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HomeMy WebLinkAbout03-1266THERESA A. COSTA, Plaintiff V. VINCENT L. COSTA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. O 'A - I )LAw- (2I04C-J CIVIL ACTION - LAW IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN sued in Court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for divorce is indignities or irretrievable breakdown of marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary, Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES, OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 THERESA A. COSTA, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. VINCENT L. COSTA, CIVIL ACTION - LAW Defendant IN DIVORCE COMPLAINT IN DIVORCE 1. The Plaintiff is Theresa A. Costa, an adult individual currently residing at 50 Putter Lane, Camp Hill, Cumberland County, Pennsylvania, 17001. 2. The Defendant is Vincent L. Costa, an adult individual residing at 516 Hummel Avenue, Lemoyne, Cumberland County, Pennsylvania. 17043. 3. Plaintiff and Defendant have been bona fide residents in the Commonwealth of Pennsylvania, for a period in excess of six (6) months immediately previous to the filing of this Complaint. 4. Plaintiff and Defendant were married on December 6, 1997, in Monroe County, Pennsylvania. 5. There has been a prior action of divorce between the parties which was filed by Husband in 2001 in Dauphin County. Said divorce action was subsequently withdrawn. 6. This action is not collusive. 7. Plaintiff and Defendant separated on or about February 1, 2003. 8. The causes of action and sections of the Divorce Code under which Plaintiff is proceeding are: A. Section 3301(c) -The marriage of the parties is irretrievably broken. B. Section 3301(d) -The marriage of the parties is irretrievably broken. The parties separated on or about February 1, 2003. C. Section 3301(a)(6) -The Defendant has offered such indignities to the Plaintiff, the innocent and injured spouse, as to render her condition intolerable and her life burdensome. 9. Plaintiff and Defendant have no children of this marriage. 10. Plaintiff has been advised of the availability of marriage counseling and understands that she may request that her spouse and she participate in counseling. 11. Plaintiff does not request that the Court require that her spouse and she participate in counseling prior to a divorce decree being handed down by this Court. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter a final decree in divorce. COUNTI EQUITABLE DISTRIBUTION 12. Paragraphs one through eleven are incorporated herein by reference. 13. During their marriage, Plaintiff and Defendant have acquired various items of marital property, both real and personal, which are subject to equitable distribution under Sections 3501 et-seq. of the Divorce Code of 1980. WHEREFORE, Plaintiff respectfully requests this Honorable Court equitably distribute all marital property, both real and personal, owned by the parties. COUNT II ALIMONY 14. Paragraphs one through thirteen are incorporated herein by reference. 15. Plaintiff lacks sufficient property to provide for her reasonable needs. 16. Plaintiff is unable to sufficiently support herself through appropriate employment. 17. Defendant has sufficient income and assets to provide continuing and indefinite support for the Plaintiff. WHEREFORE, Plaintiff requests this Honorable Court compel the Defendant to pay alimony to the Plaintiff. COUNT III ALIMONY PENDENTE LITE, COUNSEL FEES, COSTS AND EXPENSES 18. Paragraphs one through seventeen are incorporated herein by reference. 19. By reason of the institution of the action to the above term and number, Plaintiff will be and has been put to considerable expense in the preparation of her case, in the employment of counsel, and the payment of costs. 20. Plaintiff is without sufficient funds to support herself and to meet the costs and expenses of this litigation and is unable to appropriately maintain herself during the pendency of this action. 21. The Plaintiff's income is not sufficient to provide for her reasonable needs and pay her attorney's fees and the costs of this litigation. 22. The Defendant has adequate earnings to provide support for the Plaintiff and to pay her counsel fees, costs and expenses. WHEREFORE, Plaintiff respectfully requests this Honorable Court compel the Defendant to pay alimony pendente lite as well as pay the Plaintiff's counsel fees, costs and expenses. Date: 3 L Respectfully submitted, THE LAW OFFICES OF SILLIKER & IIEINHOLI Kristin jR. Reinhold, Esquire 5922 Linglestown Road Harrisburg, PA 17112 (717) 671-1500 I.D. No. 57911 Attorney for Theresa A. Costa AFFIDAVIT hereby certify that the aforegoing is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. 4909 relating to unsworn falsifications to authorities. Dated: 115?4 r16 !?? a?DQ F r? 1 YI Q C g 70 I? THERESA A. COSTA, IN THE COURT OF COMMON PLEAS OF Plaintiff/Petitioner CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - DIVORCE NO. 2003-1266 CIVIL TERM VINCENT L. COSTA, IN DIVORCE Defendant/Respondent Paeses# 743105357 ORDER OF COURT AND NOW, this 25th day of March, 2003, based upon the Court's determination that Petitioner's monthly net income/earning capacity is $0.00 and Respondent's monthly net income/earning capacity is $5,042.05, it is hereby Ordered that the Respondent pay to the Pennsylvania State Collection and Disbursement Unit, $2,000.00 per month payable bi-weekly as follows; $923.00 bi-weekly for alimony pendente lite and $0.00 on arrears. First payment due on or before April 4, 2003 in the amount of $2,000.00. Arrears set at $2,000.00 as of March 24, 2003. The effective date of the order is March 21, 2003. Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all of the means as provided by 23 Pa.C. S.§ 3703. Further, if the Court finds, after hearing, that the Respondent has willfully failed to comply with this Order, it may declare the Respondent in civil contempt of Court and its discretion make; an appropriate Order, including, but not limited to, commitment of the Respondent to prison for a period not to exceed six months. Said money to be turned over by the PA SCDU to: Theresa A. Costa. Payments must be made by check or money order. All checks and money orders must be made payable to PA SCDU and mailed to: PA SCDU P.O. Box 69110 Harrisburg, PA 17106-9110 Payments must include the defendant's PACSES Member Number or Social Security Number in order to be processed. Do not send cash by mail. OeKo Unreimbursed medical expenses that exceed $250.00 annually are to be paid 50% by the respondent and 50% by petitioner. The petitioner is responsible to pay the first $250.00 annually in unreimbursed medical expenses. Respondent to provide medical insurance coverage. Within thirty (30) days after the entry of this order, the Respondent shall submit written proof that medical insurance coverage has been obtained or that application for coverage has been made. Proof of coverage shall consist, at a minimum, of 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; 3) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval for hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies of any claim forms. This Order shall become final ten days after the mailing of the notice of the entry of the Order to the parties unless either party files a written demand with the Prothonotary for a hearing de novo before the Court. DRO: R. J. Shadday BY THE COURT, Mailed copies on Petitioner 3-25-03 to: < Respondent Kenneth Wise, Esquire Kristin Reinhold, Esquire Edward E. Guido J ?i;?v bt??11,?t^????? ?„ r.,.^? '.,,, ,EEC ,,i „ ? :Z i?d ;_ ORDER/NOTICE TO WITHHOLD INCOME FOR SUPPORT State Commonwealth of Penn ylvania GKT, 7ee'3-1,;k6L (' 7 oL Doriginal order/Notice Co./City/Dist. Of CUMBERLAND O Amended Order/Notice Date of Order/Notice 03/24/03 O Terminate Order/Notice Tribunal/Case Number (See Addendum for case summary) Employer/Withholder's Federal EIN Number CVS PHARMACY INC 1 CVS DR WOONSOCKET RI 02895-6146 RE: COSTA, VINCENT L. Employee/Obligor's Name (Last, First, MI) 198-46-1416 Employee/Obligor's Social Security Number 8163100061 Employee/Obligor's Case Identifier (See Addendum for plaintiff names associated with cases on attachment) Custodial Parent's Name (Last, First, MI) See Addendum for dependent names and birth dates associated with cases on attachment. ORDER INFORMATION: This is an Order/Notice to Withhold Income for Support based upon an order for support from CUMBERLAND County, Commonwealth of Pennsylvania. By law, you are required to deduct these amounts from the above-named employee's/obligor's income until further notice even if the Order/Notice is not issued by your State. $ 2, 000. 00 per month in current support $ 0.0o per month in past-due support Arrears 12 weeks or greater? Dyes ® no $ 0.00 per month in medical support $ 0 .00 per month for genetic test costs $ per month in other (specify) fora total of $ 2,000.00 per month to be forwarded to payee below. You do not have to vary your pay cycle to be in compliance with the support order. If your pay cycle does not maich the ordered support payment cycle, use the following to determine how much to withhold: $ 461.54 per weekly pay period. $ 923.08 per biweekly pay period (every two weeks). $ 1, goo. go per semimonthly pay period (twice a month). $ 2.000.00 per monthly pay period. REMIT LANCE INFORMATION: You must begin withholding no later than the tirst pay period occurring ten (10) working days after the date of this Order/Notice. Send payment within seven (7) working days of the paydate/date of withholding. You are entitled to deduct a fee to defray the cost of withholding. Refer to the laws governing the work state of your employee for the allowable amount. The total withheld amount, and your fee, cannot exceed 55% of the employee's/ obligor's aggregate disposable weekly earnings. .Forthe purpose of the limitation on withholding, the following information is needed (See #10 on pg. 2). If remitting by EFT%EDI, please call Pennsylvania State Collections and Disbursement Unit (SCDU) Employer Customer Service at 1-877-676-9580 for instructions. Make Remittance Payable to:'PA SCDU Send check to: Pennsylvania SCDU, P.O. Box 69112, Harrisburg, Pa 17106-9112 IN ADDITION, PAYMENTS MUST INCLUDE THE DEFENDANT'S NAME AND THE PACSES MEMBER ID (shown above as the Employee/Obligor's Case Identifier) OR SOCIAL SECURITY NUMBER IN ORDER TO BE PROCESSED. DO NOT SEND CASH BY MAIL. Date of Order: AR 2 5 2a BY THE COURT: 10 Service Form EN-028 Type M -OMB NO.: 0970-0154 Worker ID $IATT 0,eI6, ?_ w;:: ? x?: .?- _. .,? s:;_ .? -? .: .. .Mr .? . .. ?... ,? ?Er,?????,?s?vN?? l_f A,rn; ?,,. ?., r:,n,,,? ?; ,. ???G tl i ii ADDITIONAL INFORMATION TO EMPLOYERS AND OTHER WITHHOLDERS If heck you are required to provide a opy of this form to your m loyee. If yoyr employee works in a state that is dierent from the state that issued this order, a copy must be pro??i?edpto your employee even if the box is not checked. 1. We appreciate the voluntary compliance of Federally recognized Indian tribes, tribally-owned businesses, and Indian-owned businesses located on a reservation that choose to withhold in accordance with this notice. 2. Priority: Withholding under this Order/Notice has priority over any other legal process under State law against the same income. Federal tax levies in effect before receipt of this order have priority. If there are Federal tax levies in effect please contact the requesting agency listed below. 3. Combining Payments: You can combine withheld amounts from more than one employee%obligor.'s income, in a single payment to each agency requesting withholding. You must, however, separately identify the portion of the.single payment that is attributable to each employee/obligor. 4.* ng uic pay ,i Ici n. ...c !e`s wages. You must comply with the law of the paydate/date of Withholding is the date on whieh arnount was withheld from the state of the employee's/obligor's principal place of employment with respect to the time periods within which you must implement the withholding order and forward the support payments. 5.* Employee/Obligor with Multiple Support Holdings: If there is more than one Order/Notice to Withhold Income for Support against this employee/obligor and you are unable to honor all support Order/Notices due to Federal or State withholding limits, you must follow the law of the state of employee's/obligor's principal place of employment. You must honor all Orders/Notices to the greatest extent possible. (See #10 below) 6. Termination Notification: You must promptly notify the Requesting Agency when the employeelobligor is no longer working for you. Please provide the information requested and return a copy of this Order/Notice to the Agency identified below. WITHHOLDER'S ID: 0503406260 EMPLOYEE'S/OBLIGOR'S NAME: COSTA. VINCEN'T' L. EMPLOYEE'S CASE IDENTIFIER: 8163100061 DATE OF SEPARATION: LAST KNOWN HOME ADDRESS: NEW EMPLOYER'S NAME/ADDRESS: 7. Lump Sum Payments: You.may be required to report and withhold from lump sum payments such as bonuses, commissions, or . severance pay. If you have any questions about lump sum payments, contact the person or authority below. 8. Liability: If you fail to withhold income as the Order/Notice directs, you are liable for both the accumulated amount you should i ave withheld from the employee%obl.igor's income and other penalties set by Pennsylvania State law. Pennsylvania State law governs unless the obligor is employed in another State, in which case the law of the State in which he or she is employed governs. 9. Anti-discrimination: You are subject to a fine determined under State law for discharging an employee%bligor from employment, refusing to employ, or taking disciplinary action against, any employee/obligor because of a support withholding. Pennsylvania State law governs unless the obligor is employed in another State, in which case the law of the State in which he or she is employed governs. 10. * Withholding Limits! You may not withhold more than the lesser of: 1) the amounts allowed by the Federal Consumer Credit Protection Act (15 U.S.C. §1673 01; or 2) the amounts allowed by the State of the employee's/obligor's principal place of employment. The Federal limit applies to the aggregate disposable weekly earnings (ADWE). ADWE is the net income left after making mandatory deductions such as: State, Federal, local taxes; Social Security taxes; and Medicare taxes. 11. Additional Info: *NOTE: If you or your agent are served with a copy of this order in the state that issued the order, you are to follow the law of the state that issued this order with respect to these items. Submitted By: If you or your employee/obligor have any questions, DOMESTIC RELATIONS SECTION contact WAGE ATTACHMENT UNIT 13 N HANOVER ST by telephone at (717) 240-6225 or P.O. BOX 320 by FAX at (717) 240-6248 or CARLISLE PA 17013 by internet www.childsupport.state.pa.us Page 2 of 2 Form EN-028 Service Type m OMB No:0970-0154 Worker ID $IATT ADDENDUM Summary of Cases on Attachment, Defendant/Obligor: COSTA, VINCENT L. PACSES Case Number 743105357 Plaintiff Name THERESA A. COSTA Docket Attachment Amount 03-1266 CIVIL$ 2,000.00 Child(ren)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above-in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. Service Type M PACSES Case Number Plaintiff Narne Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DOB ?if checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. Addendum OMB No.: 0970-0154 PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DOB ?lf checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case! Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'a Name(s): DOB ? if checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. Form EN-028 Worker I D $ IATT THERESA A. COSTA, Plaintiff/Petitioner VS. VINCENT L. COSTA, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - DIVORCE NO. 2003-1266 CIVIL TER:tiI IN DIVORCE Pacses# 743105357 DEMAND FOR HEARING DATE OF ORDER: March 25, 2003 AMOUNT: $2,000.00 per month FOR: Alimony Pendente Lite REASON(S): PARTY FILING DEMAND FOR HEARING: Signature Date REASONS FOR DEMAND FOR HEARING 1. Petitioner was not assessed an earning capacity, and she has been found to have a capacity for substantial gainful employment by a Social Security Administrative Law Judge. 2. Respondent's earning capacity was overstated, without a realistic prospect of historic earning capacity. 3. Petitioner has not established need in the amount stated. 4. Petitioner's resources from monies unilaterally appropriated by Petitioner were not considered. 5. The issue of alimony pendente lite was not at issue in the proceedings. u THERESA A. COSTA, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 03-1266 CIVIL TERM VINCENT L. COSTA, : CIVIL ACTION -LAW Defendant IN DIVORCE CERTIFICATE OF SERVICE The undersigned, Renee Dreisbach, hereby certifies that a copy of a Complaint in Divorce was served upon Vincent L. Costa, on March 31, 2003, by Certified Mail, return receipt requested, addressed as follows: Vincent L. Costa 516 Hummel Avenue Lemoyne, PA 17043 I hereby certify that the aforegoing is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: epee Dreis ach ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. V1 Ne__tA- L LEZM? y? E 7a ? Express Mail ? Return Receipt for Merchandise ? C.O.D. 2. Article Number (Transfer from service label) PS Form 3811, August 2001 Domestic Return Receipt 102595+02-M-1540 -vmy auoress amerent from item 1? If YES, enter delivery address below: Di `? CZ ?< In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION THERESA A. COSTA Plaintiff Docket Number 03-1266 CIVIL ) vs. VINCENT L. COSTA ) PACSES Case Number 743105357 Defendant ) Other State ID Numbear ORDER OF COURT You, THERESA ANN COSTA plaintiff/defendant of 50 PUTTER LN, CAMP HILL, PA. 17011-2057-50 are ordered to appear at DOMESTIC RELATIONS HEARING RM DOMESTIC RELATIONS OFC, 13 N HANOVER ST, CARLISLE, PA. 17013-3014-13 before a hearing officer of the Domestic Relations Section, on the MAY 6, 2003 at 10 : 3 OAM for a hearing. You are further required to bring to the hearing: 1. a true copy of your most recent Federal Income Tax Return, including X,4ai?fil 2. Your pay stubs for the preceding six (6) months, 3. verification of child care expenses, and 4. Proof of medical coverage which you may have, or may have available to you 5. information relating to professional licenses 6. other: Service Type M Form CM-509 Worker ID 213 0 2 ."ID COSTA V- COSTA PACSES Case Number: 743105357 If you fail to appear for the conference/hearing or to bring the required documents, the court may issue a warrant for your arrest or enter an order in your absence. If paternity is an issue, the court may enter an order establishing paternity. The appropriate court officer may enter an order against either party based upon the evidence presented without regard to which party initiated the support action. BY THE COURT: Date of Order: 9- / - 0 3 YOU HAVE THE RIGHT TO A LAWYER, WHO ?Y ATTEND THE HEARING AND REPRESENT YOU, IF YOU DO NOT HAVE A LAWYER OR ANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BNW] TO FIND OUT WHERE YOU MAY GET LEGAL HELP: CUMBERLAND CO BAR ASSOCIATION 32 S BEDFORD ST CARLISLE PA 17013-3302-32 (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of CUMBERLAND County is re comply with the Americans with Disabilities Act of 1990. For information aboutd accelaw to ss ble facilities and reasonable accommodations available to disabled individuaJ,s having business before the court, please contact our office at: (717) 240-6225 . All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled hearing. Service Type M Page 2 of 2 Form CM-509 Worker ID 21302 In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION THERESA A. COSTA ) Docket Number 03-1266 CIVIL Plaintiff ) vs. ) PACSES Case Number 743105357 VINCENT L. COSTA ) Defendant ) Other State ID Number ORDER OF COURT You, VINCENT LOUIS COSTA 516 HUMMEL AVE, LEMOYNE, PA. 17043-1826-16 are ordered to appear at DOMESTIC RELATIONS HEARING RM plaintiff/defendant of DOMESTIC RELATIONS OFC, 13 N HANOVER ST, CARLISLE, PA. 17013-3014-13 before a hearing officer of the Domestic Relations Section, on the MAY 6, 2003 at 10: 3 OAM for a hearing. You are further required to bring to the hearing: 1. a true copy of your most recent Federal Income Tax Return, including W-2s, as filed, 2. your pay stubs for the preceding six (6) months, 3. verification of child care expenses, and 4. proof of medical coverage which you may have, or may have available to you 5. information relating to professional licenses 6. other: _., ,1 Form Service Type M CM-509 Worker ID 21302 t-59 :? ll,*,-J L - ddl ? 0 COSTA V. COSTA PACSES Case Number: 743105357 If you fail to appear for the conference/hearing or to bring the required documents, the court may issue a warrant for your arrest or enter an order in your absence. If paternity is an issue, the court may enter an order establishing paternity. The appropriate court officer may enter an order against either party based upon the evidence presented without regard to which party initiated the support action. BY THE COURT: Date of Order: / - ?- 0-3 JUDGE YOU HAVE THE RIGHT TO A LAWYER, WHO MAY ATTEND THE HEARING AND REPRESENT YOU. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU MAY GET LEGAL HELP: CUMBERLAND CO BAR ASSOCIATION 32 S BEDFORD ST CARLISLE PA 17013-3302-32 (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of CUMBERLAND County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office at: (717) 2 4 0 - 6 2 2 5 . All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled hearing. Page 2 of 2 Form CM-509 Service Type M Worker ID 21302 THERESA A. COSTA, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : DOMESTIC RELATIONS SECTION VINCENT L. COSTA, PACSES NO. 743105357 Defendant 03-1266 CIVIL INTERIM ORDER OF COURT AND NOW, this 9t" day of May, 2003, upon consideration of the Support Master's Report and Recommendation, a copy of which is attached hereto as Exhibit "A", it is ordered and decreed as follows: A. The Defendant shall pay to the State Collection and Disbursement Unit for transmission to the Plaintiff as alimony pendente lite the sum of $1,830.00 per month. B. The Defendant shall provide health insurance coverage for the benefit of the Plaintiff. C. The Defendant shall pay 100% of unreimbursed medical expenses incurred by the Plaintiff as that term is defined in Pa. R.C.P. 1910.16-6(c), provided, however, that the total amount paid per calendar year shall not exceed $2,000.00. D. The effective date of this order is March 21, 2003. E. Except as modified herein, the interim order of March 25, 2003 shall remain in full force and effect. The parties are hereby advised that they may file written exceptions to the Support Master's Report and Recommendation within ten (10) days of this order. Exceptions shall conform with the requirements of Rule 1910.12(f), Pa. R.C.P. If written exceptions are filed by any party, the other party may file exceptions within ten (10) days of the date of service of the original exceptions. If no exceptions are filed within ten (10) days of this interim order, this order shall then constitute a final order. By the Court, Edward E. Guido, J. ?E5 I ?' bCt'vp , -30 r a. I ,? Cc: Theresa A. Costa Vincent L. Costa Kristen R. Reinhold, Esquire For the Plaintiff Kenneth A. Wise, Esquire For the Defendant DRO THERESA A. COSTA, Plaintiff V. VINCENT L. COSTA, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION PACSES NO. 743105357 03-1266 CIVIL SUPPORT MASTER'S REPORT AND RECOMMENDATION Following a hearing held before the undersigned Support Master on May 6, 2003 the following report and recommendation are made: FINDINGS OF FACT The Plaintiff is Theresa A. Costa, who resides at 1604 Kathryn Street, New Cumberland, Pennsylvania. 2. The Defendant is Vincent L. Costa, who resides at 516 Hummel Avenue, Lemoyne, Pennsylvania. 3. The parties are husband and wife, having married on December 6, 1997. 4. The parties separated in' early February, 2003 when the Plaintiff moved from the marital residence. 5. The Plaintiff filed a complaint for divorce on March 21, 2003 wherein she made a claim for alimony pendente lite. 6. The Plaintiff has been diagnosed with a myriad of medical ailments to include fibromyalgia, interstitial cystitis (IC), irritable bowel syndrome (IBS), asthma, and depression. 7. The Plaintiff is on a daily regimen of numerous medications, to include Oxycontin and Vicodin for pain relief, Elmiron for relief of IC, Nexium for relief of IBS, Effexor for depression, and Advair and Abuterol for asthma. 8. Fibromyalgia is a disorder which causes the Plaintiff to suffer from chronic fatigue and muscle pain. 9. Interstitial cystitis is a disorder of the bladder which causes the Plaintiff to suffer from frequent urination, urgency to urinate, a burning sensation during urination, and pain in the bladder. EXHIBIT "A" Y6)-l 10. Irritable bowel syndrome is a disorder of the bowel which causes the Plaintiff to experience diarrhea and abdominal cramping. 11. The Plaintiff is under the care of a urologist for her IC, a gastroenterologist for her IBS, and a family practitioner for relief of the symptoms of fibromyalgia. 12. At the present time the Plaintiff takes Oxycontin, a Schedule II narcotic, four times daily, generally every six hours. 13. The Plaintiff takes Vicodin as needed for pain relief between her doses of Oxycontin. 14. Vicodin causes the Plaintiff to feel groggy. 15. The Plaintiff last held gainful employment in January, 2002 when she began a job with Members First Federal Credit Union. She voluntarily left this employment after three weeks. 16. The Plaintiffs prior job history includes employment as a newspaper carrier, in a clerical position for Pinnacle Health Systems, as a receptionist in a medical office, and as a receptionist and billing clerk in a chiropractor's office. 17. The Plaintiff earned $300.00 to $700.00 per week, at some points in time working more than one job. 18. In February, 2002 the Plaintiff filed a claim for Social Security Disability Benefits. 19. In February, 2002 the Defendant submitted an affidavit' in the hearing before the Administrative Law Judge wherein he expressed his opinion that the Plaintiff was "not able to work in any occupation" because of her medical condition. 20. On January 28, 2003 the Administrative Law Judge rendered a decision stating that although the Plaintiff's fibromyalgia, interstitial cystitis and depression constituted "severe" impairments, the Plaintiff had the residual functional capacity to perform work as a receptionist, a job which she had worked in the past. Her claim was consequently denied.2 21. The Administrative Law Judge found the Plaintiff's testimony not to have been entirely credible with respect to her allegations concerning her symptoms and limitations. Plaintiff's Exhibit 3. 2 See Defendant's Exhibit 1. 22. Doctor Scott Mueller, the Plaintiff's treating physician for pain relief, expressed his opinion that the Plaintiff is incapable of performing gainful employment because of her medical condition. 23. Doctor Mueller's opinion was based primarily on the Plaintiff's subjective complaints of pain and fatigue. 24. The Plaintiff was not terminated from employment by any employer. 25. The Plaintiff has considerable difficulty in sleeping, waking several times a night from pain or bladder urgency. 26.The Plaintiff has recently stopped driving because she was involved in two automobile accidents. 27. The Defendant is employed as a licensed pharmacist for CVS. 28. In 2002 the Defendant had gross annual wages of $99,925.00, which included overtime. 29. The Defendant intends to curtail his overtime in 2003 because he feels he is getting "burned out." 30. The Defendant has been paying approximately $93.00 bi-weekly for health insurance coverage for the parties. 31. The Defendant pays $725.00 per month to support a minor child to a prior relationship. 32. At this point in time the parties intend to file a joint marital tax return for 2003 unless the divorce is finalized before the end of the year. DISCUSSION The purpose of alimony pendente lite is to enable a dependent spouse to prosecute or defend a divorce action. Litmans v. Litmans, 673 A.2d. 382 (Pa. Super. 1996). This is no dispute as to entitlement of APL in this case. The legal issues involve the earning capacity, if any, of the Plaintiff and the income of the Defendant. The Plaintiff argues that she is totally disabled and has no actual earnings or earning capacity. This is no dispute that the Plaintiff suffers from numerous medical conditions to include fibromyalgia, interstitial cystitis, irritable bowel syndrome, asthma and depression. In February, 2002, the Defendant presented testimony in the form of an affidavit, wherein he expressed his belief that his wife was unable to work in any occupation because of her medical condition. He now argues that she has the ability to engage in gainful employment and that an earning capacity should be imputed to her. This argument is based primarily on the fact that the Plaintiffs claim for Social Security Disability Benefits was denied. Although the Administrative Law Judge found the Plaintiff's medical impairments, specifically her fibromyalgia, IC, and depression, were "severe" based on the requirements of the Social Security Administration regulations, they did not prevent the Plaintiff from performing the work of a receptionist, a job that she had performed in the past. She was not, therefore, "disabled" as defined by the Social Security Act and was not entitled to benefits. The Plaintiff has appealed the determination. The Plaintiff's treating physician, Dr. Scott Mueller, testified that he disagreed with the determination of the Social Security Administration and that, in his opinion, the Plaintiffs medical condition prevented her from performing gainful employment on either a full time or part time basis. Patients, such as the Plaintiff, suffering from severe fibromyalgia have flare-ups of their symptoms of pain and chronic fatigue that preclude them from maintaining a regular work schedule. However, it must be noted that the doctor's opinion was based upon the subjective complaints of his patient and not on any objective findings.3 Dr. Mueller began prescribing Oxycontin, an opioid narcotic, for the Plaintiff in January, 2002. The initial dosage was 10 milligrams taken twice daily (one dosage every 12 hours). The Plaintiff presently takes the medication in a 40 milligram dosage 4 times per day (every 6 hours). Additionally the doctor has prescribed Vicodin for pain relief to be taken between doses of Oxycontin. Doctor Mueller testified that while the Plaintiff was now "physically dependent" upon her medication, she was not "addicted" to it.4 The Plaintiff was visibly agitated during her testimony. She rocked back and forth in her chair, rubbed her legs from her thighs to her ankles repeatedly, and had difficulty in formulating answers to many questions. At times she appeared on the verge of tears because of her inability to answer questions. While she stated that she was in physical pain, she did not moan or wince uncontrollably. It is noteworthy that the Defendant, a pharmacist, was instrumental in having the Plaintiff treated by Dr. Mueller because her prior physician, a rheumatologist who had originally diagnosed the Plaintiff's fibromyalgia, suggested that the Plaintiff consult with a psychologist and would not prescribe narcotic pain medication. The Defendant was aware of Dr. Mueller's practice of prescribing Oxycontin. 