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Spencer v. Berryhill

United States District Court, M.D. Pennsylvania

March 9, 2017

Terry Lee Spencer Plaintiff
Nancy A. Berryhill, Acting Commissioner of Social Security Social Security Administration U.S. Dept. of Health & Human Svcs. Defendant


          Honorable Richard P. Conaboy United States District Court

         I. Procedural background.

         We consider here Plaintiff's appeal from an adverse decision of the Social Security Administration (“SSA”) or (“Agency”). The Agency initially denied Plaintiff's application for Disability Insurance Benefits (“DIB”) and Widow's Insurance Benefits (“WIB”) on May 8, 2014 whereupon Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). The Plaintiff ultimately received two hearings, an initial hearing on February 11, 2015 and a supplemental hearing on April 27, 2015. The ALJ issued a decision denying Plaintiff benefits of any kind on April 30, 2015. The ALJ's decision was then affirmed by the Appeals Council by Notice of Action dated February 22, 2016. That Notice of Action constitutes a final decision of the Agency that vests this Court with jurisdiction over Plaintiff's appeal pursuant to 42 U.S.C. § 405(g).

         II. Testimony before the ALJ.

         A. Hearing of February 11, 2015.

         Plaintiff's testimony may be summarized as follows. She was born on June 25, 1956 and was 58 years of age on the date of the hearing. She had been married but was widowed about one year before the hearing. She had been married for nine years. (R.77-78).

         Plaintiff alleged that she became disabled as of September 20, 2011. On that date she was in an automobile accident. She did not go to the hospital on the date of the accident. As the days passed, however, she grew progressively stiffer, had difficulty walking, and began to lose function in her right arm and hand. (R.78-79).

         Plaintiff was employed at the time of her accident. She had been with her employer for more than five years at the time of her injury. At the time she stopped working she had cut her schedule from 60 to 70 hours per week to 20 hours per week due to pain and an inability to work. Her employer wanted her to remain on the job but she quit because of pain and an inability to sit for extended periods. Her place of employment had neither provided for short or long term disability benefits nor provided medical coverage. (R.79-80).

         Plaintiff stated that she was right-handed, 5'4" tall, and weighed 165 pounds. From her disability onset date until the date of her husband's death she lived on her husband's paycheck. She was not covered by health insurance by her husband's employer. She received $108.01 each month from an annuity and, until August of 2014, was getting $1, 000.00 per month from State Farm Insurance Company on an income insurance plan she had purchased while she was working. At the time of the hearing, the Plaintiff's only income was from the aforementioned annuity and assistance from family and friends. She also receives food stamps and has obtained a medical assistance card. She obtained the medical assistance card in October of 2013. (R.80-82).

         Plaintiff is a licensed driver. She completed high school and completed three college level courses afterward. She is fluent in written and spoken English and has good arithmetic skills. She has never been in the military nor has she ever been incarcerated. (R.83-84).

         Plaintiff's primary work had been as a secretary. She worked in a law office and for a heating and air conditioning company. Plaintiff characterized herself as a self-employed independent contractor. She personally did all the record keeping for her business and prepared her own tax returns. (R.85-86).

         In her secretarial work Plaintiff normally lifted no more than 10-15 pounds but occasionally would lift up to 40 pounds in her estimation. At the time of her hearing, Plaintiff was still working on a very limited basis. (R.87-89).

         With regard to her mental health, Plaintiff stated that she had not undergone any inpatient hospitalization for mental health at any time since her alleged onset date, September 20, 2011. She also acknowledged that she had not participated in any intensive outpatient therapy, individual therapy, group therapy, or taken any medications prescribed by a mental health professional since her onset date. She did testify that her family doctor had prescribed “medications for mental health” for approximately four years - - a period starting some six months before her onset date. Plaintiff described her mental health problems as “a lot of stress, hives off and on, anxiety, and nervousness.” She is frequently irritated, angry, and frustrated. Her family doctor has prescribed Wellbutrin to help her with her anxiety but has not otherwise discussed additional treatment that might help her to address her mental health problems. (R.89-91).

         With regard to her spinal problems, Plaintiff stated that she had not undergone any form of spinal surgery or inpatient hospitalization since her onset date. She has, however, received three spinal injections in 2012. Plaintiff explained that the first two injections helped her to some extent but that the third injection did not help her much. She also stated that shortly after she had the third injection her medical coverage expired. She acknowledged that she saw an orthopedic physician at about the same time she received the injections and that he noted her lower back pain was markedly improved. She stated that the orthopedic specialist told her at their last session that she should come back to see him “when the pain got so bad I was crawling.” At no time after she received her medical card in 2013 did she return to see the orthopedic physician nor did she see another orthopedic physician. (R.91-94).

