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Sharpe v. Commissioner of Social Security

United States District Court, W.D. Pennsylvania

July 14, 2015



TERRENCE F. McVERRY, Senior District Judge.

I. Introduction

Melinda S. Sharpe ("Plaintiff") has filed this action for judicial review of the decision of the Commissioner of Social Security, which denied her applications 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. ยงยง 401-403, 1381-1383. The parties have filed cross-motions for summary judgment, ECF Nos. 10, 14, which have been fully briefed and are ripe for disposition. ECF Nos. 11, 15.

II. Background

Plaintiff is thirty-four years old. She graduated from high school and attended technical school for two years, obtaining a certificate in massage therapy. Over the years, she has worked in a number of different jobs, but she stopped working in March 2009 allegedly due to chronic back and abdominal pain.

Plaintiff's back problems began when she was in her late teens. Some years ago, she was diagnosed with degenerative disc disease of both the lumbar and thoracic spine, and underwent surgeries in September 2009, December 2009, and May 2011. Nevertheless, her back pain persists.

As for her abdominal pain, Plaintiff went to the emergency room in April 2009 complaining of intermittent pain in her epigastric, left lower quadrant, and left flank areas. The cause of the pain couldn't be determined. But because of Plaintiff's history of polycystic ovarian syndrome, she was referred to her gynecologist to determine whether the pain could have been stemming from endometriosis[1] or problems with her pancreas or abdominal structures. There is no indication in the record that she followed up.

Following her visit to the ER, Plaintiff was also referred to a gastroenterologist, Dr. Segun Abogunde, whom she saw on several occasions between June 2009 and November 2010. Dr. Abogunde could never pinpoint the cause of her abdominal pain. At their first visit in June 2009, he noted that because Plaintiff had previously been diagnosed with leukocytosis (an increase in the number of white cells in the blood) and a CT scan reflected signs of diverticula, he wanted to perform another CT scan to rule out diverticulitis.[2] In March 2010, he opined that her symptoms were "suggestive of irritable bowel syndrome ["IBS"] with diarrhea, " so he started her on a trial of concerta and nortriptyline, which was apparently helpful in treating her IBS-like symptoms. (R. 604, 606, 607). He also noted that she had a history of gastroesophageal reflux disease ("GERD") and prescribed protonix, which was also helpful. Id. In July 2010, Dr. Abogunde once again suspected that Plaintiff had recurrent diverticulitis. As a result, he started her on a 14-day trial of the antibiotics ciprofloxacin and flagyl and prescribed pain medications. (R. 607-08). At his next appointment with Plaintiff a few months later, however, he remarked that Plaintiff's pain remained the same despite the attempted treatment and noted that the pain was "most likely functional in etiology."[3] (R. 609). He wanted to perform an upper endoscopy or colonoscopy to ascertain the cause of the pain, but Plaintiff declined because she did not have medical assistance and couldn't otherwise afford the procedures. When Dr. Abogunde next saw Plaintiff in November 2010, he again noted that she "may have functional abdominal pain with functional diarrhea." (R. 602).

Two days after her last visit with Dr. Abogunde, Plaintiff visited her primary care physician, Dr. Jeffrey Ghioto. She reported that her "GI specialist" - presumably Dr. Abogunde - told her that there was nothing else he could do for her, and she was apparently "very upset" with this news. (R. 356). Dr. Ghioto sent Plaintiff to undergo a magnetic resonance cholangiopancreatography scan, which reflected a bile duct stricture. She was thereafter referred to another gastroenterologist, Dr. Scott Henry. In a letter to Dr. Ghioto dated December 13, 2010, Dr. Henry said that his "concern is the possibility of primary and sclerosing cholangitis."[4] (R. 598). Two days later, he performed an endoscopic retrograde cholangiopancreatography, which showed "[l]ikely gastroparesis" - or delayed gastric emptying - "as evidence by retained food within the stomach...." (R. 597). Like Dr. Ghioto, Dr. Henry also saw signs of a "[s]ubtle ductal stricture of uncertain etiology and significant, " but this did not appear related to Plaintiff's complaints of abdominal pain. (R. 597). At a follow up at the end of the month, Dr. Henry noted that the signs of gastroparesis could account for Plaintiff's pain, so he ordered her to undergo a gastric emptying study to confirm whether she had gastroparesis and also made arrangements for an endoscopic ultrasound. (R. 590). Meanwhile, he recommended that she start taking Reglan, but she was reluctant to do so until she received the results of the emptying study.

