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Deal v. Astrue

United States District Court, M.D. Pennsylvania

June 8, 2015

Andrea Deal, Plaintiff,
v.
Commissioner Michael J. Astrue, Defendant.

MEMORANDUM

RICHARD P. CONABOY, District Judge.

We consider here the appeal of Plaintiff Andrea Deal ("Plaintiff" or "Deal") from the decision of the Social Security Administration ("SSA") denying her application for Supplemental Security Income Benefits ("SSI"). This issues have been fully briefed by the parties and this case is now ripe for disposition.

I. Background.

A. Procedural Posture.

On October 14, 2011, the Plaintiff, alleging a disability onset date of October 1, 2011, filed a protective application for SSI with the SSA. Plaintiff's claims were denied at the administrative level on January 31, 2012 whereupon she filed a written request for a hearing. The hearing took place on February 5, 2013 in Wilkes Barre, Pennsylvania before Administrative Law Judge Michelle Wolfe ("the ALJ"). In a written decision dated March 28, 2013, the ALJ determined that Plaintiff was not disabled.

Plaintiff timely appealed the ALJ's decision to the Appeals Council on May 23, 2013. By letter dated July 24, 2013, the Appeals Council approved the ALJ's decision as the final decision of the Commissioner of the SSA. On September 12, 2014, Plaintiff filed a timely appeal with this Court that contests the propriety of the SSA's final decision. The Court has jurisdiction of this matter pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(iii).

B. Testimony Before the ALJ.

Plaintiff testified as follows. She was born on March 25, 1978 and last worked on October 1, 2011. (R.35). Her last employment was as a nurse's aide. (R.36). She received her certification as a nurse's aide in 1999. (Id.). She stated that she stands 5'3'' tall and weights approximately 107 pounds. (R.36-37). She is right hand dominant. (R.37). She holds a driver's license but drives only as needed to make medical appointments or visit her five daughters who currently reside with her former husband. (R.35-37).

In response to the ALJ's question whether she can provide any kind of work, Plaintiff testified that she has bronchial asthma that impairs her breathing, arthritic knees that have undergone two surgeries, arthritis in both ankles, bilateral carpal tunnel syndrome, and a chipped venicular bone in her right hand. (R.38-39). Plaintiff also stated that she was under the care of a psychiatrist. (R.39). Her medications include: Xanax, Percoset, and Fioricet. (R.39-40). She alluded to swollen lymph nodes in her head which she claims have aggravated recurrent migraine headaches. (R.40). She further testified that she takes Percoset to alleviate pain in her back and legs and denied experiencing side effects from her medications. (Id.). Plaintiff also testified that she has a TENS unit at home and that, while she uses it every other day for her pain, it does not seem to work. (R.40-41).

Plaintiff also testified that she tries to walk but can only do so for a short period of time because her legs begin to hurt. (R.41). She estimated that she could walk for about five minutes and that "the doctors said do not lift over ten pounds." (Id.). She stated further that both Drs. Jalowiec and Malloy restricted her to lifting no more than ten pounds. (Id.).

With respect to her physical capacities, Plaintiff stated that she tries to do household chores and she is able to run the vacuum "a little bit". (R.42). She stated that she has trouble doing the laundry due to the bending involved and her father helps her with that task. (Id.). Her cooking is confined to items that can be heated in a microwave oven. (Id.). When her children comes to visit her she watches them play video games but cannot play with them outside due to breathing problems for which she uses a Ventolin inhaler. (R.42-43). Plaintiff also testified that she was experiencing pain in her left side and radiating down into her left leg during the hearing. (R.43). Under questioning from her attorney, she stated that her pain typically comes on after she has been sitting for approximately 20 minutes and that it intensifies during unspecified weather conditions. (R.44). She stated further that she experiences numbness and weakness in both hands as a result of carpal tunnel syndrome for which she was contemplating surgery. (R.45). She described experiencing migraine headaches 4-5 times each week that can be so severe that she must lie down and close her eyes to find some relief. (R.45-46). Plaintiff also asserts that she experiences difficulty in buttoning her clothing and tying her shoes as a result of her numbness with her fingers and the pain in her back. (R.47). She related that tasks she could formerly perform quickly and easily now are difficult for her and require more time. (R.47-48). She acknowledged that she tried to return to work in 2011 on a night shift job at which she could stand and sit at will. (R.48). She states that she lost that job when she was subjected to a drug screening which revealed the numerous medications in her system. (R.49).

