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Carter v. Colvin

United States District Court, W.D. Pennsylvania

April 23, 2015

CHRISTINE P. CARTER, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION

LISA PUPO LENIHAN U.S. Magistrate Judge

I. Introduction

Plaintiff Christine P. Carter (“Carter”) brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits under Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401-434, 1381-1383f, respectively. The matter is presently before this Court on cross-motions for summary judgment filed by the parties pursuant to Federal Rule of Civil Procedure 56. (ECF Nos. 10 & 13). The record has been developed at the administrative level.[1] For the reasons that follow, Carter’s motion for summary judgment (ECF No. 10) will be denied, the Commissioner’s motion for summary judgment (ECF No. 13) will be granted, and final judgment will be entered in favor of the Commissioner and against Carter.

II. STATEMENT OF THE CASE

A. Procedural History

Carter filed an application for DIB benefits on December 6, 2011 and one for SSI benefits on January 6, 2012, both alleging that he had become “disabled” on July 25, 2010. (R. at pp. 192, 199). Both of these applications were initially denied on February 1, 2012. (R. at pp. 137-46). Carter responded on February 13, 2012 by filing a request for an administrative hearing, (R. at p. 147), which was then scheduled for February 14, 2013. (R. at p. 159). Prior to this hearing, Carter’s counsel submitted a written “request for a Psychological Consultative Evaluation”. (R. at p. 185).

The hearing was held on its scheduled date in Pittsburgh, Pennsylvania, before Administrative Law Judge (“ALJ”) Guy Koster. (R. at pp. 67-106). Carter testified at the hearing, represented by counsel. (R. at pp. 70-100). Samuel E. Edelmann (“Edelmann”), an impartial vocational expert, also provided testimony concerning the expectations of employers existing in the national economy. (R. at pp. 100-06). In a decision dated March 15, 2013, the ALJ determined that Carter was not “disabled” within the meaning of the Act. (R. at p. 48). Following her receipt of the ALJ’s decision, Carter filed a request for its review with Appeals Council on April 4, 2013. (R. at p. 47). This request was denied on September 4, 2014, making the ALJ’s decision the final decision of the Commissioner. (R. at pp. 1-7). Carter commenced this action on November 4, 2014, seeking judicial review of the Commissioner’s decision. (ECF No. 2). Carter and the Commissioner filed cross-motions for summary judgment on February 12, 2015 and March 12, 2015, respectively, (ECF Nos. 10 & 13), each also filing a brief in support thereof, (ECF Nos. 12 & 14). Carter also filed a concise statement of material facts along with her motion, (ECF No. 11), and subsequently filed a reply brief on October 27, 2014, (ECF No. 15). These pending motions for summary judgment are now ripe for disposition.[2]

B. General Background

Carter was born on March 24, 1973, making her thirty-seven years of age on her alleged disability on-set date and thirty-nine years of age at the time of the hearing. (R. at pp. 70, 192). She is a high school graduate who has attended one year of college. (R. at p. 70). She is married and lives with her husband. (Id.). Carter is the mother of two adult children who now both live outside of her home. (R. at p. 90).

Carter has not worked since July 25, 2010, when she quit her job as a presser at a drycleaner. (R. at p. 71). Prior to that job, which she performed for approximately seven years, she had worked as a data entry clerk for about eight years. (R. at pp. 71-74). Carter says she stopped working in 2010 because she could no longer perform her job due to pain caused by fibromyalgia. (R. at p. 74). In her applications for benefits, Carter alleged disability based on fibromyalgia, back problems, and chronic pain. (R. at p. 226). At the hearing, she alleged additional impairments of anxiety, bipolar disorder, and tremors. (R. at pp. 74-75, 84-91, 93-100).

C. Medical History

Carter’s past surgical history consists of arthroscopic surgery on both shoulders to remove bone spurs in 2007 and 2009, carpal tunnel surgery on the right hand in 1998, and tubal ligation in 1995. (R. at p. 463). Relevant to the present inquiry, Carter was seen on February 22, 2010 by her then primary care physician Dr. Michael Gates (“Gates”). (R. at p. 337). She reported experiencing pain all over her body. (Id.). After an examination in which Carter was sensitive “to palpitation at multiple trigger points, ” Gates assessed her as having “myalgias” and prescribed Prednisone. (Id.). When Carter reported that she was “getting worse” at a March 23, 2010 follow-up appointment, Gates appears to have prescribed Mobic and Oxycodone to treat her pain. (R. at p. 336). Gates saw Carter again on April 16, 2010 and prescribed Fentanyl patches to treat her “chronic pain.” (R. at p. 335).

