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Dwyer v. Colvin

United States District Court, M.D. Pennsylvania

September 12, 2014

ELLEN DWYER, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


WILLIAM J. NEALON, District Judge.

On August 9, 2013, Plaintiff, Ellen Dwyer, filed this appeal[1] under 42 U.S.C. § 405 for review of the decision of the Commissioner of Social Security denying her claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 400-403. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiff's application for DIB will be affirmed.


Plaintiff protectively filed[2] her application for DIB on March 9, 2011. (Tr. 52).[3] This claim was initially denied by the Bureau of Disability Determination ("BDD")[4] on May 26, 2011. (Tr. 52). On June 9, 2011, Plaintiff filed a written request for a hearing before an administrative law judge. (Tr. 52). A hearing was held on March 19, 2012 before administrative law judge Gerald Langan ("ALJ"), at which Plaintiff and vocational expert, Michele C. Giorgio ("VE"), testified. (Tr. 52). On April 27, 2012, the ALJ issued a decision denying Plaintiff's claims because, as will be explained in more detail infra, Plaintiff's impairments did not meet or medically equal any impairment Listing, and she could perform a range of light work, [5] with avoidance of concentrated exposure to environmental irritants, unprotected heights, moving machinery, and climbing ropes, ladders or scaffolds. (Tr. 52, 56).

On June 22, 2012, Plaintiff filed a request for review with the Appeals Council. (Tr. 46). On July 3, 2013, the Appeals Council concluded that there was no basis upon which to grant Plaintiff's request for review. (Tr. 1-5). Thus, the ALJ's decision stood as the final decision of the Commissioner.

Plaintiff filed the instant complaint on August 9, 2013. (Doc. 1). On November 13, 2013, Defendant filed an Answer and Transcript from the Social Security Administration ("SSA") proceedings. (Docs. 9 and 10). Plaintiff filed the brief in support of her complaint on December 27, 2013. (Doc. 11). Defendant filed a brief in opposition on January 30, 2014. (Doc. 12). Plaintiff did not file a reply brief, and the matter is now ripe for review.

Disability insurance benefits are paid to an individual if that individual is disabled[6] 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 Plaintiff met the insured status requirements of the Social Security Act through December 31, 2010. (Tr. 54).

Plaintiff was born in the United States on August 23, 1950, and at all times relevant to this matter was considered a "person closely approaching retirement age."[7] (Tr. 88). Plaintiff obtained a three (3) year degree in nursing, completed some college credits, and can communicate in English. (Tr. 90). Her employment records indicate that she previously worked as a teacher's aide, a receptionist in a dental office, and later as a receptionist at a physical therapy office. (Tr. 90-93).

The records of the SSA reveal that Plaintiff had earnings in the years 1966 through 2009. (Tr. 149). Her annual earnings range from a low of no income to a high of nineteen thousand four hundred eighty-six dollars and twenty-six cents ($19, 486.26) in 1996. (Tr. 149). Her total earnings during those forty-three (43) years were one hundred ninety-seven thousand thirty-one dollars and seventy-six cents ($197, 031.76). (Tr. 149).

Plaintiff's alleged disability onset date is April 1, 2003. (Tr. 52). The impetus for her claimed disability is a combination of rheumatoid arthritis ("RA"), vasculitis, and post spinal fusion complications. (Tr. 108). In a document entitled "Function Report - Adult" filed with the SSA in April of 2011, Plaintiff indicated that she was married and lived with her family. (Tr. 192). She indicated that, when her RA flared up, she was only able to shower if her husband was home. (Tr. 194). She would put food out for her animals, while her husband would take them for walks. (Tr. 193). She also noted that she could prepare easy meals daily for ten (10) to twenty (20) minutes at a time, while she less frequently made "longer meals" since her illnesses began. (Tr. 194). She was able to perform light cleaning for about fifteen (15) to twenty (20) minutes, but her husband would help out with the laundry. (Tr. 194). She was able to walk "with no real issue, " drive a car, and could go out alone. (Tr. 195, 197). She could grocery shop with the help of her husband once or twice a week. (Tr. 195). She could pay bills, count change, handle a savings account, and use a checkbook. (Tr. 195).

Regarding concentration and memory, Plaintiff stated that she could pay attention for fifteen (15) to thirty (30) minutes, indicated that her illnesses did not affect her memory, understanding, or ability to follow instructions, and that she did not need reminders to care for her personal needs or take medicine. (Tr. 194, 197). She could handle stress and changes in routine "ok." (Tr. 198).

Socially, Plaintiff would spend time with her husband daily, and attended doctor's appointments on a regular basis. (Tr. 196-197). She liked to read and watch television daily, and would stencil and paint less often than she used to because of her RA and resulting hand swelling. (Tr. 196). She stated that she had limited interactions with others especially while taking Prednisone. (Tr. 197). She had no problems with authority figures. (Tr. 198). In the function report, when asked to check items which her "illnesses, injuries, or conditions affect, " Plaintiff did not check talking, hearing, seeing, memory, understanding, following instructions, or getting along with others. (Tr. 197).

Plaintiff reported she needed hand braces/splints for inflammation, which was prescribed by her physical therapist. (Tr. 198). Also, she was prescribed Prednisone, Narvasc, and numerous other medications that will be further discussed. (Tr. 94).

