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Colussy v. Colvin

United States District Court, W.D. Pennsylvania

May 2, 2014

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


TERRENCE F. McVERRY, District Judge.


Jennifer L. Colussy ("Plaintiff") brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of the final determination of the Commissioner of Social Security ("Defendant") or ("Commissioner") denying her application of Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act 42 U.S.C. §§ 401-433, 1381-1383(f) ("Act"). This matter comes before the Court on cross motions for summary judgment. (Docket Nos. [12], [16]). The record has been developed at the administrative level. For the following reasons, Plaintiff's Motion for Summary Judgment [12] is granted, in part, and Defendant's Motion for Summary Judgment [16] is denied.


Plaintiff previously applied for DIB and SSI on August 31, 2005. (R. at 13). That application was denied in a decision issued by Administrative Law Judge (ALJ) Malvin Eisenberg on October 23, 2006. ( Id. ). Then, Plaintiff reapplied for DIB and SSI February 8, 2010, alleging a disability onset of December 31, 2004. ( Id. ). She claimed disability due to seizures, hepatitis C, right shoulder problems, memory loss and thought processing problems. (R. at 206). Both the claims were initially denied on July 20, 2010, and Plaintiff filed a written request for a hearing on September 9, 2010. (R. at 81-104, 105-06). A hearing was subsequently held on December 22, 2011. (R. at 13). Plaintiff appeared with her mother, Sandra Taylor, and her attorney, Suzanna J. Hayden. (R. at 29-74). Vocational expert Samuel E. Edelmann was also present and testified. ( Id. ).

During the course of this hearing, Plaintiff amended her alleged disability onset date to October 24, 2007 due to her prior application being denied on October 23, 2007. (R. at 32-33). In a decision dated February 22, 2012, ALJ Michael F. Colligan considered Plaintiff's age, education, work experience, and residual functional capacity ("RFC") to determine that Plaintiff is "not disabled" under the Act. (R. at 24). Plaintiff requested a Review of Hearing Decision before the SSA Appeals Council. (R. at 8-9). This request was also denied, making the ALJ's decision the final decision of the Commissioner. (R. at 1-7).

Plaintiff subsequently filed a Complaint with this Court on September 9, 2013, (Docket No. [3]), followed by a Motion for Summary Judgment and Supporting Brief on January 13, 2014. (Docket Nos. [12], [13]). The Commissioner timely answered with a Cross-Motion for Summary Judgment and Brief on February 28, 2014. (Docket Nos. [16], [17]). Accordingly, the matter has been fully briefed and is ready for disposition.


A. General Background

Plaintiff was born on July 8, 1967 and was forty-four (44) years old at the time of her administrative hearing. (R. at 35). Plaintiff is divorced and not currently married. (R. at 36, 404). She has twin sons, who were born in 1990 and currently live with their father. (R. at 304, 404). Plaintiff lives alone in a house that is owned by her parents. (R. at 36). She graduated from high school, but has not received any additional education. ( Id. ). Plaintiff has worked at her mother's business, Forklift Sales and Repair, since her alleged disability onset date of October 24, 2007. (R. at 37). She works just a couple hours per day, writing a few invoices and checks. ( Id. ).

B. Medical History

1. Seizure Disorder

Plaintiff reported having seizures since she was 13 years old. (R. at 38, 546). Barry R. Austin, D.O. is the Plaintiff's primary care physician. (R. at 319). Mark E. Hospodar, M.D., a neurologist, began treating Plaintiff's seizure disorder in October 2006 and saw her several times per year through 2011.[1] (R. at 319-22, 546). As part of this treatment, Dr. Hospodar regularly monitored Plaintiff's medications, including by checking her blood levels of Depakote[2] and Dilantin.[3] Plaintiff has reported forgetting to take her medications sometimes. (R. at 545-46). Dr. Hospodar has also made periodic adjustments to her prescriptions upon determining that the levels of her medicines were too low. ( Id. ). Generally, Dr. Hospodar has noted that Plaintiff's seizures often are triggered by lack of sleep, stress, and menstrual cycle. ( Id. ).

In September 2007, Plaintiff was seen in an emergency department following a seizure. (R. at 332). At the time of this seizure, she was in a gas station, climbing onto the back of a motorcycle. ( Id. ). Plaintiff did not remember the seizure, and her treatment notes indicate that the seizure lasted about three to five minutes, followed by a twenty-minute period of decreased responsiveness, which gradually resolved. ( Id. ). Plaintiff said that she had not taken her medications the day before because her ex-boyfriend had used a gun to prevent her from getting the medications. ( Id. ). She further stated that she drank approximately six beers the night before, "which is typical for her." ( Id. ). In addition, Plaintiff reported occasional smoking and substance abuse, including crack cocaine. ( Id. ). Aside from low levels of Depakote and Dilantin, Plaintiff's physical and neurologic exams were normal. ( Id. ). She was administered Depakote and Dilantin and discharged home. ( Id. ).