3 It is significant to note that in the 18 months that Dr. Mueller has been treating the Plaintiff, he has never done a "trigger point" examination of the Plaintiff to determine the severity of her pain. 4 The doctor distinguished "physical dependence" from "addiction" by stating that a patient is "physically dependent" on a drug if he goes into withdrawal when he stops taking the medication, and a patient is "addicted" to a drug when he uses the drug for a reason other than that for which it is prescribed. Whether from the effects of her numerous maladies or from the effects of the prescribed medication taken by the Plaintiff to combat the symptoms of the medical problems, it is the opinion of this Master that the Plaintiff is not presently capable of gainful employment, and consequently no earning capacity will be imputed to her. The Defendant is employed as a licensed pharmacist who in 2002 earned $99,925.00 gross annual income. That annual income included some overtime. He testified that, although he has worked overtime in 2003, he intends to curtail that practice because he is getting "burned out." His 2002 income will be utilized, however, to calculate his APL obligation because this Master believes that any attempt by the Defendant to lower his income during the current year will be for the sole purpose of lowering his APL obligation. The parties filed a joint marital tax return in 2002 and will likely do so again in 2003 if their divorce is not finalized. However, for the purposes of this support calculation, the Defendant's tax liability will be calculated based upon a married/separate filing which will result in a lower net monthly income on which to base his APL obligation. With gross annual income of $99,925.00, the Defendant has gross monthly income of $8,327.00. Filing his federal tax return as married/separate, his net monthly income is $5,500.00.5 The Defendant pays $93.00 bi-weekly for health insurance coverage on himself and the Plaintiff. With the Plaintiffs numerous prescribed medications and frequent doctor visits this is a great benefit to her. A recommendation will be made that he continue to provide this coverage. Because the Defendant's proportionate share of the combined income exceeds 90%, the health insurance premium may be deducted from his gross income in determining net monthly income for support calculation purposes. This results in $201.00 being deducted from the Defendant's gross monthly income, thereby reducing it to $5,299.00.6 The Defendant pays $725.00 per month as support for a minor child to a prior relationship. This figure is deducted from his net monthly income, and the difference is multiplied by 40% to arrive at a monthly APL obligation under the guidelines of $1,830.00. A support order calculated pursuant to the guidelines is presumed to be correct, but the presumption may be rebutted by evidence that the guideline amount is unjust or inappropriate under the circumstances of the case. Landis v. Landis, 691 A.2d. 939 (Pa. Super. 1997). Neither party presented evidence that will justify a deviation to the guideline figure. 5 See Exhibit "A" for the deductions from gross income. 6 See Pa. R.C.P. 1910.16-6(b)(4). See Pa. R.C.P. 1910.16-4. In the Court of Common Pleas of Cumberland County, Pennsylvania Tax et# dart Plaintiff Name: Theresa A. Costa Defendant Name: Vincent L. Costa Docket Number: 03-1266 Civil PACSES Case Number: 743105357 Other State ID Number: Tax Year: Defendant Plaintiff 1. Fling Status Married Filing Separately Married Filing Se aratel 2. Who Claims the Exemptions ON gee 3. Number of Exemptions 1 1 4. Month) Taxable Income $8,327.08 - 5. Deductions Method 6. Deduction Amount $331.25 $331.25 7. Exemption Amount $254.17 $254.17 8. Income MINUS Deductions and Exemptions $7,741.66 -$585.42 9. Tax on Income $1,940.06 - 10. Child Tax Credit 11. Manual Adjustments to Taxes 12. Federal Income Taxes $1,940.06 - 12 a. Earned Income Credit - _ 13. State Income Taxes $233.16 - 14. FICA Payments $570.24 - 15. City Where Taxes Apply --Select-- 16. Local Income Taxes $83.27 - TOTAL Taxes $2,826.73 - SupportCak 2003 EXHIBIT "A" Scan Do Mueller, MD Date: March 20, 2003 To: Whom it May Concern From: Scott D. Mueller, MD Re: Theresa Costa Fredricksen Health Center 2025 Technology Parkway, Suite 205 Mechanicsburg, PA 17050-9402 MEMO Ms. Costa suffers from a severe case of fibromyalgia syndrome. She is currently being treated with opioid medication for pain control, i.e. CxyContin, as well as, Paxil, PremPro and Advair. Her other conditions include asthma, irritable bowel syndrome, and interstitial cystitis. Interstitial cystitis can also be disabling as the patient suffers from chronic symptoms of urinary burning and frequency. She is permanently disabled due to the chronic pain and fatigue associated with her fibromyalgia. She has good days and bad days but can barely perform activities of daily living and she certainly could not hold even a part-time job. I make this statement based on knowing the patient and her condition. A functional capacity evaluation is too subjective to evaluate a fibromyalgia patient's ability to perform because they could do very well during a 4-hour evaluation, but the evaluation would cause an exacerbation of symptoms, which could last at least a few days. Patients with fibromyalgia have exacerbations of their symptoms due to cold weather, stress, and over activity and they would not be able to perform the duties of even a part-time job on a consistent basis. Some patients with mild fibromyalgia do well and can work but not patients with a severe case such as the case with Ms. Costa. PLAINTIFF'S EXHIBIT vfls 5-6-03 In the Court of Common Pleas of County, Pennsylvania Phone: Fax: Plaintiff Name: Defendant Name: Docket Number: PACSES Case Number: Other State ID Number: Please note: All correspondence must include the PAC SES Case Number. Income and Expense Statement THIS FORM MUST BE FILLED OUT (If you are self-employed or if you are salaried by a business of which you are owner in whole or part, you must also fill out the Supplemental Income Statement which appears on page two of this income and expense statement.) INCOME STATEMENT OF Section I: Income and Insurance INCOME: Employer Address Type of Work Payroll No. Gross Pay per Pay Period $ Pay Period (wkly., bi-wkly., etc.) Itemized Payroll Deductions: Federal Withholding $ Social Security $ Local Wage Tax $ State Income Tax $ Retirement $ Savings Bonds $ Credit Union $ Life Insurance $ Health Insurance $ Other Deductions (s ecif ) $ $ p y Net Pay per Pay Period $ OTHER (Fill in Appropriate Column) INCOME WEEK MONTH YEAR Interest $ $ Is Dividends Pension Annuity Social Security Rents Royalties Expense Account JIV Gifts Unemployment Workmen's Compensation Other Other TOTAL $ $ $ TOTAL INCOME $ PROPERTY Ownership OWNED DESCRIPTION VALUE H W Checking Accounts Savings Accounts Credit Union Stocks/Bonds Real Estate Other I TOTAL I$ * H=Husband; W=Wife; J=Joint Service Type Form IN-008 Worker ID PLAINTIFF'S EXHIBIT VS -6-6!> Vincent Costa. 516 Hummel Ave Lemoyne, PA 17043 Thursday, February 21, 2002 AFFADAVIT To Whom it may concern. I am the husband of the client Theresa Costa. I am also a pharmacist working at CVS pharmacy for the last 7 years at 6007 Allentown Blvd Harrisburg, PA 17112. I have know Theresa since Dec of 1994 and we met at my work where she was a patient and would stop in to pick up her prescriptions before going to her job doing newspaper deliveries. For the 7 years I have known her, Theresa was was always an energetic, productive, hard working person, who at this paticular job worked 365 days a year for years without missing a day until up to the weekend we were married. Her conscientious attitude toward her job and patrons showed her work ethic to be very high. It was never Terri's style to apply for any social financial aid when she found herself unable to work at a job, she just immediately "hit the streets" and would'nt rest till she had a job she could handle. P q,WlFF'S EX- eJ SEC& P SOCIAL SECURITY ADMINISTRATION -9110" - USA 'te 1111M 111'e Refer To: 182-40-9922 r^ZS THERESA A. COSTA 516 HUMMEL AVENUE LEMOYNE, PA 17043 Office of Hearings and Appeals 2 N. Second Street 8th Floor Harrisburg, PA 17101 Date: JAN 2 8 2003 NOTICE OF DECISION - UNFAVORABLE I have made the enclosed decision in your case. Please read this notice and the decision carefully. If You Disagree With The Decision If you do not agree with my decision, you may file an appeal with the Appeals Council. How To File An Appeal To file an appeal you or your representative must request that the Appeals Council to review the decision. You must make the request in writing. You may use our Request for Review form, HA-520, or write a letter. You may file your request at any local Social Security office or a hearing office. You may also mail your request right to the Appeals Council, Office of Hearings and Appeals, 5107 Leesburg Pike, Falls Church, VA 22041-3255. Please put the Social Security number shown above on any appeal you file. Time To File An Appeal To file an appeal, you must file your request for review within 60 days from the date you get this notice. The Appeals Council assumes you got the notice 5 days after the date shown above unless you show you did not get it within the 5-day period. The Council will dismiss a late request unless you show you had a good reason for not filing it on time. Time To Submit New Evidence You should submit any new evidence you wish to the Appeals Council to consider with your request for review. See Next Page DEFENDAN M EXHIBIT NO.- ) FOR IDENT MATH s-6-a3 P4R: VS DATE R THERESA A. COSTA (182-40-9922) Page 2 of 3 How An Appeal Works Our regulations state the rules the Appeals Council applies to decide when and how to review a case. These rules appear in the Code of Federal Regulations, Title 20, Chapter III, Part 404, Subpart J. If you file an appeal, the Council will consider all of my decision, even the parts with which you agree. The Council may review your case for any reason. It will review your case if one of the reasons for review listed in our regulations exists. Section 404.970 of the regulations lists these reasons. Requesting review places the entire record of your case before the Council. Review can make any part of my decision fully or partially favorable or unfavorable to you. On review, the Council may itself consider the issues and decide your case. The Council may also send it back to an Administrative Law Judge for a new decision. The Appeals Council May Review The Decision On Its Own The Appeals Council can review my decision even without your request to do so. If it decides to do that, the Council will mail you a notice about its review within 60 days from the date of this notice. If No Appeal And No Appeals Council Review If you do not appeal and the Council does not review my decision on its own motion, you will not have a right to court review. My decision will be a final decision that can be changed only under special rules. New Application You have the right to file a new application at any time, but filing a new application is not the same as appealing this decision. If you disagree with my decision and you file a new application instead of appealing, you might lose some benefits, or not qualify for any benefits. My decision could also be used to deny any new application for insurance benefits, if the facts and issues are the same. So, if you disagree with this decision, you should file an appeal within 60 days. You may file your request at any local Social Security office or a hearing office. You may also mail your request right to the Appeals Council, Office of Hearings and Appeals, 5107 Leesburg Pike, Falls Church, VA 22041-3255. Please put the Social Security number shown above on any appeal you file. See Next Page THERESA A. COSTA (182-40-9922) If You Have Any Questions Page 3 of 3 If you have any questions, you may call, write or visit any Social Security office. If you visit an office, please bring this notice and decision with you. The telephone number of the local office that serves your area is (717)782-3400. Its address is 555 Walnut Street, First Floor, Harrisburg PA 17101. JANET R. LANDESBERG Administrative Law Judge Enclosures cc: MICHAEL F. BROWN, ESQUIRE 2080 LINGLESTOWN RD HARRISBURG, PA 17110 .> U'^ i Vincent Costa 516 Hummel Ave Lemoyne, PA 17043 Thursday, February 21, 2002 AFFADAVIT /n short due to the above feffsoly and supplemented with the inloimation in her med/cal records disabvty report and further corroborratedby other a,fadvits /A* believe that Terri is not able to Work in any occupation and/ WOUldbe Mlllrlg to dscuss this alladavif meh anyone ifnecessay. Resp ily. Vincent L sta NOT IAL SEAL la oa PHILLIP FARABELLI, Notary Public J Lemoyne Boro, Cumberland County Av Commission Expires Feb. 6, 2006 To Whom it may concern: SOCIAL SECURITY ADMINISTRATION Office of Hearings and Appeals DECISION IN THE CASE OF CLAIM FOR THERESA A. COSTA (Claimant) (Wage Earner) Period of Disability and Disability Insurance Benefits 182-40-9922 (Social Security Number) INTRODUCTION On February 11, 2002 the claimant filed an application for Disability Insurance Benefits. The claim was denied initially, and a request for hearing was timely filed (Exhibit 1 B). The claimant did not previously file an application for disability benefits. The claimant appeared and testified at a hearing held on December 19, 2002 in Harrisburg, Pennsylvania. In addition, Terry Leslie, an impartial vocational expert, and Vincent Costa, the claimant's husband, appeared and testified at the hearing. Michael F. Brown, an attorney, represents the claimant in this matter. The general issue is whether the claimant is entitled to a period of disability and Disability Insurance Benefits under Sections 216(i) and 223 of the Social Security Act. The specific issue is whether she is under a disability, which is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. Upon reviewing all of the evidence of record, the undersigned Administrative Law Judge concludes the claimant is not disabled within the meaning of the Social Security Act. EVALUATION OF THE EVIDENCE The claimant is a fifty-two-year-old individual with a high school education. Her past work experience includes employment as a receptionist, medical billing clerk, and news courier. She alleges that she became disabled on July 30, 2001 (Exhibits 1D and IE). T14ERESA A. COSTA (182-40-9922) Page 2of8 The claimant meets the nondisability requirements set forth in Section 216(i) of the Social Security Act and is insured for disability benefits through the date of this decision. In order to determine whether the claimant is disabled, a five-step evaluation must be performed pursuant to 20 CFR § 404.1520. The five-step evaluation requires the following sequential analysis: If the claimant is performing substantial gainful work, she is not disabled. If the claimant is not performing substantial gainful work, her impairment(s) must be severe before she can be found to be disabled. If the claimant is not performing substantial gainful work and has a severe impairment (or impairments) that has lasted or is expected to last for a continuous period of at least twelve months, and her impairment (or impairments) meets or medically equals a listed impairment contained in Appendix 1, Subpart P, Regulation No. 4, the claimant is presumed disabled without further inquiry. If the claimant's impairment (or impairments) does not prevent her from doing her past relevant work, she is not disabled. Even if the claimant's impairment or impairments prevent her from performing her past relevant work, if other work exists in significant numbers in the national economy that accommodates her residual functional capacity and vocational factors, she is not disabled. Regulation 20 CFR § 404.1572 defines substantial work activity as work that involves doing significant physical or mental activities. Work can be considered substantial even if it is done on a part-time basis or if less money is earned or work responsibilities are lessened from previous employment. Gainful work activity is the kind of work usually done for pay or profit, whether or not a profit is realized. The record shows that, since the alleged date of disability onset, the claimant worked for a brief period at the substantial gainful activity level; however, this work activity lasted less than three months and was terminated because of the claimant's medical condition. Accordingly, it was an unsuccessful work attempt, and the claimant has not performed any disqualifying substantial gainful activity. A medically determinable impairment or combination of impairments is severe if it significantly limits an individual's physical or mental ability to do basic work activities (20 CFR § 404.1521). The Regulations require that if a severe impairment exists, all medically determinable impairments must be considered in the remaining steps of the sequential analysis (20 CFR § 404.1523). In determining whether the claimant has a severe impairment or combination of impairments, consideration must be given to the claimant's subjective allegations (Social Security Ruling 96-3p). This is a two step process in which it must first be determined whether there is a medically determinable impairment, as established by objective medical evidence (i.e., clinical signs and laboratory findings), that could reasonably be expected to T14ERESA A. COSTA (182-40-9922) Page 3 of 8 produce the claimant's symptoms. If the objective evidence fails to establish the existence of such an impairment, the claimant must be found not disabled, regardless of how genuine the claimant's allegations concerning the symptoms appear to be (Social Security Ruling 96-4p). If the objective medical evidence does establish the existence of such an impairment, then the extent to which the claimant is credible regarding the intensity, duration and limiting effects of the symptoms must be determined. In making this determination, careful consideration must be given not only to the objective medical evidence, but also to all evidence relating to: 1. The individual's daily activities; 2. The location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. (Social Security Ruling 96-7p). The claimant testified and stated in the record that she has constant widespread pain and weakness, fatigue, breathing and bowel problems, hand numbness, difficulty concentrating and remembering, difficulty sleeping, feelings of depression, suicidal ideation, requires rest between activities and naps during the day, has difficulty climbing steps, walking, sitting and standing for prolonged periods of time, difficulty going out in public, and an inability to start and complete activities. She also alleges trouble understanding and carrying out instructions, requires frequent restroom breaks, drops things, and has difficulty performing activities of daily living such as driving, shopping, cleaning, laundry and personal care (Exhibit 1 E). The objective medical evidence establishes that the claimant has fibromyalgia, interstitial cystitis, depressive disorder secondary to medical condition, and history of irritable bowel syndrome (Exhibit 18F), medically determinable impairments that could reasonably be expected to produce the claimant's symptoms. However, the claimant is not entirely credible concerning the intensity, duration and limiting effects of the symptoms. While the claimant alleges constant widespread pain and weakness, fatigue, breathing and bowel problems, hand numbness, difficulty concentrating and remembering, difficulty sleeping, requiring rest between activities and naps during the day, has difficulty climbing steps, walking, sitting and standing for prolonged periods of time, difficulty going out in public, requiring frequent restroom breaks, and frequently dropping things, a June 2001 radiology report of the chest reveals only mild THERESA A. COSTA (182-40-9922) Page 4 of 8 nonspecific interstitial prominence, no evidence of focal pneumonia, and unremarkable bony structures. Also, a Jul_y__001,progress report shows that the claimant looked well, had no peripheral edema, only-minor swelling with minimal tenderness of the left knee, reported doing a lot of gardening and getting down on her knees, and demonstrated regular cardiac rate and rhythm without murmurs, gallops or rubs (Exhibit 7F). Subsequent notes show that the claimant's lungs were clear, that she had no extremity edema, clubbing or cyanosis, that she was neurologically non-focal, that a chest x-ray revealed no pulmonary vessel congestion or acute infiltration or effusion, and that she had an ejection fraction of about 60% (Exhibits 9F and IOF). Additionally, an October 2001 letter from Jeffrey Mandak, M.D., shows that the claimant had completely normal coronary arteries and normal left ventricular systolic function; and at this time, Dr. Mandack reported that the claimant's dyspnea was most likely due to her deconditioning and obesity. In December 2001, it was noted that the claimant had been avoiding exercise (Exhibit l OF). Further, in December 2001 George Kunkel, M.D., reported that counseling was recommended to the claimant but that her husband was resistant to it, that the claimant did not follow through with exercise, and that the claimant was strongly advised against using narcotics and other type of pain medication (Exhibit I IF). A March 2002 examination report demonstrates that the claimant was alert and oriented in all three spheres, had clear lungs to auscultation without rales, rhonchi or wheezes, a soft and non-distended abdomen, no guarding, rebound or rigidity and hypoactive bowel sounds, no pretibial edema of the lower extremities and equal peripheral pulses (Exhibit 12F). Moreover, a December 2002 progress note shows that the claimant was treated for interstitial cystitis and reported feeling better, and that her pain was controlled on her present regimen (Exhibit 18F). The undersigned also notes that, subsequent to the hearing, the claimant submitted a prescription printout (Exhibit 3E). However, this record shows that the claimant required pain medication in January, March and April 2002, but did not require it again until December 2002, two weeks before the hearing. The claimant also alleges feelings of depression, suicidal ideation, an inability to start and complete activities, and trouble understanding and carrying out instructions. However, an April 2002 examination report shows that the claimant was pleasant, conversant, open, cooperative, self-sufficient, and somewhat effervescent in presentation, had relevant and goal-directed speech, that she reported feeling depressed due primarily to her pain, that she exhibited unimpaired memory, and was assessed with fair and good mental abilities in relating to co-workers. dealing with the public, using judgment, interacting with supervisors, functioning independently, understanding, remembering and carrying out simple job instructions, maintaining personal appearance, behaving in an emotionally stable manner, relating predictably in social situations, and demonstrating reliability (Exhibit 13F). Subsequent progress notes indicate that the claimant was oriented, had intact memory for recent and remote events, attended to tasks normally, had normal expressive and receptive speech/language, demonstrated good fund of knowledge, exhibited normal mood, and had intact insight (Exhibit 18F). While the claimant is not entirely credible concerning the intensity, duration and limiting effects of the symptoms, the record does establish that the claimant's fibromyalgia, interstitial cystitis, and depression result in more than a minimal degree of limitation in the ability to perform basic work activities. Thus, these impairments are "severe" within the meaning of the Regulations. t; , THERESA A. COSTA (182-40-9922) Page 5 of 8 However. there is no indication that the claimant's irritable bowel syndrome results in more than a minimal degree of limitation in the ability to perform basic work activities, or that it has lasted long enough to meet the 12-month duration. Therefore, this impairment is not severe. Although the claimant has severe impairments, none of the claimant's impairments, considered singly or in combination, are of sufficient severity to meet or medically equal any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4 (Listing of Impairments). There is no indication that the claimant's physical impairments are associated with sufficient findings to meet any relevant section of Listings 1.00 (Musculoskeletal System), 2.00 (Special Senses and Speech), 3.00 (Respiratory System), 4.00 (Cardiovascular System), 5.00 (Digestive System), 6.00 (Genito-Urinary System), 9.00 (Endocrine System), 11.00 (Neurological), or 14.00 (Immune System). The medical record fails to establish evidence of significant neurological deficits, an FEV of 1.45 or less, chronic asthmatic bronchitis, or an inability to ambulate effectively on a sustained basis. While the claimant's mental impairment is associated with sufficient symptoms to meet the "A" criteria of listing 12.04, it does not result in sufficient functional restrictions to meet the "B" or "C" criteria. With regard to the "B" criteria, the record as a whole supports a finding that the claimant has mild restriction in activities of daily living, mild difficulties with social functioning, moderate difficulties in maintaining concentration, persistence or pace, and no episodes of decompensation, each of extended duration. As for the "C" criteria, there is no indication that the claimant has experienced repeated episodes of decompensation, each of extended duration, or that the claimant has a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the claimant to decompensate. There is also no indication that the claimant has a current history of 1 or more years' inability to function outside a highly supportive living arrangement with an indication of continued need for such an arrangement. In terms of medical equivalence, no acceptable medical source designated by the Commissioner to make equivalency findings has indicated that the claimant's impairments are equivalent in severity to a listed impairment. A determination must therefore be made whether she retains the residual functional capacity to perform the requirements of her past relevant work or other work existing in significant numbers in the national economy. The term "residual functional capacity" is defined in the Regulations as the most an individual can still do after considering the effects of physical and/or mental limitations that affect the ability to perform work-related tasks (20 CFR § 404.1545 and Social Security Ruling 96-8p). In making this assessment, the undersigned must consider all symptoms, including pain, and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence based on the requirements of 20 CFR § 404.1529, and Social Security Ruling 96-7p. The undersigned must also consider any medical opinions, which are statements from acceptable medical sources, which reflect judgments about the nature and severity of the impairments and resulting limitations (20 CFR § 404.1527 and Social Security Rulings 96-2p and 96-6p). If the undersigned accepted the claimant's allegations concerning the symptoms and limitations in their entirety, the claimant would not be able to perform any type of work on a regular and THERESA A. COSTA (182-40-9922) Page 6 of 8 continuing basis. However, for the reasons mentioned above, the undersigned has found the claimant not entirely credible. Accordingly, the claimant's subjective allegations were given only limited weight in determining the residual functional capacity. As for the medical opinions, significant weight has been given to the May 2001 state agency psychological consultants conclusion that the claimant is capable of performing simple, routine repetitive work tasks (Exhibit 15F), since it was supported by the minimal clinical findings as well as the degree of treatment required by the claimant. Although the mental assessment by Stanley Schneider, Ed.D., was generally supported by the medical record, the findings of "poor" mental abilities appear to be based on the claimant's subjective allegations, which as previously mentioned, are not generally credible. In addition, the undersigned notes that the claimant did not follow up with psychological counseling, and has not complied with an exercise program to help alleviate some of her physical symptoms, which seems to be the underlying cause of her mental symptomatology. Therefore, this opinion has been accorded partial weight. The record contains a December 2002 physical assessment for sedentary work (Exhibit 17F). However, this opinion has been given little weight since it was not supported by the medical and objective findings, or the fact that the claimant had improved after surgery and reported feeling better with medication. Accordingly, the undersigned finds the claimant retains the residual functional capacity to lift and carry 10 pounds frequently and 20 pounds occasionally, sit for about 6 hours in an 8-hour workday, stand and walk for about 6 hours in an 8-hour workday, and push and pull as much as she can lift and carry. In addition, the claimant is mentally capable of simple repetitive work tasks. Thus, the claimant has the residual functional capacity for a broad range of light work. Based upon the claimant's residual functional capacity, the Administrative Law Judge must determine whether the claimant can perform any of her past relevant work. The phrase "past relevant work" is defined in the Regulations at 20 CFR § 404.1565. The work usually must have been performed within the last 15 years or 15 years prior to the date that disability must be established. In addition, the work must have lasted long enough for the claimant to learn to do the job and meet the definition of Tubstantial gainful activity. The evidence in this case establishes that the claimant has past relevant work as a receptionist, medical billing clerk, and news courier. The impartial vocational expert testified that these jobs require unskilled and semi-skilled work tasks at the sedentary and light levels of exertion. Based upon the residual functional capacity, the claimant could return to her past relevant work as a receptionist. The evidence indicates the claimant could return to this occupation as Qenerally performed in the national economy. Social Security Ruling 82-61 requires a finding of "not disabled" when the claimant retains the residual functional capacity to perform the actual functional demands and job duties of a particular past relevant job, or the functional demands and job duties of the occupation as THERESA A. COSTA (182-40-9922) Page 7 of 8 generally required by employers throughout the national economy. Because the claimant's past relevant work as a receptionist, as normally performed in the national economy, did not require the performance of work activities precluded by the claimant's residual functional capacity, the claimant is able to perform past relevant work. The undersigned finds the claimant was not under a disability as defined in the Social Security Act, at any time through the date of this decision (20 CFR § 404.1520(e)). FINDINGS After careful consideration of the entire record, the Administrative Law Judge makes the following findings: 1. The claimant meets the nondisability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(1) of the Social Security Act and is insured for benefits through the date of this decision. 