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Miller v. Colvin

United States District Court, W.D. New York

March 27, 2015



MARIAN W. PAYSON, Magistrate Judge.


Plaintiff Lekia Monique Miller ("Miller") brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying her applications for Supplemental Security Income Benefits and Disability Insurance Benefits ("SSI/DIB"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 17).

Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 11, 12). For the reasons set forth below, this Court finds that the decision of the Commissioner is supported by substantial evidence in the record and is in accordance with applicable legal standards. Accordingly, the Commissioner's motion for judgment on the pleadings is granted, and Miller's motion for judgment on the pleadings is denied.


I. Procedural Background

Miller protectively filed for SSI and DIB on June 29, 2010, alleging disability beginning on May 18, 2010, due to diabetes, mental health issues, post-traumatic stress disorder ("PTSD"), anxiety, depression, asthma, muscle spasms and an abscess under her arm. (Tr. 154-67, 197).[1] On June 7, 2011, the Social Security Administration denied Miller's claim for benefits, finding that she was not disabled.[2] (Tr. 81-83). Miller requested and was granted a hearing before Administrative Law Michael W. Devlin (the "ALJ"). (Tr. 36, 108-15, 116-39). The ALJ conducted a hearing on May 8, 2012. (Tr. 36-64). In a decision dated August 30, 2012, the ALJ found that Miller was not disabled and was not entitled to benefits. (Tr. 20-30).

On July 2, 2013, the Appeals Council denied Miller's request for review of the ALJ's decision. (Tr. 1-7). In the denial, the Appeals Council declined to consider a psychological report from Tara Russow ("Russow"), PhD, that postdates the ALJ's determination. (Tr. 2). Miller commenced this action on August 30, 2013 seeking review of the Commissioner's decision. (Docket # 1).

II. Relevant Medical Evidence[3]

A. Treatment Records

1. University of Rochester - Asthma, Allergy & Pulmonary Care

Treatment notes indicate that Miller began treating with Richard J. Looney ("Looney"), MD, at the Asthma, Allergy and Pulmonary Care Department of the University of Rochester Medical Center ("URMC") on August 18, 2010. (Tr. 268-70). According to the notes, Miller had previously been diagnosed with poorly-controlled type 1 diabetes, asthma and various allergies. (Id. ). Miller reported that she had recently awoken with a severe allergic reaction involving angioedema and hives on her face. (Id. ). She visited the Emergency Department at Strong Memorial Hospital and was treated with Benadryl, Soul-Medrol, Prednisone and Pepcid. (Id. ).

Miller reported suffering from symptoms of allergic rhinoconjunctivitis, accompanied by nasal congestion, ocular pruritus, rhinorrhea and frequent throat clearing. (Id. ). According to Miller, her symptoms were worse in the winter and summer. (Id. ). She reported that she had begun taking Advair approximately one month earlier, which she believed was helping. (Id. ). Miller stated that she had been smoking cigarettes for the previous eight years, currently smoked approximately four cigarettes a day and was trying to quit. (Id. ).

Looney assessed that Miller suffered from poorly-controlled type 1 diabetes, asthma, symptoms of seasonal and perennial allergic rhinitis and various allergies. (Id. ). Based upon the results of a spirometry, Looney opined that Miller's asthma was under improved control with her current medication regimen. (Id. ). Looney recommended that she take Advair HFA instead of Advair Diskus for her asthma and recommended that she continue taking Loratadine for her allergic rhinoconjunctivitis. (Id. ).

Miller returned for an appointment with Looney on October 27, 2010. (Tr. 265-67). During the appointment, Miller reported that she was doing well and was pregnant. (Id. ). Given her pregnancy, Miller was advised to defer allergy skin testing. (Id. ). According to Looney, Miller's asthma was well-controlled, but her allergic rhinitis was slightly less controlled. (Id. ). Looney recommended that Miller begin taking Cetirizine and Budesonide. (Id. ).

2. URMC - Endocrine and Metabolism Unit

Treatment records indicate that Miller began receiving treatment from Jacquelyn Doyle ("Doyle"), a nurse practitioner in URMC's Endocrine and Metabolism Department. (Tr. 412-14). The treatment records suggest that John Grable ("Grable"), MD, was Miller's primary care physician and that he reviewed the treatment records. (Id. ).

During the June 28, 2011 visit, Miller complained of decreased appetite, weight loss, recurrent hidradenitis supperativa, depression, anxiety, heartburn and diarrhea caused by antibiotics. (Id. ). She did not bring a blood glucose diary to the appointment, but reported that her levels were generally above 200 mg/dL. (Id. ). Miller denied experiencing vision problems and reported feeling numbness and tingling in her fingers and toes. (Id. ). Doyle performed a monofilament wire test of her feet, which was normal, and Doyle noted no lesions or deformities in her feet. (Id. ). Doyle recommended increasing her dosage of prescribed Lantus. (Id. ).

