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Swarrow v. Colvin

United States District Court, W.D. Pennsylvania

July 14, 2014

CAROL ANN SWARROW, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION AND ORDER

TERRENCE F. McVERRY, District Judge,

I. Introduction

Plaintiff, Carol Ann Swarrow, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383 (c)(3) 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). The parties have filed cross-motions for summary judgment (ECF Nos. 11, 13). The record has been thoroughly developed at the administrative level. (ECF No. 9). Accordingly, the motions are ripe for disposition. For the following reasons, the Commissioner's motion will be GRANTED, and Plaintiff's motion will be DENIED.

II. Background

A. Procedural History

Plaintiff protectively filed applications for DIB and SSI on July 22, 2009, in which she claimed total disability as of April 14, 2005. An administrative hearing was held on July 11, 2011, before Administrative Law Judge ("ALJ") Leslie Perry-Dowdell. Plaintiff was represented by counsel and testified at the hearing. Dr. Cohen, an impartial vocational expert ("VE"), also testified at the hearing.

On October 14, 2011, the ALJ rendered an unfavorable decision to Plaintiff, in which she found that Plaintiff retained the ability to perform sedentary work with the following additional limitations:

The claimant is limited to simple, routine, repetitive tasks that do not require fast-paced production requirements. The claimant can make simple work related decisions and adapt to routine work place changes but must be isolated from the public and have only occasional supervision and contact with co-workers. The claimant needs to alternate sitting and standing and perform jobs that can be done while using a hand held device (only used for ambulating and not just standing in place). The claimant can occasionally climb stairs, ramps and ladders but not ropes or scaffolds. In addition, the claimant can perform occasional kneeling and crawling and frequent balancing, stooping and crouching.

(R. 24). The VE testified that given all of these factors, Plaintiff would still be able to perform the requirements of the following representative occupations: surveillance system monitor (50, 000 jobs nationally), inspector (50, 000 jobs nationally), or packer with a sit/stand option (75, 000 jobs nationally). (R. 28). Accordingly, the ALJ held that Plaintiff was not "disabled" within the meaning of the Act and denied her claims for benefits. (R. 28-29).

The ALJ's decision became the final decision of the Commissioner on May 29, 2013, when the Appeals Council denied Plaintiff's request to review the decision of the ALJ. On July 29, 2013, Plaintiff filed a Complaint in this Court seeking judicial review of the ALJ's decision. On November 12, 2013, these cross-motions for summary judgment followed.

B. Facts

Plaintiff was born on June 20, 1965. She has a twelfth-grade education and previously worked as a nurse's aide and as a laborer at a metal factory. She alleges disability as of April 14, 2005, primarily due to a cracked lumbar bone from a car accident and malignant tumors in her throat. Although she worked during the relevant period, the ALJ found that she has not engaged in substantial gainful activity since her alleged onset date. (R. 22).

1. Medical Evidence

Plaintiff's claim of disability was precipitated by injuries she sustained on April 14, 2005, when she was pushed out of a vehicle by her boyfriend and then hit by the vehicle.[1] Although she did not lose consciousness, she sustained a closed head injury, a cracked lumbar spine, and other minor injuries. (R. 237-38). Plaintiff's blood alcohol content at the time of the accident was.202. (R. 237-38). An MRI showed minimal degenerative changes and a mass on the right side of the neck. (R. 251). Plaintiff was hospitalized for two days following this incident, and although she appeared in a depressed mood, she was cooperative and pleasant with no suicidal or homicidal ideation, no hallucinations, and fair judgment. (R. 239). She was assigned a global assessment of functioning score ("GAF") of 55. (R. 239).

Several months later, Plaintiff underwent a thyroid ultrasound, which revealed an enlarged left thyroid lobe with a lesion. (R. 323). A thyroid scan was ordered, but Plaintiff never followed through with it. (R. 516).

On December 6, 2005, Plaintiff saw Dr. John Martin, her primary care physician, for a check-up. (R. 516). Plaintiff reported having pain in her right ear following the accident, for which she had been prescribed antibiotics. (R. 516). She made a number of other complaints, as well, including back pain and fibromyalgia. (R. 516). Upon examination, Dr. Martin found that Plaintiff was not in acute distress, but reported finding tenderness in her lower back. (R. 516-17). Dr. Martin diagnosed her with possible otitis externa, which is an inflammation of the outer ear or ear canal. (R. 517). He further noted that he was going to refer Plaintiff back to Dr. John Lee, whom she had been seeing for back pain, and advised her to stop smoking, since that aggravated her back problem. (R. 517).