At her hearing, Plaintiff alleged that the following combination of physical problems prevented her from being able to work since April of 2003: (1) RA; (2) vasculitis; and (3) residual neck and back pain from her two (2) spinal surgeries. (Tr. 102). In terms of physical symptoms, she experienced aches in her hands from the RA, headaches, disorientation and dizziness from the vasculitis, and neck and back pain from spinal problems and prior fusion surgery. (Tr. 93, 95-97). She testified that in 2011, she and her sister cared for her mother for seven (7) weeks after her mother had surgery. (Tr. 99-100).


1. Raymond Behr, M.D.

Plaintiff has been a patient of Psychiatrist Raymond Behr, M.D., located in Great Neck, New York, since August of 1994. Regarding the relevant records from the alleged onset date, Plaintiff had an appointment with Dr. Behr on July 24, 2003, for which she was a no-show. (Tr. 222). Plaintiff's medication for depression, Parnate, was renewed on April 19, 2004, and she then had an appointment with Dr. Behr on April 26, 2004. (Tr. 222). At this appointment, it was noted that while she was doing well and had no relapse of her depression, she was ill with a severe viral infection from September of 2003 to February of 2004. (Tr. 222). At her next appointment with Dr. Behr on July 29, 2004, treatment notes show that she had an exacerbation of her vasculitis due possibly to the Parnate, which Dr. Wright recommended she discontinue. (Tr. 222). The medicine was discontinued, and she saw Dr. Behr again on August 9, 2004, at which time she reported doing reasonably well despite being off of the Parnate for two (2) weeks. (Tr. 222). She did not attend her August 19, 2004 appointment, and at her August 27, 2004 appointment, she reported feeling increasingly depressed, and was prescribed Wellbutrin as a result. (Tr. 222-223). At her appointment on September 7, 2004, treatment notes state she was doing well, was bright, alert, and happy, and a possible increase in dosage of her medication was discussed. (Tr. 223). At her October 20, 2004 appointment, Plaintiff reported that she was not feeling as well as she did on Parnate, and Dr. Behr increased the Wellbutrin dosage. (Tr. 223).

Plaintiff did not have another visit with Dr. Behr until December 20, 2005, at which it was noted that she discontinued the Wellbutrin over one (1) year ago because she felt "flat" and it gave her suicidal ideations. (Tr. 223). She had not been on any other antidepressants for the last year. (Tr. 223). She also reported that she had major difficulties sleeping, even with the aid of Ambien, and that she was experiencing suicidal ideations. (Tr. 223). He prescribed Nardil and Zyprexa for her depression symptoms. (Tr. 223).

Plaintiff had an appointment with Dr. Behr on March 6, 2006. (Tr. 224). Plaintiff noted that the Nardil was as effective as the Parnate had been, but that it was sedating. (Tr. 224). She also reported that she continued to have difficulty falling and staying asleep. (Tr. 224). Dr. Behr increased her Nardil dosage to further improve her depression. (Tr. 224).

Plaintiff's next appointment with Dr. Behr was on May 31, 2007. (Tr. 224). Plaintiff reported that she had moved to Pennsylvania on a permanent basis, and that she had stopped taking Nardil eight (8) months prior because her vasculitis had flared and her physician thought it was due to the medication. (Tr. 224). However, her vasculitis flares continued despite the Nardil cessation, so she had resumed taking the medication three (3) weeks prior to this appointment, and started feeling "significantly better." (Tr. 224). She reported to have continued difficulty sleeping, and was taking Prednisone, Norvasc, and over-the-counter Diphenhydramine. (Tr. 225).

Plaintiff visited with Dr. Behr on August 7, 2008. (Tr. 225). She reported decreasing her dosage of the Nardil without Dr. Behr's permission, and he discussed with her the fact that these decreases have historically left her feeling more depressed than when she is taking a higher dose. (Tr. 225). She was noted to be mildly to moderately depressed, and that she did not like where she was living. (Tr. 225). It was reported that she had neck surgery for a spinal column compression, and that she discontinued the Nardil at that time. (Tr. 225). She continued to have difficulty sleeping, and sleep aids had unwanted side-effects. (Tr. 225). She was prescribed Nardil and Xanax. (Tr. 225).

On March 18, 2009, Plaintiff had an appointment with Dr. Behr, and reported she had been doing extremely well, her physical health was good, and she was sleeping well at night. (Tr. 225-226). She was prescribed Nardil and Xanax. (Tr. 226). Dr. Behr called in prescription refills on June 10, 2009 for Xanax. (Tr. 226).

Plaintiff had an appointment with Dr. Behr on October 12, 2009, at which she reported that she was doing well, but that there were times when she felt slight if not moderately depressed. (Tr. 228). He recommended an increase in the Nardil dosage for the depression. (Tr. 228). She also reported that when she ran out of Xanax during the summer, she felt an uncomfortable pressure in her chest accompanied with irritability that she did not have when she was taking the Xanax. (Tr. 228). She was also taking Norvasc, Prednisone, Ecotrin and Prilosec. (Tr. 228). She was diagnosed formally with Major Depressive Disorder, recurrent and severe type. (Tr. 228). Dr. Behr prescribed Nardil and Xanax at this appointment. (Tr. 228).

At her January 20, 2011 appointment with Dr. Behr, Plaintiff reported that she was doing well, and that she had increased her Nardil dosage, which helped with her depression symptoms. (Tr. 229). It was noted that she was active, went on a cruise, was social, and was "always doing something." (Tr. 229). The depression was found to be caused by the pain from her arthritis. (Tr. 229). Plaintiff's Major Depressive Disorder was ...

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