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Nicholson v. Colvin

United States District Court, M.D. Pennsylvania

March 19, 2015

Joyce J. Nicholson, Plaintiff,
Carolyn W. Colvin, Commissioner of the Social Security Administration, Defendant.


RICHARD P. CONABOY, District Judge.

We consider here Plaintiff's appeal of a denial of Supplemental Security Income benefits ("SSI") under Title XVI of the Social Security Act ("Act"), § 1614(a)(3)(A). The administrative law judge ("ALJ") who evaluated this claim found that the Plaintiff has the residual functional capacity ("RFC") to perform light work with certain limitations (R.21)and that jobs exist in significant numbers in the national economy that the Plaintiff can perform. (R.25). Thus, the ALJ denied Plaintiff's claim, a denial that was subsequently affirmed by the Appeals Council. (R.2-6). Plaintiff's appeal is based upon seven assertions: (1) that the ALJ erred by finding Plaintiff's fibromyalgia to be non-severe; (2) that the ALJ erred in finding that the Plaintiff does not meet a medical listing at § 12.05(C); (3) that the ALJ erred by according limited weight to the testimony of a psychological consultant; (4) that the ALJ erred in finding that the Plaintiff was not fully credible regarding the severity of her limitations; (5) that the ALJ erred in her assessment of Plaintiff's RFC; (6) that the ALJ erred in the extent to which he relied upon the vocational expert's testimony; and (7) that the ALJ erred in failing to make specific findings regarding Plaintiff's capacity to perform basic work-related activities.

I. Background.

Plaintiff was 48 years old at the time of her hearing before the ALJ. (R.31). She completed the ninth grade. (Id). Her last employment was as a cashier in a fast food restaurant at some undetermined point in 2008 or 2009.[1] She also had previous experience as a packer and a hotel maid. (R.46-47). The record indicates that the Claimant was fired by her last employer for being late and failing to keep up with her work. (R.239). Claimant testified that she had been receiving unemployment compensation for some time until her eligibility expried. (R.31-32). Plaintiff alleges a disability onset date of January 1, 2012 in her protectively filed application for SSI of July 23, 2012. (R.16).

A. Physical Impairment Evidence.

The medical evidence of record indicates that Plaintiff presented at the Carlisle Regional Medical Center on November 1, 2011 complaining of right leg pain unrelated to any known injury. (R.216). Dr. Scott Rainkin indicated his clinical impression that Claimant was suffering from arthralgia and osteoarthritis pain. (R218). Dr. Rainkin prescribed Percocet and Motrin for pain and discharged Claimant with instructions that she should return to the emergency department if her symptoms worsened or failed to improve. (Id.).

On September 28, 2012, Plaintiff presented at the Saddler Health Center in Carlisle, Pennsylvania where she was seen by Dr. Luan V. Pham. Dr. Pham's notes indicate that Plaintiff had ongoing pain in both knees, hands, shoulders and arms. (R.253). Dr. Pham's examination also revealed swelling of her right leg and Dr. Pham alluded to injections in her knee that had been administered at some unspecified prior time and "did not help her at all." (Id). Dr. Pham's assessments included myalgia and bilateral knee pain and his notes reflect his suspicion that Plaintiff had fibromyalgia or some kind of connective tissue disorder given the diffuse nature of her pain and multiple bilateral trigger points. (R.253-54). Dr. Pham prescribed Cymbalta but did not offer Plaintiff stronger pain medication because she had a history of substance abuse. (Id.). Dr. Pham also expressed an interest in getting Plaintiff to an orthopedic specialist or having her undergo an MRI but noted that she had no insurance to cover such costs. (R.254).

On October 4, 2012, Plaintiff presented for a disability evaluation by Dr. Thomas McLaughlin. (R.225-230). Dr. McLaughlin's findings included: that Plaintiff walked with an antalgic gate favoring her right lower extremity; swelling of the right knee suprapatellar area; that claimant was incapable of standing on one leg at a time; and that all of her fibromyalgia points were positive. (R.228-29). Dr. McLaughlin's impressions included: (1) diffuse pain likely secondary to fibromyalgia; and (2) right knee suprapatellar swelling of undetermined ideology. Dr. McLaughlin also found: that Plaintiff could lift and carry up to twenty pounds frequently; that she could stand and walk no more than three hours in an eight hour day; that she could sit without limitation; and that she could occasionally stoop, crouch, balance, and climb but never kneel. (R.232-33).

B. Mental Impairment Evidence.

Plaintiff underwent a consultative psychological examination by Examining Psychologist Christopher Royer, Psy. D., on October 25, 2012. Dr. Royer's examination was performed at the request of the SSA through the Pennsylvania Bureau of Disability Determination. Dr. Royer's findings regarding Plaintiff included: impaired short-term memory; intelligence quotient (68) in the impaired range; borderline intellectual functioning; and depressive disorder. (R.240-41). Dr. Royer's assessments of Plaintiff's intellectual capacity were derived from a test (the Wechsler Adult Intelligence Scale) he administered to Plaintiff (R.240).

