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Ervin v. Colvin

United States District Court, Third Circuit

August 30, 2013

SHARLENE M. ERVIN Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Plaintiff Sharlene M. Ervin ("Ervin" or "plaintiff') appeals from a decision of Carolyn W. Colvin, the Commissioner of the Social Security Administration ("Commissioner" or "defendant"), [1] denying her claims for disability insurance benefits ("DIB") and child's insurance benefits ("CIB") under Title II of the Social Security Act, and denying her claims for supplemental security income ("SSI") under Title XVI of the Social Security Act. This court has jurisdiction pursuant to 42 U.S.C. ยง 405(g).

Presently before the court are cross-motions for summary judgment filed by Ervin and the Commissioner. (D.I. 13, 16) Ervin seeks reversal of the Commissioner's decision and remand for further proceedings. (D.I. 14) The Commissioner requests that the decision of the administrative law judge ("ALJ") be affirmed. (D.I. 17) For reasons set forth below, I recommend that the court deny Ervin's motion for summary judgment and grant the Commissioner's cross-motion for summary judgment.

II. BACKGROUND

A. Procedural History

Ervin filed claims for DIB and CIB on May 13, 2008, alleging disability since January 1, 2004. (D.I. 11 at 143-56) On May 14, 2008, Ervin amended her application for benefits to reflect a disability onset date of October 1, 2006. ( Id. at 157-58) Ervin's claims for DIB and CIB were denied initially on December 18, 2008 and on reconsideration on March 9, 2009. ( Id. at 63-65, 67-77) On January 27, 2009, Ervin protectively filed an application for SSI. ( Id. at 159-65) Ervin's claim for SSI was denied on March 9, 2009. ( Id. at 66, 78-82) Thereafter, Ervin requested a hearing before an ALJ, which took place on January 14, 2010. ( Id. at 93-94, 120-39) Counsel represented Ervin at the hearing, and both Ervin and a vocational expert ("VE") testified. (D.I. 22 at 612-43)

On February 18, 2010, the ALJ issued an unfavorable decision, finding Ervin not disabled and denying her claims for DIB, CIB, and SSI. (D.I. 11 at 10-25) The ALJ found that Ervin was not disabled and could perform a limited range of light work available in the national economy. ( Id. ) Ervin requested a review of the ALI's decision by the Appeals Council, but it denied the request for review and, therefore, the ALI's decision became the final decision of the Commissioner subject to judicial review. ( Id. at 1-3) On October 15, 2010, Ervin filed the current action for review of the final decision. (D.I. 2)

B. Factual Background

1. Medical History

On September 7, 2006, Ervin was seen by Dr. Barbara Belford, Ph.D., for a psychiatric assessment. (D.I. 11, Tr. at 426) Dr. Belford noted that Ervin exhibited symptoms of a depressed mood, anxiety, worthlessness, and suicidal ideation, and determined that these symptoms moderately impaired Ervin's functional abilities. ( Id. ) Ervin saw Dr. Belford for three follow-up visits between December 2007 and May 2008. ( Id. at 423-25) During these visits, Dr. Belford observed that Ervin's symptoms markedly impaired Ervin's functional abilities and noted no improvement. ( Id. ) In a letter dated May 30, 2008, Dr. Belford diagnosed Ervin with bipolar disorder, observed that Ervin failed to follow through with counseling or medication, and opined that she would be unable to sustain competitive employment. ( Id. at 422)

From December 19, 2006 to July 17, 2007, Ervin was seen by Diane Necastro, a licensed clinical social worker at Delaware Guidance Services for Children and Youth, for psychiatric evaluation and treatment. ( Id. at 266-67) Ms. Necastro diagnosed Ervin with major depressive disorder due to her history of self-harm, anxiety attacks, and depression, and gave her a global assessment of functioning ("GAF")[2] score of 41, with a highest GAF within the last year of 34. ( Id. ) Over the course of treatment, Ms. Necastro observed moderate progress in Ervin's anxiety attacks, and slight progress in Ervin's actions of self-harm and depression. ( Id. at 266) Ms. Necastro noted that Ervin had previously taken Zoloft, but was noncompliant and had stopped taking the medication by February 2007. ( Id. at 267) When Ervin turned 18 in July 2007, her case was closed and she was referred to Pathways at Wilmington Hospital for treatment. ( Id. at 266)