On July 28, 2011, Miller returned for a follow-up appointment with Doyle. (Tr. 415-16). During the appointment, she complained of vision problems and poor appetite. (Id. ). Miller reported that she planned to attend school in the fall. (Id. ). She denied experiencing any numbness or tingling in her fingers and toes. (Id. ). Doyle reviewed Miller's blood glucose diary and noted that her levels were generally above 200 mg/dL, indicating an inadequate basal insulin. (Id. ). Doyle increased the dosage of Lantus and Novolog and recommended that Miller see an ophthalmologist. (Id. ).

On October 12, 2011, Miller returned for an "urgent visit" at the request of Eastman Dental because she needed to have her wisdom teeth removed, but her diabetes remained uncontrolled. (Tr. 417-19). During the visit, she reported continued blurry vision, but denied experiencing any numbness or tingling in her fingers or toes. (Id. ). Again, a monofilament wire test was within normal limits. (Id. ). Doyle indicated that Miller was not checking her blood glucose levels frequently enough. (Id. ). Doyle increased her Lantus dosage and prescribed Ibuprofen. (Id. ).

Miller returned for another appointment on May 3, 2012. (Tr. 648-50). She denied vision problems or numbness or tingling in her fingers or toes. (Id. ). The treatment notes indicate that Miller had recently been seen by an ophthalmologist. (Id. ). Doyle noted that a monofilament test of her feet was within normal limits. (Id. ). According to Doyle, Miller forgot to bring her blood glucose diary, but reported that her levels were generally 150 mg/DL or higher. (Id. ). Doyle increased her Lantus and Novolog dosages. (Id. ).

3. Evelyn Brandon Mental Health Center

Treatment notes from Evelyn Brandon Mental Health Center ("EBMHC") indicate that on August 11, 2009, Miller was evaluated by Kevin McIntyre ("McIntyre"), MD. (Tr. 279-84). According to the notes, Miller had been receiving therapy services at EBMHC the previous year and had been receiving prescriptions from her primary care physician. (Id. ). She reported several childhood traumas, including a house fire when she was eleven. (Id. ). According to Miller, her thirteen-year-old brother died in the fire. (Id. ). She also reported attempted sexual abuse by relatives. (Id. ). Miller indicated that she had graduated high school on the honor roll and did not associate with her family. (Id. ). She complained of poor sleep, anxiety accompanied by crying and hand sweating, irritability, frustration and poor appetite. (Id. ). Miller reported that she used marijuana daily. (Id. ). Upon examination, she demonstrated unremarkable behavior, motor movements, speech, thought form and cognition, an anxious mood, constricted affect, superficial insight and fair judgment. (Id. ).

McIntyre diagnosed Miller with anxiety disorder, rule out PTSD. (Id. ). He discouraged her marijuana use over concerns that it could perpetuate her poor copings skills and depressive symptoms and interfere with treatment. (Id. ). McIntyre prescribed Paxil and Trazodone. (Id. ).

During May and June 2010, Miller failed to attend two scheduled appointments. (Tr. 429-38). During that same time period, she attended one appointment with Kathryn Rotolo ("Rotolo"), MS MHC, her therapist, and one appointment with Alexandra M. Fotiou ("Fotiou"), a psychiatrist who was managing Miller's medication regimen. (Id. ). Rotolo indicated that Miller had not significantly engaged in treatment, noting that she had not been seen since April 2010. (Id. ). Additionally, Rotolo suggested that Miller attend chemical dependency treatment and cautioned that her case would be closed if she failed to do so. (Id. ).

During her appointments, Miller expressed difficulty working due to her medical problems and feelings of disappointment. (Id. ). She also indicated that she had been denied SSI/DIB benefits. (Id. ). Miller also reported that she believed that the Prozac was helping to relieve her symptoms, although she continued to feel irritable. (Id. ). Upon examination by Rotolo, Miller presented unremarkable characteristics. (Id. ). Fotiou increased her Prozac dosage and prescribed Seroquel. (Id. ). Miller requested reassignment to a new therapist. (Id. ).

During July 2010, Miller attended one appointment with Rotolo and one appointment with Fotiou and a nurse, Susan Barrett ("Barrett"). (Tr. 439-52). During her appointment with Rotolo, Miller reported that she wanted to work with an older therapist. (Id. ). Rotolo observed that Miller demonstrated unremarkable characteristics and noted that she expressed grief over the loss of children in her life. (Id. ).

