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Bair v. Colvin

United States District Court, M.D. Pennsylvania

June 1, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant


William J. Nealon, United States District Judge

On November 4, 2014, Plaintiff, Kristina Marie Bair, filed this appeal[1]under 42 U.S.C. § 405 for review of the decision of the Commissioner of Social Security denying her claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 400-403. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiff’s application for DIB will be vacated.


Plaintiff protectively filed[2] her application for DIB on March 23, 2011, with an alleged onset date of July 20, 2008. (Tr. 15).[3] This claim was initially denied by the Bureau of Disability Determination (“BDD”)[4] on July 19, 2011. (Tr. 15). On July 28, 2011, Plaintiff filed a written request for a hearing before an administrative law judge. (Tr. 15). A video hearing was held on May 9, 2013, before administrative law judge Reana Sweeney (“ALJ”), at which Plaintiff and vocational expert, Brian Bierley (“VE”), testified. (Tr. 15). On May 22, 2013, the ALJ issued a decision denying Plaintiff’s claims because, as will be explained in more detail infra, Plaintiff’s impairments did not meet or medically equal any impairment Listing and Plaintiff could perform light work with limitations. (Tr. 15-23).

On July 1, 2013, Plaintiff filed a request for review with the Appeals Council. (Tr. 8). On September 19, 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 November 4, 2014. (Doc. 1). On January 12, 2015, Defendant filed an Answer and Transcript from the Social Security Administration (“SSA”) proceedings. (Docs. 9 and 10). Plaintiff filed the brief in support of her complaint on February 19, 2015. (Doc. 12). Defendant filed a brief in opposition on March 25, 2015. (Doc. 13). On April 6, 2015, Plaintiff filed a reply brief. (Doc. 14). The matter is now ripe for review.

Disability insurance benefits are paid to an individual if that individual is disabled[5] and insured, that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the date last insured. It is undisputed that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2012. (Tr. 17).

Plaintiff was born in the United States on July 20, 1973, and at all times relevant to this matter was considered a “younger individual”[6] whose age would not seriously impact her ability to adjust to other work. 20 C.F.R. §§ 404.1563(c); (Tr. 217).

Plaintiff obtained her college degree in May of 2005, and can communicate in English. (Tr. 203, 205). Her employment records indicate that she previously worked as an income maintenance case worker, an office assistant, a work-study library assistant, a work-study store associate, a customer service representative for phone and mail order sales, a clerk at a retail and health food store, and a supervisor at a bank. (Tr. 222).

The records of the SSA reveal that Plaintiff had earnings in the years 1990 through 2008. (Tr. 178). Her annual earnings range from a low of eight hundred two dollars and fifty cents ($802.50) in 2004 to a high of twenty-nine thousand six hundred ninety-one dollars and fifty cents ($29, 691.50) in 2007. (Tr. 178). Her total earnings during those eighteen (18) years were two hundred fifty thousand four hundred sixty-two dollars and seventy-nine cents ($250, 462.79). (Tr. 178).

Plaintiff’s alleged disability onset date is July 20, 2008. (Tr. 217). The impetus for her claimed disability is a combination of Fibromyalgia, depression, chronic pain, and arthritis. (Tr. 204).

In a document entitled “Function Report - Adult” filed with the SSA in July of 2013, Plaintiff indicated that she lived in an apartment with her family. (Tr. 235). When asked how her illnesses, injuries, or conditions limited her ability to work, Plaintiff stated that: her ability to move was greatly limited by pain; that due to Fibromyalgia, she was always tired, fatigued after minimal exertion, uncomfortable, and frequently unable to thing clearly; and that her depression “ha[d] added even more difficulties on top of all of this.” (Tr. 235). Prior to her illnesses, she was able to “move her body freely, think clearly, take walks, sleep peacefully, travel, and maintain a job.” (Tr. 236). From the time she woke up until she went to bed, Plaintiff took her medication, ate breakfast, showered, stretched as much as she could, ran errands and attended any scheduled appointments, ate lunch, took a nap, worked on “basic chores, ” prepared dinner, and tried to clean. (Tr. 236). She did not take care of any other people, but did take care of her cat by feeding and brushing her and cleaning her litter box. (Tr. 236). In terms of personal care, she often felt “too bad to be able to wear clothes [because] loss of flexibility [made] it difficult to dress.” (Tr. 236). Bathing also made her tired due to lack of flexibility, and often required hours to “recuperate” after doing so. (Tr. 236). Lack of flexibility also made it difficult to wash, dry, and brush her hair. (Tr. 236). She avoided shaving her legs frequently because she was too tired to do so. (Tr. 236). She was able to feed herself, but preparing meals was difficult due to standing; however, she was able to prepare breakfast and lunch daily for ten (10) minutes at a time each, and dinner every four (4) to five (5) times a week, for thirty (30) to sixty (60) minutes at a time each. (Tr. 236-237). She was able to do the laundry and dishes and straighten her house for a total of two (2) to three (3) hours daily, and thoroughly clean her house once a month. (Tr. 237). She required help putting things away because she had difficulty lifting, and stated that she often did these chores because they had “to be done.” (Tr. 237). She did not do yard work because she did not have “the physical stamina to do it.” (Tr. 238). Plaintiff shopped for groceries once a week for two (2) or more hours, spent three (3) to four (4) hours a week doing errands, and occasionally shopped for clothes, presents, and personal items. (Tr. 238). She indicated that she was only able to walk about fifty (50) feet before needing to stop and rest, and needed to rest between ten (10) minutes and one (1) hour before resuming walking. (Tr. 240). When asked to check items that her illness, injuries, or conditions did not affect, Plaintiff did not check squatting, bending, reaching, sitting, kneeling, talking, hearing, seeing, understanding, following instructions, or getting along with others. (Tr. 240). Plaintiff did not need any assistive devices such as crutches, a walker, a wheelchair, a cane, or braces or splints. (Tr. 241).