2.. The claimant has not engaged in substantial gainful activity since the alleged onset of disability. The claimant has an impairment or a combination of impairments considered "severe" based on the requirements in the Regulations 20 CFR § 404.1520(b). 4. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. 5. The undersigned finds the claimant's allegations regarding her limitations are not totally _ credible for the reasons set forth in the body of the decision. 6. The undersigned has carefully considered all of the medical opinions in the record regarding the severity of the claimant's impairments (20 CFR § 404.1527). 7. The claimant has the residual functional capacity to lift and carry 10 pounds frequently and 20 pounds occasionally, sit for about 6 hours in an 8-hour workday, stand and walk for about 6 hours in an 8-hour workday, and push and pull as much as she can lift and carry. In addition, the claimant is mentally capable of simple repetitive work tasks. Thus, the claimant has the residual functional capacity for the full range of light work. 8. The claimant's past relevant work as a receptionist did not require the performance of work-related activities precluded by her residual functional capacity (20 CFR § 404.1565). 9. The claimant's medically determinable impairments do not prevent the claimant from performing her past relevant work. 10. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision (20 CFR § 404.1520(e)). THERESA A. COSTA (182-40-9922) Page 8 of 8 DECISION It is the decision of the Administrative Law Judge that, based on the application filed on February 11, 2002, the claimant is not entitled to a period of disability or Disability Insurance Benefits under Sections 216(i) and 223, respectively, of the Social Security Act. J ;/JANET R. LANDESBERG Administrative Law Judge JAN 2 8 2003 Date LIST OF EXHIBITS Claimant: THERESA A. COSTA SSN: 182-40-992` No. Part . of No. No. Description Pages PAYMENT DOCUMENTS/DECISIONS I A PAYMENT AND RELATED DOCUMENTS 3 JURISDICTIONAL DOCUMENTS/NOTICES I B JURISDICTIONAL AND RELATED DOCUMENTS I I NON-DISABILITY DEVELOPMENT 1 D NON-DISABILITY DEVELOPMENT AND RELATED DOCUMENTS 20 DISABILILTY RELATED DEVELOPMENT AND DOCLTMENTA_TION I E DISABILITY RELATED DEVELOPMENT AND RELATED DOCUMENTS 66 MEDICAL RECORDS 1 F Development Surnrnary Worksheet 1-6 Claimant: LIST OF EXHIBITS THERESA A. COSTA SSN: 18240-9922 Exh. Part No. of No. No. Description Pages 2 F Medical Records covering the period from April 13, 1995 to June 18, 1996 from The 7- i 3 Milton S. Hershey Medical Center 3 F Medical Records covering the period from January 8, 1999 to February 1, 1999 from 14-32 James D. Kearney, M.D. 4 F Medical Records covering the period from October 3, 1996 to March 3, 1999 from 33-37 Thomas A. Kachel, M.D. 5 F Medical Records covering the period from January 26, 1998 to February 6, 2001 from 38-70 Capital Surgical Group, P.C. 6 F Medical Records covering the period from January 29, 1998 to February 6, 2001 from 71-91 Community General Osteopathic Hospital 7 F Medical Records covering the period from June 26, 2001 to July 9, 2001 from Creston C. 92-101 Herold, Jr., M.D. 8 F Medical Records covering the period from February 23, 1994 to October 1'6, 2001 from 102-139 John E. Muscalus, D.O. 9 F Medical Records covering the period from October 19, 1999 to November 21, 2001 from 140-146 George W. Kunkel, M.D. 10 F Medical Records covering the period from August 22, 2001 to December 5, 2001 from 147-175 Moffitt Heart & Vascular Group 11 F Medical Records covering the period from January 13, 1994 to December 6, 2001 from 176-209 West'Shore Family Practice PC 12 F Medical Records covering the period from December 14, 1998 to March 18, 2002 from 210-231 Capital Surgical Group, P.C. 13 F Consultative Examination dated April 18, 2002 by Stanley E. Schneider, Ed.D. 232-238 14 F Psychiatric Review Technique Form (completed by DDS physician) dated May 1, 2002 239-252 15 F RFC - Residual Functional Capacity Assessment - Mental (completed by DDS physician) 253-256 dated May 2, 2001 LIST OF EXHIBITS . Claimant: THERESA A. COSTA SSN: 18240-9921 Exh. Part No. of No. No. Description Pages 16 F RFC - Residual Functional Capacity Assessment - Physical (completed by DDS physician) 257-264 dated May 7, 2002 1-T ^ L ai- "u " z 112? N" Q ?. rcL? Theresa A. Costa 50 Putter Lane Camp Hill, PA 17011 February 11, 2003 Appeals Council Office of Hearings and Appeals 5107 Leesburg Me Falls Church, VA 22041-32:55 Refer To: 18240-992Z To Whom It May Concern: I am writing this. letter to file an Appeal to the Notice of Decision - Unfavorable• per letter dated January 2e. Please, also note°Ir am now separated and have m oved_ : Old Address:` TheresaA- Costa 516 Hummel Avenue Lemoyne, PE?Q4 - =nw 717-731-6110Jot New Address: Theresa A. Costa 50ePntter Pane . , Camp Hill, PA`-,17or 717-737-9000 Also my banking status haschan _AML ivith Old Bank rs I st (d to?separatia ° osed?? A tcl New Bank Waypoint ,. If you have any further questions do not hesitate to call me @ 717-737-9000 Thank you, Theresa A. Costa ORDERINOTICE TO WITHHOLD INCOME FOR SUPPORT State Commonwealth of Pennsylvania CO./City/Dist. of CUMBERLAND Date of Order/Notice 05/12/03 Tribunal/Case Number (See Addendum for case summary) Employer/Withholder's Federal EIN Number RE: COSTA, VINCENT L. .)kll, -,2r6, -1.-)6 G clef-I& CVS PHARMACY INC ?i?5 7?G5!)-? 1 CVS DR WOONSOCKET RI 02895-6146 O Original Order/Notice O Amended Order/Notice O Terminate Order/Notice Employee/Obligor's Name (Last, First, MI) 198-46-1416 Employee/Obligor's Social Security Number 8163100061 Employee/Obligor's Case Identifier (See Addendum for plaintiff names associated with cases on attachment) Custodial Parent's Name (Last, First, MI) See Addendum for dependent names and birth dates associated with cases on attachment. ORDER INFORMATION: This is an Order/Notice to Withhold Income for Support based upon an order for support from CUMBERLAND County, Commonwealth of Pennsylvania. By law, you are required to deduct these amounts from the above-named employee's/obligor's income until further notice even if the Order/Notice is not issued by your State. $ 1, 830. 00 per month in current support $ 0.00 per month in past-due support Arrears 12 weeks or greater? Dyes ® no $ 0.00 per month in medical support $ 0.00 per month for genetic test costs $ per month in other (specify) for a total of $ 1, 830.00 per month to be forwarded to payee below. You do not have to vary your pay cycle to be in compliance with the support order. If your pay cycle does not match the ordered support payment cycle, use the following to determine how much to withhold: $ 422.31 per weekly pay period. $ 844.62 per biweekly pay period (every two weeks). $ 915. oo per semimonthly pay period (twice a month). $ 1.830. oo per monthly pay period. REMITTANCE INFORMATION: You must begin withholding no later than the first pay period occurring ten (10) working days after the date of this Order/Notice. Send payment within seven (7) working days of the paydate/date of withholding. You are entitled to deduct a fee to defray the cost of withholding. Refer to the laws governing the work state of your employee for the allowable amount. The total withheld amount, and your fee, cannot exceed 55% of the employee's/ obligor's aggregate disposable weekly earnings. For the purpose of the limitation on withholding, the following information is needed (See #10 on pg. 2). If remitting by EFT/EDI, please call Pennsylvania State Collections and Disbursement Unit (SCDU) Employer Customer Service at 1-877-676-9580 for instructions. Make Remittance Payable to: PA SCDU Send check to: Pennsylvania SCDU, P.O. Box 69112, Harrisburg, Pa 17106-9112 IN ADDITION, PAYMENTS MUST INCLUDE THE DEFENDANT'S NAME AND THE PACSES MEMBER ID (shown above as the Employee/Obligor's Case Identifier) OR SOCIAL SECURITY NUMBER IN ORDER TO BE PROCESSED. DO NOT SEND CASH BY MAIL. ?1? Date of Order: MAY 1 3 Service Type M BY THE COURT: 2003 Form EN-028 OMB No.: 0970-0154 - Worker I D $ IATT AgNN3c i - .)lrt ADDITIONAL INFORMATION TO EMPLOYERS AND OTHER WITHHOLDERS ? If heck you are required to provide a copy of this form to your m loyee. If yo r employee works in a state that is di Brent from the state that issued this order, a copy must be provi?7to your employee even if the box is not checked. 1. We appreciate the voluntary compliance of Federally recognized Indian tribes, tribally-owned businesses, and Indian-owned businesses located on a reservation that choose to withhold in accordance with this notice. 2. Priority: Withholding under this Order/Notice has priority over any other legal process under State law against the same income. Federal tax levies in effect before receipt of this order have priority. If there are Federal tax levies in effect please contact the requesting agency listed below. 3. Combining Payments: You can combine withheld amounts from more than one employee/obligor's income in a single payment to each agency requesting withholding. You must, however, separately identify the portion of the single payment that is attributable to each employee/obligor. Reporting the Paydate/Date of Withholding. You must report the paydate/date of withholding when sending the payment. The 4.* wages. paydate/date of withholding is the date on whieh amount was withheld from the employee's You must comply with the law of the state of the employee's/obligor's principal place of employment with respect to the time periods within which you must implement the withholding order and forward the support payments. 5.* Employee/Obligor with Multiple Support Holdings: If there is more than one Order/Notice to Withhold Income for Support against this employee/obligor and you are unable to honor all support Order/Notices due to Federal or State withholding limits, you must follow the law of the state of employee's/obligor's principal place of employment. You must honor all Orders/Notices to the greatest extent possible. (See #10 below) 6. Termination Notification: You must promptly notify the Requesting Agency when the employee/obligor is no longer working for you. Please provide the information requested and return a copy of this Order/Notice to the Agency identified below. WITHHOLDER'S ID: 0503406260 EMPLOYEE'S/OBLIGOR'S NAME: COSTA. VINCENT L. EMPLOYEE'S CASE IDENTIFIER: 8163100061 DATE OF SEPARATION: LAST KNOWN HOME ADDRESS: NEW EMPLOYER'S NAME/ADDRESS: 7. Lump Sum Payments: You may be required to report and withhold from lump sum payments such as bonuses, commissions, or severance pay. If you have any questions about lump sum payments, contact the person or authority below. 8. Liability: If you fail to withhold income as the Order/Notice directs, you are liable for both the accumulated amount you should have withheld from the employee/obligor's income and other penalties set by Pennsylvania State law. Pennsylvania State law governs unless the obligor is employed in another State, in which case the law of the State in which he or she is employed governs. 9. Anti-discrimination: You are subject to a fine determined under State law for discharging an employee/obligor from employment, refusing to employ, or taking disciplinary action against any employee/obligor because of a support withholding. Pennsylvania State law governs unless the obligor is employed in another State, in which case the law of the State in which he or she is employed governs. 10.* Withholding Limits: You may not withhold more than the lesser of: 1) the amounts allowed by the Federal Consumer Credit Protection Act 0 5 U.S.C. §1673 (b)1; or 2) the amounts allowed by the State of the employee's/obligor's principal place of employment. The Federal limit applies to the aggregate disposable weekly earnings (ADWE). ADWE is the net income left after making mandatory deductions such as: State, Federal, local taxes; Social Security taxes; and Medicare taxes. 11. Additional Info: *NOTE: If you or your agent are served with a copy of this order in the state that issued the order, you are to follow the law of the state that issued this order with respect to these items. Submitted By: DOMESTIC RELATIONS SECTION 13 N. HANOVER ST P.O. BOX 320 CARLISLE PA 17013 Service Type M If you or your employee/obligor have any questions, contact WAGE ATTACHMENT UNIT by telephone at (717) 240-6225 or by FAX at (717) 240-6248 or by internet www.childsupport.state.pa.us Page 2 of 2 OMB No.: 0970-0154 Form EN-028 Worker I D $ IATT ADDENDUM Summary of Cases on Attachment Defendant/Obligor: COSTA, VINCENT L. PACSES Case Number 743105357 Plaintiff Name THERESA A. COSTA Docket Attachment Amount 03-1266 CIVIL$ 1,830.00 Child(ren)'s Name(s): DOB ? if checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACKS Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACKS Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACKS Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Child(ren)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. Addendum Form EN-028 Service Type M Worker ID $IATT OMB No.: 0970-0154 THERESA A. COSTA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff DOMESTIC RELATIONS SECTION V. PASCES NO. 743105357 VINCENT L. COSTA, NO. 03-1266 CIVIL Defendant EXCEPTIONS TO SUPPORT MASTER'S REPORT AND RECOMMENDATION (Appealing the May 9, 2003 Interim Order of Court for Alimony Pendente Lite) AND NOW comes Defendant, by his undersigned counsel, and makes the following exceptions to the report and recommendation of the Support Master, entered May 9, 2003: 1. The Master erred in failing to find that Plaintiff has a work capacity based on her job history, and in particular her job at Pinnacle Health, where she took home $320.00 per week operating a computer, which job Plaintiff left because of problems she was experiencing with her supervisor. 2. The Master erred in finding that Plaintiff was disabled from any work activity based on the testimony of Plaintiffs witness, Dr. Mueller: A. Dr. Mueller did not give an. unqualified opinion to a reasonable degree of medical certainty, the standard of legal certainty in Pennsylvania. B. Dr. Mueller's opinion as to Plaintiffs ability to work consisted of a vocational component which was beyond the field of expertise for which Dr. Mueller was offered. C. Dr. Mueller's opinion was not based on a clinical examination. As Dr Mueller admitted, fibromyalgia is diagnosed based on an examination of recognized "trigger points" to detect muscle spasming. Dr. Mueller admitted that he committed NO EXAMINATION of these trigger points, even though such an examination is highly objective, in that spasming cannot usually be manipulated by the patient. For that matter, Dr. Mueller, who saw Plaintiff on a monthly to bimonthly basis for approximately fifteen months, conducted no clinical examination of Plaintiff, and did not even take Plaintiffs heart rate and blood pressure during all but a few of the office visits. D. Dr. Mueller started Plaintiff on Oxycontin, a powerful prescription pain medication with a significant potential for addiction, after Plaintiff was experiencing only a low amount of pain (three on a scale of one to ten). In addition, Dr. Mueller raised her level of Oxycontin instead of prescribing medication for breakthrough pain. 3. The Master failed to give proper weight to the decision of the Administrative Law Judge (ALJ) in Plaintiffs disability insurance claim, wherein the ALJ denied the claim and found that Plaintiff had a capacity for sedentary and some light substantial gainful employment (copy of decision is a Defendant's exhibit). A. The ALJ had the benefit of all of Plaintiffs medical records, including the records of Dr. Mueller. B. The ALJ had the benefit of the testimony of a vocational expert C. Plaintiff was represented by competent counsel and had a full and fair opportunity to present her claim for disability to the ALJ. While the Plaintiff complained 2 that she lost her claim because her lawyer did not do a good enough job, neither she nor Dr. Mueller presented any significant medical evidence to contradict the findings of the ALJ. 4. The Master failed to give proper consideration to his finding that Plaintiff was physically active and moving freely throughout the hearing (which took all of the morning and half of the afternoon), at times turning her head and body over 90 degrees to the right to see the Master, and without wincing or other complaints. These observations of the Master are inconsistent with Plaintiffs complaints of daily debilitating pain. 5. Plaintiff must be judicially and equitably estopped from asserting that she has no earning capacity, when she has taken the position that she is eligible for Social Security Disability Insurance (Title 2) benefits. Accordingly, she must either have an earning capacity equal to at least the average Social Security Title 2 disability benefit, equal to over $900.00 per month (Pa. R. C. P. Rule 1910.16-2 (a)(6)), or an earning capacity. 6. The Master erred in concluding that Defendant's desire to cut back on his hours of work is for the purpose of evading support. Defendant is a licensed pharmacist for CVS, works overnight hours with frequently required overtime to cover at other stores, and has felt increasingly burned out, and subject to erring in the filling and dispensing of pharmaceuticals. Defendant should not be forced to work in a situation where his license, and therefore his livelihood, are subject to adverse action. This is also contrary to the practice of this Court of not penalizing an obligor who discontinues overtime hours. WHEREFORE, Defendant respectfully requests that the order of alimony pende lite be modified to declare Plaintiff has an earning capacity and finding that Defendant's . 3 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a true and correct copy of the Answer to Complaint on the following individual by First Class U.S. Mail addressed as follows: Kristin R. Reinhold, Esquire Silliker & Reinhold 5922 Linglestown Road Harrisburg, PA 17112 Date: May 16, 2003 J. Kenneth A. Wise, Esquire Attorney I.D. No. 16142 126 Locust Street P. O. Box 11489 Harrisburg, PA 17108-1489 (717) 238-3838 Attorney for Defendant earning potential cannot be lowered by cut back his overtime hours and by taking vacations. Respectfully Submitted, r Date: May 16, 2003 ?" Kenneth A. Wise, Esquire Id. No. 16142 126 Locust Street P. O. Box 11489 Harrisburg, PA 17108-1489 (717) 238-3838 Attorney for Defendant ??. ?. _ --. ?. ; -? ? ?_ -. rte. THERESA A. COSTA, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. VINCENT L. COSTA, Defendant DOMESTIC RELATIONS SECTION PACSES CASE NO. 743105357 NO. 03-1266 CIVIL PLAINTIFF'S CROSS-EXCEPTIONS TO SUPPORT MASTER'S REPORT AND RECOMMENDATION AND NOW, comes the Plaintiff, Theresa A. Costa, by and through her attorneys, the Law Offices of Silliker and Reinhold, by Kristin R. Reinhold, Esquire, and files the following exceptions to the Report and Recommendation of the Support Master entered May 9, 2003: 1. The Master erred in calculating Defendant's net monthly income based upon a married/separate filing, when the parties stipulated at the time of hearing that they intended on filing a joint Federal Income Tax Return for 2003. 2. The Master erred in deducting the health insurance premium from Defendant's gross income in determining his net monthly income for support calculation purposes. J)a C)/03 Respectfully submitted, THE LAW OF ICES OF SILLIKER &40L1 `Kristin . Reinhold; Esquire 5922 inglestown Road Harrisburg, PA 17112 (717) 671-1500 ID No. 57911 Attorney for Plaintiff THERESA A. COSTA, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : DOMESTIC RELATIONS SECTION VINCENT L. COSTA, PACSES CASE NO. 743105357 Defendant NO. 03-1266 CIVIL CERTIFICATE OF SERVICE The undersigned, Beth Lengel, hereby certifies that a copy of a Plaintiff's Cross-Exceptions to Support Master's Report and Recommendations was served upon Kenneth A. Wise, Esquire, Attorney of Record for Defendant, on May 20, 2003, by first class mail, postage pre-paid, addressed as follows: Kenneth A. Wise, Esquire 126 Locust Street P.O. Box 11489 Harrisburg, PA 17108-1489 Date: Lo 11) Oc9_? x3M6 f Beth Len 1 THERESA A. COSTA, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. VINCENT L. COSTA, Defendant : DOMESTIC RELATIONS SECTION PACSES CASE NO. 743105357 NO. 03-1266 CIVIL PLAINTIFF'S CROSS-EXCEPTIONS TO SUPPORT MASTER'S REPORT AND RECOMMENDATION AND NOW, comes the Plaintiff, Theresa A. Costa, by and through her attorneys, the Law Offices of Silliker and Reinhold, by Kristin R. Reinhold, Esquire, and files the following exceptions to the Report and Recommendation of the Support Master entered May 9, 2003: 1. The Master erred in calculating Defendant's net monthly income based upon a married/separate filing, when the parties stipulated at the time of hearing that they intended on filing a joint Federal Income Tax Return for 2003. 2. The Master erred in deducting the health insurance premium from Defendant's gross income in determining his net monthly income for support calculation purposes. Ja a/o3 Respectfully submitted, THE LAW OF ICES OF SILLIKER I Kristin . Reinhold; Esquire 5922 inglestown Road Harrisburg, PA 17112 (717) 671-1500 ID No. 57911 Attorney for Plaintiff THERESA A. COSTA, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : DOMESTIC RELATIONS SECTION VINCENT L. COSTA, PACSES CASE NO. 743105357 Defendant NO. 03-1266 CIVIL CERTIFICATE OF SERVICE The undersigned, Beth Lengel, hereby certifies that a copy of a Plaintiff's Cross-Exceptions to Support Master's Report and Recommendations was served upon Kenneth A. Wise, Esquire, Attorney of Record for Defendant, on May 20, 2003, by first class mail, postage pre-paid, addressed as follows: Kenneth A. Wise, Esquire 126 Locust Street P.O. Box 11489 Harrisburg, PA 17108-1489 I 4? () (6 510() Date: 10 3 6f Beth Len 1 VINCENT L. COSTA, Plaintiff V. THERESA A. COSTA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1266 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted that the marriage is irretrievably broken. With respect to the claim of indignities to the person, that allegation is denied. To the contrary, it was Plaintiff who offered indignities to Defendant, the innocent and injured spouse, such as to render his life burdensome and condition intolerable. 9. Admitted. 10. Admitted. 11. Admitted. WHEREFORE, Plaintiff respectfully requests that this action be dismissed. COUNTI EQUITABLE DISTRIBUTION 12. Paragraphs 1-11 above are incorporated by reference herein. 13. Admitted. WHEREFORE, Defendant respectfully requests that this Count be dismissed unless there is a divorce. COUNT II ALIMONY 14. Paragraphs 1-13 above are incorporated herein by reference. 15. Denied. To the contrary, Plaintiff has sufficient property to reasonably meet her needs. 16. Denied. Plaintiff has been judicially determined capable of significant gainful activity. 17. Admitted only that Defendant has an earning capacity greater than Plaintiff. WHEREFORE, Defendant respectfully requests that the Complaint be dismissed. 2 COUNT III ALIMONY PENDENTE LITE, COUNSEL FEES, COSTS AND EXPENSES 18. Paragraphs 1-17 above are incorporated herein by reference. 19. After reasonable investigation, Defendant is without information sufficient to form a belief as to the truth of the averment. Proof is demanded. 20. After reasonable investigation, Defendant is without information sufficient to form a belief as to the truth of the averment. Proof is demanded. 21. After reasonable investigation, Defendant is without information sufficient to form a belief as to the truth of the averment. Proof is demanded. 22. Denied. To the contrary, Defendant is not without such adequate means. WHEREFORE, Defendant respectfully requests that Plaintiff s request be denied. Respectfully Submitted, Date: //hK Wise, Esquire Id. No. 16142 126 Locust Street P. O. Box 11489 Harrisburg, PA 17108-1489 (717) 238-3838 Attorney for Defendant VERIFICATION I hereby verify that the facts averred in the foregoing Answer to Complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein made are subject to the criminal penalties of 18 Pa. C S. §4904, relating to unworn falsification to authorities. S- I ?- (i Date: VINCENT L. COSTA I hereby certify that I am this day serving a true and correct copy of the foregoing Answer to Complaint on the following individual by First Class U.S. Mail, postage prepaid addressed as follows: Kristin R. Reinhold, Esquire Silliker & Reinhold 5922 Linglestown Road Harrisburg, PA 17112 Date: J ?L ?. By: enneth A. Wise, Esquire Attorney I.D. No. 16142 126 Locust Street P. O. Box 11489 Harrisburg, PA 17108-1489 (717) 238-3838 Attorney for Defendant w o - 7 1 m IT rn V) r CS to (. ? `-jT O J I -< t; x U In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION Docket Number 03-1266 CIVIL THERESA A. COSTA ) Plaintiff ) PACSES Case Number 743105357 VS. ) VINCENT L. COSTA Defendant ) other State ID Number ORDER OF COURT Legal proceedings have been brought against you alleging you have wilfully disobeyed an Order of Court. 1. If you wish to defend against the claim set forth in the following page, but are not required to, file in writing with the Court your defenses or 2. You, VINCENT L. COSTA appear in person in court on COURT ROOM 5 CUMBERLAND CO COURTHOUSE, AUGUST 7, 2003 , at 9 ,10AM in ^r- rn Q? GD ntg-itY1 t <o < O W w 1 COURTHOUSE SQUARE, CARLISLE, PA. 17013 IF YOU DO NOT APPEAR IN PERSON, THE COURT MAY ISSUE A WARRANT FOR YOUR ARREST AND YOU MAY BE COMNIITTED TO JAIL. 3. If the Court finds that you have wilfully failed to comply with its order you may be found to be in contempt of court and committed to jail, fined, or both. Form EN-528 Worker ID 21600 Service Type M Y WAWNN3d i U h <i C' tr`i)i' F t COSTA v. COSTA PACSES Case Number: 743105357 YOU SHOULD TAKE NOT HAVE A LAWYER OR PAPER AFFORDAONE, GO TONOR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND CO BAR ASSOCIATION 32 S BEDFORD ST CARLISLE PA 17013-3302-32 (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of CUMBERLAND County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before hous sprior to any hearing or business before the court. You made at least 72 must attend the scheduled hearing. BY THE COURT: JUN 2 42003 Date of Order: Page 2 of 2 Form EN-528 Worker ID 21600 Service Type m In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION THERESA A. COSTA ) Docket Number 03-1266 CIVIL Plaintiff ) vs ) PACSES Case Number 743105357 VINCENT L. COSTA ) Defendant ) Other State ID Number PETITION FOR CONTEMPT - DEFENDANT TO THE HONORABLE, THE JUDGES OF SAID COURT: 1. Petitioner is CUMBERLAND County Domestic Relations Section. 2. Defendant is VINCENT L. COSTA who resides at 516 HUMMEL AVE, LEMOYNE, PA. 17043-1826-16 3. On MAY 9, 2003 an order of support was entered by the Honorable Court 4. directing Defendant to pay the sum of $ 1, 830.00 per month for the.-support o ? appear as ordered. ® other: MAKE LUMP SUM PAYMENT xX his/her dependent(s). Defendant has failed to comply with the order as entered by the Court by--Uiling ® pay as ordered. ? provide information which was ordered. ~? o w 5. The arrearages under the Order amount to $ 5, 630.76 as of JUNE 24, 2003 WHEREFORE, Petitioner prays that the Court issue an order directing the attendance of Defendant at a hearing of said Petition and hereafter to make an adjudication of contempt. I verify that the statements made in this Petition are true and correct to the best of my knowledge. I understand that false statements herein are made to the penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. ?y n M 2 4 hY?7' R. J. SHADDAY Date Signa Form EN-0-0007 / Service Type M Worker ID 216(0 THERESA A. COSTA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. VINCENT COSTA NO. 2003-1266 CIVIL TERM PACSES # 743105357 ORDER OF COURT AND NOW, this 30TH day of JUNE, 2003, the Defendant having filed exceptions to the Support Master's Report and Recommendation, it is hereby ordered as follows, pursuant to Rule 1910.12, C.C.R.P.: 4. 5. The stenographer for the Support Master shall transcribe and file the notes of testimony, and the Defendant shall bear the cost of the original transcript. The Defendant shall file a brief, in these chambers, in support of the exceptions not later than WEDNESDAY JULY 16, 2003. At the request of Plaintiff's counsel the court has granted additional time, Plaintiff shall file a reply brief, in these chambers, not later than FRIDAY, AUGUST 1, 2003. Argument shall be before the undersigned on THURSDAY, AUGUST 7, 2003, at 8:30 a.m. in Courtroom # 5. Kristin R. Reinhold, Esquire 5922 Linglestown Road Harrisburg, Pa. 17112 Kenneth A. Wise, Esquire 126 Locust Street - P.O. Box 11489 Harrisburg, Pa. 17108-1489 Michael Rundle, Esquire -? •7. p:r , o 4, DRO 17A ? ??'??1?1n z-7M Z0 j?«u Ci3?y r1 Zi0 THERESA A. COSTA, Plaintiff V. VINCENT L. COSTA, Defendant IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION . PACSES NO. 743105357 . 