Ervin was admitted to the emergency room on September 23, 2007, October 9, 2007, and January 3, 2008 for depression. ( Id. at 338-47; 370-411) A psychiatric assessment performed in the emergency room reflected that she had a history of suicidal thoughts, self-mutilation, and aggression, and she had difficulty functioning at work or school. ( Id. at 409) On January 3, 2008, Ervin presented with self-inflicted lacerations caused by a razor blade, and had taken Trazadone, cough syrup with codeine, and Motrin. ( Id. at 340, 345)

On January 4, 2008, Ervin was assessed at Rockford Center. ( Id. at 268-70) During her psychiatric assessment, Ervin acknowledged that she had a history of cutting herself since age 10 due to stress and frustration, and experienced auditory and visual hallucinations as a child. ( Id. at 268) Ervin claimed that she had no current hallucinations or suicidal or homicidal ideations. ( Id. ) As of January 4, 2008, she did not have outpatient psychiatric treatment and was on no medication. ( Id. at 268-69) She was diagnosed with general depressive disorder. ( Id. at 269)

Ervin began treating with Praful C. Desai, M.D. in October 2007. ( Id. at 272) During a visit on January 9, 2008, Dr. Desai wrote that Ervin "continues to have lots of mood swings" and "feels angry, frustrated, feels like cutting herself." ( Id. at 271) Dr. Desai indicated that Ervin continued "to hear voices telling her to fight others her own voice coming from within" and at times had a "movie in her head about how she will hurt somebody else." ( Id. ) According to Dr. Desai, Ervin also experienced anxiety. ( Id. )

Ervin returned to Rockford Center in July 2008. ( Id. at 482-83) Her discharge papers indicated that she had no education or vocational plans following her discharge, but she planned to focus on being compliant with her medication. ( Id. at 482) Her discharge medications included Geodon, Wellbutrin, Cogentin, and Trazodone. ( Id. at 483)

On September 11, 2008, Ervin was examined by state agency physician Robert G. Thompson, Psy.D. ( Id. at 496-506) Dr. Thompson's notes reveal that Ervin had not worked in over a year at the time of the examination, and had previously held a retail job for about two years. ( Id. at 496) During the examination, Ervin explained that she suffered from depression and had been admitted to a psychiatric hospital in July 2008 for eight days of inpatient care, followed by outpatient treatment, after attempting to commit suicide. ( Id. at 497-99) Ervin described experiencing mood changes, suicidal thoughts and impulses, social isolation, and eating disorders. ( Id. at 497) Ervin admitted that she has anger problems and takes her anger out on other people. ( Id. ) She explained that she does not like to be around other people and prefers not to leave her house, especially unaccompanied. ( Id. at 497-98) At the time of the examination, she was not taking any medications because she had run out and had not seen a physician to obtain refills. ( Id. at 498) Ervin denied any significant history of drug or alcohol abuse. ( Id. at 499)

Dr. Thompson observed that Ervin was neatly dressed, alert, and oriented to time, place, and person, but she made very little eye contact. ( Id. at 500-01) She did not have difficulty paying attention or concentrating during the one-hour exam. ( Id. ) Her short-term and long-term memory were not formally assessed but appeared to be grossly intact. ( Id. at 501) Ervin reported severe depressive symptoms, such as suicidal thoughts, that became the focus of the examination. ( Id. at 501) Dr. Thompson perceived Ervin to be credible. ( Id. ) Ervin spoke in a monotonous tone of voice, and her speech was slow in rate and soft in volume, but well-articulated, intelligible, and relevant to the discussion topics. ( Id. ) Her facial expressions were bland and conveyed little emotion. ( Id. ) Her affect was depressed and was consistent with her thoughts and expressions. ( Id. ) Ervin explained that she had experienced intermittent thoughts of suicide since the time of her discharge from the Rockford Center in July 2008. ( Id. ) She indicated that she had no intention of acting on her thoughts of suicide and is hopeful about being more self-reliant in the future. ( Id. ) Ervin indicated that she often experiences her conscience talking to her, but denied hearing voices telling her to harm herself or someone else. ( Id. at 502)