On December 15, Plaintiff was seen by Dr. Vasu Malepati, upon referral from Dr. Martin. (R. 502). Plaintiff reported that her right ear felt blocked, with pain radiating down her neck and associated hearing loss. (R. 502). Upon examination, Dr. Malepati noted a right thyroid mass and advised her to continue medicating with antibiotics. (R. 502). Dr. Malepati also advised Plaintiff to undergo an otologic exam and thyroid evaluation. (R. 502). In January, Plaintiff underwent an ultrasound, the results of which reflected a large cold nodule on Plaintiff's left thyroid lobe. (R. 322). It could not be determined whether the nodule was malignant, however. (R. 322).

Dr. Lee again examined Plaintiff after she complained of back pain in December 2005. He reported that she had a limping gait, but found active reflexes, and generally no definite focal, motor, or sensory deficits. (R. 510-11). Therefore Dr. Lee recommended intensive home exercise coupled with hot showers and hydrotherapy. (R. 212).

Plaintiff followed up with Dr. Malepati regarding her thyroid mass on January 5, 2006. (R. 501). At this point, she had not yet undergone a thyroid scan. (R. 501). Dr. Malepati told her to return after such a scan was completed, noting that if the scan revealed a cold nodule, Plaintiff might need a thyroidectomy. (R. 501). Dr. Malepati also noted that Plaintiff's otitis eternal had healed well. (R. 501).

In February 2006, Plaintiff was admitted to Washington Hospital for chest pain, shortness of breath, and sweating. (R. 762). Before having been admitted, Plaintiff disclosed that she drank six beers that day. (R. 764). Plaintiff also reported to Dr. Howard Goldberg that she had failed to follow up with her doctors regarding the thyroid growths. (R. 226). Test results from Plaintiff's inpatient stay were unremarkable, and she denied suicidal and homicidal ideation. (R. 786, 801). After three days, Plaintiff was discharged, at which time she reported her pain as three out of ten. (R. 766).

In April 2006, Plaintiff followed up with Dr. Malepati, complaining of trouble breathing, pressure and sensation on the left side of her throat, and hoarseness. (R. 320). Dr. Malepati advised her to have a left hemi-thyroidectomy and a flexible laryngoscopy exam. (R. 499).

Plaintiff next saw Dr. Malepati on June 28, 2007, at which time she complained of a sore throat and difficulty swallowing. (R. 498). Following his examination, Dr. Malepati noted that Plaintiff's pharynx was red. (R. 498). He gave her a saline gargle and a Z-pack and again advised her to undergo a hemi-thyroidectomy if the symptoms persisted. (R. 498).

In December 2007, Plaintiff was admitted to Washington Hospital after she was punched by her ex-boyfriend. (R. 746). Plaintiff was depressed and displayed rib tenderness. (R. 748-49). X-rays revealed rib fractures. (R. 749). Plaintiff was prescribed pain medication and released. (R. 749, 756-58).

More than a year later, in April 2008, Plaintiff returned to Washington Hospital, after having taken an extra prescription Xanax. (R. 725). She also admitted to having consumed beers. (R. 725). She refused any drug or alcohol treatment and was released after denying suicidal or homicidal ideation and was released later the same day. (R. 732, 740-41).

One month later, Plaintiff returned to Washington Hospital. She reported having used alcohol and verbalized suicidal ideation in the emergency room. (R. 704). Plaintiff claimed to have attempted to harm herself, and had superficial lacerations on her arms as a result. (R. 704). However, she was sober the next day and discharged after again denying any suicidal or homicidal ideation. (R. 707, 713).

In April of 2009, Dr. Oscar Urea completed an Employability Assessment form for the Pennsylvania Department of Welfare, in which he indicated that Plaintiff was temporarily disabled from April 2, 2009, through July 31, 2009. Dr. Urea listed mood disorder, not otherwise specified, and alcohol dependence as the causes of Plaintiff's disability. (R. 264-65).

The next month, Plaintiff saw Dr. Goldberg. (R. 280). She reported feeling hoarse and experiencing neck pain, which "comes and goes." (R. 280). She also noted feeling fatigued. (R. 280). Dr. Goldberg assessed Plaintiff with a thyroid nodule of several years duration. (R. 283). He noted that she did not display any stigmata or hyper-or-hypo-thyroidism at the time, but she did have mild compressive symptoms. (R. 283). To further assess Plaintiff's condition, Dr. Goldberg ordered another ultrasound, after which he would schedule an ultrasound-guided fine needle aspiration of the lesion to determine if it was cancerous. (R. 284). The results of the ultrasound showed a large hypoechoic nodule in her left thyroid and a right thyroid lobe that was asymmetrically longer than the left. (R. 677). Based upon this visit, Dr. Goldberg completed a medical source statement regarding Plaintiff's claim and found that she had no limitations in lifting, carrying, standing and walking, sitting, pushing and pulling, or engaging in postural activities or other physical functions. (R. 278-79).

The following week, Plaintiff visited the hospital two days in a row reporting symptoms such as headache, diarrhea, and throat drainage. (R. 698). The first day Plaintiff left without being seen, and the second day was observed outside smoking three times ...


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