03-1266 CIVIL TRANSCRIPT OF PROCEEDINGS Proceedings held before Michael R. Rundle, Esquire, Support Master Cumberland County Domestic Relations Office 9 North Hanover Street, Carlisle, Pennsylvania on May 6, 2003, commencing at 10:30 a.m. In the Support Master's Hearing Room APPEARANCES: KRISTIN R. REINHOLD, Esquire For the Plaintiff KENNETH A. WISE, Esquire For the Defendant INDEX TO WITNESSES FOR THE PLAINTIFF Theresa A. Costa Scott D. Mueller, MD Elizabeth Updegraff FOR THE DEFENDANT Vincent L. Costa Louis J. Costa DIRECT CROSS REDIRECT RECROSS 4, 58 87 8 21 51 54 105 109 111 118 125 133 137 137 140 145 2 INDEX TO EXHIBITS FOR THE PLAINTIFF MARKED Ex. No. 1 - memo from Scott D. Mueller, MD 21 Ex. No. 2 - Income & Expense Statement 86 Ex. No. 3 - Defendant's affidavit in Social Security hearing 121 FOR THE DEFENDANT Ex. No. 1 - Social Security Administration decision 49 ADMITTED 111 111 149 148 3 1 THE MASTER: We are here: in the matter of 2 Theresa A. Costa versus Vincent L. Costa, case docketed to 3 03-1266 Civil. This is a divorce action with a claim for 4 alimony pendente lite filed by the Plaintiff, Mrs. Costa. 5 Parties have stipulated to the following: The date of the 6 marriage is December the 6th, 1997; the date of separation 7 is February the 1st, 2003; the date of the filing of the 8 divorce complaint and the claim for alimony pendente lite is 9 March the 21st, 2003. The effective date of any order for 10 alimony pendente lite will be March 21, 2003, and the 11 Defendant is paying the sum of $725.00 per month for the 12 support of a minor child to a prior relationship. 13 MR. WISE: May I make one minor modification. 14 We stipulate that the effective date of the A.P.L. will be 15 no earlier than March 21, 2003. 16 THE MASTER: That is the stipulation. So 17 agreed, Ms. Reinhold. 18 MS. REINHOLD: Agreed. 19 THE MASTER: With that, the Plaintiff may 20 begin. 21 MS. REINHOLD: We will call Mrs. Costa to the 22 stand. 23 THE MASTER: Ma'am, would you raise your 24 right hand to be sworn, please. 25 THE WITNESS: Yes. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Whereupon, Theresa A. Costa was duly sworn.) DIRECT EXAMINATION BY MS. REINHOLD: Q Mrs. Costa, could you please state your full name and address where you are currently living? A Theresa Ann Costa, 1604 Kathryn Street, New Cumberland, 17070. Q Are you married to the Defendant, Vince Costa? A Yes. Q And were there any children of this marriage? A No. Q Where did you reside during the marriage? A The last part, when we lived in our home ? Q Yes. A 516 Hummel Ave nue, Lemcyne. Q Is that where the Defendant is currently living? A Yes. Q When did you move out? A It was Thursday night or Friday, at the end of the week, so it was around the 5th or the 6th of February. Q And was Mr. Costa in the home at that time? 5 1 A No. 2 Q Where was he? 3 A I don't know. 4 Q Had he left earlier? 5 A Yes. 6 Q Did he tell you he would be returning? 7 A No. 8 Q Now, where are you staying now in terms of 9 what type of arrangement do you have? 10 A I am staying with my best friend that we have 11 been for over thirty years at her home. Her husband just 12 passed and sh e has an extra room, and she said she would 13 like to have company. She took me in to help me out. 14 Q Are you currently paying rent to her? 15 A No, which is not right. 16 Q Once you begin receiving some support? 17 A Yes, without a doubt. 18 Q You will have to wait for me to finish before 19 answering my questions because it makes it difficult for the 20 stenographer. 21 A Yes, all right. 22 Q When you begin receiving some support from 23 your husband you will begin paying rent? 24 A Yes. 25 Q Are you employed currently? 6 1 A No. 2 Q Why are you not employed? 3 A Because I have fibromyalgia and interstitial 4 cystitis of the bladder and IBS. 5 Q Why don't you explain for the Court each of 6 those conditions and what kind of symptoms you have. 7 A Fibromyalgia is a widespread pain through 8 your body. Some people have four hours of relief during the 9 day and I go about two hours. I can have two hours here and 10 two hours there. It's just aching muscles and your bones. 11 You have weakness. You have -- you get weak. You get 12 tired. You are really sleepy all the time. You get 13 headaches. Interstitial cystitis of the bladder is caused 14 by fibromyalgia. The IBS is caused by fibromyalgia. I have 15 tingling in my hands. Right now my ankles are hurting. I 16 can't sit for, I would say, more than twenty minutes to an 17 hour. It's even if Tippy takes me out to eat, I have to 18 stand up. If I go to the movies, I am up and down. Sleep 19 disorder, it's like every two hours. You are up and down 20 every night, during the night, every two hours. Let me 21 think what else. I can't remember. 22 Q What is IBS? 23 A IBS is of your belly. You just get real bad 24 pain in your stomach. And it's constipation and then it's a 25 diarrhea, and you are in a lot of pair.. with that. 7 1 Q What do those letters stand for? 2 A Irritable bowel syndrome. 3 Q When you were you first diagnosed with IBS? 4 A I would say maybe at least five or six years 5 ago, which I didn't know it was a part of fibromyalgia. 6 Q When were you actually diagnosed with the 7 fibromyalgia? 8 A What year? 9 Q Yes. 10 A We have to go backwards. It's 2003. I am 11 trying to thin k right after I met Vince, so it was 1997, 12 1998. 13 Q 1998? 14 A Right, around there. 15 Q I am going to stop you right there. And then 16 with the Court's permission we are going to break from your 17 testimony and put your doctor on the stand. 18 A That's okay. 19 MS. REINHOLD: With the Court's permission we 20 call Dr. Mueller to the stand. 21 THE MASTER: Dr. Mueller, will you raise your 22 right hand to be sworn, please. 23 (Whereupon, Dr. Scott Mueller was duly 24 sworn.) 25 DIRECT EXAMINATION 8 1 BY MS. REINHOLD: 2 Q Doctor Mueller, could you please state your 3 full name and professional address for the Court. 4 A Scott D. Mueller, M.D., 2025 Technology 5 Parkway, Suite 205, Mechanicsburg, Pennsylvania 17050. 6 THE MASTER: Spell your last name, please, 7 Doctor. 8 THE WITNESS: M-u-e-1-l-e-r. 9 THE MASTER: Thank you. 10 BY MS. REINHOLD: 11 Q And what is your profession? 12 A I am a physician specializing in family 13 practice. 14 Q And is Theresa Costa your patient? 15 A Yes, she is. 16 Q Could you briefly describe your educational 17 background and degrees for the court? 18 A I went to medical school and to Pennsylvania 19 State University. Graduated in 1983 with an M.D. degree. 20 Went to Polyclinic Hospital for internship and residency 21 training for three years and became board certified after 22 that in family medicine. 23 Q And what does being board certified in family 24 medicine entail? 25 A We cover a wide range of medical problems in 9 1 children through adults. We take care of most of the common 2 problems, high blood pressure, diabetes, arthritis. We can 3 care for probably about eighty-five percent of a person's 4 medical problems. 5 Q Is there any type of continuing medical 6 education you need to remain board certified? 7 A We have to take a recertification test every 8 seven years. 9 Q And you said you were licensed in what year? 10 A I would have received my license in 19, let's 11 see, 85. 12 Q And when were you board certified? 13 A '86, '87. 14 Q Have you been in private practice since 1986? 15 A Yes. Since I finished my residency training 16 I have been in private practice. 17 Q Currently are you in your own office or are 18 you in an association? 19 A For the last two and a half years I have been 20 by myself. I was with a partner prior to that time. 21 Q And you have continued to practice in the 22 field of family practice since you were board certified? 23 A Yes. 24 Q And have you ever testified in the past as to 25 one of your patient's ability to work and have gainful 10 1 employment? 2 A Yes. I have given depositions in the past. 3 Q Approximately how many depositions have you 4 had the opportu nity to testify as to their vocational 5 ability? 6 A Maybe half a dozen or a dozen at the most. 7 MS. REINHOLD: Your Honor, we would offer 8 Doctor Mueller as an expert to testify to Ms. Costa's 9 medical conditi on and treatment as well as offer an opinion 10 as to her abili ty to be employed. 11 THE MASTER: Voir dire, Mr. Wise. 12 MR. WISE: Could I waive that until cross? 13 THE MASTER: Certainly. 14 MR. WISE: Okay. 15 BY MS. REINHOLD: 16 Q Now, Doctor Mueller, how'long have you been 17 treating Ms. Co sta? 18 A Since December of 2001. 19 Q And how frequently do you see her? 20 A Every one to three months. 21 Q And what conditions has she been diagnosed 22 with? 23 A Fibromyalgia, interstitial cystitis and 24 irritable bowel syndrome. 25 Q Does she also have asthma? 11 1 A Yes. 2 Q Do you treat her for the asthma? 3 A I do, but it is quite a minor role in her 4 treatment at this point. 5 Q Now could you describe Eor the Court what 6 symptoms she manifests as part of each of those diagnoses 7 that you just stated? 8 A Okay. Fibromyalgia is a chronic, ongoing 9 condition that consists of fatigue and muscle pain of which 10 we do not know the cause. You can also have a lot of 11 different symptoms along with it. You can have trouble with 12 your memory. You can have trouble with -- the irritable 13 bowel can be associated with that. People also can have 14 asthma-like symptoms associated with it. They can get chest 15 pains, shortness of breath. They can get blurred vision. 16 They can get bladder symptoms. If you name a symptom, there 17 has been some association with fibromyalgia. 18 THE MASTER: Doctor, if you would please, I 19 would appreciate if you would restrict your testimony to 20 what this particular patient has and not what you can have 21 with fibromyalgia. 22 THE WITNESS: Okay. 23 BY MS. REINHOLD: 24 Q So if you could describe, with fibromyalgia, 25 which symptoms have you seen manifested in Mrs. Costa. 12 1 A The chronic fatigue and the muscle pain. She 2 reports difficulty with her memory. She has had the 3 irritable bowel symptoms. And she does have interstitial 4 cystitis, which you can have bladder symptoms with 5 fibromyalgia, but interstitial cystitis is a separate 6 condition that she has on top of that. You get urinary 7 frequency, urgency, burning. 8 Q So those would be the symptoms that she 9 manifests as part of the -- 10 A Interstitial cystitis. 11 Q Right. And what symptoms would she manifest 12 as part of the irritable bowel syndrome? 13 A Diarrhea, abdominal cramping. They are the 14 main ones. 15 Q Okay . In your professional opinion, how 16 severe is her case of fibromyalgia? 17 A Severe. 18 Q And why would you say that? Could you 19 explain what makes her case more severe than another case? 20 A Because her reported degree of disability. 21 She can just mainly do, barely activities of daily living. 22 She has chronic pain and fatigue, sleep disturbance, and she 23 is on potent medication to try to take care of her pain, 24 Oxycontin. 25 Q And could you explain what your course of 13 1 treatment has been for Ms. Costa? 2 A Mainly, just trying to treat pain and restore 3 sleep using hypnotic medication at bedtime to help her sleep 4 and treating with opioid medication for the pain. And she 5 has been on antidepressants to treat secondary depression 6 associated with the fibromyalgia. 7 Q Is that typical to have depression with 8 fibromyalgia? 9 A Yes. 10 Q And what medications is she currently on? 11 A Let me find my list. I know she is on the 12 Oxycontin. 13 THE MASTER: Could you spell that, Doctor. 14 THE WITNESS: 0-x-y-c-c-n-t-i-n. 15 THE MASTER: Thank you. 16 THE WITNESS: And for what we call rescue 17 pain, the Oxycontin is a long acting medication for pain. 18 She takes Hycrodone, H-y-c-r-o-d-o-n-e, in between times for 19 rescue pain. She has been on Nexium for stomach upset, 20 N-e-x-i-u-m. 21 BY MS. REINHOLD: 22 Q What is that? Is that related to -- 23 A Irritable bowel. You can get indigestion 24 associated with that. She has been on Effexor XR for the 25 depression. That is E-f-f-e-x-o-r. And she has used 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Flexeril, F-1-e-x-e-r-i-1, at bedtime. It is muscle relaxant which helps with sleep at bedtime. And she has also used A-m-b-i-e-n for sleep. Q Now, those would be the total of medications that she's currently receiving? A Yes. Q And does she treat with any other physicians concerning the irritable bowel syndrome and the inter -- A She's -- Q Is that ever referred to as IC? A Probably. Q For my convenience I am going to refer to it as IC. A Sure. She has seen a Urologist, Dr. Kachel, and she has seen Doctor Siegelbaum's group for her gastrointestinal complaints. Q Do you receive regular reports from those individuals? A Yes. Q In your professional opinion, is Ms. Costa capable of full-time employment? MR. WISE: Objection, beyond his qualifications. THE MASTER: That is why I asked if you wished to do voir dire, Mr. Wise. 15 1 MR. WISE: The offer on. medical, now he is 2 doing vocational. He can't do both without being qualified 3 as to both. 4 THE MASTER: Do you wish to voir dire with 5 respect to vocational? 6 MR. WISE: It's the burden of proof of the 7 person offering the witness to establish their credibility 8 in a given area. 9 THE MASTER: You don't wish to do any voir 10 dire? 11 MR. WISE: If I have to do it now, I will do 12 it. 13 MR. MASTER: Do it now. 14 CROSS-EXAMINATION 15 (ON QUALIFICATIONS) 16 BY MR. WISE: 17 Q Doctor, you are currently board certified in 18 family practice? 19 A Yes. 20 Q When was your board certification renewed? 21 A I believe it was 2000. 22 Q Have you ever had any privileges restricted 23 or denied or been disciplined in any way? 24 A No. 25 Q Have you ever applied for any privileges and 16 1 been denied or board certification and been denied? 2 A No. 3 MR. WISE: That's all I have. 4 THE MASTER: The objection is overruled. You 5 may answer the question. 6 BY MS. REINHOLD: 7 Q So you can go back to my question of in your 8 professional opinion is Ms. Costa capable of full-time 9 employment? 10 A No. 11 Q Is the she capable of part-time employment? 12 A No. 13 Q What factors make you reach this conclusion? 14 A Just seeing a wide variety of these patients 15 with fibromyalgia and given the severity of her condition, 16 there is no way she would be able to be consistent in 17 attending any kind of employment, ever.. part-time. She would 18 have to be calling off sick. There is no way to predict how 19 she is going to feel on any given day. The three main 20 things that aggravate fibromyalgia are stress, cold weather 21 and overactivity. And I have had some patients who, they 22 can barely get out of bed and make it to church, and then 23 that's it for the week. This can wax and wane. 24 Once you've hit like three years of having 25 fibromyalgia, wherever you are at, that's where you are 17 1 going to be at. Rarely have I seen anyone get better. I 2 think I might have had one person, it seemed like after the 3 three years, they got somewhat better. But everybody else 4 has stayed the same. It's not suppose to be progressive, 5 but I have had a few patients, they just seem like they get 6 progressively worse over a long period of time 7 Q And in your opinion at her stage that you 8 observe currently, does she -- what is your prognosis for 9 her ability to be getting better with her fibromyalgia. 10 A I think she's where she's at, and she's going 11 to stay there. 12 Q Do any of her medications which she is on 13 have any side effects which would also interfere with her 14 ability to be employed? 15 A Well pain medicine has potential, but we are 16 using it to try to increase a person's functions. So the 17 goal is that they are more functional. But it can cause 18 grogginess, the medicine, especially if you try to push the 19 dosage up. There may be times, especially when they take 20 their rescue medicine, where there may be temporary 21 grogginess. You don't want that. If that happens, you are 22 suppose to back off on the medicine. So, theoretically, no, 23 the medicine should not affect their ability function. 24 Q Has Ms. Costa reported to you any side 25 effects that would be this grogginess: 18 I A Yes. She has reported grogginess. 2 Q Did Mr. Costa attend her appointments with 3 her during the marriage? 4 A I would say most of them. 5 Q And was he supportive at that time? 6 A He seemed to be., 7 Q Did he ever contact you. at any point and say 8 that he questi oned his wife's sincerity and her reports of 9 pain and disab ility? 10 MR. WISE: Objection. Irrelevant. 11 THE MASTER: Sustained. 12 BY MS. REINHOL D: 13 Q Are you aware that Ms. Costa applied for 14 Social Securit y Disability late last year? 15 A Yes. 16 Q Are you aware she was denied? 17 A Yes. 18 Q Have you had an opportunity to review that 19 decision? 20 A Yes. 21 Q How do you reconcile your professional 22 opinion that s he is disabled with Social Security's 23 determination that she is not disabled? 24 A Well, they seem to be putting a lot of it on 25 the credibilit y of the person applying for the disability, 19 1 and I guess I disagree with the credibility issue. I think 2 that she is credible and that she is sincere in her 3 symptoms. I am not sure, from my prospective being a 4 medical practitioner, and seeing these patients and 5 believing what they tell me, you know, I guess I 6 just -- maybe somebody who is in law, you know, they don't 7 have contact with these patients all the time. Maybe they 8 just don't necessarily tend to believe the symptoms. I 9 can't really explain it otherwise. 10 The big thing with chronic pain treatment is 11 believing the patient. And that has been a big issue the 12 last few years, Because the only way you can measure pain is 13 to ask the patient on a scale of zero to ten how much pain 14 are you having. And you just have to believe what they tell 15 you. If you don't believe them, those, doctors tend not to 16 treat those patients, Because they have a problem dealing 17 with that type of patient and that type of medicine and 18 measurement. 19 Q Do you treat a significant number of pain 20 cases? 21 A Yes. 22 Q Did you prepare a memo in preparation for Ms. 23 Costa's first Domestic Relation's hearing? 24 A I don't remember if I did. 25 Q I show you a document. Could you identify 20 1 that document for the Court? 2 THE MASTER: Would you like to have it marked 3 as an exhibit? 4 MS. REINHOLD: Yes, please. 5 (Whereupon, Plaintiff's Exhibit No. 1 6 was marked for identification.) 7 BY MS. REINHOLD: 8 Q Could you identify what, has been marked as 9 Plaintiff's Exhibit 1? 10 A This is a memo that I prepared on March 20th, 11 2003, to whom it may concern, regarding Theresa Costa. 12 Q And it basically just sets forth your opinion 13 that she is d isabled? 14 A Yes. 15 Q Has your opinion changed since that time? 16 A No. It has not. 17 MS. REINHOLD: I have no more questions at 18 this time. 19 THE MASTER: Cross. 20 CROSS-EXAMINATION 21 BY MR. WISE: 22 Q Doctor Mueller, I note in your report there 23 is reference to a functional capacity evaluation. Will you 24 tell me what that is? 25 A A functional capacity evaluation is usually 21 1 performed by either a physiologist who specializes in 2 rehabilitati on medicine. Or usually it's done by a physical 3 therapist. And they have a series of tests and functional 4 tests that t hey have the patient go through to see how they 5 can function at a job. 6 Q Is that a tool that you typically see in 7 areas of law dealing with evaluation of ability to work? 8 A Yes. 9 Q Did she have an FCE performed? 10 A I don't recall. 11 Q When did you first see Mrs. Costa? 12 A December of 2001. 13 Q Now, as we are talking you have what I assume 14 to be her ch art in front of you, is that correct? 15 A Yes. 16 Q Are there any other parts to her chart that 17 you did not bring with you today? 18 A No. This is a complete: medical record. 19 Q When she came to you, did she come to you 20 upon referra l by anybody? 21 A I believe she just wanted to change doctors, 22 that she was n't satisfied with her previous physicians. 23 Q Do you know how she saw you? 24 A Sorry? 25 Q How did she come to see you? 22 1 A She came with her husband to the office 2 December the 24th, 2001. 3 Q I assume you asked whether or not she was 4 self-referred? And she would be self-referred in case? 5 A Yes. 6 Q Do you ask patients or does your office ask 7 patients how they came to be referred to you specifically? 8 A The office doesn't. If I am interested in 9 knowing, I'll ask them. 10 Q Did you ask in this case? 11 A I would have to think about it. Well, the 12 fact that her and her husband were there -- I am just trying 13 to recall and guess. I think that I probably did because of 14 the situation. When there is two people in the office like 15 that, I am kind of curious as to what's going on a little 16 bit than if just one patient shows up. That there must be 17 something that they are concerned about, or they had 18 problems in the past with doctors, or, you know, why is the 19 husband here. Is he concerned about something in 20 particular. So I probably did ask them about what their 21 previous experience was with their doctors. 22 Q In your office is there: a form to fill out 23 with respect to medical history? 24 A Well, the only thing I have them fill out is 25 a new patient information sheet. 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q You are showing me that now. It's a one-page sheet A Yes. And I take all my own history instead of having the patient fill out a check-off form. Q Did you personally take a patient history in this case? A Yes. Q Can you summarize what your patient history revealed? A Yes. The history that I documented at the visit December 24th, 2001, showed that the patient had fibromyalgia diagnosed four or five years prior to that visit, about the time she was going through menopause. She was seeing another doctor. She wanted. somebody who was closer to home is what she said. She reported that her severity of pain at that time was three out of ten, but it would often become more severe. She reported that it was disabling, and she sometimes felt like she could not get dressed. And she told me that she would cry because of the pain, but that she was not particularly feeling depressed at that time. And she reported what medication she had tried in the past. Q What did she report to you that she tried? A Prendizone, Soma, S-o-m-a, and Methotrexate, M-e-t-h-o-t-r-e-x-a-t-e. 24 1 Q Does that go by a generic -- 2 A That is the generic name. And it is so 3 commonly used, there is no trade for it as far as I am aware 4 of. 5 Q Now, you said three out of ten on the pain 6 scale? 7 A Yes. 8 Q Now, there are specific descriptions to each 9 number from one to ten, are there not? 10 A There are. I don't necessarily use those 11 descriptors though. 12 Q Ten is the most severe? 13 A Yes. 14 Q Which is continually intractable pain? 15 A Yes. 16 Q And you go on down the scale to severe pain, 17 but not intractable or continuing? 18 A I am not so sure it has to do with the 19 continuity of the pain. It is more so the severity at that 20 given time. 21 Q The descriptor of three -- can you tell me 22 the name of that scale? 23 A It's just a one to ten pain scale. 24 Q Right. And she categorized it as a three? 25 A Yes. 25 1 Q When she categorized it as a three, did you 2 tell her what a three meant on the scale? 3 A No. 4 Q Did you ask her if she was working? 5 A Yes. 6 Q Was she working? 7 A No. 8 Q What was her last job as reported to you? 9 A I didn't document it. She might have told 10 me, but I don 't remember. 11 Q By the way, where was the fibromyalgia? 12 A Where was the fibromyalgia? 13 Q Yes. What areas of the body? 14 A Her back. She reported some chest pains, leg 15 pains. 16 Q Are there recognized standard diagnostic 17 tests for fibromyalgia? 18 A It's a diagnosis of exclusion. You do 19 testing, and they come back normal. So you presume from the 20 history a nd physical that the person has fibromyalgia. 21 Q Did you perform such tests? 22 A Either I did or her previous doctor did. I 23 will have to take a look. 24 I am going to make a correction to my 25 previous stat ement. I think her old records are filed 26 1 separately at the office, because she would have had a lot 2 of them. And I should have reviewed them before I came in 3 here. I neglec ted to bring that with :me. But she, if I 4 recall correctl y, she had seen Doctor Kunkle, who is a 5 Rheumatologist. So I basically would have just gone with 6 his diagnosis o f fibromyalgia since he is a specialist in 7 rheumatology. Because he is the one who tried her on the 8 Methotrexate. That is a common one for him to try people 9 on. 10 Q That is a first-tier pharmaceutical, is it 11 not? 12 A What do you mean by first-tier? 13 Q It's typically the first -- 14 A For fibromyalgia? 15 Q For fibromyalgia. Before you get into more 16 severe -- 17 A Well, actually that would be kind of 18 unconventional to use Methotrexate. He sometimes tries 19 unconventional things to try and get the patient relief. 20 Q Well, he tried Prednisone, did he not? 21 A Yes. And that would be! unconventional also. 22 He must have been thinking there was a possibility of some 23 other rheumatol ogical condition, and he wanted to give her a 24 trial of it to see if it would help, and it did not. 25 Q Are there any of these three medications 27 1 which are pain medications? 2 A The three that she had tried before she came 3 to see me? 4 Q Yes. 5 A Soma is a muscle relaxant, so that would be 6 for relief of pain. 7 Q It would not be an opioid medication such as 8 Oxycontin? 9 A No. It is not. 10 Q Or a codeine-based? 11 A No. 12 Q But it would relieve pain by relaxing 13 muscles? 14 A Correct. 15 Q That would be its method of operation? 16 A Correct. 17 Q Did you ask for a report from Doctor Kunkle, 18 or did Doctor Kunkle otherwise supply you with a report? 19 A Not since I have been seeing her, he has not. 20 Q Did you talk to Doctor Kunkle in the course 21 of -- 22 A No. I did not. I don't even think that she 23 has really seen Doctor Kunkle since she started to see me. 24 Q I assume then that you requested Doctor 25 Kunkle's medical records? 28 1 A Well, I usually start with just getting the 2 previous family doctor's records, because that usually 3 contains everyb ody's records. 4 Q And who was her previous family physician? 5 A I believe it was West Shore Family Practice. 6 Q Was there anybody attending to her care from 7 the Family Prac tice Center? 8 A During the time I was seeing her? 9 Q Before. 10 A I am not sure which of the doctors were 11 seeing her. 12 Q When you took a history, you asked her 13 whether or not she was working? 14 A Yes. 15 Q Did you ask her when she quit work? 16 A No. I did not. 17 Q Did you ask her where she was working? 18 A No. I did not. 19 Q Do you know what her job activities were at 20 work? 21 A I believe it was secretarial work. 22 Q Do you know how the dictionary of 23 occupational ti tles classifies secretarial work? 24 A No. 25 Q Are you familiar with the dictionary of 29 I occupational titles classification of :job skills and 2 functional capacities? 3 A No. I mean, I have heard of it, but I 4 couldn't tell you like, okay, summaries of what is contained 5 within there. 6 Q Well, if I ask you to rate something as 7 highly sedent ary, light, medium, heavy, ultra-heavy, would 8 you recognize those descriptions? 9 A Yes. 10 Q Those are Department of Labor Dictionary of 11 Occupational Titles traditional. 12 A Okay. 13 Q Are you many familiar with that? 14 A Yes. 15 Q Did you make any assumption as to what 16 category of work that she was doing as secretarial work, 17 whether it wa s light, medium, sedentary? 18 A My opinion would be that that would be 19 sedentary to light at the most. 20 Q Did you ask her what her activities of daily 21 living were? 22 A We went over the types of things that she 23 would just -- not in great detail, but,, you know, she had 24 problems getting up and getting dressed even, just basically 25 doing housework. And she would -- I clot the impression she 30 1 would rarely venture out of the house because she was in 2 pain. 3 Q When you say just doing housework, you mean 4 what? 5 A Light dusting, cleaning, doing dishes, 6 laundry. 7 Q Was she able to do that? 8 A She had difficulty doing those. 9 Q And how did she describe the difficulty to 10 you? 11 A She could just do a little bit at a time, and 12 then she would have to take a break. 13 Q Did you ask her whether she was able to go 14 out and do shopping? 15 A Not at the first visit, but at subsequent 16 visits we briefly would talk. Whenever I see a patient for 17 follow-up, I just briefly ask them how they are doing, and 18 they will offer things, and say, I have difficulty going out 19 to just do shopping even. There are some days I can do it, 20 some days I can't. 21 Q Is this the same first session you had with 22 her where she rated her pain as a three out of ten? 23 A That was the first visit, yes. 24 Q Has she ever rated it differently since that 25 time? 31 1 A I am going to say yes, she has. Whether or 2 not I specifically documented it, I am going to have to look 3 through my notes. I used descriptors, still having a lot of 4 pain. 5 Q Doctor, at your first meeting did you give 6 her any prescription for medication? 7 A I gave her Vicodin for pain, and we were 8 going to try Trazodone, T-r-a-z-o-d-o-n-e, at bedtime to 9 help give her restorative sleep. 10 Q When did she start taking Oxycontin? 11 A January 31st, 2002. 12 Q Was that her second visit? 13 A Yes, it was. 14 Q Was that a step up in terms of aggressiveness 15 in pain management? 16 A What I tend to do is give somebody a 17 short-acting medication. And if they are using it on a 18 frequent basis when they come back, they should be on a 19 long-acting medication to last twelve hours or twenty-four 20 hours. 21 Q What about her condition caused you to 22 prescribed Oxycontin? 23 A The fact that she had to use multiple doses 24 of Hydrocodone with Vicodin during the! day. If someone is 25 using it more than four to six times a. day, they should be 32 1 on a long-acting medicine to avoid peaks and valleys in 2 their pain control. 3 Q Did you at any course of her treatment do an 4 evaluation or review of her chart to determine whether or 5 not she may have become addicted on pain medication? 6 A Well, addiction means that the patient is 7 taking their pain medicine for reasons other than pain. So 8 if I am suspicious, I will really pin the patient down and 9 say, do you feel like you are taking this medicine for other 10 reasons than pain. Are they running short, which could mean 11 that they are abusing it; they are chewing it in between 12 times to get a quicker release of the medication into their 13 system. So if I am suspicious of that, I'll ask them. But, 14 otherwise, if they seem like they taking it on a regular 15 schedule and they are reporting pain relief, then that rules 16 out addiction. They are physically dependent. Everybody is 17 physically dependent on their opioid. That is just the 18 nature of opioids. And that's the difference from 19 addiction. 20 Q At her second visit, dial you ask her to 21 describe her pain? 22 A I just asked her in general about her pain. 23 And she reported that she still had signifi cant pain and 24 tiredness. And I did ask about -- well, I reported that I 25 felt there was no evidence of abuse of her medication. 