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Hippensteel v. Colvin

United States District Court, M.D. Pennsylvania

April 14, 2015

FRANK BERKLEY HIPPENSTEEL, Jr., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Comissioner of Social Security, Defendant.

MEMORANDUM

WILLIAM J. NEALON, District Judge.

On July 14, 2014, Plaintiff, Frank Berkley Hippensteel, Jr., filed this instant appeal[1] under 42 U.S.C. § 405(g) for review of the decision of the Commissioner of the Social Security Administration ("SSA") denying his applications for disability benefits ("DIB") and supplemental security income ("SSI")[2] under Titles II and XVI, respectively, of the Social Security Act, 42 U.S.C. §§ 401 et seq., 1381 et seq. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiff's applications for DIB and SSI will be vacated.

BACKGROUND

Plaintiff protectively filed[3] his first set of applications for DIB and SSI on August 4, 2009, alleging disability since November 1, 2005. (Tr. 260-270).[4] These claims were initially denied by the Bureau of Disability Determination ("BDD").[5] (Tr. 138-145). On December 28, 2009, Plaintiff filed a written request for a hearing before an administrative law judge. (Tr. 146-148). On March 29, 2010, Plaintiff filed second applications for DIB and SSI, with an alleged onset date of December 4, 2009. (Tr. 282-283, 293-299). Regarding the first set of applications, a hearing was held on October 29, 2010, before administrative law judge Sharon Zanotto ("ALJ"), at which Plaintiff and a vocational expert, Sheryl Bustin, testified. (Tr. 30). On November 19, 2010, in regards to the first set of applications, the ALJ found Plaintiff not disabled. (Tr. 106-120). One (1) day later, on November 20, 2010, Plaintiff's second applications for DIB and SSI were granted, he was found disabled as of the date of the decision, and he was awarded DIB and SSI. (Tr. 202-205). On December 2, 2010, Plaintiff requested that the Appeals Council review the November 19, 2010 decision, in which the ALJ denied his first set of applications for DIB and SSI. (Tr. 198).

On June 1, 2012, the Appeals Council vacated the ALJ's decision rendered on November 19, 2010 for Plaintiff's first set of applications, consolidated Plaintiff's first and second applications for DIB and SSI, reopened the second claim in which benefits were granted, and remanded the case for a second hearing and re-adjudication of the entire period at issue for both the first and second set of applications for DIB and SSI. (Tr. 66-67, 132-136). On October 12, 2012, a second hearing was held before the ALJ, at which Plaintiff and vocational expert Paul Anderson, testified. (Tr. 60).

On November 8, 2012, the ALJ issued a decision denying Plaintiff's claims, and effectively reversing the prior award of benefits from the grant of the second applications, because, as will be explained in more detail infra, Plaintiff could perform a less than the full range of light work with occasional lifting and carrying of twenty (20) pounds, frequent lifting and carrying of up to ten (10) pounds, standing or walking for one (1) hour, and sitting for eight (8) hours in an eight (8) hour workday. (Tr. 15-16).

On December 3, 2012, Plaintiff filed a request for review with the Appeals Council. (Tr. 7). On May 16, 2014, the Appeals Council concluded that there was no basis upon which to grant Plaintiff's request for review. (Tr. 1-3). Thus, the ALJ's decision stood as the final decision of the Commissioner.

Plaintiff filed the instant complaint on July 14, 2014. (Doc. 1). On October 16, 2014, Defendant filed an answer and transcript from the SSA proceedings. (Docs. 8 and 9). Plaintiff filed a brief in support of his complaint on November 25, 2014. (Doc. 12). Defendant filed a brief in opposition on January 29, 2015. (Doc. 15). Plaintiff did not file a reply brief.

Plaintiff was born in the United States on June 25, 1960, and at all times relevant to this matter was considered an "younger individual"[6] whose age would not seriously impact his ability to adjust to other work. 20 C.F.R. § 404.1563(c); (Tr. 300).

