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Timmons v. Colvin

United States District Court, D. Delaware

December 20, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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Barbara E. Timmons, Blades, Delaware. Pro se Plaintiff.

Charles M. Oberly III, United States Attorney, Wilmington, Delaware and Patricia A. Stewart, Special Assistant United States Attorney, Office of the General Counsel Social Security Administration. Of Nora Koch, Esquire, Acting Regional Chief Counsel, Region III and Andrea A. Robertson, Esquire, Assistant Regional Counsel of the Office of the General Counsel Social Security Administration, Philadelphia, Pennsylvania. Counsel for Defendant.


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Sue L. Robinson, District Judge.


Barbara E. Timmons (" plaintiff" ) appeals from a decision of Carolyn W. Colvin, Acting Commissioner of Social Security (" defendant" ), denying her application for Disability Insurance Benefits (" DIB" ) under Title II of the Social Security Act (the " Act" ), 42 U.S.C. § § 401-434. The court has jurisdiction pursuant to 42 U.S.C. § 405(g).[1]

Currently before the court are the parties' cross-motions for summary judgment. (D.I. 18, 23) For the reasons set forth below, plaintiff's motion will be denied and defendant's motion will be granted.

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A. Procedural History

Plaintiff filed a protective claim for DIB on March 2, 2009, alleging disability since the alleged onset date of October 26, 2002 [2] due to a heart attack; chronic obstructive pulmonary disease (" COPD" ); chronic bronchitis; artery disease; diabetes; depression; high blood pressure; emphysema; asthma; high cholesterol; leg and chest pain; gastroesophageal reflux disease; hypothyroidism; and issues with concentration, fatigue and forgetfulness. (D.I. 15, Tr. 174, 178) The relevant time-period is from the alleged onset date of October 26, 2002 through December 1, 2005, the date plaintiff was last insured. Plaintiff's application was denied initially and on reconsideration. ( Id. at 86-91) On June 25, 2010, the ALJ issued an unfavorable decision denying the claim for DIB and plaintiff unsuccessfully sought review by the Appeals Council. ( Id. at 14-75) On May 21, 2012, plaintiff, proceeding pro se, filed the current action for review of the final decision. (D.I. 2)

B. Physical Impairments

In April 2001, plaintiff was diagnosed with smoking-related COPD/asthma. (D.I. 15, Tr. 240) In November 2002, she began treating with pulmonary specialists Emy Fernandez, M.D. (" Dr. Fernandez" ) and Amir Quefatieh, M.D. (" Dr. Quefatieh" ), both of whom prescribed medications to treat the COPD. ( Id. at 288, 442, 479, 482-84, 900) Dr. Fernandez's treatment notes from 2003 through 2005 indicate that plaintiff continued smoking despite being instructed to stop, she was sometimes non-compliant with CPAP use, and she stopped taking inhaled medication because she believed she was inhaling steroids. Her physical examinations were basically normal, except for a deep cough. ( Id. at 438-42)

Plaintiff had episodes of bronchitis In 2002, 2004, and 2005. ( Id. at 290, 330, 334, 438, 441) January 2004 progress notes from ear, nose, and throat specialists indicate that plaintiff's asthma, chronic bronchitis, and allergies were stable, as were her physical examination results. ( Id. at 247-48) Chest x-rays taken in November 2004 revealed mild, chronic-appearing lung markings. ( Id. at 895) As of October 2005, plaintiff used her Albuterol nebulizer nearly every four hours. ( Id. at 445) Chest and rib x-rays taken in 2005 revealed no abnormalities. ( Id. at 896)

Dr. Quefatieh's 2005 treatment notes indicate that, upon examination, plaintiff had no respiratory distress, her breathing was normal, and her leg no longer bothered her. The notes indicate that plaintiff is a chronic smoker who continues to smoke, refuses to take inhaled steroids because of alleged weight gain, and she was non-compliant with her CPAP machine treatment. Plaintiff had improved breathing after steroid and antibiotic treatments. ( Id. at 286-91, 445-48)

