthermore, she spoke in a soft tone and displayed a sad mood and anxious affect. (R. 704). Dr. Albert considered Plaintiff's attention intact and indicated that her intellectual capacity appeared average, as she displayed fair judgment and insight. (R. 704). Dr. Albert diagnosed Plaintiff with social phobia, generalized anxiety disorder, and major depressive disorder, recurrent severe with a personality disorder. (R. 278). She also assessed a GAF of 52, started Plaintiff on several medications, and requested neuropsychological testing for assessment of Plaintiff's cognitive abilities.

On June 16-21, 2010, Plaintiff underwent neuropsychological testing with Lisa Lewis, Ph.D. (R. 658-725). Plaintiff scored a full-scale IQ of 59 on the WAIS-IV. (R. 678). On the Repeatable Battery for the Assessment of Neuropsychological Status, Dr. Lewis reported that Plaintiff "also attained extremely low scores, consistent with a diagnosis of MR." (R. 679). Dr. Lewis noted in her findings that Plaintiff was patient and cooperative. (R. 678). Moreover, according to Dr. Lewis, Plaintiff appeared to give every task good effort. (R. 678).

Consistent with the results of Dr. Lewis' testing, at subsequent office visits, Dr. Alberts' diagnosis shifted from borderline intellectual functioning to mild mental retardation. At the same time, Dr. Albert reported that Plaintiff was well-groomed, maintained good eye contact, and was cooperative. Her motor activity was typically calm, her mood was okay to irritable, and she had an irritable or anxious affect. She also displayed normal goal-directed thinking, and mildly impaired to sound judgment/insight. Moreover, throughout this time, Plaintiff's GAF score was typically between 52 and 60, with a high of 63. On November 8, 2011, Dr. Albert completed a mental impairment questionnaire in which she indicated that Plaintiff had moderate restrictions of activities of daily living; extreme difficulties in maintaining social functioning; and extreme difficulties in maintaining concentration, persistence or pace. She also indicated that Plaintiff would experience four or more episodes of decompensation within a 12-month period, each of which would last at least two weeks and that Plaintiff's impairments would cause her to be absent from work four or more days per month. (R. 676-77).

B. Procedural History

Plaintiff protectively filed an application for DIB/SSI on December 30, 2009. The claims were initially denied on August 27, 2010. (R. 11). Plaintiff filed a written request for a hearing on October 1, 2010, and a hearing was held on November 16, 2011 before Administrative Law Judge James Bukes ("ALJ"). (R. 11). Plaintiff was represented by a non-attorney representative and testified at the hearing. (R. 11). Alina Kurtanich, an impartial vocational expert ("VE"), also testified. (R. 11).

On December 20, 2011, the ALJ issued a decision in which he denied Plaintiff benefits. The ALJ's decision became the final decision of the Commissioner on January 24, 2012, when the Appeals Council denied Plaintiff's request for review.

Plaintiff filed her Complaint in this Court on March 27, 2013, which seeks judicial review of the ALJ's decision. Defendant filed an Answer on June 14, 2013. The parties then filed cross-motions for summary judgment, ...

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