Plaintiff can communicate in English, and has an eleventh grade education. (Tr. 44, 321). His employment records indicate that he previously worked in construction, masonry, and landscaping. (Tr. 303, 323). The records of the SSA reveal that Plaintiff had earnings in the years 1975 to 2006. (Tr. 273). His annual earnings range from a low of no earnings in 1977, 1993 and 2003, and from 2005 to 2011, to a high of twenty-six thousand three hundred fourteen dollars and fourteen cents ($26, 314.14) in 2001. (Tr. 273).

Plaintiff's amended alleged disability onset date is December 4, 2009. (Tr. 13, 36-37, 277). The impetus for his claimed disability is a combination of left-sided weakness post cerebrovascular ("CVA") event, lumbar degenerative disc disease, emphysema, substance abuse, and chronic obstructive pulmonary disease ("COPD"). (Tr. 14).

In a document entitled "Function Report - Adult" filed with the SSA in September of 2009, Plaintiff indicated that he lived in a house with his family. (Tr. 311). He noted that he did not take care of any other people or animals, stayed at home from the time he woke up until he went to bed, was able to take care of his personal needs, did not have sleep problems, prepared his own meals daily, and did the laundry and mowed the lawn for an hour once a week. (Tr. 311-313). He also indicated that he went outside twice a day, could walk a quarter of a mile with a five (5) to ten (10) minute rest before resuming walking, and could go out alone, but that he did not drive a car or go shopping. (Tr. 313-314, 316). When asked to check items which his "illnesses, injuries, or conditions affect, " Plaintiff did not check squatting, bending, standing, reaching, walking, sitting, kneeling, talking, hearing, stair climbing, seeing, memory, completing tasks, concentration, understanding, following instructions, using hands, or getting along with others. (Tr. 316).

Regarding his concentration and memory, Plaintiff did not need reminders to take care of his personal needs or to take his medicine. (Tr. 312). He was able to pay bills, count change, handle a savings account, and use a checkbook. (Tr. 314). He stated he was able to pay attention for a "long time, " could follow written and spoken instructions "good, " and was able to finish what he started. (Tr. 316).

Socially, Plaintiff watched television and fished, and was able to do these things "good." (Tr. 315). He reported that he got along "good" with others, including authority figures. (Tr. 316-317). He stated that he handled stress and change "good." (Tr. 317).

In the Supplemental Function Questionnaire also filled out in September of 2009, Plaintiff stated that his pain began in 1988, and included lower back pain and shortness of breath. (Tr. 319). He indicated that his pain did not spread anywhere else, but that it occurred often, and on and off all day. (Tr. 319). His pain and breathing problems had not changed his eating habits nor did it cause weight fluctuations. (Tr. 320). He had not been taking pain medication, using assistive devices, or attending physical therapy at the time he filled out the questionnaire. (Tr. 320).

On April 16, 2011, Plaintiff filled out another Adult Function Report. (Tr. 368). He stated that from the time he woke up until he went to bed, he would take his medicine, watch television, shower, brush his teeth, have breakfast and lunch, walk one (1) block to see his friend, come home, watch more television, have dinner, and then sit outside if the weather was nice. (Tr. 368). He indicated that he did not care for any other people or animals, that he was unable to do yard work or fish since his stroke in December of 2009, and that his left leg pain would wake him up. (Tr. 368-369, 372). He was able to take care of his personal care needs, and did not need reminders to do so or to take his medicine. (Tr. 370). He was able to prepare sandwiches, but his brother-in-law would make his dinner because he could not "cook a full course meal." (Tr. 370). He was able to mow the lawn by using a riding mower for about one (1) hour with a break. (Tr. 370). He was able to go out alone and walk about half a block with a ten (10) minute break needed before resuming walking, but that he did not go anywhere on a daily basis because his "legs [were] always giving out on [him]." (Tr. 371, 373). He indicated that he did not shop. (Tr. 371). He was able to county change, handle a savings account, and use a checkbook, but did not pay bills because he did not have any money to do so. (Tr. 371). When asked to check the items that his "illnesses, injuries, or conditions affect, " Plaintiff did not check standing, reaching, sitting, talking, hearing, seeing, memory, completing tasks, concentration, understanding, following instructions, using hands, or getting along with others. (Tr. 373). He indicated that he was able to follow written and spoken instructions and changes in routine "well, " but that he only moderately handles stress. (Tr. 374). When asked to provide additional information he did not provide in earlier parts of the form, Plaintiff stated:

Cannot do anything I use[d] to be able to do due to my stroke. I use[d] to do a lot of fishing, garden work, yard work, [and] help neighbors [, but] now I can't do any of these things because my legs give out on me or it all hurts, [including] my back. My arms are not as strong as they were before my stroke.

(Tr. 375).

Plaintiff also filled out a Supplemental Function Questionnaire in April of 2011. (Tr. 376). Plaintiff stated that his pain began on December 4, 2009 due to a stroke, and that his legs hurt all the time, mainly on his left side which was affected by the stroke. (Tr. 376). He stated the nature of his pain had changed since it began because his legs would give out more often and his left arm was hurting more. (Tr. 376). The pain spread down his legs, arms, and back, and bending, walking, pushing, and pulling made the pain worse. (Tr. 376). His pain occurred when walking and using his arms, that necessitated breaks. (Tr. 376). When asked how long his pain lasted, he responded that it lasted until he took a break. (Tr. 376). He was taking Tylenol for the pain, which helped for about two (2) hours after taking it. (Tr. 377).

At his October 12, 2012 hearing[7], Plaintiff was attempting to recover benefits for the time period of December 4, 2009 through November 19, 2010 because benefits were granted in the Plaintiff's second application for DIB and SSI from November 20, 2010 to the date of the ALJ's decision. (Tr. 66). The ALJ explained that she read the decision issued by the Appeals Council that remanded the case back to her to mean that both the first and second applications for DIB and SSI were consolidated and the matter was remanded to her for her to decide both the first and second applications, which would null and void the grant of benefits Plaintiff received from the grant of the second applications for DIB and SSI. (Tr. 66-68).

At this hearing, Plaintiff alleged that the following combination of physical impairments prevented him from being able to work since December of 2009: emphysema, COPD, left-sided weakness as a result of a stroke, mild mid to lower lumbar fact arthritis, non-severe hypertension, and substance abuse. (Tr. 71, 73). He testified that he had not worked since December 4, 2009, because his left side and leg would "go[] out on [him, ]" he could not walk far, and he was "lucky" if he could lift ten (10) to fifteen (15) pounds. (Tr. 72). He testified that he got his license back after losing it in 1980 due to three (3) DUI's, but that he did not drive because he did not prefer to. (Tr. 73). With regards to Plaintiff's COPD, he testified that dust, fumes, odors, chemicals, and gases did not cause him any problems, but that extreme temperatures did. (Tr. 74-75). He was still smoking at the time of the hearing, in the amount of ten (10) to fifteen (15) cigarettes a day. (Tr. 75). He was using inhalers every day to manage his breathing problems, and they caused him to be able to breathe "a lot better." (Tr. 77). His main complaint with regards to his breathing issues was that he felt he had to gasp for air, which was exacerbated by lying down, moving around, and being outside when it was windy. (Tr. 77). However, he testified that he did not have allergies that would exacerbate his COPD. (Tr. 77). When he would gasp for air, the problem would last usually about two (2) minutes until he could get his lungs "back full of air." (Tr. 78). He testified that he experienced lower back pain after stooping five (5) to six (6) times. (Tr. 79). He did not have a problem with crouching when using his knees to do so, but did experience back pain when crouching with just his back. (Tr. 80). He did not have difficulty balancing, reaching, using his hands and arms to move things like a tissue box or groceries, using his fingers to pick up fine objects like a coin, pushing or pulling with his arms or legs, or kneeling. (Tr. 80, 83). He experienced pain after using the stairs multiple times a day, which caused him to stay mainly downstairs. (Tr. 80-81). Regarding his left side, Plaintiff testified that his calves would stiffen after walking half a block, which required him to stop and take a five (5) to ten (10) minute rest, and that his left hand would give out on him "quite a bit." (Tr. 81). An example he gave was that a soda can would sometimes slide out of his left hand. (Tr. 81). He testified that he did not have a problem standing, and that the heaviest thing he had lifted since February of 2009 was about ten (10) to fifteen (15) pounds, including a cinder block. (Tr. 84). He was able to carry groceries and the laundry. (Tr. 84).