Prior to the relevant time-frame, plaintiff was diagnosed with mild, non-critical coronary artery disease, and underwent two cardiac catheterizations. (D.I. 15, Tr. 256, 753-54) In July 2002, plaintiff's treating cardiologist, Anand B. Kartha, M.D. (" Dr. Kartha" ) completed a form in connection with plaintiff's application for long-term disability benefits. ( Id. at 751-52) Dr. Kartha indicated that plaintiff's progress was unchanged; she exhibited marked limitation in her cardiac functional capacity; she had no mental limitations; she was totally disabled; and that vocational counseling and/or retraining would

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be recommended, as plaintiff was unable to be rehabilitated for her regular occupation. ( Id. at 751-52)

In 2003, plaintiff's primary care physician Marie C. Wolfgang, M.D. (" Dr. Wolfgang" ) noted that plaintiff was in no acute distress, her heart condition was stable, she should stop smoking to address her COPD, and she should continue her psychiatric care and mental health medications. ( Id. at 337-38) During a November 3, 2004 visit to Dr. Wolfgang, plaintiff reported that her cough was better, she was well, and was seeing a psychiatrist for counseling and medication. ( Id. at 330) Dr. Wolfgang again advised plaintiff to stop smoking. ( Id. at 331) Plaintiff's lungs were clear during several visits to Dr. Wolfgang in 2004 and 2005. ( Id. at 324, 327, 329)

On November 23, 2004, plaintiff presented to the emergency room with complaints that her heart symptoms had worsened. ( Id. at 256) Plaintiff began treating with cardiologist Richard P. Simons, D.O. (Dr. Simons" ) who performed a cardiac catheterization on November 24, 2004 to assess the extent of plaintiff's coronary artery disease. ( Id. at 264) The results indicated that plaintiff had a mild eccentric lesion in her proximal right coronary artery; mild plaquing throughout her left coronary system; and grossly normal left ventricle functioning. ( Id. at 265)

An April 7, 2005 ECG showed non-specific T-wave changes. ( Id. at 254). When Dr. Simons examined plaintiff on the same date, he noted that plaintiff continued to smoke against medical advice. He recommended that she abstain from tobacco use and continue her course of medications. ( Id. at 254) Dr. Simons observed that, from a cardiac standpoint, plaintiff was stable and was within acceptable risk for her proposed surgery to repair her " trigger thumb." ( Id. at 254)

When plaintiff presented to Dr. Wolfgang in September 2005, she reported that she felt good and had increased her activity. ( Id. at 325) On October 13, 2005, Dr. Wolfgang completed a long-term disability form and opined that plaintiff was totally disabled due her chronic conditions, and would require a cardiologist opinion to determine whether she could participate in rehabilitation for any occupation. ( Id. at 277-78) Dr. Wolfgang determined that plaintiff had marked functional limitations from her cardiac condition; moderate physical limitation of functional capacity; and moderate limitations in mental capacity, as plaintiff reported a decreased ability to concentrate and handle stress. ( Id. at 277-78)

Dr. Wolfgang noted in 2005 that plaintiff had a chronic cough and appeared congested. ( Id. at 325-26, 331-32, 334-35) In December 2005, Dr. Wolfgang noted plaintiff's alcohol use, and recommended that she abstain from alcohol intake. ( Id. at 324-26) Dr. Wolfgang's treatment notes indicate that plaintiff had mostly normal physical examination findings and was in no acute distress. ( Id. at 320-40) A December 2005 treatment note indicates that plaintiff smoked at least a half-pack of cigarettes daily. ( Id. at 290)