On November 1, 2012, Plaintiff's evaluation by Dr. Royer was submitted to Sandra Banks, Ph. D. Dr. Banks did not examine Plaintiff but merely reviewed Dr. Royer's notes and findings. Based upon her review of Plaintiff's medical records, including Dr. Royer's report, Dr. Banks concluded that Dr. Royer's "opinion relies heavily on the subjective report of symptoms and limitations provided by the individual and the totality of the evidence does not support the opinion. The CF examiner's opinion is an overestimate of the severity of the individual's restrictions/limitations and based only on a snapshot of the individual's functioning." (R.62). Dr. Banks then opined that Plaintiff is not disabled. (R.64).

C. ALJ Hearing Testimony.

Plaintiff testified that she completed ninth grade and then dropped out of school to work. (R.31). She had been receiving unemployment compensation for approximately four years prior to the hearing but her eligibility has expired. (R.32). She testified: that she cannot stand or sit for long; that her knees and back "go out on me"; that she has a problem focusing her attention; that intense pain in her right knee disturbs her sleep each night; that her fibromyalgia causes a pressure and a stinging feeling in her lower back; and that she experiences pain intermittently in both her lower back and the back of her neck and that she is not on pain medication because she has no insurance. (R.32-34).

With respect to her mental state, Plaintiff testified that her depression manifests in a feeling that she doesn't want to be around anyone and in the desire to sleep.[2] (R.34). She also states that she was taking medication for depression but stopped because it was giving her "a weird feeling". (Id.).

Regarding her activity level, Plaintiff testified that she tries to help around the house and occasionally babysits for her six-year old granddaughter. (R.35). Her babysitting activity is confined to the weekends when the child's mother takes her to Plaintiff's residence. (R.36). Plaintiff stated that she watches television with the child and draws with her. (Id.).

In response to questioning from her counsel, Plaintiff stated that she withdrew from school in the ninth grade due to a feeling that everyone was looking at her and laughing at her. This feeling of self-consciousness was related to her stuttering. (R.37). She also testified that she had trouble reading and doing math. (Id.). Plaintiff testified at some length that she has difficulty staying focused on anything and that she is prone to start a task and not finish it. (R.37-38). She testified further that the back pain from her fibromyalgia can bring her to tears and that her knees sometimes buckle when she walks and that this happens as often as three times each day. (R.39). She stated that she can only stand from five to ten minutes before she starts to experience pain. (Id.)

Plaintiff's husband testified that, while Plaintiff can dress herself and do a little cooking, he is basically taking care of her. (R.43). He also stated that he has noticed a decline in her mentally, that she does not want to leave the house, that in the year before the hearing she lost 40 pounds, and that "she don't smile no more." (R.43-44).

Testimony was also provided by Ms. Harder, a Vocational Expert. ("VE"). Ms. Harder testified that she had examined Plaintiff's work history. (R.46). Plaintiff's work history had been confined to light, unskilled work as a fast food worker and a cleaning person in a hotel. (R.46-47). The ALJ asked the VE to respond to a hypothetical question in which the VE would assume the following limitations: that Plaintiff was capable of performing light work; that she could stand or walk no more than two to three hours per day; that she could only occasionally bend, stoop, crouch, balance, or climb; that the work should involve only routine, repetitive one or two step tasks; that the Plaintiff have only occasional interaction with the public, co-workers, and supervisors; that the Plaintiff not be exposed to fast-paced production quotas; and that the Plaintiff would be expected to be off-task five to ten percent of the time due to her psychological symptoms and physical pain. (R.48-49). The limitations that the VE was asked to assume were supported by findings made by Dr. McLaughlin and Dr. Banks. The VE responded that it was difficult to say whether Plaintiff could do any of her past work. (Id.). The VE explained that, if one supposed Plaintiff would be off-task ten percent of the time, she certainly could not do any of her previous jobs and, even if one presumed only five percent downtime, the lack of a sit-stand option would preclude Plaintiff from all past relevant work. (R.49). The VE did conclude that if one presumed all aspects of the hypothetical question with only a five percent downtime factor, other jobs existed in the national economy (e.g., a laundry worker who operates a machine that folds clothing) that Plaintiff could perform. (R.50).

D. ALJ Decision.

The ALJ determined that Plaintiff had not been under a disability since her alleged onset date and made the following findings of fact and conclusions of law:

1. The Plaintiff had not engaged in substantial gainful activity since July 23, 2012, the application ...

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