Regarding her concentration and memory, Plaintiff did not need special reminders to take her medicine, to take care of her personal needs and grooming, or to go places. (Tr. 237). She could pay bills, count change, handle a savings account, and use a checkbook. (Tr. 238). She was able to pay attention for one (1) hour at most in one (1) sitting, could finish what she started, had difficulty following spoken instructions if “there [were] too many steps, ” and could follow written instructions well, but would “often lose [her] place.” (Tr. 240). She was able to handle stress relatively well, unless she was having a Fibromyalgia flare-up, and changes in routine often caused a flare-up of her Fibromyalgia because they would cause her to forget her medication or would involve new challenges that led to new difficulties. (Tr. 241).

Socially, Plaintiff left her house about every other day, and was able to drive a car and go out alone when doing so. (Tr. 238). She enjoyed reading daily, sewing, embroidering, painting, scrapbooking, and going to museums; however, since her illnesses, injuries, or conditions began, she only rarely went to museums because she was not longer able to stand or walk for any length of time, would lose concentration while reading and sewing, and “rarely [had] enough mental and/ or physical energy for anything else.” (Tr. 239). She spent time with others no more than once a week for one (1) to two (2) hours at a time, used the computer, emailed friends, and went to the grocery store and post office on a regular basis. (Tr. 239). She did not have problems getting along with others. (Tr. 240).

Plaintiff completed a Supplemental Function Questionnaire for fatigue. (Tr. 243). Plaintiff stated that she began experiencing fatigue in early 2003 that was associated with the onset of a herniated disc at the C5-C6 level. (Tr. 243). Her level of fatigue had increased since that time, even after surgery for the disc in April of 2003. (Tr. 243). Her fatigue was worse at the end of the day, after she “cleaned [and ran] errands.” (Tr. 243). She frequently felt fatigued upon waking up, and would go back to bed. (Tr. 243). She experienced her fatigue all day, every day, with varying degrees, and it was relieved by rest, sleep, and occasional stretching. (Tr. 243). Plaintiff was taking the following medications at the time she completed this form: Tramadol, Bupropion, Soma, Etodolac, Amitriptyline, Hydrocodone, Cymbalta, and Nortrel. (Tr. 243). Plaintiff stated that these medications had an effect on her fatigue, and that the Soma only sometimes temporarily helped. (Tr. 243).

Plaintiff also completed a Supplemental Function Questionnaire for pain. (Tr. 244). Her pain seemingly began in 2002 when she herniated her disc. (Tr. 244). When asked to describe her pain, she stated that it was a very deep pain that started in her bones, could be sharp and burning in her legs and feet, and made her feel like she had been “beaten up.” (Tr. 244). She sometimes had pain when things would touch her skin, and there would be times when an area such as her legs would hurt more than another area such as her back. (Tr. 244). Her pain had continually increased since it began, with new pain in new places that resulted in more surgeries, more medications, and more limitations. (Tr. 244). Her pain was located everywhere, including her neck, joints, and both her deep and superficial muscles. (Tr. 244). When asked where her pain spread, she reiterated that it was everywhere, but that if a specific joint was sore, it would spread from there. (Tr. 244). The activities that caused her to have pain included standing, walking, sitting for long periods, rainy weather, lifting, and carrying. (Tr. 244). Her pain was worse in the mornings upon awakening because of laying in bed all night and then later in the evening due to any activity throughout the day. (Tr. 244). Her pain never went away. (Tr. 244). Her eating habits had changed due to the pain, and she had gained fifty (50) to sixty (60) pounds. (Tr. 245). The pain medications she was taking included Tramadol three (3) times daily since May of 2005, and Hydrocodone as needed when the pain was severe since approximately January of 2006. (Tr. 245). The Tramadol would relieve some pain for about four (4) to six (6) hours, but did not relieve all her pain. (Tr. 245). Plaintiff engaged in stretching, biofeedback, light massage, physical therapy, and rest to relieve the pain. (Tr. 245).