33 1 Q When she said significant pain, did she rate 2 the pain from one to ten? 3 A No. 4 Q Was the term significant pain a term that you 5 used or a term that she used? 6 A A term that I used. 7 Q What did she tell you that caused you to 8 conclude that she had significant pain? 9 A She probably just told me the same thing she 10 told me at every visit. I am still having a lot of pain, 11 and I am feeling tired all the time. And then I say to her, 12 how bad is it. I can't go out shopping. I have trouble 13 just doing housework. I lay in bed and I cry sometimes. 14 Q Can you review your chart for January 31 and 15 tell us what she told you? 16 A Okay. Actually there was a phone message in 17 between there. Because January the 2nd, 2002, actually she 18 was taking three to three and half Vicodins everyday, so 19 actually I had given her a small dose of Oxycontin, 10 20 milligrams twice a day. And so then, when she came in at 21 that next visit, she reported to me tr.at she was taking the 22 Oxycontin, 10 milligrams twice a day, but she still had 23 significant pain and tiredness. And she was able to 24 decrease the Vicodin to just twice a clay. There is no 25 evidence of abuse of medications. She had tried to start 34 1 working but she had to quit. And she stopped the Trazodone 2 that we had tried, because she felt it wasn't helping her to 3 sleep. 4 Q And this was how many days after her first 5 visit with you? 6 A It was -- 7 Q Or just give me the date again. 8 A Okay. The first visit was 12/24/2001. She 9 contacted the office on January the 2nd, 2002, and was using 10 the Vicodin on a regular basis, so I gave her a low dosage 11 of Oxycontin twice a day. And then saw her for her 12 follow-up visit January the 31st, 2002. 13 Q Was the Oxycontin dosage adjusted in any way 14 as a result of the January 31 visit? 15 A Yes. I doubled it to twenty, twice a day. 16 Q Has her Oxycontin been changed after that? 17 A Yes. She is on forty milligrams, twice a day 18 now. At one time she was up to taking the medicine three 19 times a day. It was either twenty or forty, I forget 20 exactly which dosage she was on, three times a day. 21 Q Are you familiar with the Physicians' Desk 22 Reference? 23 A Yes. 24 Q Can you briefly explain what that is? 25 A It's a listing of drug: that is put together 35 1 by the various drug companies that has the indications, the 2 contraindications, side effects of the common medications 3 and brand name medications mainly. 4 Q Would that have recommended doses and 5 recommended maximum doses? 6 A Yes, it would. 7 Q Do you know what the current PDR says is the 8 maximum recommended dose for Oxycontin? 9 A Well, it might have a recommendation in there 10 but, theoretically, and according to chronic pain 11 conferences that I go to, there is no limit. And as I had a 12 Doctor of Pharmacy tell me one time, the sky is the limit. 13 It's whatever it takes to relieve the patient's pain. 14 Q On December 24, 2001, did you perform a 15 physical on Ms. Costa? 16 A Yes. I did. 17 Q Can you summarize your clinical findings as 18 they relate to IBS, fibromyalgia, based on your physical? 19 A Well, as I said, in fibromyalgia, you want to 20 rule out other potential causes of chronic pain and fatigue, 21 so I checked her thyroid gland to make sure it wasn't 22 enlarged. I listened to her -- 23 Q That was okay? 24 A Yes. That was okay. I: listened to her chest 25 because of the history of asthma. It was clear, there was 36 1 no problems with her lungs. I listened to her heart because 2 you want to make sure there is no any cardiac conditions 3 that could be causing chronic fatigue, and her heart was 4 okay. And I checked for swelling of her extremities, again, 5 looking for fluid overload that could be related to heart 6 disease, and that was normal. And I checked her stomach, 7 and there was no tenderness or masses. Her bowel sounds 8 were normal, which is the typical finding of irritable 9 bowel. The exam is usually normal. Every once in a while 10 you have somebody who has pain in the lower left side, and 11 she did not have any that day. And her liver and spleen 12 were okay in reference to the irritable bowel syndrome. 13 As far as her gait, when she first got up to 14 walk, she looked like she was in pain. So I reported that 15 as part of the exam. And I did a mental status exam, and 16 she was alert and she was oriented, which you are looking 17 for signs of depression. She didn't exhibit any depression, 18 anxiety or agitation at that visit. I did not check for 19 trigger points or anything like that, given the fact that 20 she had seen a rheumatologist in the past. 21 Q And there is significance to trigger points, 22 is there not? 23 A Yes. Theoretically you are supposed to have 24 eleven out of fourteen for a diagnosis of fibromyalgia. 25 Q And explain what a trigger point is? 37 1 A It's a tender area over the muscle. When you 2 push on it, it causes pain in the patient. 3 Q It would cause an involuntary reflex? 4 A Yes. 5 Q For the months part? 6 A Yes. For the most part, yes. 7 Q And testing for trigger points would be one 8 of the things you test for for fibromyalgia, at least in the 9 body area, would it not? 10 A Correct. 11 Q And there are trigger points for the knees 12 and elbows and extremities, are there not? 13 A Correct. 14 Q But you are saying you didn't test for any of 15 these? 16 A No. 17 Q Was the fact that there was a lack of 18 swelling at the extremities one of the reasons you elected 19 to defer on testing for trigger points? 20 A No. The main reason was because she had seen 21 the rheumatologist in the past. And like I said, I had 22 confidence in his diagnosis of fibromyalgia. 23 Q But you took her on a different course of 24 medication, did you not? 25 A Yes. 38 1 Q Did she continue to see you on roughly a 2 monthly basis ? 3 A Yes. 4 Q So she would have seen you in March or April 5 of 2002? 6 A Yes. 7 Q Had her condition changed at all? First of 8 all, can you give me the date when you saw her? 9 A February the 28th, 2002. 10 Q Did she give complaints? 11 A Still having pain and fatigue, partially 12 relieved with Oxycontin, and she was using her Vicodin 13 frequently. No evidence of abuse of medication. No side 14 effects from the medication. 15 Q What side effects were you looking for? 16 A Constipation, grogginess. 17 Q Did you perform a physical on her? 18 A Just to note her general appearance on her 19 mental status exam. I like to concentrate on those because 20 sometimes if people are being overdosed with their medicine, 21 they will have trouble with their speech and their attention 22 and seem like they are out of it. So I focus on that when 23 they are comi ng for follow-up visits. 24 Q What did her appearance: show? 25 A She appeared to not be in any acute distress. 39 1 Her gait seemed like it was better. She was oriented. Her 2 language was normal. She was attending to tasks normally. 3 Her mood seemed like it was depressed at that visit, 4 however, I noted. 5 Q When you say attending to tasks normally, you 6 mean what? 7 A Well, just normal movements in the office, 8 and doing appropriate things and not doing inappropriate 9 things. You know, it just looks like she is attending and 10 she's alert and oriented and knows she has it together 11 mentally. 12 Q So you are saying attending to tasks 13 normally, you are talking about what you see her -- 14 A Right. Not her daily living tasks or 15 anything like that, just, you know, appropriately, you know, 16 she has papers or anything in her hand that she's doing 17 normal type things and not... 18 Q Did you take her blood pressure? 19 A No. I did not. 20 Q Or her temperature or vitals? 21 A No. I did not. 22 Q Did you take her temperature, blood pressure 23 or vitals on January 31, 2002? 24 A No. I did not. 25 Q Did you take it on the initial visit? 40 1 A No. I did not. 2 Q Did you do an eye, ear, nose and throat exam 3 on her on any of these occasions? 4 A On any of the visits ever or just the first 5 few? 6 Q Just the first few that we are talking about. 7 A At the initial exam, 12/24, I just reported 8 that her head was normal, normal cephalic, which just means 9 everything is normal, and a neck exam. 10 Q That was for the thyroid? 11 A Yes. And also checking for masses or 12 swellings in her neck. 13 Q And there were none, it was normal? 14 A Correct. Correct. 15 Q Did you ever perform a physical examination 16 on her? 17 A A complete physical examination? 18 Q An examination of any type, where you got her 19 on the examin ing table and either listened to her, or do 20 what family doctors do? 21 A At the first visit, I mean, head, neck, 22 thyroid, chest, heart, stomach, mental status. 23 Q Did you ever perform an examination, looking 24 for trigger points -- I am sorry, looking for positive 25 responses on trigger points? 41 1 A No. I did not check for trigger points. 2 Q On any of your examinations? 3 A No. 4 Q How many examinations have you done? 5 A Fifteen. 6 Q In any of those fifteen, did you ever take 7 her blood pr essure, temperature or vital signs? 8 A Weight checks were done, and her blood 9 pressure was checked. I'll give you the specific dates for 10 the blood pr essure here. Let me look through my notes. On 11 January the 2nd of this year her blood pressure was checked, 12 122 over 82. Again, January the 29th it was checked, 118 13 over 74. Ma rch 28, 2003, 130 over 82. 14 Q That was the first time you had her blood 15 pressure and vital signs checked? 16 A Correct. Other than her weight, which was 17 checked for the first time April 30th, 2002. 18 Q You did not examine her liver or check for 19 her bowel sounds? 20 A Yes. December 24, 2001, at the first visit. 21 Q Did you check for bowe=_ signs after that? 22 A Yes. Do you want me to tell you the specific 23 times? 24 Q Yes, please. 25 A Okay. July 2nd, 2002, she had an abdominal 42 1 exam. 2 Q What were the results of that exam? 3 A Soft, non-tender, no masses, bowel sounds 4 normal. 5 Q That's an entirely normal exam, is that 6 correct? 7 A Correct. That's it for the abdominal exam. 8 Q Would abnormal bowel sounds be one of the 9 characteristics of IBS? 10 A No. 11 Q Would pain or masses on palpation be an 12 abnormal sign? 13 A No masses. If they are going to have 14 tenderness, the are going to have tenderness down on the 15 lower left-hand side, but you are not always going to see 16 it. 17 Q Beneath the liver? 18 A Yes. Way down here, the lower left side. 19 Q And you are saying there would be pain in the 20 lower left side if that would be IBS? 21 A If they are going to have anything on exam, 22 which usually i t's normal, if they are going to have 23 something, it i s going to be tender down here, over their 24 large colon, si gmoid colon. 25 Q Would it be correct to say that nowhere in 43 1 any of your exams did you test anything out of the ordinary 2 of an objective clinical nature with respect to IBS? 3 A Correct. 4 Q And your diagnosis and treatment would be 5 based pretty much entirely on the statement of the patient? 6 A And the gastroenterologist's report. 7 Q And who is the gastroenterologist? 8 A Doctor Siegelbaum's group. 9 Q Do you have a copy of his report? 10 A I have a report from him dated November the 11 22nd, 2002, and also February the 3rd, 2003. But at that 12 point we were mainly looking at some upper abdominal 13 complaints and making sure there was nothing else going on. 14 Q In either of those two reports from Dr. 15 Siegelbaum, did he give a diagnosis or impression of IBS? 16 A He states in his November 22nd, 2002, report 17 Theresa Costa was seen in our office on Friday, November the 18 22nd. Theresa is 51 years of age. She has a long history of 19 irritable bowel, fibromyalgia, and depression and asthma. 20 Q So that's an impression based on history 21 alone, is it not? 22 A Correct. Irritable bowel is made on history 23 and physical. 24 Q Well, he shows nothing consistent on his 25 examination, consistent with IBS, does he? 44 1 A What would you consider consistent with IBS 2 on physical? 3 Q Well, you had said, for example -- 4 A Yes. He also reported that she had no 5 tenderness. 6 Q Okay. 7 A Let me correct that. No tenderness in the 8 lower left side. She did have tenderness in the upper 9 gastric area and over to the right, but, like I said, we 10 were concerned about the possibility of an upper 11 gastrointestinal problem. 12 Q Were you looking, for example, for a hiatal 13 hernia? 14 A Or ulcers. 15 Q Okay. And hiatal hernia would be, at least 16 in part, based on weight and specifically the mass of the 17 stomach pushing -- or the abdomen pushing the stomach up? 18 A Yes. That can be contributing factors to a 19 hiatal hernia. 20 Q Did you ever put her on any kind of exercise 21 program? 22 A Well, I like my patients to become engaged in 23 exercise if they can, but that's easier said than done. 24 Because these people, they don't feel like they want to, and 25 you have to really push them to do it. But when they try, 45 1 they get a lot of pain and they get frustrated. So the 2 severe cases it is very hard. I do have some people who 3 have mild fibromyalgia, they are able to swim, go for walks 4 on a regular basis. They do pretty well with exercise. 5 But the more severe cases, I mean, you can try to encourage 6 them, but there is limited success. 7 Q Now, Doctor Kunkle recommended that she 8 engage in an exercise program, did he not? 9 A He probably did. 10 Q And he strongly recommended that? 11 A Probably. Like I said, I neglected to bring 12 those records. 13 Q Doctor, are you aware that Mrs. Costa applied 14 for Social Security Disability insurance, that is Title II 15 benefits? 16 A Yes. 17 Q Do you know the outcome of that before the 18 Administrative Law Judge? 19 A Yes. She was denied. 20 Q Did you ever have occasion to review the 21 decision of the Administrative Law Judge? 22 A Yes. 23 Q Did you take note of her prescription 24 printouts that was entered as an exhibit in the case? 25 A No. 46 1 Q Were you ever informed that there was a 2 record of a prescription printout, but there was no history 3 of a renewal of a prescription between April, 2002, and 4 December 2002? 5 A No. 6 Q What would that signify, if anything, in your 7 view? 8 A You said there was a documentation that there 9 was no refill of prescriptions between.. April and December of 10 2002? 11 Q Right. I was reading from page four of the 12 Judge's decision. 13 A That would indicate the person is not being 14 compliant with their treatment. 15 Q If that included pain medication, would it be 16 correct to say that their complaints of pain may be subject 17 to re-evaluation? 18 A Yes. 19 Q You had mentioned that at one time her 20 Oxycontin had been boosted from twenty milligrams to over 21 forty milligrams, twice a day? 22 A Yes. And, in fact, I am looking at my notes 23 from January the 29th of this year, and we had even tried to 24 increase it to forty milligrams, four times a day. 25 Q What was the reason for that? 47 1 A Trying to get better pain control and better 2 sleep through the night. There are some people -- it's 3 actually a twelve hour medication, but: in my experience 4 there are some people who need to take it more often than 5 that. Their metabolism must be different to the medication. 6 Q And the Oxycontin has been cut back from 7 forty milligrams, four times a day? 8 A The last time I saw hex, was March the 28th, 9 and we were still going to continue with the Oxycontin, 10 forty milligrams, four times a day. I was to see her back 11 in two months, which would be the end of May. 12 Q Now, I believe you said you have been privy 13 to reviewing the decision of the Administrative Law Judge? 14 A Yes. 15 Q Did you review that with her counsel, who I 16 believe was Mr. Brown, Mike Brown? 17 A No. I don't know Mr. Brown. 18 Q Did Mrs. Costa give you a copy of that 19 decision? 20 A Yes. Or she showed it to me. I'm not sure, 21 actually, if I physically got a copy, but I remember seeing 22 the papers. 23 Q Did you disagree with any of the medical 24 findings in that report? 25 A If I recall, the medical findings were okay. 48 1 I remember it seemed like the Administrative Law Judge 2 agreed that there was impairment and that there was a severe 3 degree of impairment, except the Law Judge doubted the 4 credibility of the patient. He would make references to the 5 irritable bowel, the fibromyalgia, the pain, but then it 6 seemed to me, in summary, it just kint of boiled down to 7 credibility. 8 Q And she specifically found that the claimant 9 could return to her past relevant work as a receptionist, 10 did she not? 11 A Yes. 12 Q Now, have you worked in conjunction with 13 vocational experts? 14 A I've had patients referred to me for 15 vocational rehab. And, also, I have sent patients to 16 vocational rehab to try and get them back working. 17 Q Let me show you what we will mark as 18 Defendant's 1. Let me ask you if you :recognize that? 19 (Whereupon, Defendant's Exhibit No. 1 20 was marked for identification.) 21 A Yes. This is the part of the decision of the 22 Administrative Law Judge denying the disability claim. 23 Q That's what you reviewed? 24 A Yes. 25 Q Does the Administrative Law Judge make a 49 1 finding with respect to what's known as residual functional 2 capacity? 3 A Yes. The Administrative Law Judge makes a 4 claim to that, yes. 5 Q And she says that she has the RFC or residual 6 functional capacity to carry ten pounds frequently and 7 twenty pounds occasionally, sit for about six hours in an 8 eight hour day, and stand and walk for about six hours in an 9 eight hour day, and push and pull as much as she can lift 10 and carry, correct? 11 A Correct. 12 Q And she concludes based. on all the evidence, 13 in addition the claimant is mentally capable of simple 14 repetitive work tasks. Thus, the claimant has the residual 15 functional capacity for a full range of light work. 16 A That's what it stated, yes. 17 Q Do you disagree with that? 18 A Yes. 19 Q And for what reason? 20 A By the patient's report to me what she can do 21 in a given day. I doubt if she could do that kind of work 22 at all. The six hours out of eight hours -- I think she 23 could do maybe two hours out of the day. But, like I said, 24 who wants to hire somebody for two hours out of a day. And 25 it would be inconsistent. There would be some days she 50 1 could do it and some days she couldn't.. 2 Q And your opinion is based solely on what she 3 has told you? 4 A Correct. 5 MR. WISE: That's all my cross-examination. 6 THE MASTER: Redirect. 7 REDIRECT EXAMINAT==ON 8 BY MS. REINHOLD: 9 Q Doctor Mueller, you said that Mrs. Costa is 10 currently taking Oxycontin, is it two times a day of forty 11 milligrams, or is it four times a day, 12 A It's four times a day. I originally said 13 twice a day, but it is four times a day. 14 Q Is that more than is recommended by these 15 guidelines that Mr. Wise was referring to? 16 A No. There is no limit. There is no dose 17 limit for Oxycontin. The PDR might state that there is, but 18 the FDA probably requires the company to put something in 19 there. But when you talk about pain management, you just 20 slowly increase the dose as the patient tolerates it until 21 they get pain control and more side effects. So it is 22 unusual in the fact that she is taking it four times a day, 23 it's a twice a day medicine usually. But in my experience 24 there has been some people, it seems like they need to take 25 it more frequently. 51 1 Q Is it safely taken four times a day without 2 addiction? 3 A Yes. And addiction is -- it is a 4 misconception I think that a lot of people have. When you 5 take any kind of opioid, you are physically dependent. If 6 you stop it, you go into withdrawal. But psychological 7 addiction is the use of medication for reasons other than 8 its intended use. And you go to extreme measures to get the 9 medicine. The extreme case would be somebody who steals, 10 you know, buys it off the street, buys it from unauthorized 11 sources, other than a pharmacy, buys it off the street from 12 somebody. They take their medicine for pleasure to get a 13 high. They chew it, they don't swallow it. They run out of 14 their medicine sooner than you expected. Those are the 15 tip-offs. 16 Some people will exhibit anxiety because they 17 are so concerned about their pain relief. And that is 18 called pseudo-addition. They will sometimes exhibit 19 behaviors where they look like they are addicted. Okay, I 20 need my medicine. I need it now. I need this dose. I need 21 to take this dose every six hours or else I will have pain. 22 Anybody who walked into an emergency room and 23 said that to an ER doctor, they would think that they were 24 drug seeking right off the bat. So, did I answer your 25 question about addition? 52 1 Q In your opinion has -- 2 A It's safe for her. She is not addicted. 3 That's just the bottom line. 4 Q And you have not observed any symptoms in Ms. 5 Costa that leads you to believe that she is addicted to pain 6 medication? 7 A Correct. She is not addicted. She is 8 physically dependent. She is not psychologically addicted 9 to her medicine. 10 Q You also testified that. Ms. Costa has 11 reported pain in her back, chest and legs. Has she also 12 reported pain in her arms and hands and fingers? 13 A Yes. 14 Q In her neck area as well? 15 A Yes. 16 Q To your knowledge has -- I believe the 17 defendant's attorney asked you a question about her 18 prescriptions and not filling prescriptions in 2000. Do you 19 have any knowledge that Ms. Costa has not been filling the 20 prescriptions you have been giving her? 21 A Not to my knowledge. 22 Q You had referred to Dr. Siegelbaum as being 23 her gastroenterologist? 24 A Yes. 25 Q Was she also being treated by a Dr. Kramer 53 1 (phonetic) as well prior to his care? 2 A It's possible. I am not even sure who Dr. 3 Kramer is to tell you the truth. Oh, actually I do have 4 Capital Surgi cal Group, Dr. William Kramer, General Surgery. 5 Q Yes. 6 A So I do have one letter from him. 7 Q What is that dated? 8 A March 18, 2002. 9 Q So she is currently seeing him? 10 A She was in 2002. I don't know if she has 11 seen him this year or not. 12 MS. REINHOLD: I have no more follow-up. 13 THE MASTER: Recross? 14 RECROSS EXAMINATION 15 BY MR. WISE: 16 Q What was she seeing Doctor Kramer for? 17 A She has a history of colonic polyps. And he 18 was doing a f ollow-up of that condition. 19 Q Was that anything relate=d to what you were 20 treating her for? 21 A Well, remotely related to irritable bowel. 22 If you do a n ormal colonoscopy, it lends credence to the 23 diagnosis of irritable bowel, because you want to rule out 24 other conditi ons that could mimic it, :Like colitis. And the 25 fact that she had normal colonoscopies showed that she 54 1 didn't have colitis that could mimic irritable bowel. 2 Q Did he also discuss irritable bowel syndrome 3 in his report? 4 A No. It looks like he was just more 5 interested in her family history, colon cancer, and doing 6 the follow up colonoscopy for the polyps. He does report 7 the fibromyalgia. 8 Q That would be by history, would it not? 9 A Correct. 10 Q And by history, it would be what he told 11 her -- or what she told him? 12 A Correct. 13 Q You had mentioned that there is no dosing 14 limits for Oxycontin? 15 A Correct. 16 Q It is still known that there is a significant 17 danger for people becoming dependent cn Oxycontin, is it 18 not? 19 A I am sorry, the question again was there is a 20 risk of addiction with Oxycontin? 21 t Correct. 22 A Yes. It's gotten a lot of media attention. 23 Q Are you familiar with the Diagnostic and 24 Statistical Manual 4R? 25 A Yes. 55 1 Q That is the Bible for diagnosing mental 2 health conditions? 3 A Correct. 4 Q An addictive disease of this order is 5 recognized in DSM-IV? 6 A Correct. 7 Q There is a protocol for testing for drug 8 addiction, signs, clinical signs and history signs, are 9 there not? 10 A Yes, there are. 11 Q And what DSM-IV signs have you looked for 12 that you have either eliminated or confirmed? 13 A I cannot quote you those criteria as listed 14 in the DSM-IV, but I can just tell you from a pain 15 management perspective that the things that would go against 16 abuse of her medication would be that she did not run out of 17 medication early, she does not lose prescriptions, ask for 18 replacement prescriptions. She does not appear when she is 19 in the office that she is intoxicated, which, you know, a 20 drug abuser is going to make sure that they are not anyway. 21 Oftentimes if somebody is getting into an 22 addition problem, I will have family members call up and say 23 they are concerned. She didn't have that problem. And 24 oftentimes I will, if I am concerned, I will call family 25 members. You don't have to worry about violating 56 1 confidentiality. See, I am getting away from the DSM-IV. I 2 am just talking about pain management. You can break 3 confidentiality. You can call up a family member if you are 4 concerned about abuse of a drug. So I will do that if I am 5 concerned. I didn't find any need to do that. 6 Some people do urine drug testing, but I 7 don't. Rarely would I do that. If I had a drug abuser with 8 a history and I just wanted to make sure, I would do that. 9 Did I answer your question? 10 Q You did. 11 MR. WISE: That's all I have. 12 THE MASTER: Any follow-up? 13 MS. REINHOLD: No follow-up. 14 THE MASTER: Thank you, Doctor. 15 The doctor may be excused? 16 MR. WISE: Yes. 17 MR. RUNDLE: Thank you very much, Doctor. 18 MS. REINHOLD: Thank you so much for coming. 19 THE MASTER: Inasmuch as we have not gotten 20 into the meat of the testimony from either party, I don't 21 intend to just continue through, I am going to recess until 22 1:15 p.m. 23 (Whereupon, a lunch recess was taken at 24 12:15 p.m. and reconvened at 1:15 p.m.) 25 57 1 AFTER RECESS 2 THE MASTER: Let's go back on the record. It 3 is 1:17. The plaintiff may continue. 4 MS. REINHOLD: We would recall Mrs. Costa to 5 the stand. 6 (Whereupon, Mrs. Costa was recalled.) 7 THE MASTER: And you are still under oath, 8 ma'am. 9 DIRECT EXAMINATION CONTINUED 10 BY MS. REINHOLD: 11 Q Mrs. Costa, I believe we were discussing your 12 physical diagnoses that you have had and what kind of 13 symptoms you have relating to those. Could you continue on, 14 I believe you had gone through the symptoms of Fibromyalgia? 15 A Right. And then IBS, which is the belly 16 pain, and the cramping. And you go into a sweat. And then 17 you rock back and forth. And then you have a bowel 18 movement. And then you are real weak. And then you go lay 19 down. And then you come back, and you have another bowel 20 movement. You get it all out, and then it is over with. 21 Q And how often are you affected by that? 22 A How often, it could be every other day, every 23 two days, because it goes like constipation. And then the 24 constipation in there holds up the rec[ular bowel movement. 25 And then that's how it works. So it is everyday or two days 58 1 that I have it. 2 Q And what doctor do you see relating to that? 3 A Okay. I see Dr. Kramer.. He is originally 4 the one that diagnosed me with IBS and hiatal hernia. And 5 he diagnosed it when he went up me to look for my polyps. 6 And I didn't even know I had the hiatal hernia. I didn't 7 know any of this stuff until he told me after the 8 examination and to take my polyps off. 9 Q And you also have a hiatal hernia? 10 A Yes. And I didn't even know that either. 11 Q Are you treating for the hernia? 12 A No -- well, yes. I take Nexium two times a 13 day because that's the acid. 14 Q And did you have asthma as well? 15 A Yes. 16 Q And do you treat for that? 17 A Yes. 18 Q What do you treat with? 19 A I am trying to think. I don't know the names 20 of my medicines still. It is round and it is purple. 21 Q Is it Advair? 22 A Yes. It is Advair. Yeas. 23 Q And do you use a rescue: inhaler? 24 A Yes, I do. 25 Q Do you have to use that very often? 59 1 A I use it maybe like two times a day, maybe 2 three. But that depends -- I am going to be honest with 3 you, it depends upon the weather. It depends if I am around 4 cats and dogs. It depends upon dust. That will make you 5 flare up. 6 Q Now, the interstitial cystitis, I will refer 7 to it as IC. What are your symptoms in that? 8 A Okay. That is frequent urination, and you 9 feel like you have a bladder infection,. but it is not a 10 bladder infection. You feel like you have to urinate, and 11 you don't urinate. And then when you urinate it burns. And 12 you are just constantly going to the bathroom like when you 13 have a bladder infection. You are just constantly in and 14 out, in and out, in and out. 15 Q Are you affected by that on a daily basis? 16 A Yes. And I take medicine for that. And it 17 doesn't really help that much. And I did call up my 18 doctor -- I am trying to think of his name, from Keystone 19 Urology. I am terrible with names. And I have been going 20 to him for years. They have to order the medicine. I just 21 talked to them three weeks ago or something or a month ago, 22 because I was supposed to have it, and they can't seem to 23 get the medicine. 24 And what they do is they put this treatment 25 up into your bladder, and then you are supposed to smell 60 1 like garlic. And I never had it yet, but we are trying to 2 get the medicine. And we are working on that. And also for 3 the interstitial cystitis, if it really, really, flares up, 4 then he goes in, and I don't know the terminology, they go 5 in and they put you out. And then they go up into your 6 bladder and inflate it with water so many inches to relieve 7 it. The first time it did work for me. The second time it 8 did not work for me, the second surgical procedure, but not 9 really surgical. They just put me out when they do that. 10 Q Are you taking medication for that condition? 11 A Yes. 12 Q And what medication are you taking? 13 A I take it three times a day. And it is -- I 14 don't know the name of it. If you say about three or four 15 different names, I can tell you what one it is. It is in my 16 pocketbook in case I go to the hospital. Can I get it out 17 of my pocketbook? 18 MS. REINHOLD: She has difficulty with her 19 memory. Would the Court object to her referring to her list 20 of medications to refresh her memory? 21 THE MASTER: Any objection, Mr. Wise? 22 MR. WISE: Not at all. 23 THE WITNESS: It is called E-1-m-i-r-o-n. It 24 is 100 mgs. three times a day. 25 BY MS. REINHOLD: 61 I Q Now, describe for the Court the pain that you 2 experience on a daily basis? 