Timmons v. Colvin

6 F. Supp. 3d 522, 2013 WL 6729654, 2013 U.S. Dist. LEXIS 178905
CourtDistrict Court, D. Delaware
DecidedDecember 20, 2013
DocketCiv. No. 12-628-SLR
StatusPublished
Cited by1 cases

This text of 6 F. Supp. 3d 522 (Timmons v. Colvin) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Timmons v. Colvin, 6 F. Supp. 3d 522, 2013 WL 6729654, 2013 U.S. Dist. LEXIS 178905 (D. Del. 2013).

Opinion

MEMORANDUM OPINION

ROBINSON, District Judge

I. INTRODUCTION

Barbara E. Timmons (“plaintiff’) appeals from a decisión 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. §§ 401^34. 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, plaintiffs motion will be denied and defendant’s motion will be granted.

[525]*525II. BACKGROUND

A. Procedural History

Plaintiff filed a protective claim for DIB on March 2, 2009, alleging disability since the alleged onset date of October 26, 20022 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. Plaintiffs 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. Quefa-tieh”), 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 plaintiffs 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, plaintiffs treating cardiologist, Anand B. Kartha, M.D. (“Dr. Kartha”) completed a form in connection with plaintiffs application for long-term disability benefits. (Id. at 751-52) Dr. Kartha indicated that plaintiffs 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 [526]*526be recommended, as plaintiff was unable to be rehabilitated for her regular occupation. (Id. at 751-52)

In 2003, plaintiffs 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) Plaintiffs 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 cathet-erization on November 24, 2004 to assess the extent of plaintiffs 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 plaintiffs 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.

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Bluebook (online)
6 F. Supp. 3d 522, 2013 WL 6729654, 2013 U.S. Dist. LEXIS 178905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timmons-v-colvin-ded-2013.