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Russell-Harvey v. Colvin

United States District Court, Middle District of Pennsylvania

May 29, 2014



Robert D. Mariani, United States District Judge


Plaintiff Amber Russell-Harvey has filed this action seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Russell-Harvey's claim for social security disability insurance benefits and supplemental security income benefits.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured, " that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Russell-Harvey met the insured status requirements of the Social Security Act through December 31, 2013. Tr. 15. In order to establish entitlement to disability insurance benefits Russell-Harvey was required to establish that she suffered from a disability on or before that date. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131 (a)(2008); see Matuilo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).

Supplemental security income is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income. Insured status is irrelevant in determining a claimant's eligibility for supplemental security income benefits.

Russell-Harvey protectively[1] filed her applications for supplemental security income benefits and for disability insurance benefits on October 16, 2009. Tr. 13. Russell-Harvey claims that she became disabled on October 1, 2009. Id. Russell-Harvey has been diagnosed with several impairments, including cephalgia syndrome, [2] obsessive compulsive disorder, Bipolar II disorder, polysubstance abuse, status post nodal marginal zone lymphoma, status post right radical vulvectomy, and a wide local excision of the right vulva. Tr. 16-17, 366. On April 20, 2010, Russell-Harvey's applications were initially denied by the Bureau of Disability Determination. Tr. 81, 86.

On June 18, 2010, Russell-Harvey requested a hearing before an administrative law judge ("ALJ"). Tr. 93-94. The ALJ conducted a hearing on May 4, 2011, where Russell-Harvey was represented by counsel. Tr. 27-54. On July 27, 2011, the ALJ issued a decision denying Russell-Harvey's application. Tr. 13-22. On March 22, 2012, the Appeals Council declined to grant review. Tr. 1. Russell-Harvey filed a complaint before this Court on May 21, 2012. Supporting and opposing briefs were submitted and this case became ripe for disposition on December 3, 2012, when Russell-Harvey filed a reply brief.

Russell-Harvey appeals the ALJ's determination on three grounds: (1) the ALJ erred in finding Russell-Harvey's mental impairments as non-severe, (2) the ALJ improperly found that the frequency, severity, and duration of Russell-Harvey's migraines was not substantiated by the record, and (3) the ALJ committed reversible error by posing an incomplete hypothetical question to the vocational expert. For the reasons set forth below, this case is remanded to the Commissioner for further proceedings.

Statement of Relevant Facts

Russell-Harvey is 32 years of age, has obtained a GED, has a military service record, and is able to read, write, speak and understand the English language. Tr. 32-33. Russell-Harvey had past relevant work as a buffet attendant, a telemarketer, and an order picker. Tr. 50. Russell-Harvey's work as a buffet attendant is classified as light, semiskilled work. Id. Her work as a telemarketer is classified as sedentary, semi-skilled, while her work as an order picker is classified as medium, unskilled work. Id.

A. Russell-Harvey's Mental Impairments

On December 14, 2010, Russell-Harvey was given a psychological evaluation by Douglas R. Reed, MD, a psychologist at Diakon Family Life Services. Tr. 348. At that time, Dr. Reed diagnosed Russell-Harvey with polysubstance dependence and a non-specific mood disorder. Tr. 350. Dr. Reed opined that Russell-Harvey may suffer from bipolar II symptomology, but he was not certain at the time that she met the criteria for major depression, a key element in the diagnosis. Id.

The next month, Dr. Reed, together with a clinician and the clinical director at Diakon Family Life Services, signed off on a treatment plan for Russell-Harvey. Tr. 365-66. The treatment plan included two diagnoses; a definite diagnosis for bipolar II disorder, and a diagnosis for obsessive-compulsive disorder. Tr. 366.

B. Russell-Harvey's Migraines

The first references to Russell-Harvey's migraines contained within the administrative record date back to November 24, 2008.[3] Tr. 242. On that date, Russell-Harvey was examined by Abby Ezero, MD. Id. Dr. Ezero noted that drugs such as Atenolol had helped reduce the frequency of Russell-Harvey's migraines, but that the migraines had "increased in severity and length." Id. Dr. Ezero prescribed Lortab, Zomig, Phenergan, and Atenolol. Id.

On July 2, 2009, Russell-Harvey was examined by Bertha Gaytan, MD for complaints of a migraine that had lasted for two days. Tr. 237. Dr. Gaytan noted that, despite taking Excedrin Migraine and Imitrex to treat the migraine, Russell-Harvey still reported that her pain level was "10/10;" she was prescribed Lortab to help ease the pain. Tr. 237-38. On July 31, 2009, Russell-Harvey visited Dr. Gaytan for a follow-up appointment. Tr. 235. At that appointment, Russell-Harvey reported that the July 2 migraine had lasted for about one week. Id. Russeii-Harvey also stated that another migraine had begun on July 30, although the pain had dissipated somewhat. Id. Dr. Gaytan noted that the migraines worsened with noise and light, and gave Russell-Harvey prescriptions for Lortab and Treximet to treat the migraine. Tr. 236.