At her hearing, Plaintiff alleged that the following combination of physical problems prevented her from being able to work since July of 2008: Fibromyalgia, orthopedic problems including lumbar radiculopathy, degenerative disc disease (“DDD”), spondylosis, post surgical cervical spine problems, obesity, and depression. (Tr. 33-34). Regarding her school and work history, Plaintiff stated that her job at Way Point ended due to lay offs, her job at Eye Group of Lancaster ended because she quit to work at the Department of Public Welfare in Lancaster County, a job she eventually quit due to her Fibromyalgia, and that her job at Zipspan ended because she her husband moved to New Mexico, where she obtained her bachelor’s degree in cultural anthropology. (Tr. 37-38). She testified that she had not worked in her degree field at all since obtaining her degree. (Tr. 37). She testified that she was able to fully communicate in English, and to add, subtract, and perform simple arithmetic. (Tr. 37). Plaintiff testified that at the time of her alleged onset date of July 20, 2008, she applied for and received unemployment compensation benefits. (Tr. 36).

Regarding mental health treatment, Plaintiff testified that she did not have any inpatient hospitalizations, intensive outpatient treatment, group therapy, or individual therapy. (Tr. 40-41). She had mental health medications prescribed to her by her family doctor, but did not have any treatment by any mental health professional. (Tr. 41-42). When asked to describe her depression, Plaintiff stated that her depression was related strictly to the Fibromyalgia because it had taken over her life, and that the depression caused a lack of motivation. (Tr. 42).

Regarding the Fibromyalgia, Plaintiff acknowledged that there were three (3) areas of treatment. (Tr. 42). The first area was exercise, and Plaintiff testified that she engaged in exercise four (4) days a week for two (2) hours each time, including walking for a half hour to forty-five (45) minutes, and stretching the remainder of the time. (Tr. 42-43). The second treatment area was medication excluding pain medication and including anti-inflammatories, and Plaintiff testified that she took anti-inflammatories and narcotic pain medication as prescribed by her family doctor, John Conwell, M.D. (Tr. 43-44). She saw a Rheumatologist before her alleged onset date, but not within the relevant time period from her onset date to the date of the hearing. (Tr. 44). The third area of treatment for Fibromyalgia is a referral for pain management, and Plaintiff testified that she had a referral to a formal pain management program at Key Management Center of Lancaster during the relevant time period. (Tr. 44-45). Plaintiff testified that her treatment at Key Management Center was cut short after she received two (2) separate lumbar steroid injections with no improvement. (Tr. 45). She admitted that she had not learned about pain management techniques. (Tr. 45). She testified that, at the time of the oral hearing, she had recently started Lyrica after her date of last insured, and that it was going “all right” with the Lyrica, even allowing Plaintiff to take strong pain medications less frequently, but that she experienced some negative side effects. (Tr. 47). Regarding other medical conditions, Plaintiff testified that she had surgery on her left hand for a rheumatoid cyst in March of 2009.

When asked to describe a typical day from the past summer of 2012, Plaintiff stated that she would wake up anytime between six (6) o’clock to eleven (11) o’clock in the morning, take her medications, go to the bathroom, have breakfast, get dressed, do small chores around the house such as cleaning up the kitchen and doing the dishes and laundry, nap or rest for three (3) to four (4) hours, have lunch, sometimes prepare dinner, take an evening nap with some computer time sometimes, do simple things for thirty (30) to forty-five (45) minutes such as paying bills or making phone calls, and then would be sedentary at night. (Tr. 50). At some point during the day, she would also take a walk. (Tr. 50).

When asked as to why she could not work, Plaintiff testified that the pain from the Fibromyalgia was severe enough that she was not able to sit down or stand for an extended period of time, meaning a half an hour at most. (Tr. 51). She stated that she could not find anybody willing to hire her because the time she could work varied greatly. (Tr. 52). When asked if she had anything else to tell the ALJ, she stated that she found it very difficult to do anything productive due to her Fibromyalgia and medications, which resulted in decreased physical stamina and mental concentration. (Tr. 52).

Plaintiff also testified that the Soma gave her certain side effects, including lack of concentration, drowsiness, and physical instability. (Tr. 53). She stated that her sleep was often interrupted, and that she seldom slept for more than four (4) hours of restful sleep at a time. (Tr. 54). She would wake at two (2) o’clock in the morning, and would be wide awake for the rest of the night. (Tr. 54).

With regards to activities Plaintiff engaged in, when asked by the ALJ why a medical report from 2013 stated that she engaged in reading, sewing, crafting, and camping, Plaintiff explained that these were activities she enjoyed, but that she was not able to do as much as she used to, aside from reading maybe two (2) to three (3) pages daily due to lack of concentration. (Tr. 56).


Before the Court addresses the ALJ’s decision and the arguments of counsel, Plaintiff’s relevant mental health medical records will be reviewed in detail, beginning with records from her alleged disability onset date of July 20, 2008 through the date of last insured of December 31, 2012.

On January 29, 2009, Plaintiff had an x-ray of her left wrist performed at Ephrata Community Hospital. (Tr. 315). The results were that she did not have an acute fracture or ...

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