3 A With Fibromyalgia, it is a pretty constant 4 and widespread. But it goes in different degrees in height 5 of the pain. Sometimes in the morning, if I can get up, I 6 would say it is going away, but it is not. I am not so 7 lucky. It doesn't go away. It comes. It is just a 8 constant, widespread -- like right now my knees are hurting 9 me. I hurt in through here. I hurt in my calves. I hurt 10 in my ankles real bad, right in throug:Z here, my toes, my 11 wrists, in through here, and up in through here. 12 My right arm is extremely hard to move. And 13 I like move it down this way, but I don't reach. And even 14 this morning when I lifted up a candle, sometimes -- if I 15 lift up a little candle, even a little candle, it is hard. 16 And it is hard for me to lift it up. It is different. And 17 then sometimes I can lift up, you know, normal, you know, up 18 to two pounds, three pounds. It just depends upon the 19 degree where I'm at. And I have no, no control over it. So 20 even my pocketbook, sometimes I can't lift my pocketbook or 21 put my coat on. It is painful. Or even when we went to 22 lunch, it was exceptionally painful tc get out of the chair. 23 But after you have it you kind of condition 24 yourself that you just live with it. And you just do what 25 you can do, the best you can do, and don't complain, and 62 1 just, you know, because you would be in depression all the 2 time. You just accept it 3 Q How long could you go without experiencing 4 pain? 5 A I have pain all the time. Again, I want to 6 repeat that. It is all the time, but it is on different 7 levels. I can go on a one level to two level I would say 8 throughout the day and the night. But that is not a 9 constant one, two. It goes up to three, four. And earlier 10 I was getting up there pretty close to eight and nine. And 11 I had tears in my eyes when the doctor was here, because I 12 was hurting so bad. 13 Q You mean before we broke for lunch? 14 A Right. I was hurting real bad. And then I 15 took my Oxycontin at lunchtime. So it varies. It can go 16 from two to eight, and then from eight to five, and then 17 maybe from five to two. It is up and down. But the length 18 of time, there is no definite length. And it holds me back 19 from having a complete life. 20 Q Describe for me your typical regimen of 21 taking pain medication in a day? 22 A At 6:00 in the morning it is on, because I 23 wake up naturally with pain all throuch the night, every two 24 hours. I wake up about 5:20 to 6:00 in pain, and I take my 25 Oxycontin. And then I will take it -- I will give in 63 1 sometimes when it really hurts, and I will take two Vicodin 2 at 10:00. And then I will take my Oxycontin at 12:00. And 3 then sometimes I give in again, it depends, if I really need 4 to do something, and I am really hurting and I really put it 5 off, I will take it again like at 2:00, or sometimes at 4:00 6 my Vicodin. 7 But my Oxycontin is 6:00 in the morning, 8 12:00 at lunch, 6:00 at night and 12:00 -- 6:00 in the 9 evening and 12:00 at nighttime. And I take my Vicodin in 10 between, if like sometimes the pain goes too far, I will 11 take the Vicodin, take a hot bath and just lay down and 12 relax and sleep. 13 Q Are there ever days when you don't need the 14 Vicodin? 15 A No. 16 Q Your Vicodin would be considered -- 17 A A rescue medicine. Like your inhaler. 18 Q And describe for me currently what activities 19 are you able to perform now as far as in the home? 20 A In the home, if I have -- like when I feel 21 good, I will take advantage of it -- this sounds really 22 wacky, but I will take advantage -- it. is in the home. I 23 will wash my hair when I feel good. F,nd I might go a day, 24 and then I will straighten my hair. I. can't wash and 25 straighten my hair at the same time. It doesn't work. So 64 1 when I feel good in the home, I will wash my hair, do my 2 nails, shave my legs. 3 I have cooked one time since I have been 4 living with Tibby. I call her Tib instead of Liz. If I 5 want to, I will dust a little. And I will wipe up the 6 countertop. I do little things, very little things. And I 7 will take a break, sit down, and then get back up and do a 8 little bit more. It is just very little bites, little tiny 9 bites. I can't go for a long period of time. 10 If I do anything for a real long period of 11 time, I can't, and I usually lay down. And then the next 12 day I pay for it, because I overdid myself the day before. 13 Q What do you consider to be a long period of 14 time? 15 A I can't go more than two hours of anything. 16 That's including social activities, anything at all, work 17 activities, nothing. It is like I would say between an hour 18 to two hours but not even that. I have to have breaks. 19 Q In cleaning the house are you able to run the 20 vacuum cleaner? 21 A If I do, I am going to be honest again, I pay 22 for it. If there is something that the dog did, I will take 23 a vacuum to that one area one time. And then maybe another 24 area another time. If I would do the whole house at one 25 time, I will pay for it for two days after the fact. 65 1 Q You are able to do light dusting? 2 A Yes. 3 Q And how long would you be able to do that 4 for? 5 A As in anything else, anything that I do, if I 6 do it -- I would say I just do a little, sit down, a little, 7 sit down, a little, sit down. Anything that I do is like 8 that, even like dusting. Everything I do, cooking, 9 anything, washing. 10 Q Are you able to dress yourself? 11 A Now I can. Before the Oxycontin I could not 12 dress myself. But now that I am on the Oxycontin, I can 13 dress myself, but I groan and I am embarrassed. And I make 14 noises, because it hurts. And I don't want anybody to hear 15 me. It is hard. I have trouble. 16 Q Do you sometimes need assistance in dressing 17 yourself? 18 A Like the boots or something like that it 19 depends, again, the time of the day wr.en I don't know. 20 Sometimes I can, because sometimes you hurt and sometimes 21 you don't hurt. So when you are not hurting, that's when 22 you take advantage and you do. And then when you are 23 hurting, then I need assistance of like putting the shoes or 24 boots on or a coat. 25 Q Have you ever asked your friend, Elizabeth, 66 1 who is here today, to help you get dressed? 2 A A coat or a jacket she has helped me. There 3 is two nights in a row that I couldn't pull the covers over. 4 And she heard me. And I tried not to, but she heard me. 5 And I said I can't pull the covers over. And I was 6 embarrassed. 7 Q You were embarrassed? 8 A Yes. 9 Q You have a dog? 10 A Yes. 11 Q What kind of dog do you have? 12 A A little Shih Tzu. 13 Q Are you able to walk him? 14 A Yes. 15 Q How far can you walk? 16 A About just two houses. 17 Q Two houses? 18 A Yes. It is not a block:, but it is two 19 houses. In front of Tibby's house it is two houses. 20 Q And you are able to go that far and come 21 back? 22 A Yes. Like Harry wants to go further. That's 23 why I get depressed. 24 Q Let me just stop you and let you take a 25 breath. 67 1 A One time I had to ask Tibby to drive down to 2 the end of the road so I could see what was down there, 3 because I can't walk down that far. 4 Q And your dog weighs about how much? 5 A We just weighed him, I don't know. 6 Q Does he weigh about ten pounds? 7 A Something like that. He is my baby. 8 Q Now, do you feel that you are capable of 9 working currently? 10 A No. I can't do it. I want to. I really, 11 really want to because my personality, I like people. And I 12 like challenges. And I can't do it now. 13 Q Why can't you? 14 A Because I know an employer would never put up 15 with it, number one. And they wouldn't understand. And 16 because when you go to work, you dig down in there and you 17 work and you get into it. And you have accomplishments and 18 achievements. And I am slowing now. And I have a memory 19 loss and concentration trouble sometimes. And I worked at 20 Members, that was after -- 21 Q Let me stop you. I am going to get into your 22 work history. The medications that you are taking, I 23 believe your doctor referred to them, but if you can just 24 briefly go through what medications you are currently 25 taking? 68 1 A I am taking Oxycontin and Vicodin -- 2 Oxycontin 40 mgs. four times, Vicodin as needed. Nexapro, 3 that's 10 mgs., one time a day. That one is supposed to be 4 depression and pain. That's why they put me on that kind of 5 depression medicine, because something about it also 6 contributes to help pain. And the Elmiron, 100 mgs., I take 7 that three times a day for my bladder. And then I take 8 Nexium, 40 mgs., one time a day. And I take Advair at 9 night, 250 mgs/50 and Ventolin as needed. 10 And then I have to take -- I don't know the 11 name of it, I should have written it down, because I carry 12 it, it is in my pocketbook. It is medicine to help my 13 bowels because of the constipation from the medication. And 14 that also helps you keep going, that you don't really get 15 blocked up. 16 Q Do any of those medications have side 17 effects? 18 A The only one that I ever noticed when I take 19 is the Vicodin is I do get sleepy. 20 Q Would that be a problem if you were working? 21 A Yes. Because I would take it, you know, it 22 just relaxes me. It does. I just get. relaxed. I just get 23 sleepy. I didn't notice it until I really thought about it. 24 Q Do you have difficulties in sleeping? 25 A Yes. 69 1 Q Explain what a night is like. 2 A I go to sleep, and it is like every two hours 3 that I wake up. And usually the pain wakes me up. And what 4 I do is get up and pace. And I usually find like a counter, 5 a kitchen counter or something, and I will rock back and 6 forth. I used to do it over at my home, because it was a 7 high bed. I used to lean over in bed and rock back and 8 forth. Now I do it on the kitchen counter, or I do it on 9 the dresser. And I just rock back and forth. 10 And then I go back to sleep, and then I wake 11 up again. It is every two hours. Sometimes I can have four 12 hours of sleep, which I am like wow. 13 Q That would be the longest that you would 14 last? 15 A Yes. 16 Q Currently you are being treated by Dr. 17 Mueller? 18 A Yes. 19 Q And who are the other doctors who are 20 treating you currently? 21 A Dr. Kramer. And I see him -- may I look in 22 my address book? I see him in May -- 23 Q You don't have to give that. 24 A I have an appointment with him this month. 25 Q And what does he treat you for? 70 1 A He treats me for the IBS and the polyps. 2 Q Polyps? 3 A Yes. And every year he takes me in for the 4 Polyps. And the reason why we went to Dr. Siegelbaum is 5 because with Vince's insurance he told me that Kramer is not 6 covered with his insurance. And you have to pay extra. And 7 I am going to go see Dr. Kramer because he knows my history. 8 And he told m e that I should -- well, I also agree, you 9 should find s omebody that's participating, and that's the 10 honest truth, that I did agree with him too. But I am going 11 to go back to my Dr. Kramer because he knows my history. I 12 am comfortabl e with him. 13 Q Who else is a treating physician? 14 A Dr. Kunkle. 15 Q And he treats you for... 16 A Yes. And he is regular. 17 Q What does he treat you for? 18 A For the interstitial cystitis of the bladder. 19 Q And do you have any other physicians who are 20 treating you? 21 A No, no. Just three. 22 Q And you have been a patient of Dr. Mueller's 23 for approximately one and a half years? 24 A One and a half years. And I go every month 25 to him. And this is the first time WE! have tried a two 71 1 month time, to see him in two months. I mean, the last time 2 I saw him. He said do you want to try two months now, and I 3 said yes. 4 Q How did you find Dr. Mueller? 5 A Through Vince. 6 Q Your husband? 7 A Yes. I was with Doctor -- I am trying to 8 think of his name. He is really a great guy. Mescalus. It 9 was Dr. Mescalus. And my boys still go to him. He is on 10 the East Shore. And Vince's opinion was that he would not 11 be able to help me because Dr. Mescalus does not believe in 12 strong medication. So Vince said that what he found through 13 his working at the pharmacy that Dr. Mueller -- I can't say 14 his name right, Mueller. 15 Q Mueller. 16 A I can't say his name right. Don't tell him 17 that. He said that -- Vince said that he feels that he 18 would be the best one that would help me through I guess the 19 kind of medicines that he has filled for other patients. 20 That he is not afraid to treat -- Vince said he is not 21 afraid to treat someone with pain. That the other doctors 22 are intimidated by it. 23 Q And you stated earlier you were diagnosed 24 with Fibromyalgia in 1998? 25 A I think it was. It was about the time when I 72 1 met Vince one year after I met Vince. But what happened 2 is -- yeah, because I separated. And -:hen that's when I 3 went to Dr. Curney, their internalist. And that's when I 4 moved on the West Shore and I went to :zim, because he was my 5 mom's doctor. And he diagnosed me originally with the 6 Fibromyalgia. 7 And he examined me, because I went in saying 8 I had a hard time to get my pocketbook. And then he sent me 9 to Dr. Kunkle. And then I went to Dr. Kunkle. And he 10 promised me he would help me. And I had all the faith in 11 the world that he would help me. And I went to him maybe 12 three or four times, and then the last time I went to 13 him -- or the time before that, he kind of left me down. He 14 really didn't do anything. So the last appointment I went 15 to him I asked Vince to come with me, because I didn't feel 16 that he was helping me relieve the pain and the sleep 17 disorder. 18 And Vince and I went in, and I am going to be 19 honest with this, and the doctor said that he does not give 20 out, you know, any kind of pdin reliever. And that he 21 believed that I should go to a shrink. I don't know what he 22 called them, a psychologist. And Vince was offended and so 23 was I. I am honest again. And we both got up, and Vince 24 said let's leave. And as a wife I left with him. 25 Q But you believe that diagnosis occurred in 73 1 1998? 2 A Yes. 3 Q Now, were you working full-time then? 4 A Yes. 5 Q And where were you working full-time? 6 A Oh, I have always worked full-time forever 7 and ever. Like I said, I delivered newspapers. So that was 8 my full-time job. I had other part-time jobs in there as 9 cleaning. I am trying to think what else. Just odd jobs 10 and part-time jobs, telemarketing. Because I would give 11 Vince my whole paycheck, and then I wanted to buy stuff for 12 my kids, so I always picked up another job. And then when 13 we separated, the first real full-time job I had before I 14 met Vince I went to Pinnacle Health. 15 Q Let me stop you a second just so we can stay 16 organized. You were working full-time back in 1998 17 delivering papers? 18 A Yes. 19 Q And you had that job for how long? 20 A Ten years. 21 Q And do you remember when you stopped? 22 A I don't remember. I have to remember. I 23 forget. I know I know it, but I have to think about it. I 24 have to associate things. 25 Q Was it in December of 2000? 74 1 A Yes. I know it was at Christmas time, 2 because I didn' t get my Christmas bonus, yes. Because you 3 get like $1,000 .00 bonus so that I could buy Christmas 4 presents with. 5 Q And why did you leave that employment? 6 A Because Vince didn't want me to have a paper 7 route. He just promised me a car. 8 Q Then where did you begin working? 9 A Then I went part-time. I went full-time when 10 we separated. Okay. 11 Q But not your final separation? 12 A No. Our first separation. The first 13 full-time job I had besides the paper route, but I still had 14 the paper route -- I worked at Pinnacle Health, which is a 15 full-time job, and also had -- Pinnacle Health was 16 full-time, and the papers were part-time. And then when 17 Vince and I got back together, then I dropped the 18 newspapers -- 19 Q Let me stop you there. With Pinnacle Health 20 what did you do for them? 21 A I was a Blue Cross follow-up, and I loved it. 22 Q And do you recall when you started there? 23 A Oh my gosh, it was -- no, not at this time at 24 the moment I do n't. 25 Q Was it February of 2000? 75 1 A Yes. It was February of 2000, because that's 2 when we separated. And I got the job there. And then I 3 left around May the next year. 4 Q Of 2001? 5 A Yes. And I still had the paper route. I was 6 working two jobs. 7 Q But you stopped the paper route in December 8 of 2000, correct? 9 A when we got back togetr.er then I stopped the 10 paper route. 11 Q So at Pinnacle Health what were your duties? 12 A Oh, my gosh, I can't remember. I can't 13 remember. It was crazy. It was a lot of screens. That's 14 all I remember. It was dealing with Blue Cross files that 15 were rejected. And I would have to fix it to make it so 16 that they would go through the system. And I would call 17 Blue Cross up and see why it was rejected. And the 18 different insurances, I did other parts too. And you just 19 get it so that the thing could be approved -- the bill. I 20 am not thinking. I am sorry. 21 Q Now, you just would sit: at a computer? 22 A Yes. 23 Q Now, how much did you make when you worked 24 there? 25 A It was over $300.00 a week. I think it was 76 1 like 320. I forget. I don't know now. 2 Q Why did you stop working there? 3 A Because it was just too much. 4 Q With your condition? 5 A I was just having a hard time. And I didn't 6 know why I wa s having a hard time remembering. I was just 7 having a real difficult time. I was just struggling. And 8 then I went t o a part-time job. And that was Doctor -- the 9 Family -- he said -- and that's how they became my doctors 10 for that one month, Family Practices. And I worked for them 11 for a month. 12 Q For one month? 13 A Maybe two max. I don't: remember. 14 Q Why did you leave there? 15 A Because the boss and I both had a talk that 16 it was too mu ch for me. And it was, because I was still in 17 pain. 18 Q You weren't able to fulfill your duties 19 there? 20 A Right. It was just too much, too many long 21 hours. And t he hours were more than what I expected. It 22 was just too much. And then I went - 23 Q What did you do for him? 24 A Answered the telephone, schedule 25 appointments. Check out -- it was simple. It was so 77 1 elementary. And check out the patients when they go out. 2 Q Do you remember when you worked for Family 3 Practices? 4 A It was right after the Pinnacle Health. 5 Q So June of 2001 to July of 2001? 6 A Yes. Because it was like for a month. 7 Q Then where did you work after that? 8 A Then I went to Dr. Seldow. And he was a 9 chiropractor. And really great people. And the same thing, 10 I had only two screens on the computer, then I knew 11 something was definitely wrong. I couldn't get two screens 12 down. I couldn't memorize it, keep it. in my head. And I 13 was not feeling good, and the bladder. Everything was 14 just -- I was not feeling good. I was having chest pains 15 also, you know, the pains, and that's supposed to be part of 16 it, also at Family Practices. And that's when I went to the 17 ER. 18 So I wasn't feeling good. And we had a talk, 19 and they had to leave me to go, because they saw that I 20 couldn't concentrate, because even at one point I couldn't 21 even remember who I was working for. I used the phone, and 22 I couldn't remember Dr. Seldow. I had a difficult time with 23 memory. And they wrote a letter explaining this for Social 24 Security also. 25 Q Now, your duties with Dr. Seldow were 78 1 basically... 2 A Receiving patients in... 3 Q Answering the phone? 4 A Answering the phone and doing the computer 5 invoice -- I mean, doing the invoices on the computer. 6 Q And how long did you work there? 7 A A month, if that. 8 Q And you left because... 9 A Of the memory difficulty and not feeling 10 good. 11 Q And then did you work anywhere after that? 12 A Well, then we got hooked up with Dr. Mueller. 13 And I had hig h hopes, you know, he is going to get me 14 better. So I applied at Members. And I thought with being 15 on this medic ation that it would really like make me great 16 again like I used to be when I was normal. And I got the 17 medication, a nd I went to Members. And I had two weeks of 18 training and then two weeks upstairs. 19 And, again, I had real hard difficulty 20 concentrating . And it was just teller work. And I got 21 confused. An d by 2:30 in the afternoon I was in extreme 22 pain. I got so bad in my head that I didn't even know how I 23 was going to balance. And then we had to talk about that 24 again with my boss. I just couldn't grasp it. And I 25 couldn't even drive home at night. I didn't know how I got 79 1 home sometimes because the pain was so bad. 2 I shouldn't even have been driving. And even 3 now, in the past year, I have had two accidents driving. 4 And I don't go out anymore. If I don't feel good, I don't 5 push myself. I only go out when I feel good. 6 Q And these two car accidents were your fault? 7 A Well, I have a hard time turning my neck to 8 see the car coming up this way. And I was looking this way, 9 and it was h ard for me to turn, really turn, turn, turn. I 10 can turn my body now. But to turn my neck. So what I did 11 was I eased -- I was taking my time looking that way. And 12 by the time I was looking that way, I drove into somebody 13 that was in front of me. 14 Q In other words, they were your fault? 15 A Yes. 16 Q Now, how long were you -employed at Members? 17 A It was that one month. 18 Q And we are talking about Members 1st Bank? 19 A Yes. 20 Q And do you remember the dates of that 21 employment? 22 A January I think, a month. It was two weeks 23 training and two weeks upstairs, maybe a week and a half 24 upstairs. 25 Q January of 2002? 80 1 A I think so. 2 Q It was over a year ago? 3 A Yes. And, you know, it was funny because I 4 was having a hard trouble -- Vince used to make fun of me 5 because I cou ldn't understand. And I told him to drill me, 6 drill me, so I can learn this. And he just didn't 7 understand. I am there, I want to learn this. Like I would 8 take my work home at night to study it so it would get into 9 my head. 10 Q But you weren't able to handle it? 11 A No. 12 Q You left Members around the end of January of 13 2002? 14 A Yes. 15 Q After that have you worked at all? 16 A No. 17 Q Now, Members was a full-time job? 18 A Yes. It was teller work. And I thought, 19 well, I can s it down. I can stand up. And people, you 20 know -- and i t was the main office. It wasn't busy. It 21 would just be light. 22 Q So all you were going to do was sit -- 23 A It was teller work, which is so elementary 24 again, compared to the job I have done in the past. I was 25 like an office manager in my earlier years. 81 1 Q And Dr. Seldow, was that full-time or 2 part-time? 3 A Part-time. 4 Q About how many hours a week? 5 A It was two days a week. Or I think it was 6 maybe just the mornings, I can't remember. And that's 7 really funny. I don't know if it was two days a week. I 8 don't know if it was just mornings. I have no idea. 9 Q But you know it was part-time? 10 A Yes. 11 Q And Dr. Harold at Family Practices -- 12 A Again, I don't remember. I think it was 13 certain days of the week with him that I would come in, like 14 a Tuesday and a Wednesday and a Friday. 15 Q But it was part-time? 16 A Yes. 17 Q Do you remember how many hours? 18 A No. I think it was -- I think, I am not sure 19 if it was adj usted, you know, like six hours one day, four 20 hours another day. 21 Q Now, did you apply for Social Security 22 Disability? 23 A A couple of years ago my husband applied for 24 me for Disability. 25 Q And when did you receive a decision on that? 82 1 A I have to look at the date on the letter. It 2 was this year or last year I received it. It was made at 3 the end of -- oh, that's right, because that's when he got 4 mad. I remember that's when he got upset. It was right 5 before we split up. Yeah. I remember, because he was like, 6 okay, now, you know, we are stuck here. It was just around, 7 I would say maybe between November and February, somewhere 8 in there we got a decision. I can't remember for sure, but 9 I remember he was upset. 10 Q The end of 2002 was approximately the time 11 you received a decision? 12 A Yes. 13 Q And what was the outcon.e? 14 A I was rejected. 15 Q Since then have you either reapplied or 16 appealed? 17 A Yes. I appealed that time. The reason I 18 appealed is because Vince picked it out the very first time, 19 that the prescriptions, that the Judge said that I stopped 20 and didn't take medicine. I skipped a couple of months. 21 And here Vince is the pharmacist on the East Shore. He 22 picks up my prescriptions there. And then sometimes on the 23 West Shore I would pick up my prescriptions at CVS on the 24 West Shore. 25 And the Judge did not take note to this, to 83 1 look through all the printout of the prescriptions, that 2 some of them were on the East Shore and some of them were on 3 the West Shore. And he put them both together. You will 4 see I have never missed a monthly refill. 5 Q Of your pain medication? 6 A Yes. Right. And I gave you proof of that. 7 And Vince noticed that first with the -- what do you call 8 that, with the Social Security rejection, that that was 9 wrong. And then Tibby also noticed that on the rejection 10 also they are old dates. And there is no letters really 11 pertain -- straight-out letters, pertaining to fibromyalgia, 12 interstitial cystitis or IBS, from any doctors in there 13 stating just straight fact. So I -- 14 Q So have you appealed? 15 A I went also to a lawyer, another lawyer, 16 because the lawyer that Vince had I wasn't happy with. 17 After I was rejected, I went to another lawyer, and I talked 18 to him. And he said, go ahead and refile, because I 19 appealed. And he said it takes a year and a half until they 20 come back to you. And I said I can't wait a year and a 21 half, because Dauphin County sent me an application because 22 I am on food stamps now, you know, because I don't have no 23 money. So they sent me an application to get me then on 24 Disability. And that's with O'Connell -- Tim -- 25 Q Tim O'Connell? 84 1 A Yeah. Tim told me to qo ahead and try it, 2 reapply. And what I did was reapply. And I got my 3 information from Dr. Mueller and information from Dr. 4 Kachel, and my information from -- all my doctors, just the 5 letters, and everything I needed. Because that file was 6 this. And no lawyer -- you are going to be confused. We 7 are talking my whole life, way back when I was having 8 babies, you know. And that didn't need to be turned into 9 Social Security for Fibromyalgia because that's just now. 10 So I sent him up-to-date information, mailed 11 it into them. And I got a letter back: from them. And they 12 will tell me that in 90 to 120 days trey will have a 13 decision. So we applied it right this time. 14 Q So it is pending? 15 A Yes. 16 Q Do you currently have any sources of income? 17 A None at all. 18 Q Has your husband given you any support money 19 since you separated? 20 A No. And I gave him the car. And that's 21 spouses joint, you know, it is joint property. And I knew 22 he had to go to work. And I didn't make a fuss over it, so 23 I left him have the car, because I need a car just as much 24 as he does. 25 Q You currently don't have a car? 85 1 A No. I was kind. I am not mean. 2 Q Now, are you currently covered under your 3 husband's me dical insurance? 4 A Yes. 5 (Whereupon, Plaintiff': Exhibit No. 2 6 was marked for identification.) 7 Q I want to show you a document marked 8 Plaintiff' s Exhibit 2. Can you identify that? 9 A Yes. 10 Q What is that? 11 A You are asking me -- it is in the Court of 12 Common Ple as of Cumberland County, income and expense 13 statement. 14 Q So that's your income and expense statement? 15 A Yes. 16 Q And that lists that you have no income 17 currently? 18 A Right. 19 Q And you have set forth your expenses that you 20 currently ha ve on there on that document? 21 A What do you mean? 22 Q Currently you have listed your expenses on 23 that form? 24 A Yes. Right. 25 Q And is everything in that document true and 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct to the best of your knowledge? A Yes. Q Now, briefly, you are living with your girlfriend right now? A Yes. Q And at the present time you are not incurring any rent? A No. But I want to pay her back -- I want to pay her for the month that I have stayed with her. I owe her. Q And when you begin receiving support, you are going to get your own place to live? A Yes. Yes. Nothing personal. I love her. Q And you are currently incurring attorney's fees in this process of your divorce? A Yes. Q Are you in need of funds to continue your representation? A Yes. MS. REINHOLD: I have no more questions at this time. THE MASTER: Cross-examine. CROSS-EXAMINATION BY MR. WISE: Q Are you in pain now? 87 1 A I would say on the scale of four. I did have 2 an Oxycontin a t lunch time. Earlier I was almost in ten, 3 maybe nine, te n. I had tears in my eyes before lunch time. 4 Q Where does it affect your body? 5 A Right now -- when I am in real, real bad pain 6 it goes in my tailbone. Right now it is in my thighs, in my 7 calves, in my ankles, and right in here. 8 Q You are touching your ankles? 9 A Yes. In through. 10 Q And you are bending ovEfr? 11 A I am not doing anything now with my arms, but 12 it does affect my arms and my shoulders. And it moves. 13 Q How does it affect your arms? 14 A You can't lift up -- you can't move them. It 15 is painful to move them. Like if I go to stand up, it is 16 painful. You feel like you are eighty. 17 Q It is painful to move your wrists and hands? 18 A Yes. 19 Q When you move your wrists and hands, does it 20 hurt? 21 A Yes. 22 Q Do you avoid doing that: when you can? 23 A Yes. 24 Q Do you ever catch yourself moving your hands 25 and finding yourself in pain? 88 1 A Do I ever catch myself moving my hands and 2 finding pain? 3 Q Yes. 4 A I don't know what you mean by that, but if I 5 pick something up, and then I feel like that hurt when I 6 picked it up. 7 Q You mentioned about your Social Security case 6 being turned down? 9 A Yes. 10 Q Do you feel that the lawyer that you had 11 didn't do a good enough job? 12 A Yes. 13 Q Why do you feel that? 14 A Because I believe that he could have gotten 15 letters from Dr. Kachel and a letter from Dr. Kramer. And, 16 you know, a really great letter from Dr. Mueller. And he 17 could have presented this. And when we went to that 18 hearing, all he had in his hand was a copy of Keystone 19 Urology, which was Dr. Kramer, you know, who does my -- for 20 the IBS, stating I had IBS. In other words, I felt like he 21 did no research to present to the Judge that day. He didn't 22 explain nothing. He didn't say anything. It was just like 23 a -- like, oh, I just feel like he, you know -- like Kristin 24 is super. She goes and she contacts people. She writes 25 them letters. She gets letters back. She gets 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 confirmations. She works. This lawyer did zero. One letter he asked for Dr. Mueller, and that was it. He could have even gotten a second opinion. You know, I'll go to anybody. I have nothing to hide. He could have suggested something or had more evidence to present to the Judge. Q Let me get into the jobs that you have had. You had mentioned about a job -- was that for The Patriot-News? A Yes. Q What did that job entail? A I delivered papers for ten years, and I did telemarketing for two years, so I can get money for presents and take care of my kids, so I would riot take any money from Vince for my kids. Q Was the telemarketing _ob for The Patriot-News? A Yes. I did that at nighttime and delivering papers in the morning. And you also :sweat a lot too. This is embarrassing, because people look at you and they think why are you so wet. It runs down me. Q It is an occupational hazard in my business, Mrs. Costa. A What? Q Sweating. 