On September 1, 2009, Russell-Harvey attended another follow-up appointment with Dr. Gaytan. Tr. 233. At this appointment, Russell-Harvey reported that she had been migraine-free for two weeks, and that she was "doing well" on Treximet. Id. She also reported that she was still getting headaches approximately two times per months. Tr. 234.

On the evening of October 8, 2009, Russell-Harvey was admitted to the Susquehanna Health emergency room complaining of a headache. Tr. 210-12. Russell-Harvey was treated by Thomas Fiero, MD, who prescribed Vicodin, Ativan, Dilaudid, and Zafran for the migraine. Tr. 212-15. Dr. Fiero noted that this was Russell-Harvey's second migraine in the past three weeks, and that Russell-Harvey reported a pain level of ten out of ten. Id. Dr. Fiero ordered a computerized tomography ("CT") scan of Russell-Harvey's head; the CT scan presented no abnormal findings. Tr. 219.

On October 16, 2009, Russell-Harvey was examined by Luan Pham, MD for worsening headaches. Tr. 230. Russell-Harvey reported that her migraine had begun on October 12, and that Ativan and Vicodin had helped with the pain. Id. Dr. Pham prescribed Amitriptyline, Treximet, and Omerprazole. Tr. 232.

On November 9, 2009, Russell-Harvey was examined by Aaron Killpack, DO. Tr. 228. Russell-Harvey complained of a headache that had begun the day before, with a reported pain of seven out of ten. Id. She reported that Amitriptyline had made her headaches "bearable" and that Lortab also helped control her pain. Id. Dr. Killpack doubled Russell-Harvey's Amitriptyline doses and prescribed Maxalt and Fioricet. Tr. 229.

On November 20, 2009, Russell-Harvey was again brought to the emergency room complaining of headaches. Tr. 531. Russell-Harvey complained that her headache had begun twelve hours prior, and grew progressively worse. Tr. 538. Dr. Fiero prescribed Vicodin, Fioricet, Amitriptyline, Ativan, Zofran, Dilaudid, and Lortab . Tr. 533, 537. Later that afternoon when the headache had not abated, William Keenan, MD prescribed Axert, Maxalt, Treximet, and Omeprazole for Russell-Harvey. Tr. 245.

Three days later, on November 23, 2009, Russell-Harvey returned to the emergency room complaining of a continuing migraine and chest pain. Tr. 515, 524. Russell-Harvey reported to the physician on duty, Geralda Xavier, MD, that her migraine pain was a ten out of ten, and that her migraine medication was not working. Tr. 520, 527. Dr. Xavier prescribed Morphine, Toradol, and Dilaudid. Tr. 521.

On November 26, Russell-Harvey again returned to the emergency room, where she was examined by attending physician David Sole, DO. Tr. 252. Russell-Harvey stated that she had been using her prescribed Vicodin and Ativan, but these drugs were not helping with her headache. Id. She also reported severe pain, as well as numbness and weakness in the left side of her body. Tr, 254. Dr. Sole noted that Russell-Harvey had access to benzodiazepines and narcotics, and therefore he would not prescribe any additional controlled substances for her. Tr. 252. However, Dr. Sole planned to attempt to relieve Russell-Harvey's pain through an IV narcotic analgesia. Id. Dr. Sole provided Russell-Harvey with Compazine, Dilaudid, Toradol, Compazine, and Benadryl through an IV. Tr. 255-56. Dr. Sole also ordered a CT scan, which revealed no abnormalities. Tr. 255. The next day Russell-Harvey followed up with Shannon Hill, DO, complaining that her migraine was ongoing. Tr. 276. Dr. Hill gave Russell-Harvey Lortab, Atenolol, Toradol, and Phenergan in an attempt to end the migraine. Tr. 277.

On December 3, 2009, Russell-Harvey was brought to the emergency room after a migraine led her to hyperventilate and pass out while at work. Tr. 274, 499, 510. Russell-Harvey complained of a severe headache accompanied by vomiting and numbness, as well as tingling in her hands and feet. Tr. 507. Russell-Harvey was given Benadryl, Phenergan, and Toradol. Tr. 506. The following day, Russell-Harvey was examined by Thomas Portuese, MD. Tr. 274. Dr. Portuese noted that the migraines had grown worse in recent years, and that a headache diary revealed no clear triggers for the migraines, id. Dr. Portuese opined that Russell-Harvey's treatment plan was "failing, " but avoided making any adjustments to her medications until she could be examined by a neurologist. Tr. 275.

On December 10, 2009, Russell-Harvey had an initial consultation with Mitchell Finch, MD, a neurological specialist. Tr. 292. Russell-Harvey reported that she usually had two to three severe migraines per week, and three to four milder migraines in a month. Id. Dr. Finch noted that these headaches were associated with photophobia, phonophobia, nausea, and vomiting. Id. Dr. Finch decided to leave ...

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