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Farner v. Colvin

United States District Court, M.D. Pennsylvania

February 17, 2017

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


          William J. Nealon United States District Judge

         On August 10, 2015, Plaintiff, Ronald Farner, 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 insurance benefits ("DIB") and supplemental security income ("SSI")[2] under Titles II and XVI of the Social Security Act, 42 U.S.C. § 1461, ei sea and U.S.C. § 1381 et. seq. respectively. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiffs applications for DIB and SSI will be vacated.


         Plaintiff protectively filed[3] his applications for DIB and SSI on September 29, 2011, alleging disability beginning on December 30, 2010, due to a combination of heart problems, prior kidney cancer, diabetes, high blood pressure, neuropathy, and high cholesterol. (Tr. 257, 261).[4] The claim was initially denied by the Bureau of Disability Determination ("BDD")[5] on August 9, 2011. (Tr. 111). On September 27, 2011, Plaintiff filed a written request for a hearing before an administrative law judge. (Tr. 121). An initial hearing was held on September 20, 2012, before administrative law judge Randy Riley, ("ALJ"), at which Plaintiff, his wife, and an impartial vocational expert Michael Gimlin testified. (Tr. 49-84). Initially, the ALJ issued a an unfavorable decision denying Plaintiffs applications for DIB and SSI, and the Appeals Council remanded the matter back to the ALJ for a second hearing. (Tr. 31-47). On April 15, 2014, a remand hearing was held before the ALJ, and Plaintiff, vocational expert Brian Bieriy, ("VE"), and medical expert David Owens, ("ME"), testified. (Tr. 30-48). On April 24, 2014, the ALJ issued an unfavorable decision denying Plaintiffs applications for SSI and DIB. (Tr. 12-30). On June 5, 2014, Plaintiff filed a request for review with the Appeals Council. (Tr. 9). On June 10, 2015, the Appeals Council concluded that there was no basis upon which to grant Plaintiffs 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 August 10, 2015. (Doc. 1). On December 1, 2015, Defendant filed an answer and transcript from the SSA proceedings. (Docs. 12 and 13). Plaintiff filed a brief in support of his complaint on January 11, 2016. (Doc. 16). Defendant filed a brief in opposition on February 11, 2016. (Doc. 17). Plaintiff did not file a reply brief.

         Plaintiff was born in the United States on December 12, 1959, and at all times relevant to this matter was considered an "individual closely approaching advanced age."[6] (Tr. 257). Plaintiff did not graduate from high school or obtain his GED, but can communicate in English. (Tr. 260, 262). His employment records indicate that he previously worked as a maintenance mechanic for a tire manufacturer and a mechanic for several auto shops. (Tr. 262).

         In a document entitled "Function Report - Adult" filed with the SSA on July 25, 2011, Plaintiff indicated that he lived in a house with family. (Tr. 280). When asked how his injuries, illness or conditions limited his ability to work, Plaintiff stated, "fatigue, feet hurt bad, can't stand for long periods. My chest and body hurts (sic) a lot when I do things too long. I feel grumpy a lot and have trouble concentrating. Also my legs swell - hurt a lot." (Tr. 280). From the time he woke up until he went to bed, Plaintiff did the laundry and dishes and made dinner, and mostly in the seated position down and only for "short periods" of time. (Tr. 281). Plaintiff reported no difficulty with personal care, was able to prepare meals three (3) to four (4) times a week for about one (1) hour at a time, did the laundry and dishes, was able to mow the lawn on a riding lawn mower, and was able to engage in "small repair tasks." (Tr. 282). He was able to drive a car alone. (Tr. 283). He went shopping one (1) to two (2) times a week for "as little as possible [because he could not] stand [for] too long." (Tr. 283). His hobbies included watching television, fishing, hunting, camping, wood working, and repairing. (Tr. 283). He went on family outings on a regular basis. (Tr. 284). He could walk for five hundred (500) feet before needing to rest for about five (5) to ten (10) minutes. (Tr. 285). When asked to check what activities his illnesses, injuries, or conditions affected, Plaintiff did not check reaching, sitting, talking, understanding, following instructions, using hands, or getting along with others. (Tr. 285).

         Regarding his concentration and memory, Plaintiff did not need special reminders to take care of his personal needs, but did need reminders to take medicine and go places. (Tr. 282, 284). He could count change, pay bills, handle a savings account, and use a checkbook. (Tr. 283). He could pay attention for about five (5) minutes, was not always able to finish what he started, did not follow written and spoken instructions well, and did not handle stress or changes in routine well. (Tr. 285-286).

         At the initial hearing on September 20, 2012, Plaintiff testified that he was able to take care of his personal needs, shop every other week for "a little bit, " cook with breaks, do the dishes, vacuum and sweep once in a while, maintain his yard with help from his children, drive a vehicle once in a while, and could walk about five hundred (500) yards and stand in one (1) position for no more than fifteen (15) minutes before needing to sit due to pain in his legs and feet. (Tr. 53-56, 62-63). He testified he did not do laundry, was unable to bend over to put on his socks or pick something up, had trouble climbing steps, and did not take out the trash because his "trash can is pretty far away and [he did not] like walking over to it." (Tr. 55-56, 64). He stated he took pain medications that he "guessed" were helping, but that he experienced side effects such as shakiness, sleepiness, and dizziness. (Tr. 56-57). He also would sit down and elevate his feet, but testified that doing so did not take his pain away completely. (Tr. 65).