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Oh. Q Now, did you work at The Patriot delivering newspapers and telemarketing at the same time? A Yes. Q And what years were they? A I am not good on years. Q You had mentioned '98. Was that the year that you left The Patriot-News? I have in my notes... A I think the year was 198 -- no -- '98. When did Vince and I get married? In '97. Vince and I were married in '97. The notes are wrong there, because I know I was confused with Kristin. I got the full-time job when Vince left. And I don't know what year that was, because we weren't married a year, and I left him. I am closing my eyes because I am trying to think. And then I came back, because I didn't even have my first anniversary with him. I was devastated. And then I think we were back together two years and he left. And then when he came back -- but when he left -- that year he left, which I don't know which is written down, is the year I worked for Pinnacle Health. But when he came back I was still working for Pinnacle Health and delivering newspapers. And when he came back is when he said to stop the paper route, which I did, and I kept working at Pinnacle Health. And I do not know the exact year. I am sorry. I would have to figure it out and sit 91 1 down or have a guideline with a start -- 2 THE MASTER: Ma'am, you have answered the 3 questio n. Tha nk you. 4 THE WITNESS: Thank you. I am sorry. 5 BY MR. WISE: 6 Q How much did you get at The Patriot-News? 7 A That was 300 for newspapers and 300 -- two to 8 300 for telema rketing. So I've always brought income in 9 between five a nd $700.00 a week, always. 10 Q And what years are we talking about? 11 A Every year up until he told me, which was 12 when I worked for -- what's that called -- oh, but then I 13 did the telema rketing. When I worked for -- what's that 14 called -- when I got sick. That's all I can say, when I got 15 sick. 16 Q Are you saying with your current illnesses? 17 A Yes. Right now. You know, it is like a year 18 or two ago. 19 Q Am I correct in saying your last job was with 20 Members 1st? 21 A Yes. I tried. I tried to work there. 22 Q How long did you work at Members 1st? 23 A A month. It was two months training -- not 24 even a month. Two months training and one and a half weeks 25 actuall y, you know, in the office. 92 1 Q Were you ever told by any of your supervisors 2 that they didn' t think you were appropriate for the job? 3 A No. Not that I wasn't appropriate, that I 4 was having trou ble memorizing and coordinating. I was 5 having trouble with simple one, two, three. You do this 6 step, then you do that step, and then you do this step. 7 Q Did this require that you work at a desk? 8 A No. You could sit down or stand up. And 9 that's what I thought would be good fcr me. You know, you 10 could sit or stand. 11 Q How many hours a week was it? 12 A That was a forty hour a week job. 13 Q Was it a 9:00 to 5:00 job? Was it basically 14 a 9:00 to 5:00 job? 15 A Well, you have to go in earlier. The bank 16 opens at 9:00. So like 8:30 until when, you know, it was... 17 Q A daylight job? 18 A Yes. 19 Q And how much were you being paid there? 20 A That was either -- I think it was eleven or 21 $13.00, because it was the highest paid banking association 22 that was out th ere at that time. 23 Q So if it was $12.00 times forty, you would 24 have $480.00 a week gross? 25 A Yes. Right. 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you receive a paycheck from them while you were working? A Yes. Q Was that every other weeek? A I don't remember. I didn't work that long. Q How much was your paycheck? A I don't remember. I didn't work there that long. I am sorry. It wasn't like a whole year job. Q But befo re that you worked at Family Practice? A Yes. That was part-time. This is all during the illness, the past year and a half. Q What were the dates of your employment at Family Practice? A It was right after Pinnacle Health and the newspapers. Q Can you narrow that down, please? A I can't narrow it down. I am sorry. I went from Pinnacle Health full-time, newspaper delivery to part-time at Family Practice. That's when I started to get sick. In other words, I was making 600 to $700.00 a week between the newspapers and Pinnacle Health. Then I stopped there, worked part-time at Family Practice. It was too much yet. And then I went to Seldow. And it was still too much. I couldn't concentrate. Then I went to the doctor's. And I 94 1 had hope again that I could go back tc work, and be normal, 2 and it didn' t work out. 3 Q You say you didn't work: out at Family 4 Practice? 5 A No. 6 Q What was the reason why you didn't work out? 7 A Because I was sick. I was sweating. I had 8 pressure in my chest. I was hurting. I was just having a 9 difficult ti me. It was too much again for me. I couldn't 10 memorize. I couldn't coordinate. I wasn't the Terry that I 11 used to be, which brought on depression. 12 You don't understand, I was born and raised 13 in a family business. I was taught to work. And I 14 was -- I am a workaholic. And I went from that to not being 15 able to work 16 Q Now, you had mentioned that you worked for 17 Pinnacle Hea lth? 18 A Yes. 19 Q Do you recall the dates of that employment? 20 A It was sometime from February. And it was 21 over a year and a half, because I had a good evaluation. 22 Q Now, I have in my note; you brought home 320 23 a week? 24 A Something like that, yeas. 25 Q Was that what you saw on your paycheck or was 95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that gross? A I can't remember. I am. sorry. If I could, I would tell you. Q Do you recall whether cr not that was an hourly job? A Yes. It was hourly. Q Do you recall how much it paid hourly? A Between eleven or twelve or somewhere in there, eleven, fourteen. I don't know. All my jobs always came in between eleven and $14.00, because I always looked for a good paying job. Q Sure. Why didn't that work out? A Because I wasn't feeling good. It was getting to be too much. And that's when I went to go to part-time. I went from Pinnacle Health, then to Family Practice, who was at that time affiliated with Pinnacle Health. I went from full-time to part-time. I didn't feel good. Q Sure. Can you tell me -- you said it wasn't working out? A Right. Q Can you be more specific? A I had a hard time working, just keeping up. You have to go, go, go. When you are at work, you have to -- there is work coming in. And I wasn't getting it out. 96 1 My concentration was laxing. It was hard for me. And I 2 couldn't give what -- when I work I can't give... 3 Q Were you reprimanded by any of your 4 supervisors f or your production? 5 A No. My last evaluation was that I was doing 6 exceptionally well, because I was new on Blue Cross. And 7 then I was pu lled in that I have to make so many phone calls 8 a day. And I couldn't do it. So at the end we talked about 9 it. And she was working with me, you know, because she knew 10 in my heart I wanted to... 11 Q It was your decision to leave? 12 A It was Vince's. 13 Q Well, it was your job. 14 A Yes. But I'm old fashioned. 15 Q You weren't asked to leave? 16 A No. 17 Q Before these jobs, and we are talking about 18 starting with The Patriot-News and Pinnacle Health, were you 19 employed on a regular basis before that? 20 A I always had two or three jobs as long as I 21 can remember, yes. I have worked at D & H. I have 22 delivered newspapers for ten years. I worked D & H forty 23 hours. And I waitressed at night. I either did papers and 24 a full-time job or cleaned offices, because I had two boys 25 to support. And I always worked two or three jobs. 97 1 Q So up to the time you clot sick you were 2 working on a regular basis? 3 A Two jobs. 4 Q There would be no period for maybe three 5 months or more where you were out of work? 6 A Up until Pinnacle Health and The 7 Patriot-News - - I dropped Pinnacle, I dropped the papers, 8 then I dropped Pinnacle, then I went part-time. It slowly 9 came down. I don't know what else to say. I don't 10 understand wha t you are saying, but that's how it is. 11 Q When you applied for Social Security, you had 12 fully-insured status? Do you know what that is? 13 A No. You mean I am fully insured by Vince? 14 Q No. 15 A Okay. 16 Q That means you would be fully eligible for 17 Title 2 disabi lity insurance benefits. 18 A Okay. 19 Q Benefits on an amount based on what you put 20 into the system. 21 A Right. 22 Q And that's what you were applying for? 23 A I guess so. He did it. 24 Q Trust me on this one. That's what you 25 applied for. 98 1 A Okay. Vince took care of it. 2 Q When did you become disabled? 3 A It came slowly. It would start that when I 4 was working that I was hurting through. the nights. I don't 5 know the dates again. You are going to make me think -- I 6 don't know. How it happened, it came that I was hurting 7 through the night. He knows -- Vince knows also that I 8 couldn't sleep through the night. I couldn't sit long. And 9 then usually every night, at 4:00, I would always be in 10 pain, at the end of the day, no matter what. 11 And then after that the interstitial cystitis 12 came on. Then the IBS came on. And then the hurting in the 13 chest. And it just came on slowly by slowly. And then we 14 found out that with the -- and then I couldn't lift stuff 15 up. And then we found out here all this stuff goes together 16 with Fibromyalgia. That's how it happened. I had no idea. 17 It wasn't work one day, off one day. 18 Q Let's me show you what we have premarked as 19 D-1. Do you recognize this? Can you identify that? 20 A This is Social Security, yes. 21 Q That's the decision you got? 22 A Yeah. And its wrong. 23 Q Now, this indicates on this third page, it 24 says introduction. It indicates that you applied for 25 benefits on February 11, 2002? 99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Whenever Vince did it. Q That would be shortly after you saw Doctor... A I don't know when we did it -- when he did it. I have no idea. Vince did it. I have no idea. Q That's after you saw Dr. Mue ller for the second time. A Okay. Q And this indicates that you applied for a period of disability benefits with an onset date of no later than - - A Disability, I remember that very clearly. That was July 3rd. My part-time job -- when they asked me if my part-time job was my last job. That was my last job part-time with Dr. Seldow, around July 30th. And I did tell them I went back for a month at work, but they said really your last job was -- they did that. Vince and I and the Social Security -- I said do what you want to do. Because they always -- it was weird. I did tell them -- THE MASTER: Ma'am, you answered the question. THE WITNESS: Okay. I am sorry. BY MR. WISE: Q Did you see a Dr. Mandeck? A I don't know who he is. Q Do you recall a Jeffrey Mandeck, M.D.? 100 1 A Was he with the Social Security? Did he work 2 for them? 3 Q He would probably be one of the physicians 4 that you were sent to see. 5 A Yes. 6 Q You were sent to see a number of physicians? 7 A Yes. Right. 8 Q Do you recall having seen a Dr. Mandeck? 9 A I remember going to a doctor for Social 10 Security, yes. And I told him how I was in the past -- 11 THE MASTER: Ma'am, you remember seeing the 12 doctor. That' s all that was asked. 13 THE WITNESS: I am sorry. 14 BY MR. WI SE: 15 Q Since you have been treating with Dr. 16 Mueller, have you seen -- I am sorry, it wasn't Dr. 17 Siegelbau m, it was Dr. Kunkle, the rheumatologist? 18 A No. Vince and I walked out. I left him with 19 Vince. 20 Q Was he the one who suggested to you that you 21 may have some emotional component to your problems? 22 A He sends all his patients, as I have found 23 out throu gh ot her patients who have gone to him, that's what 24 he does. That 's his -- what do you call that thing when 25 somebody does, you know... 101 1 Q Modus operandi? 2 A I don't know, his way of doing things. 3 Q When did you separate? 4 A What time? 5 Q The last time. 6 A February 1st. 7 Q Did you leave the household? 8 A No. Not February 1st. I didn't leave until 9 about a week later, five days later. 10 Q February 1st is when Vincent went to see his 11 daughter for her birthday. 12 A I have no idea. We were supposed to go the 13 next weekend and see his daughter. 14 Q But you were living at the Hummel Avenue 15 premises, were you not? 16 A Yes. 17 Q And you moved out of the those premises, 18 correct? 19 A He left. 20 THE MASTER: Ma'am, did you move out? 21 THE WITNESS: February 5th. 22 BY MR. WISE: 23 Q And you moved your belongings out? 24 A Yes. 25 Q And moved your belongings out while he was 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 out of town? A I didn't know he was out of town. Q Well, you knew he wasn't in the house? A Right. I had no idea when he was coming back. He never called me. Q Now, you had friends help you move, is that correct? A Yes. THE MASTER: Counsel, irrelevant. We are here on APL, not spousal support. MR. WISE: Understood, but we are asking about her ability to do work and physical activity -- THE WITNESS: I can answer it. I have no problem with that MS. REINHOLD: Let the Judge decide. THE WITNESS: I am sorry. BY MR. WISE: Q You participated in moving out your belongings, did you not? A No. Q You set up your new premises at your father's house, did you not? A No. Q Did you have anything to do with the move? A No. 103 1 Q Who helped you move? 2 A They didn't help me. They moved me. It was 3 Liz Updegraff, her son Chris Updegraff, her son's friend 4 Chris, also, h e is a professional mover. My son Beatty 5 Walton and his wife Nicky Walton, and my son Shawn Walton. 6 Q Who did the packing? 7 A There was no packing done. If they took 8 anything, they packed it. In other wcrds, they -- Vince 9 doesn't know t his. They took the furniture. I do not have 10 the furniture. I gave it to my children. I said take it. 11 Q This is family furniture? 12 A This is my family's furniture. My 13 grandmother's living room suit. Everything was family. And 14 I can have tha t verified by a witness. It's all family. 15 Q And you are saying that. you haven't had a 16 thing to live on since you moved out? 17 A Correct. 18 MR. WISE: That's all I: have. 19 THE MASTER: Redirect? 20 MS. REINHOLD: I have no redirect. 21 THE MASTER: You may step down. Thank you, 22 ma'am. 23 THE WITNESS: I am sorry I talked so much. 24 THE MASTER: That's all right. That's okay. 25 Any other witnesses? 104 1 MS. REINHOLD: Yes. Just briefly. We would 2 call Ms. Upd egraff. 3 Whereupon, ELIZABETH UPDEGRAFF, having been 4 duly sworn, testified as follows: 5 DIRECT EXAMINATION 6 BY MS. REINH OLD: 7 Q Could you please state your full name and 8 address for the record? 9 A Elizabeth Updegraff, 1604 Kathryn Street, New 10 Cumberland, Pennsylvania. 11 Q And what is your relationship to the 12 plaintiff, Ms. Costa? 13 A I am a friend for thirty-one years. 14 Q And currently Ms. Coster is living with you? 15 A Yes. 16 Q And when did she move in? 17 A She moved in on April 5th. 18 Q And do you know where she had lived prior to 19 that? 20 A Yes. She was living with her father. 21 Q Now, when she moved from the marital home to 22 her father's home, were you involved in that move? 23 A Yes, ma'am. 24 Q Did Ms. Costa pack any of her belongings? 25 A No. She did not. 105 I Q Did the people who were helping, were they 2 the individuals who did all the packing? 3 A Yes, ma'am. 4 Q And did Ms. Costa do any of the carrying of 5 boxes from house one to house two? 6 A No, ma'am. 7 Q Now, you have had the opportunity to observe 8 Ms. Costa in your home, have you not? 9 A Yes, ma'am. 10 Q And how would you describe her current 11 physical condition? 12 A I would say it is very poor. I see her on a 13 daily basis, because I don't work full-time. I am retired. 14 I work part-time and on the weekends. And she is in a lot 15 of pain. I have never seen her go more than maybe an hour, 16 an hour and a half, with the Vicodin, where she is really, 17 you know, feeling well enough to do things. 18 I do wake up in the night, which as a matter 19 of fact my nights are mixed up with my days now, because I 20 hear her. And she is right, I have to go put covers over 21 her, because she couldn't, in the middle of the night. She 22 tries to do, you know, as much as she can because she feels 23 bad living there and not paying rent. But she is very 24 limited to what I can see she can do. 25 Q Has she been able to help out with the 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cooking? A She cooked dinner one night. Q Is she able to help out. with the cleaning? A She has dusted. The kitchen counter, she has wiped off a couple of times. She has done very limited cleaning. I have a cleaning lady who comes in twice a month. Q You say you've known her for thirty-one years? A Yes. Q Is her personality the type that would allow herself to not be helping in the household if she could? A Oh, absolutely not. She is really upset about not being able to do things, because she was always a real go-getter. I mean, she used to change wallpaper like people drink glasses of water. She has always been very, very active. And she has been quite upset because she can't be active. Q How would you describe A I think her work ethic very good. I used to say -- MR. WISE: Objection. think it was very, very good. She is THE MASTER: Are you o question, or are you objecting to the her work ethic? was probably very, It is speculative. I speculating -- ojecting to the answer, counsel? 107 1 MR. WISE: I am objecting to the answer. She 2 is unable to give it based on what she said 3 THE MASTER: So you are moving to strike the 4 answer? 5 MR. WISE: I am moving to strike as an 6 unqualified opinion. 7 THE MASTER: The answer is stricken. 8 BY MS. REINH OLD: 9 Q Did Ms. Costa at any time work for you in the 10 past? 11 A Yes, ma'am. She did. 12 Q And when was that? 13 A It was about fifteen years ago she cleaned 14 for me. 15 Q Cleaned your house? 16 A Cleaned my house for ME! on a biweekly basis. 17 Q And was she a hard worker? 18 A She was a very hard worker. And it might 19 have even be en sooner than fifteen years ago. It was 20 probably in the last ten years. I don't remember the years 21 exactly. Bu t she did cleaning for me for a period of time. 22 Q Through your friendship have you always known 23 her to work a job? 24 A Yes. 25 Q When Ms. Costa moved from her father's house 108 1 to your house, did she do any of the moving? 2 A I carried everything. 3 Q So you alone moved her? 4 A I alone moved her, but we brought very 5 little. We brought clothing and cosmetics and, you know, 6 just the things that you would put in a bedroom. It is not 7 like we moved furniture. 8 MS. REINHOLD: I have no more questions. 9 THE MASTER: Cross. 10 CROSS-EXAMINATION 11 BY MR. WISE: 12 Q You are saying she is in pain? 13 A Yes. 14 Q How does she display her pain? 15 A Moaning. She moans a lot. 16 Q Could you be more descriptive about it? 17 A Okay. I'll hear, (witness indicating), like 18 that kind of sounds. And I know she is not doing it on 19 purpose. She is not even in the same room with me. 20 Q Does she do anything to relieve pain? 21 A She takes Vicodin when she can't tolerate it 22 anymore. 23 Q How often does she take Vicodin? 24 A Probably two times a day, sometimes three 25 times a day. 109 1 Q What determines whether she will take it 2 twice a day or three times a day? 3 A When she can't tolerate the pain anymore. 4 Q Have you ever suggested to her that she might 5 want to talk to somebody about the pain prescription she is 6 taking? 7 A Are you asking me if I asked her to go to a 8 different doctor or... 9 Q In your observation has it ever appeared 10 that she may need some assistance on adjusting medications? 11 A It seems like to me when she takes the 12 medications they appear to help, or they just don't help her 13 for a long period of time. But I am not an expert on pain 14 medication, so... 15 Q I understand that. Does the pain medication 16 affect her? 17 A Not in any other manner I can see. 18 Q Does she take any other medication? 19 A The medications that she stated she takes are 20 the medications I know she takes. I have a list. I haven't 21 seen her take -- 22 Q For this past week has she been able to get 23 up and around? 24 A Yes. She gets up and gets around. 25 Q Did she have any trouble getting up for 110 1 today? I assume you came in together? 2 A Yes. I drove. And she was in a good bit of 3 pain, or she probably would have had trouble getting in. 4 She doesn't d rive when she knows she 17..as pain, because she 5 is afraid she will wreck the car. 6 MR. WISE: That's all I: have. 7 THE MASTER: Redirect? 8 MS. REINHOLD: No redirect. 9 THE MASTER: Thank you, ma'am. 10 MS. REINHOLD: And we have no more witnesses. 11 THE MASTER: Move for the admission of 12 Plaintiff's 1 and 2? 13 MS. REINHOLD: Yes. We do move for admission 14 of Plaintiff' s 1 and 2 15 THE MASTER: Any objection? 16 MR. WISE: No objection. 17 THE MASTER: They are admitted. 18 Mr. Wise. 19 MR. WISE: Mr. Costa. 20 Whereupon, VINCENT L. COSTA, having been 21 duly sworn, testified as follows: 22 DIRECT EXAMINATION 23 BY MR. WISE: 24 Q State your name and address? 25 A Vincent Louis Costa, 560 Hummel Avenue, 111 1 Lemoyne. 2 Q What is your age? 3 A Forty-seven. 4 Q Are you married? 5 A Separated. 6 Q And Theresa is your wife? 7 A Yes. 8 Q We have stipulated that you were married on 9 12/6/97, is t hat correct? 10 A Yes. 11 Q When were you separated for the final time? 12 A The beginning of February. 13 Q Did you leave her, or did she leave you? 14 A No. I didn't leave her. I went to Bradford 15 to spend some time with my daughter or,. her birthday. And I 16 come back to an empty house. 17 Q Did Theresa give you any hints that she had 18 planned to le ave? 19 A No. 20 Q Are you familiar with Theresa's claimed 21 conditions? 22 A Yes. 23 Q She says that she has trouble with 24 Fibromyalgia. Is that true? 25 A Yes. 112 1 Q Have you seen her complaining about that? 2 A Yes. 3 Q Were you supportive of her claim for Social 4 Security benefits? 5 A Yes. 6 Q Did you attend a hearing before an 7 Administrative Law Judge on that? 8 A Yes. 9 Q Were you and Theresa living together when she 10 received her notice of denial? 11 A Yes. 12 Q Do you recall when that. was issued? 13 A It was the end of January I think. 14 Q Do you recall her having received the notice? 15 A Yes. 16 Q How did she react? 17 A She was disgusted. 18 Q Was she physically agitated? 19 A She threw the papers down. She threw the 20 papers down. 21 Q Did she stomp away? 22 A Yes. 23 Q Did she appear to be in pain when she did 24 that? 25 A No. 113 1 Q You heard Theresa testify this afternoon? 2 A Yes. 3 Q Did you hear her testify concerning her jobs? 4 A Yes. 5 Q If I were to ask you the same questions, 6 based on your knowledge of her jobs, and based on the time 7 that you have spent married and living together, would your 8 answers be su bstantially different, and, if so, how? 9 A I think on the wages I have a recollection 10 that they wer en't anywhere near what the way that she 11 stated. And a couple of the jobs, especially the one with 12 Dr. Seldow an d the one with Pinnacle Health, it was more a 13 problem with she was verbally -- she was written up for job 14 performance. It had to be with coworker interactions from 15 what I rememb er. 16 Q Did you have discussions with her concerning 17 criticism she had been receiving from Dr. Seldow's office? 18 A Well, she would come home from work and tell 19 me. 20 Q And what would she tell you? 21 A That basically they were unhappy with her 22 performance because she really wasn't learning the jobs. 23 She wasn't learning it in a timely mariner. 24 Q Were they critical of her talking? 25 A Were they critical of tier -- say that again. 114 1 Q Did they feel she wasn't learning because she 2 was doing too much talking? 3 A No. 4 Q Now, with respect to Members 1st, are you 5 aware of that job? 6 A Yes. 7 Q Do you recall how long she had that job? 8 A It was approximately a month. She was a 9 trainee. 10 Q Then during that time did she complain about 11 any inability to get around? 12 A It was more complaint of learning the volume 13 of work that she had to learn rather than getting around. 14 Q Did she drive herself to work? 15 A Yes. 16 Q About how far was that? 17 A About three or four miles I guess. 18 Q Was she driving herself' around during this 19 time to other places, such as shopping? 20 A Always. Yes. 21 Q Who did the family grocery shopping? 22 A She did. 23 Q Up until the time you separated? 24 A Yes. 25 Q During all of 2002? 115 1 A Yes. 2 Q Did she keep house? 3 A Yes. 4 Q Did you help her keep house? 5 A I tried to pitch in. 6 Q Have you seen Theresa today as she was in the 7 witness chair you are in right now? 8 A Yes. 9 Q Did you see any indication that she was in 10 pain? 11 A I really can't tell. I really couldn't tell 12 if she was in pain or not. 13 Q Do you recall whether or not she was moving 14 her arms or moving her ankles or moving her legs? 15 A Constantly while she was in the chair. 16 Q And while she was doing that, was she 17 expressing pai n in any way on her face? 18 MS. REINHOLD: Objection. 19 MR. WISE: He can observe. 20 THE MASTER: Overruled. 21 THE WITNESS: Not that I noticed. 22 BY MR. WISE: 23 Q How are you employed? 24 A I am a pharmacist with CVS. 25 Q Does practicing your job require that you 116 1 have a license? 2 A Yes. 3 Q Are you a licensed pharmacist? 4 A Yes. 5 Q Do you have a Commonwealth of Pennsylvania 6 license? 7 A Yes. 8 Q How long have you been working at CVS? 9 A This particular job, nine years, at this 10 particular lo cation. 11 Q What are your hours? 12 A 8:00 p.m. to 8:00 a.m. 13 Q Are we keeping you up? 14 A This is the middle of my sleep time. 15 Q I am sorry. Are you paid a salary? 16 A Basically hourly. 17 Q And what is your hourly rate? 18 A $43.00 an hour. 19 Q How many hours do you work a week? 20 A It is based on forty-two hours. 21 Q Are you required to work overtime? 22 A No. No requirement. 23 Q Have you worked overtime on a regular basis? 24 A Yes. 25 THE MASTER: Do you get overtime for the 117 I extra two hours? 2 THE WITNESS: No. It is forty-two. No. 3 BY MR. WISE: 4 Q Do you have any other job or income? 5 A No. 6 Q And it has been indicated that you have a 7 minor son for whom you are paying child support? 8 A Minor daughter. 9 Q Minor daughter. I am sorry. Your son is not 10 a minor anymor e. What is the average yearly salary that you 11 expect to rece ive this year? 12 A I would think around $90,000.00. 13 Q How does that compare with 2002? 14 A It would be less. 15 Q Is there any reason for the decrease? 16 A Well, number one, I won't be working my 17 vacation. Las t year I just worked my vacations and took the 18 extra pay. An d I worked a lot of overtime at other stores. 19 But I can't do it anymore. It is getting to be too much. 20 Q Physically too much? 21 A Physically too much, yes. 22 MR. WISE: Cross-examine. 23 CROSS-EXAMINATION 24 BY MS. REINHOLD: 25 Q Mr. Costa, during your marriage isn't it true 118 1 you would describe your wife as a hard worker? 2 A When I first met her, yes. 3 Q And was there a time when she began not being 4 a hard worker? 5 A Gradually, yes. 6 Q Was that due to her physical disabilities? 7 A I don't know. I don't know if that's the 8 reason or not. 9 Q All right. Now, would you admit that she 10 tried very hard to continue working in the face of her 11 debilitating condition? 12 A She -- yes. 13 Q And you will admit that she was in chronic 14 pain towards the end of your marriage? 15 A She was in pain. Chronic is a 16 general -- I don't mean to be evasive, but chronic means all 17 day. 18 Q Well, you were willing to admit she was in 19 chronic pain back when you made an affidavit for Social 20 Security, were you not? 21 A If I said that, yes. 22 Q So now you will admit that she was in chronic 23 pain at the end of the marriage? 24 MR. WISE: Objection. That's not what he 25 said. What h e said was that's what he put in his affidavit. 119 1 THE MASTER: Overruled. You may ask the 2 question. 3 BY MS. REINHOLD: 4 Q You will admit that Ms. Costa was in chronic 5 pain towards the end of the marriage? 6 A At times. 7 Q And you will admit towards the end of the 8 marriage she was unable to do most of the household chores, 9 correct? 10 A At times. 11 Q Only at times? 12 A Yes. The work got done eventually. 13 Q Isn't it true you are the one who did those 14 household cho res? 15 A I pitched in. I helped. 16 Q I would like to show you a copy of your 17 affidavit. 18 MR. WISE: What's the purpose? 19 MS. REINHOLD: Because it is conflicting, for 20 impeachment p urposes. 21 MR. WISE: Then the witness has to be posed 22 with that and asked to explain it. And I would think that's 23 redundant. 24 THE MASTER: That is what she is attempting 25 to do, counse l. Have it marked as an exhibit. 120 121 1 (Whereupon, Plaintiff's Exhibit No. 3 2 was marked for identification.) 3 BY MS. REINHOLD: 4 Q Mr. Costa, could you identify that document? 5 A Yes. It is a statement that I made. It is a 6 document that I made. 7 Q And on the third page, that is your 8 signature? 9 A Yes. 10 Q And on that last page, what is the date on 11 that? 12 A 2/22/02. 13 Q And on that last page it states that you 14 fully believe that Terry is not able to work in any 15 occupation, and that you are willing to discuss this 16 affidavit with anyone if necessary? 17 A Yes. 18 Q So you believed that she was not able to work 19 in any capacity at that time? 20 A I believed that. 21 Q And if you look at the first page of that 22 document, it looks like you characterized Theresa as an 23 energetic, productive, hard-working person, who at this 24 particular job worked 365 days a year for years without 25 missing a day up until the weekend you were married, is that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? A Yes. Q And on the second page you stated she is so limited in her activities of daily living that it has become necessary for you to do the bulk of household chores, meal preparation and assisting Terry with a lot of her daily needs, which you said contributed to her fatalistic view towards life at that time? A I believed that at that time, yes. Q Now, are you now saying that you think things have changed? A Well, I am not sure. I am not sure in retrospect if all this was -- if I was accurate in perceiving everything I have said about her. Q Oh, so you might not have been fully honest when you gave that affidavit? MR. WISE: Objection. That's not what he said. THE WITNESS: I didn't say I wasn't being honest. I said THE MASTER: Hold on, sir. Hold on. Objection sustained. BY MS. REINHOLD: Q Do you believe your wife is disabled? A I am not sure anymore. 