Dr. Thompson emphasized that his findings were based on a one hour examination of Ervin occurring during a time when she appeared to be significantly depressed. ( Id. at 503) As such, he was unable to state with certainty the degree to which his assessment was reflective of Ervin's baseline functioning, and suggested that she may function much higher if stabilized psychiatrically. ( Id. ) Dr. Thompson expressed concern that Ervin had continued to experience severe symptoms of depression without receiving medication or psychotherapy, and advised Ervin and her mother that Ervin should seek immediate treatment for her depression. ( Id. ) Dr. Thompson considered the possibility of initiating psychiatric commitment during the examination but decided that it was not warranted due to Ervin's insistence that she did not intend to harm herself or others. ( Id. ) Dr. Thompson opined that some of Ervin's problems were related to a personality disorder, and while she may respond favorably to psychiatric medications, the medications would not necessarily cure Ervin's conditions. ( Id. at 504) On September 12, 2008, Ervin was admitted to the Rockford Center for psychiatric treatment. ( Id. at 515) On admission, she was diagnosed with psychotic disorder and given a GAF score of 20. ( Id. ) Ervin responded well to medication and therapy, and upon discharge, was diagnosed with schizoaffective disorder and given a GAF score of 40. ( Id. at 515, 516-17) She stopped experiencing auditory hallucinations and interacted appropriately with peers and staff. ( Id. at 516) She was discharged to continue outpatient treatment with her psychiatrist, Dr. Desai. ( Id. at 516-17)

In treatment notes from September 29, 2008, Dr. Desai noted Ervin's history of cutting herself and indicated that the last time she had done so was May 2008. ( Id. at 518) Dr. Desai diagnosed Ervin with schizoaffective disorder. ( Id. at 519)

State agency physician Christopher King, Ph.D. performed a psychiatric RFC assessment on December 17, 2008. ( Id. at 522-35) Dr. King indicated that Ervin experienced mood disturbances, accompanied by a full or partial manic depressive syndrome, as evidenced by various symptoms, signs, and laboratory findings. ( Id. at 524-25) He identified Ervin as having inflexible and maladaptive personality traits causing significant impairment in social or occupational functioning, characterizing this description as borderline personality disorder. ( Id. at 527) He indicated that Ervin had moderate difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence, or pace, and had one or two repeated episodes of decompensation of extended duration. ( Id. at 530) He opined that Ervin was moderately limited in her ability to interact appropriately with the general public, to accept and respond appropriately to criticism from supervisors, and to respond appropriately to changes in the work setting. ( Id. at 534) Dr. King observed that despite Ervin's history of treatment for depression, she was not compliant with her medications. ( Id. at 535) Dr. King concluded that Ervin would be better suited to jobs that do not require interaction with others due to her psychosocial problems. ( Id. ) Dr. King gave Dr. Thompson's assessment partial weight, concluding that Dr. Thompson's RFC ratings were not consistent with his narrative and appeared to overestimate the severity of Ervin's limitations. ( Id. ) On March 5, 2009, Carlene Tucker-Okine, Ph.D., reviewed and affirmed Dr. King's assessment. ( Id. at 573-86)

On November 9, 2009, Ervin was admitted to the Rockford Center to stabilize her mood swings, psychosis, and anxiety. ( Id. at 609) Ervin denied having suicidal ideation, homicidal ideation, or auditory or visual hallucinations at that time. ( Id. at 610) Ervin's medications were adjusted, and her stressors were addressed with her mother. ( Id. at 609) Ervin was instructed to follow up with her outpatient provider. ( Id. )

Ervin's medical records reflect that she also suffers from asthma and frequently visited Christiana Care Health Services at Wilmington Hospital for asthma-related symptoms. ( Id. at 378, 380, 399, 401, 418, 441-46, 452-53) The parties do not dispute the ALl's ...


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