Gates referred Carter to Heritage Valley Rheumatology, where she was seen by Dr. Atac Turkay (“Turkay”) on April 28, 2010. (R. at 463). Carter conveyed her belief that her current medications, including Mobic and Fentanyl, “do not help.” (R. at p. 464). Turkay noted that Carter refused to sit during the interview portion of the visit, citing too much hip and tailbone pain, although “she was able to sit on the examination table throughout the exam” portion. (Id.). Following the examination, Turkay explained that Carter did “not have any particular tender points to suggest fibromyalgia syndrome.” (Id.). Instead, he believed she was suffering from bilateral trochanteric bursitis, which he treated by injecting the bursae with steroids. (Id.). Turkay saw Carter “for a follow-up regarding her arthralgias” on May 4, 2010. (R. at p. 461). This appointment took place sooner than anticipated due to Carter’s report that her pain had gotten worse after the injections. (Id.). After this examination, Turkay reported that he didn’t “see any clear reason why the patient would have the extent of pain that she complains about.” (Id.). Instead, he speculated that “[t]his is more likely due to a pain syndrome.” (Id.). Turkay detailed additional diagnostic steps that he intended to take, but there is no record that these steps were ever completed. (Id.).

Carter returned to Gates for a follow-up visit on May 17, 2010. (R. at p. 309). She complained of “pain all over, ” but explained that “Fentanyl helps.” (Id.). Gates noted “multiple tender points” and diagnosed Carter as having fibromyalgia, which would be treated with Savella. (R. at pp. 309-10). Gates then refilled Carter’s prescription for Oxycodone on May 31, 2010, (R. at p. 312), and additionally prescribed Gabapentin at an appointment on June 8, 2010 after Carter reported she continued to have pain all over, (R. at p. 311). Gates then made a couple medication changes during Carter’s appointment on July 8, 2010, replacing Savella with Lyrica and increasing the dosage of Fentanyl. (R. at p. 313). On July 28, 2010, Gates referred Carter to Dr. Mark R. LoDico (“LoDico”) at Advanced Pain Medicine. (R. at p. 314).

LoDico first saw Carter on September 2, 2010. (R. at p. 374). He diagnosed her as having “[t]otal body pain associated with fibromyalgia.” (R. at p. 375). LoDico’s recommended course of action included the following: (1) a comprehensive sleep study, (2) a psychological consultation regarding chronic pain coping skills, (3) starting physical therapy, (4) discontinuing Mobic in favor of Celebrex, (5) discontinuing oxycodone in favor of controlling pain with more frequent applications of Fentanyl and Tylenol, and (6) various diagnostic tests. (Id.).

That same day, LoDico referred Carter to the Centers for Rehab Services to engage in physical therapy. (R. at p. 290). Between September 14, 2010 and October 13, 2010, Carter took part in physical therapy with Allison Kleiner (“Kleiner”) on nine separate occasions. (R. at pp. 281-82). Treatment notes consistently reflect that Carter was “still in pain and fatigued, ” although Kleiner noted after Carter’s 8th visit on October 11, 2010 that “[a]ll strength has improved as has flexibility.” (R. at p. 285). Upon discharge from therapy, Carter’s pain was still “objectively measured” at between six and nine out of ten. (R. at p. 283). While all of Carter’s treatment goals were “not met, ” Kleiner noted “[s]hort term goals met – chronic pain D/O, can self manage at home Formal therapy no longer needed.” (Id.).

On September 28, 2010, Carter returned to Advanced Pain Medicine, this time seeing Dr. Lloyd G. Lamperski (“Lamperski”). (R. at p. 378). She told Lamperski that the more frequent application of Fentanyl had given her more control of her pain, although relief varied. (Id.). Lamperski noted an impression of “Suspected fibromyalgia” among other possible causes of Carter’s pain, which she rated at a six. (Id.).

Carter underwent an MRI of her lumbar spine on November 1, 2010 (the “November 1 MRI”). (R. at p. 317). Relevantly, the test showed “moderate canal stenosis at L5S1 level secondary to disc bulge and ligamentous facetal hypertrophy.” (R. at p. 318). There also “appear[ed] to be a small tear in the posteric disc annalus at this level.” (Id.). Finally, a “transitional vertebral body [was] labeled as S1.” (Id.). Carter saw Gates that ...


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