122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, you left February 1st, 2002, from the marital home, correct? A No. I left to go visit my daughter. Q Did you tell her to have a nice life? THE MASTER: Counsel, we are here on APL. We are not here on spousal support. It is not relevant. MS. REINHOLD: Only to the extent that he testified that he wasn't leaving the home -- THE MASTER: And I didn't think it was relevant when it was being asked on direct examination either. BY MS. REINHOLD: Q Now, you are aware -- your attorney made some questions of Dr. Mueller about a statement made and the Social Security Disability decision, which said that Theresa had not filled any of her pain medications from April of 2002 until December of 2002? A Yes. Q You were fully aware that she had been filling her pain medications, haven't you? A Yes. Q And when you say she did grocery shopping during the marriage, isn't it true she also had neighbor children bring in the groceries for her every time? A I never saw that. 123 1 Q Are you aware of it? 2 A I am not aware of it, because I never saw it. 3 Q So you need to see something in order to know 4 it is true? 5 MR. WISE: I believe he has given his answer. 6 BY MS. REINHO LD: 7 Q You have no knowledge that a William and 8 Derrick, who were neighbor children, helped her regularly 9 bring in the groceries? 10 A Honestly I don't. 11 Q Now, you say that your income this year you 12 anticipate it to be approximately $90,000.00, but in 2002 13 your Federal income tax return and W-2 statement showed you 14 made $99,000. 00. Now, you will receive a one-time a year 15 bonus, will y ou not, in 2003? 16 A Yes. 17 Q And when do you usually receive that? 18 A They have restructured the bonus formula, so 19 I am really not sure. It is based on the year's parameters 20 if we meet them or not. But I am not sure what month they 21 pay that out. 22 Q What month was it paid out in 2002? 23 A I think April or May. It was only a couple 24 hundred dollars. 25 Q Have you worked any overtime this year? 124 1 A Yes. 2 Q And you are planning on not working overtime 3 any longer? 4 A Well, I am going to try to minimize it. 5 Q And what is the reason for that? 6 A Because I am getting burned out. 7 Q But overtime is still available to you? 8 A Yes. Not on a regular basis. 9 MS. REINHOLD: I have no more questions at 10 this time 11 THE MASTER: Redirect? 12 MR. WISE: Yes. 13 REDIRECT EXAMINATION 14 BY MR. WISE: 15 Q Mr. Costa, you were asked if you had changed 16 your mind at all concerning your opinion as to whether your 17 wife was disabled. Did you hear the testimony of Dr. 18 Mueller today? 19 A Yes. 20 Q You are a licensed pharmacist, is that 21 correct? 22 A Yes. 23 Q And do your duties include the dispensing of 24 opiate medicati on such as Oxycontin? 25 A Yes. 125 1 Q Do you do self-education as a pharmacist? 2 A Always. 3 Q Have you done self-education and research on 4 Oxycontin? 5 A Yes. 6 Q Did you hear Dr. Mueller's testimony today 7 concerning the Oxycontin that he was prescribing? 8 A Yes. 9 Q Do you find that to be unusual in any way 10 within your ex perience? 11 A I find it to be conflicting with the 12 manufacturer's guidelines. 13 Q In what way? 14 MS. REINHOLD: Objection. Mr. Costa is 15 attempting to testify as an expert. 16 MR. WISE: Then I will voir dire him for an 17 expert. I bel ieve I have asked questions concerning -- 18 THE MASTER: So far the questions have not 19 asked for an e xpert opinion. What they have asked for 20 is -- you wish to conduct voir dire as an expert? 21 MR. WISE: I will offer him for 22 cross-examinat ion based on -- let me ask a few more 23 questions. 24 BY MR. WISE: 25 Q How long have you been a licensed pharmacist? 126 1 A Twenty-two years. 2 Q Has your experience included the dispensing 3 of classified narcotics? 4 A Yes. 5 Q Is Oxycontin such a scheduled -- 6 A It is a Schedule II narcotic. 7 Q Have you done self-education on Oxycontin and 8 opiates? 9 A Yes. 10 Q Has that self-education included -- I am 11, sorry. Typically in your business does self-research 12 include getti ng materials from manufacturers? 13 A When necessary, yes. 14 Q Do you make use of the web to download 15 information? 16 A I used to very thoroughly do that. 17 Q You don't do it now? 18 A She took my computers. 19 Q Have you investigated the pharmacological 20 uses and parameters of Oxycontin? 21 A Yes. 22 MR. WISE: We will offer Mr. Costa as an 23 expert on Pharmacology. 24 THE MASTER: As an expert on Pharmacology? 25 MR. WISE: And as an expert on the 127 1 pharmacological uses of Oxycontin. 2 MS. REINHOLD: Well, we object on the basis 3 that, one, he is a biased witness -- 4 THE MASTER: Do you wish to do voir dire on 5 him as an expert? 6 MS. REINHOLD: No. 7 THE MASTER: You are offering the party in 8 the case as an expert witness to testify to an opinion? 9 MR. WISE: Yes. 10 THE MASTER: Do you have any authority for 11 that? 12 MR. WISE: I have never heard of anybody 13 being qualified, and I have other instances of parties who I 14 have had qualified. As long as they are qualified, they can 15 be posed hypothetically. 16 THE MASTER: Go ahead. Ask the question. 17 BY MR. WISE: 18 Q Mr. Costa, I asked you earlier if you found 19 anything unusual about the Oxycontin dispensed by Dr. 20 Mueller as he testified to this morning. 21 A Yes. 22 Q In your practice and your experience, is it 23 typical or atypical? 24 A I am sorry. Is what atypical? 25 Q Is the Oxycontin that was prescribed by Dr. 128 1 Mueller typical or atypical of the prescriptions that you 2 had seen for this narcotic -- 3 THE MASTER: Are you asking if the drug is 4 typical or if the dosage is typical? 5 MR. WISE: Dosage. 6 THE WITNESS: The milligram strength is 7 typical. The frequency is out of the guidelines. 8 BY MR. WISE: 9 Q In what way? 10 A Oxycontin, the manufacturer doesn't recommend 11 that you dose it over twice a day, every twelve hours, 12 because it is a sustained release formulation. They don't 13 recommend thr ee to four times. They recommend that if a 14 need appears, where at the end of a twelve hour dosing 15 period, that there is pain, you use either break-through 16 medication, l ike Vicodin, or, more appropriately, you raise 17 the level, th e initial dosage, the milligram strength, but 18 you never go more than twice a day dosage. 19 Q This would be QUID, four times daily? 20 A QUID is four times daily. 21 Q Is QUID recommended or not recommended for 22 Oxycontin? 23 A It is not recommended. 24 Q And this is not recommended by the 25 manufacturer? 129 1 A By the manufacturer. 2 Q Are there contraindications to using this 3 Oxycontin QU ID? 4 A Yes. 5 Q What are those? 6 A Contraindications to other diseases or other 7 drugs or... 8 Q Interactions or side effects on the patient? 9 A Yes. Side effects of high doses of Oxycontin 10 is going to be respiratory depression. That's a 11 contraindica tion. Usually asthma is a contraindication. 12 Some of the side effects are lethargy, inability to 13 concentrate, drowsiness, slurred speech, and things along 14 that nature, fatigue. 15 Q Do you have any belief as to whether or not 16 your wife is suffering from addiction to Oxycontin? 17 MS. REINHOLD: Objection. That's outside of 18 the scope -- 19 THE MASTER: I will sustain that objection. 20 BY MR. WISE: 21 Q Do you feel that any disability she had is 22 other than b ecause of Fibromyalgia, IC, and the other 23 conditions t hat she had expressed? 24 THE MASTER: Are you asking an expert opinion 25 on this, cou nsel? 130 1 MR. WISE: No. I am asking his belief. 2 THE MASTER: Is he testifying as a lay 3 witness or as an expert -- 4 MR. WISE: At this point he is testifying as 5 a lay witness in rebuttal to what was brought out in 6 cross-examinat ion. 7 THE MASTER: Are you through asking him 8 questions as a n expert? 9 MR. WISE: Yes, I am. 10 THE MASTER: Then you may answer the 11 question, sir. 12 THE WITNESS: I forget the question. Sorry. 13 BY MR. WISE: 14 Q Do you believe that your wife has a condition 15 of any severit y which is not the result of any condition she 16 expressed but is the result of any drug addiction? 17 A I am sorry. I still don't understand the 18 question. 19 Q Do you believe your wife is addicted to 20 Oxycontin? 21 A Yes. 22 Q And what is the basis for your belief? 23 A Addiction is defined where it affects not 24 only -- there is tolerance to the medication where you have 25 increasing dos ing, tolerance to the effect of the 131 1 medication. There would be withdrawal if you were to 2 abruptly withdraw -- withdrawal symptoms, if you were to 3 abruptly stop the medication. And also addiction implies, 4 as opposed to physical dependence, addiction implies it 5 affects the way you interact and live your life socially. 6 And it becomes a bigger part psychologically of your life 7 than should be. It affects psychologically. 8 Q And based on that definition that you have 9 given, can you articulate signs that you have seen 10 consistent with that definition? 11 A Well, the times that she has say gone from 12 TID to BID dosing, I see irritability -- 13 THE MASTER: Speak to me in English. Are you 14 saying twice a day to four times a day? 15 THE WITNESS: I am sorry. Like reducing the 16 dose from three times a day to twice a day, or from four 17 times a day to three times a day. Or reducing the amount of 18 Vicodin that she has, I would see signs of withdrawal, 19 irritability, sweating, craving. 20 And it is also seemed like a lot of 21 conversation with not only me and other members was centered 22 around Oxycontin and Vicodin. The words would come up 23 constantly. She basically adjusted her lifestyle around the 24 dosing of medication. Her life was centered around the 25 times that she had to take the medication. 132 1 MR. WISE: Recross. 2 RECROSS EXAMINATION 3 BY MS. REINHOL D: 4 Q Mr. Costa, you will admit that Ms. Costa's 5 life is center ed around her disability, her Fibromyalgia, 6 her pain, and consequently pain medication might be a part 7 of her life, w ould it not? 8 A Yes. 9 Q Now, during the marriage Ms. Costa was taking 10 Oxycontin four times a day? 11 MR. WISE: He is still married. 12 BY MS. REINHOL D: 13 Q I am sorry. Before you separated in February 14 of 2003? 15 A Against my advice. 16 Q So you tried to get her to stop? 17 A I never believed in four times a day dosing 18 Oxycontin. I think that's overdosing. 19 Q So what did you do to try to get her to stop? 20 A When the doctor wrote out the prescription 21 for four times a day dosing, I told her not to take it four 22 times a day. 23 Q Did you ever contact her doctor and discuss 24 this with him? 25 A No. I knew enough about the drug where I 133 1 didn't need to do that. 2 Q And how many times did you talk to your wife 3 about cutting back? 4 A How many times, I don't remember how many 5 times. 6 MS. REINHOLD: I have nothing more. 7 MR. WISE: No redirect. 8 BY THE MASTER: 9 Q For Federal income tax purposes, for tax year 10 2003, is it yo ur intent, assuming no divorce is finalized by 11 the end of the year, to file as married separate? 12 A I would prefer not to, but that would be up 13 to Terry. I w ould prefer to file married filing jointly, 14 but that would be up to Terry. 15 Q Assuming that she did not agree to such a 16 filing, would you be filing as married separate? 17 A Yes. 18 Q Do you claim any children as dependency 19 exemptions? 20 A I did last year, but this year I won't. 21 Q And this is the daughter that we spoke of 22 earlier? 23 A Yes. 24 Q Do you have an arrangement with the mother of 25 that child wit h respect to the dependency exemption? 134 1 A Yes. 2 Q And what is that? 3 A Through the divorce decree it was that I 4 claim Paige. Paige is her name. 5 Q You claim Paige in even numbered years? 6 A Always. 7 Q So you will be claiming her this year as well 8 then? 9 A Except she is working. She is working this 10 year, so she is probably going to claim herself. 11 Q How old is this child? 12 A Sixteen. 13 Q What kind of a job does she have? 14 A She is waitressing. 15 Q Is she still in high school? 16 A Still in high school, yes. Either way, I 17 won't claim her, because I am in the middle of an IRS audit 18 now wh ere th ey are questioning my ability to claim her. 19 Q You are being audited for what year? 20 A 2001. 21 Q There was testimony that you provide medical 22 insurance co verage on your wife? 23 A Yes. 24 Q Do you have to pay for that? 25 A Yes. 135 I Q What is the cost of it? 2 A $100.00 a week. 3 Q At the time of the support co nference I know 4 it was made that you pay $92.96 biweekly. 5 A I am sorry. Yes. 6 Q Is that correct? 7 A Yes. And recently I have jus t reapplied. It 8 is around $1 00.00 biweekly. 9 Q Now, is it true that in 2002 your gross 10 annual income was approximately $99,925.00? 11 A Yes. 12 Q Was your hourly rate the same in 2002 as it 13 is in 2003? 14 A Yes. 15 Q So would any -- 16 A At the end of the year -- we got a raise like 17 in October, I think, September or October of 2002. And 18 that's the rate I am still making now. 19 Q If your annual income in 2003 is lower than 20 what it was in 2002, is your testimony that that reduction 21 will be a voluntary reduction on your part? 22 A Yes. 23 THE MASTER: Do counsel have any follow-up 24 questions? 25 MR. WISE: Yes. 136 1 REDIRECT EXAMINATION 2 BY MR. WISE: 3 Q You were asked whether it is a voluntary 4 reduction. Do you feel that for the sake of your health you 5 have to do t hat? 6 A Absolutely. 7 Q Explain. 8 A I am burning out. The older I get the shift 9 that I work is getting harder and harder to work. 10 Physically I just don't feel like I can work the overtime. 11 I feel like I have to take vacation. I have to take time 12 off. I just physically can't do it. 13 MR. WISE: Thank you. 14 MS. REINHOLD: I have just a couple 15 questions. 16 RECROSS EXAMINATION 17 BY MS. REINH OLD: 18 Q Are you under the treatment o f a doctor for 19 stress? 20 A Yes. 21 Q And what doctor is that? 22 A Dr. Mueller. 23 Q Dr. Mueller who testified? 24 A Yes. 25 Q You are currently seeing him? 137 1 A Yes. 2 Q Why would you go to a doctor who you think is 3 misprescribing the proper amount of a pain reliever for your 4 wife? 5 MR. WISE: Objection. Irrelevant. 6 THE MASTER: Overruled. 7 THE WITNESS: Well, it doesn't mean he is not 8 a good doctor. That's this particular issue, we differ on 9 its dosing of Oxycontin. He has treated my cholesterol very 10 well. He has treated me very well. 11 BY MS. REINHOL D: 12 Q And he is treating you for stress currently? 13 A Yes. 14 Q And are you taking medications? 15 A Yes. 16 Q What medications are you on? 17 A I am on Lipitor -- 18 MR. WISE: Objection. 19 THE MASTER: That's not relevant. 20 BY MS. REINHOL D: 21 Q Are you under the treatment of a 22 psychologist? 23 A No. 24 Q The medical insurance that you pay for for 25 your wife and yourself, does that include any other covered 138 1 individuals? 2 A No more. 3 Q Your daughter isn't currently under that? 4 A No. I just re-enrolled, and I didn't put her 5 on. 6 Q And your son is not on that? 7 A No. My son is not on it. 8 Q And what did you say the current cost is? 9 A It approaches $100.00 biweekly. 10 Q It has changed since our Domestic Relations? 11 A It went up a little bit, yes. 12 Q Did you bring in an updated pay stub today? 13 A No, I didn't. I do have proof of the new 14 medical insuran ce. It hasn't changed since the last 15 hearing, my pay stub. 16 Q Your pay stub is the same as the last hearing 17 you are saying? 18 A Yeah. 19 Q But your medical insurance, the cost has gone 20 up slightly? 21 A It is in effect until June 1st. 22 Q And it had been $92.00 biweekly at the time 23 of our hearing? 24 A Yes. 25 Q And how much has it gone up? 139 1 A Just a few dollars. 2 Q And that becomes effective June lst? 3 A Yes. 4 MS. REINHOLD: I have nothing more 5 THE MASTER: You may step down. 6 Anything else? 7 MR. WISE: Yes. Louis Costa. B Whereupon, Louis J. Costa, having been 9 duly sworn, testified as follows: 10 DIRECT EXAMINATION 11 BY MR. WISE: 12 Q State your full name and address. 13 A Louis James Costa. Currently 516 Hummel 14 Avenue in Lemoyne. 15 Q Are you related to either party here? 16 A Currently, yes, both. 17 Q Is Vincent your father? 18 A Yes. 19 Q I guess if I ask you how long you knew 20 Vincent, it would be all your life? 21 A Yes. 22 Q Louis, how long have you lived in the 23 Harrisburg a rea? 24 A This will be my fourth day. 25 Q Have you had occasion to visit your 140 1 stepmother and your father? 2 A Once or twice a year for the last fo ur years. 3 Q Have you had occasion near Father's Day of 4 2002 to come by and visit? 5 A Yes. We were down for Father's Day. 6 Q And this would be a year ago? 7 A Yes. 8 Q During that time did you go shopping for a 9 Father's Day present? 10 A Yes. 11 Q Was anybody else with you? 12 A Terry. 13 Q And where did you go shopping? 14 A We went to the East Mall, one of the malls in 15 Harrisburg. 16 Q How long did you spend shopping? 17 A About two hours. 18 Q And Theresa was with you during this time? 19 A Yes. We went shopping for Dad. 20 Q Did you stop at more than one mall? 21 A Possibly. I am not sure. 22 Q Did you stop at more than one shop in the 23 mall? 24 A Yes. 25 Q About how many shops in the mall? 141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A About three or four. Q Did you buy a present for your father? A Me? Q Yes. A Yes. I bought him clothes at Old Navy. Q Did Theresa buy a present? A From Old Navy, no. Q Or anywhere? A A DVD player from somewhere. Q About how long did you spend shopping that afternoon? A Like I said, about two hours. Q Did Theresa express any pain or limitation or inability to move about? A That I remember, no. Q After you were shopping, did you go back to your stepmother's house? A Yes. Q And your father's house? A Yes. Q Did you stay the evening at the house? A One or two nights. I am not sure. I came down with my girlfriend. Q Did you see anything that led you to believe that Theresa has any kind of profound inability to get up 142 1 and move without substantial pain? 2 A She had been groggy, just throughout the past 3 two years that I have been visiting. 4 Q Groggy? 5 A Disoriented at times. 6 Q But did she complain of pain? 7 A She complained about the medication mostly. 8 Q What medication are we talking about? 9 A Vicodin and Oxycontin. 10 Q Was that a frequent subject of conversation? 11 A Yes. 12 Q And in what context would the medications 13 arise? 14 A Her talking about them? 15 Q Yes. 16 A When she was disoriented and when she was 17 maybe in pain, maybe not. I don't know. When she seemed 18 disoriented and groggy and not about herself I guess. 19 Q Did she realize she was in this condition? 20 A No. Not at all. 21 Q Have you had occasion to see her over this 22 past Thanksgivi ng? 23 A A day or two after. 24 Q Tell us about that. 25 A Again, she just appeared disoriented and 143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 groggy. And I don't know any other words to describe that. Q On Thanksgiving was she doing anything in particular that you noted? A Like I said, it was a day or two after me and my friend came down for the night. And she has always kept a really clean house. And she was again obsessive-compulsive about cleaning. She was very compulsive about it. Q Was she cleaning when you arrived? A Yes, actually. Q Did she continue to clean after you arrived? A Throughout the day and night. She had left through the night though, so... Q She what through the night? A She left at night. While she was awake she cleaned throughout the day. Q Did you ever hear her complaining about pains in her joints or in her back? A Not her joints. She said pain. Q Was she particular about the pain that she described? A Not particularly. Just sleepy and painful I guess. Q Did she discuss her medication on this occasion? 144 1 A Not while me and my friend were there, not 2 that I recall. During the summer though, many times when we 3 were down last summer. 4 Q In the summer of '02? 5 A '02. We came down for the first week that we 6 were out for school. 7 Q Do you remember a time you were down that she 8 didn't discuss or raise Oxycontin and Vicodin? 9 A In the past two years, honestly, no. 10 MR. WISE: Cross-examine. 11 CROSS-EXAMINATION 12 BY MS. REINHOLD: 13 Q Mr. Costa, in the last year how many times 14 did you stay in the home with Ms. Costa? 15 A Three times. 16 Q Three nights? 17 A No. We came down for the first week of 18 summer. And that was approximately seven days. The last 19 week in summer, Father's Day, whenever that -- not the last 20 week. Whenever Father's Day was, I stay for a night or two, 21 I came with my girlfriend. And two days after Thanksgiving, 22 I came down with my friend and stayed for one night. 23 Q And while she was in the home, she did 24 complain of pain? 25 A Yes. 145 1 Q And she seemed to be disoriented? 2 A Yes. 3 Q Was there a time when you came down and she 4 had to leave the home and didn't stay overnight? 5 A Overnight, no. She would leave in the 6 mornings -- well, not in the mornings, but she would just 7 leave off and on because I -- can I answer it? 8 Q Yes. Go ahead. 9 A I don't think she liked cleaning. And I 10 think she was very obsessive-compulsive about cleaning. And 11 I don't think she liked cleaning after us. Which is not a 12 fault of hers, but she left off and on throughout our stays. 13 Q So she did leave? 14 A Yes. Not for an extended period of time 15 though. 16 Q But are you aware she did that because she 17 wasn't able to handle the workload of having people in the 18 home? 19 MR. WISE: Objection. That is not in 20 evidence. 21 THE MASTER: Sustained. 22 THE WITNESS: Am I aware of that? 23 THE MASTER: You don't answer it, sir. 24 BY MS. REINHOLD: 25 Q When you say she was cleaning, was she 146 1 dusting? 2 A She would do anything from vacuum, to dishes, 3 to laundry, t o cleaning any household things. 4 Q And would she typically leave during the time 5 you were ther e? 6 A Pretty much every time we came. I don't know 7 if it was for her own or for -- I don't know. I can't 8 honestly say why she would leave. Maybe because it was a 9 stressful environment maybe. Maybe because of her pain. I 10 don't know. Every time we went there she appeared 11 disoriented. And she was very obsessive-compulsive about 12 cleaning. 13 Q Is it possible she wanted to make the home 14 nice for you? 15 A It is possible. It is very possible. I 16 don't deny th at. 17 Q And she did leave at some point during every 18 single one of your visits? 19 A Yes, she did. 20 MS. REINHOLD: I have no more questions. 21 MR. WISE: No redirect. 22 THE MASTER: You can step down. Thank you. 23 Anything else, Mr. Wise? 24 MR. WISE: Nothing, Your Honor. 25 We will move for -- 147 1 THE MASTER: For the admission of Defendant's 2 1? 3 MR. WISE: Yes. 4 THE MASTER: Any objection? 5 MS. REINHOLD: No. 6 THE MASTER: It is admitted. 7 Rebuttal testimony? 8 MS. REINHOLD: Yes. We would ask to call Ms. 9 Costa just briefly on the issue of the filing of the income 10 tax return . 11 THE MASTER: Come on back up, Ms. Costa. And 12 you still under oath. 13 MR. WISE: Offer. 14 THE MASTER: What's the offer? 15 MS. REINHOLD: We are going to be asking 16 about the income tax return filing. 17 MR. WISE: What about it? 18 MS. REINHOLD: Whether or not she would be 19 willing to file a joint Federal income tax return with Mr. 20 Costa for 2003. 21 MR. WISE: Is she agreeable or not? I guess 22 that could come through counsel. And we will save her 23 formally d oing it. Does she want to do it? 24 MS. REINHOLD: Yes. She is willing to. 25 MR. WISE: Okay. 148 1 THE MASTER: So for the purposes of 2 calculation of net income, are we saying that the parties 3 will be filing a jo int marital income tax return for 2003? 4 MS. REINHOLD: Yes. 5 MR. WISE: Yes. 6 THE MASTER: And that is so stipulated. 7 You may step down then, ma'am. 8 MS. REINHOLD: And we also move for the 9 admission of Defend ant's Exhibit -- I mean Plaintiff's 10 Exhibit 3. 11 MR. WISE: No objection. 12 THE MASTER: It is admitted. 13 (The hearing was concluded) 14 15 16 17 18 19 20 21 22 23 24 25 149 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Vicky A Stephens n Officia Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date Michael R. Rundle Support Master 150 THERESA A. COSTA : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. VINCENT L. COSTA : NO. 2003-1266 CIVIL CIVIL ACTION - LAW REPORT AND RECOMMENDATIONS BEFORE GUIDO J, MEMORANDUM OPINION AND ORDER On May 9, 2003, we entered an interim order awarding alimony pendente lite to the plaintiff. The order was based upon the recommendations made by the Support Master after a full evidentiary hearing. Currently before us are the exceptions and cross exceptions filed by each party to the Master's Report and Recommendation. The standard we must apply in reviewing exceptions to a support master's report and recommendations was set forth in Goodman v. Goodman, 375 Pa.Super. 504, 544 A.2d 1033 (1988). As the court noted, "such a report is to be given the fullest consideration, especially with regard to the credibility of witnesses". 544 A.2d at 1035. However, it is "advisory only", and we are not bound by it. Rothrock v. Rothrock, 765 A.2d 400, 404 (2000).1 Rather, we "must consider the evidence, its weight, and the credibility of the witnesses, de novo". Id. "It is the sole province and the responsibility Rothrock deals with exceptions to a divorce master's report and recommendations. However, the Goodman court held that it makes no difference whether the report and recommendations are from a support master or a divorce master, the standard of review is the same. NO. 2003-1266 CIVIL of the court to set an award of support, however much it may choose to utilize the Master's report." Goodman v. Goodman, 544 A.2d at 1035. We have thoroughly reviewed the record, including the transcript of the testimony and exhibits presented to the Master, as well as his report. We have also reviewed the briefs of the parties and have heard argument thereon. We are satisfied that the order we entered pursuant to the recommendations made by the Master is appropriate under the facts and circumstances existing in this case. ORDER OF COURT AND NOW, this /344 day of AUGUST, 2003, after reviewing the record, as well as the briefs of the parties, and having heard argument thereon, it is hereby ordered and directed as follows: 1.) Defendant's Exceptions to the Support Master's Report and Recommendations are DISMISSED. 2.) Plaintiff's Cross-Exceptions to the Support Master's Report and Recommendations are DISMISSED. Our Interim Order of Court dated May 9, 2003, is hereby made fin. '13Y the Edward E. Guido, J. Michael Rundle, Esquire XCristin R. Reinhold, Esquire ` 5922 Linglestown Road 70,1Harrisburg, Pa. 17112 Xenneth A. Wise, Esquire _ ? J 126 Locust Street - P.O. Box 11489 DO.15+. Harrisburg, Pa. 17108-1489 O 03 ?;IM,'A,??4'JPd'?c! ,LLh,??'' Y4r??? ,. In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION THERESA A. COSTA Plaintiff Docket Number ) PACSES Case Number ) Other State ID Number 03-1266 CIVIL VS. VINCENT L. COSTA Defendant AND NOW to wit, this Order 743105357 APRIL 29, 2004 it is hereby Ordered that: THAT THE DEFENDANT WILL NOT BE RESPONSIBLE FOR THE MEDICAL EXPENSES THAT THE PLAINTIFF HAS PRESENTED FOR NOVEMBER 2002 AND JANUARY 2003 AS THESE EXPENSES WERE INCURRED PRIOR TO THE EFFECTIVE DATE OF MARCH 21, 2003 IN THE SUPPORT MASTER'S ORDER OF MAY 9, 2003. BY THE COURT: DRO: RJ Shadday xc: plaintiff defendant Edward E. Guido JUDGE Service Type M Form OE-520 Worker ID 21005 ? c N - Ti x r f} >?? c.J rim N '< i f 1 t ?? VINCENT L. COSTA, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 03-1266 CIVIL TERM: THERESA A. COSTA, CIVIL ACTION -LAW Defendant IN DIVORCE STATEMENT OF INTENTION TO PROCEED To the Court: Theresa A. Costa intends to proceed with the above-captioned matter. Date: 91 ) z 0 Respectfully submitted, THE LAW OFFIC14 OF SILLIKER & RE OLD ristin R R inho sc 5922 Li lestown Road Harrisburg, PA 17112 (717) 671-1500 I.D. No. 57911 Attorney for Theresa A. Costa __ '? '?I Cfa ?'? ^{i Yt-? ?--.i '? ;;- THERESA A. COSTA, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :CIVIL ACTION - LAW :IN DIVORCE VINCENT L. COSTA, Defendant :NO. 03 - 1266 _w ? m PRAECIPE FOR ENTRY OF APPEARANCE ' 3 To the Prothonotary: N w ? Kindly enter the appearance of Elizabeth S. Beckley, Esquire and Beckley & -c Madden, of Counsel, on behalf of the Defendant, Vincent L. Costa, in the above- captioned matter. DATED: -" -1q6,60 4izath. &Becl Of Counsel BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, Pennsylvania 17108 (717) 233-7691 CERTIFICATE OF SERVICE I, Elizabeth S. Beckley, Esquire, hereby certify that a true and correct copy of the foregoing document was this day served upon the person and in the manner indicated below. SERVICE BY FIRST CLASS MAIL: Kristin R. Reinhold, Esquire Silliker & Reinhold 5922 Linglestown Road Harrisburg, PA 17112 DaTED 3-j dill THERESA A. COSTA IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW IN DIVORCE VINCENT L. COSTA Defendant NO: 03 -1266 PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Kindly enter the appearance of Trudy A. Marietta Mintz, Esquire, and the Dethlefs-Pykosh Law Group, LLC, on behalf of the Plaintiff, Theresa A. Costa, in the above-captioned matter. Dated: March 25, 2010 rintz, Esquire Trudy A. Marietta Mintz, Esquire PA ID #208523 The Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 tmariettamintz@dcdlaw.net N C= °?> 0 ?r Cy% C) 1 M w ' © THERESA A. COSTA, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. :CIVIL ACTION - LAW G :IN DIVORCES p ; , VINCENT L. COSTA,; -- ' Defendant :NO. 03 - 1266 p � -4. `- Y •s- STATEMENT OF INTENTION TO PROCEED To the Prothonotary: Please be informed that the Defendant, Vincent L. Costa, intends to proceed with the divorce action and respectfully asks that this matter not be terminated. 41Ir DATED: 0/1/4//c7q2 Z A,��/ /� •eth S. :eck ey, s-+fie Of Counsel BECKLEY& MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, Pennsylvania 17108 (717) 233-7691 . a CERTIFICATE OF SERVICE I, Elizabeth S. Beckley, Esquire, hereby certify that a true and correct copy of the foregoing document was this day served upon the person and in the manner indicated below. SERVICE BY FIRST CLASS MAIL: Trudy A. Marietta Mintz, Esquire The Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 DATED: (0/A1 /� 4 !/_•;,'// iz. .eth' . :ec Try"sO lir-