         With regards to his diabetes, Plaintiff testified that he had taken his blood sugar readings since he was diagnosed, that his highest blood sugar reading was around five hundred (500), and that his lowest blood sugar reading was around ninety-two (92). (Tr. 57). He stated that he was able to tell when his blood sugar was high before even taking a reading because he would feel light-headed and his legs and feet would burn. (Tr. 58). He noted that eating helped to bring his sugar back down, but that he would still have symptoms. (Tr. 58). He testified that he was unable to tell when his sugar was low other than feeling tired and confused. (Tr. 59-60). He stated that he had high blood sugar readings "pretty much every day." (Tr. 60).

         At his remand hearing on April 15, 2014, Plaintiff testified that, since the initial hearing in 2012, due to increased leg numbness resulting from peripheral neuropathy, he underwent surgery to repair the nerves in his legs, which helped for about three (3) months before his symptoms returned in an increased state. (Tr. 33). He stated that the leg pain was "like hitting your thumb with a hammer." (Tr. 34). Plaintiff stated that his leg pain and numbness were constant, that he had "extra pain" about twice a week for four (4) hours at a time, and that he took Vicodin and Methadone for pain relief. (Tr. 35). However, he reported that these medications took only "some of the pain away." (Tr. 35). When his "extra pain" occurred, he had to sit down immediately, and stated that he would not be able to read a newspaper with this type of pain because it was excruciating. (Tr. 36-37). He stated he was able to wash "two whole dishes, " sweep the floors once a week, and "do a little walking around the house." (Tr. 36).


         On May 12, 2011, Plaintiff presented to Mark Pinker, DPM with complaints of burning feet, including sharp, shooting pains that had been occurring "over the past 4-6 months and [were] getting significantly worse." (Tr. 372). The pain was always present, including during weightbearing and non-weightbearing activities, and caused sleep difficulties. (Tr. 372). It was noted that his sugar was high in the "300 hundred range." (Tr. 372). An orthopedic examination revealed no gross deformities in either foot, normal range of motion of the bilateral ankles, ST joint, MT joint and without pain bilaterally except for "ST joint eversion which does elicit discomfort across the balls of both feet near the 5th metatarsal area, " and discomfort upon palpation of both balls of the feet. (Tr. 373). It was noted that Plaintiffs stance and gait were unremarkable although he had some trepidation about "dorsiflexing across the balls of both feet when he walks forward." (Tr. 373). His deep tendon reflexes were intact and symmetrical, and his epicritic sensations were within normal limits to light touch and vibratory sensations. (Tr. 373). Plaintiff was assessed as having uncontrolled Diabetes Mellitus, diabetic peripheral neuropathy, and pain and metatarsalgia in his feet bilaterally. (Tr. 373). It was suggested to Plaintiff that he be evaluated by an Endocrinologist to get his blood sugars under control, to cease smoking and chewing tobacco, and to take Neurontin for the neuropathy in his feet. (Tr. 373). On June 2, 2011, Plaintiff did not show for his follow-up appointment. (Tr. 373).

         On May 13, 2011, Plaintiff had an appointment with Louie Myers, D.O. due to complaints of chest pain, foot pain, and poorly controlled diabetes. (Tr. 382). It was noted that Plaintiff smoked cigarettes. (Tr. 383). Dr. Myers ordered a nuclear stress test due to symptoms "concerning for stable angina." (Tr. 383).

         On June 22, 2011, Plaintiff underwent a chest x-ray. (Tr. 394). This test showed no pleural effusion. (Tr. 394). Plaintiff also had an appointment with Rena C. DeArment, M.D. for Diabetes Mellitus. (Tr. 421). It was noted that Plaintiff's blood sugar levels were uncontrolled and that he had peripheral neuropathy with considerable lower extremity numbness, tingling, and pain. (Tr. 421). His physical examination revealed that he had no edema or calf tenderness in his bilateral lower extremities. (Tr. 422). Plaintiff was assessed as having Diabetes Mellitus- Type 2, and was placed on insulin. (Tr. 422).

         On July 20, 2011, Plaintiff had a follow-up appointment with Dr. DeArment for his diabetes. (Tr. 419). His blood sugar level on the insulin remained "in the 200's" with no lows. (Tr. 419). Plaintiff denied experiencing the following: fatigue, tingling, numbness, and cold and heat intolerance. (Tr. 419). His physical examination was normal. (Tr. 420). Plaintiff was instructed to increase his insulin and to begin mealtime insulin. (Tr. 420).