Also testifying at the hearing before the ALJ was Nadine Henzes, a vocational expert. Ms. Henzes described the Plaintiff's past relevant work as that of a nurse's aide. (R.50). She had several jobs as a nurse's aide and, while all would be classified as semi-skilled, they varied from light to medium to heavy exertional levels. (R.51-52). In response to a hypothetical question from the ALJ that asked Ms. Henzes to assume an individual with the same age, education, and work experience as the Plaintiff, who had the residual functional capacity to perform work at the light exertional level subject to limitations including: occasional crawling and climbing but never on ladders, ropes or scaffolds; occasional pushing and pulling with the upper extremities; and the need to avoid temperature extremes of hot and cold and the hazards posed by moving machinery and unprotected heights; Ms. Henzes indicated that such an individual could not perform the Plaintiff's past relevant work. (R.52). However, Ms. Henzes stated that given limitations imposed by the ALJ's first hypothetical question, there were other jobs in the national economy that such a person could perform such as information clerk, desk clerk, and office helper. (Id.).

If the additional limitation of "occasional fingering" was added to the hypothetical question, Ms. Henzes concludes that both the desk clerk and office helper jobs would be eliminated from consideration but that the information clerk position could be performed. (R.53). Ms. Henzes also stated that even with the additional fingering limitation Plaintiff could also perform such tasks such as hostess or usher. (Id.).

The ALJ then asked Ms. Henzes to consider that Plaintiff was reduced to a sedentary level of exertion with all the additional limitations posed in the previous hypothetical questions. (R.53-54). Ms. Henzes responded that even then jobs existed in the national and regional economies that Plaintiff could perform. (R.54). These jobs included positions as an appointment clerk, data entry clerk, and video monitor. (Id.).

A final hypothetical question was posed to the vocational expert that asked her to assume a sedentary level of exertional capacity with all previously discussed additional limitations as well as cognitive limitations of simple, routine tasks in a low-stress environment with only occasional decision-making and occasional changes in work setting. (R.55). Even with these additional limitations, the vocational expert concluded that Plaintiff would be able to function as a video monitor, a document preparer, or a data entry person. (R.56-58).

In response to a question from Plaintiff's attorney that asked the vocational expert to assume also that the Plaintiff can sit for only 15-20 minutes at a time, stand for only 5 minutes at a time, and would find it necessary to lie down each day during the workday for at least a half hour and on some days for the entire day, the vocational expert responded that all of the positions she had discussed would be eliminated. (R.57).

C. Medical Evidence.

The record substantiates that Plaintiff has a long time treating relationship with Dr. Michael Jalowiec. (R.621-49, 674-75, and 679-87). Dr. Jalowiec's notes indicate that he saw Plaintiff on at least 16 occasions between February of 2011 and February of 2013. On many more occasions, Plaintiff called to request that Dr. Jalowiec refill various prescriptions for Percoset, Fiorocet, and Xanax.[1] Dr. Jalowiec's notes do indicate his diagnoses that Plaintiff suffers from osteoarthritis of both knees and chronic back pain. Dr. Jalowiec's notes do not include any assessment of Plaintiff's functional limitations nor do they allude to any level of disability.

In December of 2011, Plaintiff began seeing M.A. Rahman, M.D., a psychologist, for mental health treatment. On December 8, 2011, Dr. Rahman authored a Psychiatric Evaluation of the Plaintiff. (R.617-18). Dr. Rahman indicated that Plaintiff's speech was spontaneous, that she had good eye contact, that she was oriented in all spheres, that her attention and concentration were good, and that her insight and judgment were good. Dr. Rahman also noted that Plaintiff's mood was anxious. Dr. Rahman diagnosed major depressive disorder and panic disorder without agoraphobia and prescribed Paxil to be taken in conjunction with the Xanax that had already been prescribed by Dr. Jalowiec. Dr. Rahman subsequently saw Plaintiff on January 5, 2012, February 2, 2012, and March 29, 2012. On each of these occasions Dr. Rahman's notes indicate that Plaintiff was friendly and cooperative, oriented, non-psychotic, and that she displayed appropriate ...


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