MEDICAL RECORDS

Plaintiff's relevant medical records will now be reviewed. Because the ALJ considered evidence from October 6, 2009 in evaluating Plaintiff's applications for DIB and SSI, this Court will review this medical evidence, even though it predates the alleged onset date of December 4, 2009, the date Plaintiff had a stroke.

On October 6, 2009, Ronald Vandergriff, D.O. performed a consultative examination on Plaintiff. (Tr. 415). Plaintiff reported that his lower back bothered him all the time, but that he had not seen a specialist or his family doctor for this problem nor had he been taking any medications. (Tr. 415). It was noted that Plaintiff smoked a pack of cigarettes a day, and drank twelve (12) beers daily. (Tr. 416). He reported that he stopped working because he had been unable to lift anymore. (Tr. 416). A lumbar spine x-ray revealed vertebral body endplate osteophytes and facet arthritic change in his lower back. (Tr. 416, 423). Plaintiff was able to get on and off the exam table on his own, and was able to ambulate and speak in complete sentences without any shortness of breath or difficulty. (Tr. 417). His back exam showed no deformities, erythema, or swelling, that his back was not tender, and that his range of motion ("ROM") was normal. (Tr. 417, 422-423). Dr. Vandergriff recommended that Plaintiff have a complete work-up done by a family physician, and that he undergo a physical therapy evaluation for his lower back. (Tr. 417-418). Dr. Vandergriff also recommended that Plaintiff quit smoking. (Tr. 418). Dr. Vandergriff opined that Plaintiff could frequently lift and carry up to ten (10) pounds, could occasionally lift and carry up to twenty (20) pounds, could stand and walk for four (4) hours in an eight (8) hour workday, could sit for eight (8) hours, was unlimited in pushing and pulling, could occasionally bend and kneel, could never stoop, crouch, balance, or climb, and was not able to engage in activity that involved heights. (Tr. 419-420).

On December 4, 2009, Plaintiff presented to the emergency room ("ER") at Carlisle Regional Medical Center ("CRMC") after "attempting to climb a flight of stairs when he blacked out and fell down'" which resulted in head trauma and left-sided weakness. (Tr. 427-428). His work-up revealed mild atherosclerotic plaquing bilaterally in his carotid artery and chronic vascular changes and a subacute right pontine infarct in his brain, for which Plaintiff was placed on aspirin and Plavix. (Tr. 428, 437). Plaintiff was diagnosed with a cerebrovascular accident ("CVA"), otherwise known as a stroke. (Tr. 427-428, 437). An exam performed by Dr. Ismail revealed that Plaintiff had left-sided weakness that improved to the point where he did not need ambulatory assistance, some mild to moderate residual weakness in his upper left extremity that improved after undergoing physical therapy in the hospital, and a left facial droop, decreased sensation on the left side of his face due to several damaged cranial nerves, a tongue drift to the right, clear speech, and clear, unlabored breathing and breath sounds. (Tr. 429, 432, 443). His motor strength test resulted in a five (5) out of five (5) in his upper and lower right extremities, but a three (3) out of five (5) in his left upper and lower extremities. (Tr. 432). He was found to be "too high functioning for additional rehabilitation in the inpatient rehab unit, " but was instructed to attend outpatient physical therapy. (Tr. 429). Plaintiff also experienced alcohol withdrawal, and was counseled on the "need for abstinence from alcohol and tobacco products." (Tr. 429). Plaintiff admitted that he had COPD and emphysema, which caused shortness of breath when he ...


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