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Harvey v. Berryhill

United States District Court, D. Delaware

February 12, 2019

TAMMY HARVEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Tammy Harvey, Felton, Delaware; Pro Se Plaintiff.

          Eric P. Kressman, Regional Counsel, Region III, and Annie Kernicky, Assistant Deputy Regional Counsel, Office of the Regional Chief, Social Security Administration, Philadelphia, Pennsylvania; David C. Weiss, United States Attorney for the District of Delaware, Wilmington, Delaware; Heather Benderson, Special Assistant United States Attorney, Office of the General Counsel, Philadelphia, Pennsylvania, Attorneys for Defendant.


          ANDREWS, U.S. District Judge

         Plaintiff, Tammy Harvey, who appears pro se, appeals the decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying her application for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act. See 42 U.S.C. §§ 1381 -1383f. Jurisdiction exists pursuant to 42 U.S.C. § 405(g). Presently pending before the Court are cross motions for summary judgment filed by Harvey and the Commissioner. (D.I. 13, 14). Briefing is complete.

          I. BACKGROUND

         A. Procedural History

          Harvey filed for SSI benefits on October 9, 2013, alleging disability as of October 19, 2010 due to paranoid schizophrenia and other functional psychotic disorders and substance addiction/dependence disorders (alcohol). (D.I. 11-5 at 2-8; D.I. 11-8 at 2-10). Her application was denied on January 24, 2014, and upon reconsideration on April 2, 2014. (D.I. 11-5 at 2-21) Two administrative hearings were held before an Administrative Law Judge, the first on June 1, 2016, and the second on September 19, 2016.[1] (D.I. 11-3 at 2-85). Testimony was provided by Harvey, vocational expert Victor Alberigi, and Harvey's friend Mark Turulski.[2] The ALJ issued a decision on October 28, 2016, finding that Harvey was not disabled. (D.I. 11-2 at 17-33). She sought review by the Appeals Council, submitted additional evidence, and her request was denied on July 26, 2017, making the ALJ's decision the final decision of the Commissioner. (Id. at 2-5). On September 5, 2017, Harvey filed this action seeking review of the final decision. (D.I. 1).

         B. Plaintiff's Testimony

         Harvey was born in 1973 and was 43 years old at the time of the ALJ's decision (D.I. 11-2 at 27). She completed 10th grade and has no past relevant work experience. (D.I. 11-3 at 27-28). She may have a GED. (Id. at 28). Harvey testified that, for the past three years, she had lived with Turulski. (Id. at 6, 29). Harvey testified that she has a driver's license but had not driven in quite awhile. (Id.). Harvey has three children, two of whom are grown. (Id.) She has no relationship with her grown children and has not seen her youngest child for at least three years. (Id. at 30, 36-37).

         Harvey was asked why she thought she was unable to work, and she replied, "[w]ell, it's not that I don't think I can work. I just have, sometimes, trouble with transportation." (Id. at 33). When asked what she did during the day, Harvey stated that she sometimes cooks breakfast, does crossword puzzles, plays Solitaire, watches a lot of television, and if someone asks her to do something, she will. (Id. at 36).

         At the hearing Harvey testified that she was still drinking alcohol. She drinks at least a 12-pack every day, and drinks it "like it was tea." (Id. at 8, 41). Harvey could not remember a period in the past year when she was sober, without having had anything to drink. (Id. at 44). She testified that she is seen by a physician who helps her with her schizoaffective disorder but is not sure how the disorder affects her. (Id. at 37-38). She takes medication that helps her sleep. (Id. at 37). Harvey believes her bipolar disorder cause her to awaken at odd times during the night. (Id. at 38-39). She testified that post-traumatic stress disorder means she is stressed out or depressed. (Id. at 39).

         C. Turulski's Testimony

         Turulski testified that Harvey used alcohol to self-medicate and had not been drinking as regularly since she had been placed on Latuda.[3] (Id. at 58). Turulski testified that Harvey's last period of sobriety was "last summer when she went about three months." (Id. at 58-59). Harvey described the difference when Harvey takes Latuda as, "before the Latuda, she would wake up miserable, maybe because it was because of the lack of sleep. And since Latuda, she really doesn't wake up miserable, most of the time. Every once in a while, - nobody's perfect. She'll have a bad day . . . . I know that she's improved ever since the Latuda." (Id. at 59-60).

         D. Plaintiffs Medical History, Condition, and Treatment

         On February 12, 2012, Harvey presented to the emergency department for a psychiatric evaluation after police found her found walking in the road, far from her house, and she had been hit by a car. (D.I. 11-12 at 36). Harvey appeared intoxicated and was unable to give a reliable history. (Id.) She acknowledged that she drank eight cans of beer per day. (Id. at 35). Diagnoses included depressive disorder, alcohol intoxication, and adjustment disorder with disturbance of conduct. (Id. at 38).

         On October 6, 2012, Harvey was taken to the emergency room by police after she was found on the porch of a former acquaintance with multiple bruises in various stages of healing. (Id. at 13). Harvey stated that "she got the bruises because she 'exercises too much and I run into things.'" (Id.). She admitted to drinking six beers that day and that she typically drank six beers daily. (Id.).