         On August 15, 2011, Plaintiff had a follow-up appointment with Dr. DeArment for diabetes. (Tr. 417). It was reported that Plaintiffs blood sugar levels remained in the two hundred (200) range with no hypoglycemic episodes and that he continued to have neuropathy in his feet. (Tr. 417). Plaintiff denied experiencing fatigue and cold or heat intolerance. (Tr. 417). Plaintiff was instructed to continue insulin. (Tr. 418).

         On August 31, 2011, Plaintiff underwent a nuclear stress test for the following indications: "exertional CP, CAD, s/p RCA stenting (07), tobacco abuse, diabetes mellitus and hypertension." (Tr. 384). The conclusion of the test was as follows: "Borderline positive pharmacologic stress test for ischemia by EKG criteria. No cardiovascular symptoms. Mildly abnormal myocardial perfusion study. There is a moderate sized area of mild to moderate scarring/ infarction involving the basal/ mid inferior wall." (Tr. 384).

         On September 19, 2011, Plaintiff presented to the Carlisle Regional Medical Center due to generalized abdominal pain. (Tr. 399). An examination revealed Plaintiff was positive for back pain and obesity, had a normal joint range of motion with no swelling, deformities, cyanosis, clubbing, or edema, and had no sensory or motor deficits. (Tr. 399-400). Plaintiff underwent a CT scan of his abdomen and pelvis due to complaints of right flank pain. (Tr. 395). The impression was that there was no obstructive uropathy on the right, that there was evidence of prior left nephrectomy, and that there was epiploic appendigitis adjacent to the splenic fixture. (Tr. 396).

         On November 18, 2011, Plaintiff presented to the Carlisle Regional Medical Center due to complaints of leg swelling and pain that began earlier in the day. (Tr. 407). It was noted that Plaintiff was unable to flex his knees, denied numbness and tingling, rated his pain at a "2/2, " and had warmth over the affected knee. (Tr. 407). Plaintiff was diagnosed with "gout, knee effusion, " and was prescribed pain medications. (Tr. 412).

         On November 29, 2011, Plaintiff had a follow-up appointment with Dr. DeArment for diabetes management. (Tr. 415). Plaintiff reported that his feet still hurt, but that he did not follow up for this problem, and that his blood sugars were routinely below two hundred (200) with no lows. (Tr. 415). He denied heat and cold intolerance and fatigue. (Tr. 415). Plaintiff was prescribed Cymbalta for his neuropathy and was instructed to continue taking his insulin. (Tr. 415).

         On February 21, 2012, Dr. Phelan opined that Plaintiff was permanently disabled based on physical examination and clinical records due to coronary artery disease, diabetes, peripheral neuropathy, gastrointestinal reflux disease, hyperlipidemia, and hypertension. (Tr. 555).

         On May 3, 2012, Plaintiff had an appointment with Dr. DeArment for a follow-up for diabetes. (Tr. 494). He reported he continued to have foot pain, had been sweating from his knees down at night, that his blood sugar levels were in the two hundred (200) range, and that he did not have low blood sugar. (Tr. 494). His physical examination was normal. (Tr. 495). Dr. DeArment increased Plaintiffs insulin dose, and referred him to Dr. Kosenski for his "quite severe" neuropathy. (Tr. 495).

         On July 16, 2012, Plaintiff had an appointment with Marlene Ascione, D.O. as a new patient. (Tr. 538). Plaintiff denied experiencing muscular aches and weakness, and numbness and tingling. (Tr. 539). His examination was normal. (Tr. 538). He was assessed as having the following: controlled Diabetes Mellitus; hypertension; gastroesophageal reflux disease; hypercholesterolemia; coronary artery disease; chronic pain; and cellulitis. (Tr. 538).

         On September 14, 2012, Dr. Phelan completed a "Medical Source Statement of Ability to Do Work-Related Activities (Physical)." (Tr. 502). He opined Plaintiff: (1) could occasionally lift up to twenty (20) pounds maximum; (2) could occasionally carry up to ten (10) pounds maximum; (3) could sit for eight (8) hours, stand for four (4) hours, and walk for three (3) hours at one time without interruption and in an eight (8) hour workday; (3) could continuously for over two thirds (2/3) of the day reach, handle, finger, and feel with bilaterally with his hands; (4) could frequently for one third (1/3) to two thirds (2/3) of the day reach overhead and push and pull bilaterally with his hands; (5) could occasionally up to one third (1/3) of the day operate foot controls bilaterally; and (6) could never climb stairs, ladders, ramps, or scaffolds, balance, stoop, kneel, crouch, or crawl. (Tr. 502-507).

         On October 13, 2012, Plaintiff had an appointment with Mark Stutzman, D.O. after falling and landing on his back days earlier that resulted in low back pain. (Tr. 540). Plaintiff reported that he had been seeing a pain management specialist for his foot neuropathy, and that the Lyrica and Tramadol he was taking to control this problem were helping. (Tr. 540).

         On February 22, 2013, Plaintiff had an appointment at Carlisle Regional Medical Center. (Tr. 565). Plaintiff reported that he continued to have leg pain, numbness, and tingling, and ...

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