Plaintiff reported increased menstrual problems to Hospodar in December 2007 and July 2008. (R. at 539, 541). Other than heavy menstrual cycles, the Plaintiff's physical exams were normal, and Dr. Hospodar reported that she was doing well on 1000 milligrams of Depakote twice a day and 200 milligrams of Dilantin twice a day. ( Id. ). In August 2008, Plaintiff underwent a hysterectomy. (R. at 309, 316-18).

In February 2009, Plaintiff reported to Dr. Hospodar that she had not experienced a seizure since July 2008. (R. at 340). Dr. Hospodar noted that her physical exam normal and that she was in "no distress." ( Id. ). A few days after this visit, Plaintiff went to the emergency room after another domestic abuse situation with her boyfriend. (R. at 346-48). A laceration to the right parietal region of Plaintiff's skull required five staples, and Plaintiff also complained of back and foot contusions. ( Id. ). Plaintiff was discharged with pain medication. ( Id. ). Plaintiff saw Dr. Austin the following month to have her staples removed. (R. at 352). During this visit, she reported no further seizures. ( Id. ).

Over the course of the next year, Dr. Hospodar's records indicate that Plaintiff experienced no grand mal seizures. (R. at 355, 357, 368). In November 2009, for example, Dr. Hospodar noted that Plaintiff had been seizure free. (R. at 355). Her mental and physical exams were normal, and she was maintained on her medications. ( Id. ). Similarly, Plaintiff reported no grand mal seizures again during her March 2, 2010 visit with Dr. Hospodar, but did report occasional "blank spell[s]." (R. at 357). Dr. Hospodar kept Plaintiff's medications at the same levels. ( Id. ). An EEG[4] of Plaintiff on March 14, 2010 was abnormal. (R. at 358). In May 2010, Dr. Hospodar found that Plaintiff was doing well other than reports of poor memory, and Plaintiff again reported no seizures since her last visit in March 2010. (R. at 368).

Dr. Hospodar saw Plaintiff on October 6, 2010, at which time Plaintiff complained of further "blackout spells" and feeling depressed. (R. at 456). He reviewed Plaintiff's EEG, noting that it showed sharp waves bilaterally. ( Id. ). Upon examination, he found Plaintiff to be "an anxious woman in no distress." ( Id. ). Her auditory comprehension was good and she was able to follow three-step commands. ( Id. ). Dr. Hospodar opined that her "blackout spells" episodes may be either stress related or complex partial seizures.[5] ( Id. ). Because Plaintiff had been on Dilantin for close to thirty years, Dr. Hospodar decided to taper her off the Dilantin and put her on Keppra.[6] ( Id. ).

Plaintiff was admitted to Ohio Valley General Hospital on October 27, 2010 after being found unconscious on the ground of a Giant Eagle parking lot. (R. at 464-65). Plaintiff did not clearly wake up for two to three days, and her drug screen was positive for opiates. ( Id. ). An EEG and a CT of the Plaintiff's head were performed, and the results of both tests were unremarkable. ( Id. ). She was diagnosed with a possible seizure or overdose, and was administered Depakote, Dilantin, and Keppra. (R. at 471). During this hospitalization, the attending physician, Dr. Amita Mital, increased Plaintiff's Depakote dose to 500 milligrams twice daily, increased her Dilantin dose to 200 milligrams twice daily, and maintained her on 500 milligrams of Keppra, twice daily. (R. at 485, 487). Dr. Mital also started Plaintiff on Potassium Chloride. (R. at 487). On October 31, 2010, Plaintiff was discharge to home and instructed to follow up with Dr. Hospodar in two weeks. (R. at 465, 484).

Dr. Hospodar next saw Plaintiff on December 8, 2010. (R. at 454). He observed that she was "quite distraught" because of her medical condition and social stressors. ( Id. ). She stated that she did not stop taking the Dilantin because she was "feeling funny" when tapering off the medication. ( Id. ). Dr. Hospodar noted Plaintiff "has also had more grand mal seizures, " although he commented that it was difficult to ascertain the total number and frequency of these seizures unless Plaintiff was hospitalized. ( Id. ). Additionally, Plaintiff reported a high level of stress because of problems with her boyfriend and with finances, and that her worries caused her to sleep poorly. ( Id. ). Dr. Hospodar ordered her medication levels to be checked, but otherwise prescribed Depakote ER 1000 milligrams twice daily, Dilantin 200 milligrams twice daily, and Keppra 500 milligrams twice daily. ( Id. ). Finally, he indicated that Plaintiff should possibly be evaluated by the Allegheny General Epilepsy Clinic. ( Id. ).[7]

Dr. Hospodar saw Plaintiff on October 5, 2011, at which time he reported that Plaintiff exhibited poor memory, limited judgment and cognitive ability, and weakness in her right shoulder. (R. at 451). He observed that Plaintiff was experiencing "a little more grief, " and has had more seizures, which he attributed to the decreased Depakote dose. ( Id. ). ...

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