         On March 18, 2013, Harvey presented to the emergency room for evaluation of altered mental status. (Id. as 2-4). She was confused, disoriented, and unable to give a reliable history. (Id. at 2). Harvey's mother indicated that Harvey had stopped taking her medication for schizophrenia. (Id.). Harvey admitted to "chewing bath beads" and drinking alcohol that day. (Id.). Discharge summary was alcohol-induced psychosis, psychotic disorder, alcohol intoxication, altered mental status, reported bath salts intoxication, and alcohol intoxication delirium. (Id. at 6). Harvey was discharged, to be transferred to a psychiatric facility to be determined. (Id.).

         On April 30, 2013, Harvey was admitted to Dover Behavioral Health Systems ("DBH"). (D.I. 11-10 at 5). She was admitted with complaints of depressed mood, disorganized thoughts, confusion, an attempt to walk into traffic, and non-compliance with medication. (Id.). Harvey's fiance reported that she goes to her neighbor's house to drink. (Id.). Diagnoses included psychosis, not otherwise specified; rule out schizophrenia, disorganized type; and a GAF of 25.[4] (Id. at 8-9). When Harvey was discharged on May 3, 2013, her GAF was 60.[5] (Id. at 5).

         On May 6, 2013, Harvey was brought by ambulance to the emergency room. (D.I. 11-11 at 64). She stated that she did not know who called the ambulance, and she wanted to go to DBH for detox and psychiatric evaluation. (Id.). She had been arguing with her boyfriend, admitted to drinking four beers, and appeared intoxicated. (Id.) She indicated that she drank a twelve pack per day until she was at DBH the prior week. (Id.). Harvey was transferred to Psychiatric Facility Recovery Center of Delaware. (Id. at 70).

         On May 11, 2013, Harvey was brought to the emergency room by the police department for intoxication and possible pills ingestion and psychiatric evaluation. (D.I. 11-11 at 33). She stated she had four beers that day and was unable to give an adequate history. (Id. at 33). Bruising was noted on her back, but Harvey denied knowing how she got the bruising. (Id. at 35). Harvey was triaged and taken to the main emergency department where she was checked on frequently and remained for several hours. (Id. at 34-35). Harvey left the emergency room without medical approval. (Id. at 35). The discharge diagnosis was acute alcohol intoxication. (Id. at 41).

         On May 21, 2013, Harvey was brought to the emergency room by the police for a psychiatric evaluation. (Id. at 25). She complained of "having a lot of confusion," being compliant with medications, admitted to drinking that day, and appeared intoxicated. (Id.). Diagnoses included alcohol intoxication, cannabis abuse, history of depression, non-compliance with medication regimen, alcoholism, and psychotic disorder. (Id. at 29). Harvey was transferred to Psychiatric Facility Recovery Center of Delaware. (Id.)

         On August 23, 2013, Harvey was taken to the emergency room by the police for a psych evaluation after she was found intoxicated in public. (D.I. 11-10 at 13). She admitting to drinking a six pack of beer that day and appeared obviously intoxicated. (Id.). Discharge diagnoses included schizophrenia; alcoholism; alcohol intoxication; and thought disorder due to alcoholism, not schizophrenia. (Id. at 15-16). The discharging physician noted that Harvey was "off her meds" and "being enabled by another guy with her when drinking." (Id. at 15). The note continued that she did not have a history of schizophrenia and the current incident clearly indicated a thought disorder due to alcohol. (Id.).

         Harvey was admitted to Bayhealth Medical Center on August 27, 2013, for agitation and altered mental status. (D.I. 11-11 at 15). She was found trespassing on someone else's property, intoxicated, and agitated. (Id.). The diagnosis was alcohol intoxication with a past history of schizophrenia. (Id.).

         The next day, Janis Chester, M.D., evaluated Harvey regarding alcoholism and schizophrenia. (Id. at 18). Dr. Chester noted that Harvey had been treated for polysubstance dependence, primarily alcohol, for "some years" and had been addicted to alcohol since age 21. (Id.). Dr. Chester noted that Harvey had been brought in by the police due to public intoxication on a least two occasions, including the current admission. (Id.). Harvey had a history of suicidal ideation and suicidal attempts while intoxicated, and she denied signs or symptoms suggestive of depression, mania, or psychosis. (Id.) Dr. Chester stated that Harvey trivialized the factors leading up to the current admission, was not interested in a referral for any type of formal treatment and was not interested in accepting the telephone number for Alcoholics Anonymous. (Id.). The diagnostic impression was alcohol dependence and no history of schizophrenia. (Id. at 19).

         Joseph Keyes, Ph.D., performed a consultative psychological evaluation on March 25, 2014. (D.I. 11-12 at 50). Harvey reported that she lived with her boyfriend/fiance and he had driven her to the evaluation. (Id.). She stated that she was independent in self-care skills and able to perform routine household/domestic chores and tasks. (Id. at 52).

         Harvey provided a long history of alcohol abuse and reported drinking more than six beers a day. (Id. at 51). She admitted to drinking two beers that morning before her 9:00 a.m. appointment. (Id.). She provided a history of psychiatric hospitalizations, with her last hospitalization in April 2013 at DBH. (Id. at 50-51). Diagnoses included ...

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