On June 20, 2006, V.K. Kataria, M.D. (" Dr. Kataria" ) completed a physical RFC assessment. ( Id. at 356-62) Dr. Kataria concluded that plaintiff retained the physical capacity to perform sedentary work. ( Id. at 469) Dr. Kataria found plaintiff only partially credible, noting that plaintiff continued to smoke despite her COPD and that her heart condition was stable. ( Id. at 358) Dr. Kataria opined that plaintiff could lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; sit for a total of about six hours in an eight-hour workday; never climb ladders, ropes or scaffolds; occasionally climb

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ramps and stairs, balance, stoop, kneel, crouch, and crawl; and needed to avoid concentrated exposure to temperature extremes, wetness, humidity, fumes, odors, dusts, gases, poor ventilation, and hazards. ( Id. at 358, 360-61)

On June 2, 2009, R. Palandjian, D.O. (" Dr. Palandjian" ), completed a physical RFC assessment. ( Id. at 526-32) Dr. Palandjian concluded that plaintiff remained capable of performing sedentary work. ( Id. at 531) A. Aldridge, M.D. (" Dr. Aldridge" ) affirmed Dr. Palandjian's findings on August 4, 2009. ( Id. at 552).

C. Mental Impairments

Plaintiff began treatment for depression in 1999, and intermittently received counseling and medication through March 2003. ( Id. at 872, 880-87, 912) In August 2004, plaintiff began treatment with psychiatrists Dr. Israel (" Dr. Israel" ) and Dr. K. Ahmed (" Dr. Ahmed" ). ( Id. at 295-300, 392-93) At the initial intake visit with Dr. Israel, plaintiff reported worsening depression. ( Id. at 295) A mental status examination indicated that plaintiff retained short and long-term memory; was cooperative, alert, and oriented; had moderate anxiety; exhibited depressed mood and thought content; and had appropriate affect. ( Id. at 298-300) Plaintiff was diagnosed with major depression, and assessed a Global Assessment of Functioning (GAF) score of 55, which indicates moderate difficulty in social, occupational, or school functioning. (Tr. 300) Dr. Israel recommended medication management and individual therapy. ( Id. at 300)

On May 27, 2004 plaintiff requested, and obtained, medication for depression from Dr. Wolfgang, stating that Dr. Ahmed would not prescribe medication because she owed him money. ( Id. at 333) Dr. Wolfgang contacted Dr. Ahmed's office to verify that plaintiff was under psychiatric care while taking medication for depression and was told that plaintiff was last seen in Dr. Ahmed's office in November 2003, that plaintiff had missed a December 2003 appointment, and that there had been no appointments since that time resulting in plaintiff's discharge from Dr. Ahmed's care. ( Id. at 333)

In July 2004, plaintiff reported that her mental health counselor could not write a prescription for her mental health medication, and requested a prescriptions for the medications from Dr. Wolfgang. ( Id. at 332) Dr. Wolfgang indicated that she would honor this request with no refills and that her office would no longer write prescriptions for plaintiff's mental health conditions. ( Id. at 332) In October 2005, Dr. Wolfgang opined that plaintiff's reported decreased ability to concentrate and deal with stressful limitations made her incapable of working. ( Id. at 278)

On May 16, 2006, Randy Rummler, M.D. (" Dr. Rummler" ), completed a supplemental questionnaire regarding plaintiff's residual functional capacity (" RFC" ). Dr. Rummler found plaintiff moderately impaired in most areas of functioning due to chronic depression. ( Id. at 304-05)

J. Brandon, Ph.D. (" Dr. Brandon" ) completed a psychiatric review technique on May 22, 2006. ( Id. at 306-19) Dr. Brandon identified plaintiff's depressive disorder and found that she remained capable of completing non-exertional tasks, socializing, and independently engaging in activities of daily living. ( Id. at 318) He determined that plaintiff's conditions were primarily physical and that she was undermotivated. ( Id. at 318) In addition, Dr. Brandon noted that mental health treatment indicated moderate interference due to anxiety and depression. He also noted that plaintiff's mental health record failed to substantiate that she had a severe, ongoing disabling mental condition, and that

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physical difficulties impinged on plaintiff's activities and ...

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