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Carey v. Astrue

United States District Court, D. Delaware

March 30, 2015

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.


GREGORY M. SLEET, District Judge.


On May 17, 2010, the plaintiff Jacqueline F. Carey ("Carey") filed this action against the defendant Michael J. Astrue, Commissioner of Social Security (the "Commissioner"), for review of the final decision denying her supplemental security income ("SSI") application under title XVI of the Social Security Act.[1] (D.I. 2; D.I. 21 at 5.) Carey brought this civil action under 42 U.S.C. § 405(g) as incorporated by 42 U.S.C. § 1383(c)(3). ( Id. ) For the reasons that follow, the court will deny Carey's motion for summary judgment and grant the Commissioner's cross-motion for summary judgment. The court will affirm the decisions of the Administrative Law Judge ("ALJ") and the Appeals Council.


Carey filed an application for SSI on May 30, 2007, alleging disability beginning on June 21, 2005.[2] (D.I. 11 at 9.) Carey's alleged conditions consist of asthma, migraine headaches, depression, anxiety, bipolar disorder, and attention deficit hyperactivity disorder ("ADHD"). ( Id. at 12.) Following the denial of Carey's claim both initially and upon reconsideration on March 25, 2008, Carey requested a hearing before the ALJ on April 28, 2008. ( Id. at 9, 82.) Pursuant to that request, on October 29, 2008, the ALJ held a hearing on Carey's claim. ( Id. at 9.) At the hearing, the ALJ heard testimony from Carey and from an impartial vocational expert ("VE"), Mitchell A. Schmidt, regarding Carey's claim for SSI.[3] On November 17, 2008, the ALJ issued a written decision denying Carey's claim for SSL ( Id. ) The ALJ concluded that Carey was not disabled under section 1614(a)(3)(A) of the Social Security Act. ( Id. at 26.) The Appeals Council denied Carey's request for review without substantive explanation. ( Id. at 1-5.) On May 17, 2010, Carey filed the instant appeal.

A. Medical History

a. Mental Impairments

During the relevant time period, Carey received treatment and medication from numerous doctors for her mental impairments. (D.I. 11 at 12-17.) She was diagnosed with depression at the age of 14 and has experienced a history of physical and emotional abuse. ( Id. at 12.) Carey was seen by David Nixon, M.D. from March to May, 2006. During this time, Carey was diagnosed with ADHD, an anxiety disorder, rule out bipolar disorder, and post-traumatic stress disorder. She was assigned Global Assessment of Functioning ("GAF") scores of 60 and 55. ( Id. at 278, 283.) Dr. Nixon referred Carey to a therapist and prescribed Ritalin and Wellbutrin.[4] ( Id. ) In July of 2006, after an examination by Abimbola Osunkoya, M.D., Carey was also prescribed Topamax to help with migraine headaches and was warned of migraine triggers. ( Id. at 333.)

In January and February of 2007, Carey was seen by neurologist Robert Varipapa, M.D., for treatment in response to the migraine headaches she had been experiencing. ( Id. at 336, 339.) Dr. Varipapa found that the examination was unremarkable and there was no suggestion of intracranial pathology. ( Id. at 338) He noted that Carey could be experiencing an analgesic rebound due to overuse of over-the-counter medications. ( Id. ) Dr. Varipapa prescribed the medication Elavil, along with twenty minutes of exercise per day and discontinuing consumption of caffeinated beverages.[5] ( Id. ) Carey was also seen periodically from August, 2007 to June, 2008 by Stephen Penny, M.D., who works with Dr. Varipapa.[6] ( Id. at 341-44, 478.)

Carey was also periodically treated by Gwynn Stup, A.R.N.P., from January of 2007 to July of 2008.[7] ( Id. at 13-15; 395-99.) Carey admitted during the first examination that she had not taken her prescribed medications from April, 2006 to January, 2007. ( Id. at 396.) During this first examination, Carey was assigned a GAF score of 40-45. ( Id. at 399.) Carey was given medication, but in subsequent visits in June and November of 2007 she indicated that she had not been taking her medication for several months. ( Id. at 453.) Carey again returned to Ms. Stup in January and February of 2008, when she was prescribed Cymbalta and Adderall in addition to her existing medication regimen. ( Id. at 454-55.) After several months of taking her medication, Carey was examined by Ms. Stup in July and August of 2008 and was determined to be fairly stable. ( Id. at 456.) Carey was assigned a GAF score of 51-60 during this visit. ( Id. )

On December 8, 2007, Carey underwent a clinical psychological evaluation with Joseph Keyes, Ph.D. ( Id. at 351.) Dr. Keyes concluded that Carey demonstrated adequate cognitive functioning within normal limits with a disturbance in the attentional process. ( Id. at 356.) Dr. Keyes assigned Carey a GAF score of 60-65. ( Id. at 357.) Further, Dr. Keyes estimated a very slight degree of impairment in the competitive labor-market setting. ( Id. at 352.) He indicated no problems understanding simple instructions or carrying out those instructions under ordinary supervision. ( Id. ) He noted moderate impairment with sustaining work performance and coping with pressures, as well as mild impairment performing routine, repetitive tasks. ( Id. ) The term "moderate" impairment is described by Dr. Keyes' report as "an impairment which affects but does not preclude ability to function." ( Id. )

During the relevant time period, Carey also attended therapy sessions with Diana Cohen, L.C.S.W. for approximately five months. ( Id. at 14-15; 461-73.) Ms. Cohen diagnosed Carey with ADHD, bipolar disorder, and migraines. ( Id. at 464.) During her visits Carey reported to be taking a home schooling high school course and was doing well. ( Id. at 466.) Carey also described a very close relationship with her daughter and indicated that she was taking her daughter to a nursery program at the church where Carey attended Bible study twice per week. ( Id. at 467.) Ms. Cohen described Carey as appropriate, controlled, and stable throughout their interactions, and reported improvement from Carey with proper medication. ( Id. at 461-73.)

b. Physical Impairments

Along with her mental impairments, Carey has also experienced several physical ailments during the relevant time period.

On December 20, 2006, Carey saw Dr. Lewandowski for pain in her knee and right shoulder. (D.I. 11 at 387.) She indicated that she had experienced left knee problems since she was fourteen years old, and her right shoulder had been problematic for several years. ( Id. ) Carey returned to Dr. Lewandowski in January of 2008 with increased shoulder pain, to which she was prescribed pain medication. ( Id. at 379.) She returned shortly after requesting increased pain medication at which point Dr. Lewandowski advised her to see a pain management physician. ( Id. at 378.) On September 13, 2007, Carey was examined by Dr. Lakhani for coughing, wheezing, and difficulty breathing. ( Id. at 402.) She was diagnosed as highly allergenic with moderate persistent asthma, which was complicated by chronic heavy smoking. ( Id. at 403.) This condition was treated with medication. ( Id. at 404.) On June 25, 2007, Carey was diagnosed with hyperthyroidism and a palpable goiter. ( Id. at 418.) Follow-up appointments on October 31, 2007 and January 29, 2008, noted that the hyperthyroidism had significantly improved and required only conservative monitoring. ( Id. at 419, 422.) Carey also sought pain medication from other physicians to help with muscular problems.[8] Additionally, Carey was previously diagnosed with obesity. ( Id. at 16, 287.)

B. Hearing Testimony

a. Testimony of ...

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