In late January 2011, another doctor in Dr. Ghioto's office, Dr. Frank McLaughlin, referred Plaintiff to a pain management specialist, Dr. Heath Fallin, after she continued to complain of abdominal pain. (R. 280). During her initial appointment with Dr. Fallin on February 16, 2011, she explained that she had obtained some relief from her back surgeries and medications, but her pain accompanied by nausea and vomiting persisted, though it wasn't as bad as it had once been. After examining Plaintiff and reviewing her records, Dr. Fallin noted that the source of the pain was "very unclear." (R. 281). "She appears to have really endorsed the role of being the patient, " he wrote "and it is unclear how much of this is coming from an abdominal pathology and how much of this is psychogenic in nature." Id. Dr. Fallin's notes indicate that he discussed Plaintiff's past at some length with her and discovered that her abdominal pain had started on the heels of her divorce, when she moved back to Pennsylvania from Washington. He also noted that her ex-husband had been abusive. "It is not clear at this time if this new living arrangement is actually contributing to the pain, " he wrote, "as the patient has been quite extensively worked up since she has returned to Pennsylvania and has some extensive secondary gain by having the role of the patient with an unclear etiology." Id. Because Dr. Fallin "fe[lt] that [Plaintiff] possibly ha[d] some sort of somatization or somatoform disorder"[5] and may primarily be in need of psychological treatment, he referred her to a behavioral therapist for an evaluation. Id. He noted that he would consider giving Plaintiff thoracic epidurals in the future, but he didn't think that these would be effective. "Instead, " he wrote, "I think the psychiatric and psychological workup... would really be key to her improving her functioning and getting back to living a normal life." (R. 282).

On March 1, 2011, Plaintiff returned to Dr. Fallin's office to undergo a thoracic epidural steroid injection. (R. 276). As Dr. Fallin prepared to insert the needle, however, Plaintiff "began to scream please stop, please stop, '" and the procedure was aborted. Id. Afterwards, because of Plaintiff's "somewhat hysterical status and recent history of polysubstance abuse" - she had apparently been using her mother's Percocet and smoking marijuana - Dr. Fallin held a meeting with Plaintiff and her mother. Id. He explained that he would feel uncomfortable performing other procedures on her in the future and reiterated that he "fe[lt] like there was a strong psychiatric component to her pain and to exacerbating her pain." Id. In his view, "this abdominal pain ha[d] completely taken over her life, " such that she had become "defined by [it]" and had "limited her life" because of it. Id. As he wrote, she "spends much of her time going to different physicians to try to get a different diagnosis or a better diagnosis of what is causing this abdominal pain. Up to this point, there has been no clear diagnosis." Id. As a result, Dr. Fallin once again "strongly recommend[ed] that she be evaluated by Psychiatry" since he believed "there is a strong possibility of somatization going on." Id.

The next day, Plaintiff heeded that advice and underwent a psychosocial evaluation. (R. 285-87). She acknowledged some anxiety but dismissed the possibility that her pain was caused by psychological issues. (R. 286). As the therapist noted, Plaintiff felt "that [this] is not an avenue that is going to bring her any kind of relief or get her the answers' that she needs." Id.

On February 22, 2011, following her brief stint at the pain clinic, Plaintiff returned to Dr. Ghioto's office for a follow up. (R. 349). Dr. Ghioto diagnosed her with chronic pain syndrome and prescribed her Percocet, only after making her sign a narcotics contract due to what had transpired with Dr. Fallin. The next month, she returned to Dr. Ghioto's office, still complaining of pain. Her white blood cell levels were high, so she was referred to an oncologist. When she saw the oncologist on April 1, 2011, her chief complaint was her abdominal pain. She had no other complaints or concerns.

That same day, Plaintiff had another appointment with Dr. Ghioto, who noted that her pain attacks were becoming more frequent. (R. 341). He again diagnosed her with chronic pain syndrome and started her on Dilaudid, noting that he would switch her to a longer-acting hydromorphone, Exalgo, if Dilaudid proved effective. An MRI was also ordered. Two weeks later, Dr. Ghioto noted that Dilaulid seemed to be helping, so he prescribed Exalgo. (R. 339). Reviewing the results of the MRI, he observed that Plaintiff had multiple herniated discs in her thoracic spine. In early June, Plaintiff reported to Dr. Ghioto that she was still experiencing abdominal pain but with much less frequency. (R. 334). The pain had become "more midline" and was primarily "associated with bowel movements." Id. Plaintiff suspected that she had IBS and wanted to restart nortriptyline, which, as noted, had given her some relief in the past. Dr. ...

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