Miller reported continued disrupted sleep, poor appetite and fluctuating energy levels. (Id. ). She also reported that she was experiencing increased irritability and anxiety and that she tended to isolate herself in her apartment. (Id. ). According to Miller, her boyfriend was incarcerated. (Id. ). She reported that she had decreased the level of her marijuana use from ten "blunts" a day to three. (Id. ). Miller reported that she was doing "a little bit better" and was sleeping better, but continued to experience panic attacks. (Id. ). Fotiou increased her Prozac dosage, discontinued Seroquel and prescribed Seroquel XR. (Id. ).

Miller missed two appointments with her new therapist, Noel Calvo ("Calvo"), during July and August 2010. (Tr. 451-52). She met with Calvo for the first time on August 16, 2010. (Tr. 453-55). Calvo described her as "engaging and cooperative" and noted that she demonstrated a euthymic mood. (Id. ). Miller informed Calvo that she had recently begun a job as a bartender and was interested in becoming a bookkeeper or going to school for cosmetology, culinary arts or accounting. (Id. ). She reported that her boyfriend had recently been released from jail. (Id. ). She also reported that she was experiencing anxiety, panic attacks and difficulty falling asleep. (Id. ). She indicated that she tends to isolate herself and does not trust people. (Id. ).

On August 25, 2010, Miller attended an appointment with Nurse Tara Avery ("Avery") and Fotiou to evaluate her medication regimen. (Tr. 456-64). She reported that her mood and anxiety had improved with the increased Prozac dosage, but that she felt the dosage was still not correct due to her continued irritability. (Id. ). She stated that she was working part-time as a bartender, which kept her busy and improved her mood. (Id. ). Fotiou declined to modify her medication regimen due to a recent allergic reaction she had experienced. (Id. ).

During September 2010, Miller failed to attend four scheduled appointments. (Tr. 470-73). On September 2, 2010, Calvo reviewed Miller's progress. (Tr. 465-69). Calvo reported that she had seen her only once. (Id. ). According to Calvo, beginning in October, Miller would have to discontinue all of her medication (except for her insulin) in order to undergo allergy testing. (Id. ). Calvo noted that Miller had reported that she felt her anxiety and mood had improved while on Prozac, although she continued to experience irritability. (Id. ). On September 22, 2010, Miller attended an appointment with Calvo and reported that she was pregnant. (Tr. 474-80). She reported that her attitude was improved and she did not get frustrated or angry as easily. (Id. ). Miller expressed some concern regarding her ability to maintain the pregnancy during her first trimester due to her history of miscarriage. (Id. ). She reported that she had discontinued her medications due to her pregnancy, but had not experienced any negative response. (Id. ). Calvo noted that Miller's mood was euthymic and that she demonstrated a full range affect. (Id. ).

On October 5, 2010, Miller attended another therapy session with Calvo. (Tr. 481-86). She reported that she was not feeling "normal" and was easily hurt and angered. (Id. ). Miller attributed her feelings to her pregnancy and being off her medication. (Id. ). According to Miller, she generally had been staying home except to go to work. (Id. ). She explained that she does not like to be around others when she is feeling negative. (Id. ). Calvo noted that Miller's mood was euthymic and that she demonstrated a normal range affect. (Id. ). Miller failed to attend all other scheduled appointments in October and November 2010. (Tr. 487-89).

Miller failed to attend two scheduled appointments during December 2010 and January 2011. (Tr. 494, 498). On December 9, 2010, Miller met with Calvo and reported that she was four months pregnant and had stopped working in October due to stress. (Tr. 495-97). According to Miller, she spent her time attending doctor's appointments and spending time with her family. (Id. ). She reported that her boyfriend was re-incarcerated due to a parole violation. (Id. ). On January 24, 2011, Miller returned for another therapy session with Calvo. (Tr. 499-501). She reported increased irritability and difficulties with her pregnancy. (Id. ). According to Miller, her boyfriend's brother had moved into her residence after his release from prison because he had nowhere else to stay. (Id. ). Miller reported feeling tired and unmotivated. (Id. ). Calvo noted that she presented with an irritable mood and a normal range affect. (Id. ).

On February 21, 2011, Calvo reviewed Miller's progress. (Tr. 502-03). Calvo noted that her attendance was sporadic and observed that she had demonstrated positive results while on Prozac, although she had had to discontinue the medication due to her pregnancy, which had resulted in increased moodiness. (Id. ). Calvo reported that Miller had been working for ...

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