         Plaintiff did undergo a regimen of physical therapy at the “Hetrick Center”. The program had lasted for two months but according to Plaintiff participation in the program actually made her condition worse. At some point, Plaintiff began to see a chiropractor three times each week. When her medical benefits under her auto policy were exhausted, she continued to treat with the chiropractor. The chiropractor is anticipating payment when she settles a claim she has filed against the insurance company of the man whose vehicle struck her. Plaintiff has given a deposition in that case and has undergone an independent medical examination with a “Dr. Mitrick”. Before closing the record the ALJ requested that she be supplied with the deposition transcript and the independent medical examination report before Plaintiff's next hearing. (R.95-100).

         B. Hearing of April 27, 2015.

         Plaintiff's reconvened hearing included further testimony by her and testimony from Brian Bierley, a Vocational Expert (“VE”). Plaintiff's testimony resumed with questioning regarding her carpal tunnel syndrome. She stated that her hands go numb often and it is sometimes painful. She indicated that she has had no treatment specifically for carpel tunnel syndrome but that her doctor has discussed the possibility of surgery with her. She stated that she is still considering whether to have such surgery.

         Plaintiff also stated that there had been no change in her back symptomology. She stated that she had had no surgery or additional trigger point injections since her first hearing some ten weeks earlier. She also denied having any physical therapy or inpatient hospitalizations in the interim. She stated that she had, however, continued treating with her chiropractor and family doctor. Her medications keep her pain somewhat under control but don't work as well at present as they did in 2011. When asked why she had discontinued physical therapy Plaintiff reiterated that she stopped going for physical therapy because it aggravated her symptoms. (R.40-46).

         Plaintiff testified further that in 2012 her typical day consisted of the following: rise between 7 and 8 a.m.; “make coffee and wait for everything to start loosening I would be functional”; shower, dress and drive to work; in the time between getting dressed and leaving for work she would have her breakfast, feed her cats, and let her dogs out; on her drive to work she would stop at a corner store and buy a bottle of water; she would arrive at work around noon, work until 4:00 or 5:00 p.m., and leave for home; on the way home she would stop at the grocery store where her husband worked to say hello for about 15 minutes; upon arriving home she would take a pain pill; later in the evening she would play games on the computer for 30-45 minutes and read for 2-3 hours before retiring for the evening at 11:00 or 11:30 p.m.. (R.47-51).

         When asked what her typical day was like in the summer of 2014, Plaintiff stated that she would rise between 7:00 and 8:00 a.m. She would then make coffee and take her pain pill. After the pain pill would “kick in” she would have breakfast, get dressed and go to see Dr. Smith, her chiropractor, three days each week. Typically, she would leave for the chiropractor about 9:40 a.m. and return to her home about 11:30 a.m. Upon returning home she would take one half of a pain pill, have lunch, and then read for 2-3 hours. Afterward she would nap for the rest of the afternoon. In the evening she would watch television for 5-6 hours and retire around 11:30 p.m. (R.51-54).

         Plaintiff stated that she has been disabled since September 20, 2011 because she is no longer “functional”. She describes her pain as intolerable, says that her hands go numb, and says that she can neither type nor write well anymore. She stated further that the pain in her legs drives her insane and her back pain is so intense she feels like it is on fire. (R.54-55).

         Plaintiff testified that she had not seen an orthopedic specialist or sought out any other specialist for her carpel tunnel syndrome since September of 2013 when she obtained her medical assistance card. She stated that she did not see experts because many of them don't accept the medical card. She testified further that Dr. Endy is encouraging her to see a neurologist but that, on the date of her second hearing - some nineteen months after getting her medical card, she is still looking for a neurologist. (R.55-56). Upon questioning by her attorney, Plaintiff testified that she has lived alone since her husband died. She reaffirmed that her last employment had been as a secretary. Previously she had worked for Decker's Heating and Cooling as a secretary for about two years. She stated that she had worked two jobs simultaneously for much of her life until 2010. At about that time she began to experience pain in her low back for which she received a series of injections. These injections would help for a time but the pain would always return. After having three injections which were at least temporarily helpful she had no others because she had no insurance coverage and no means to pay for them. She acknowledged that she has been in two auto accidents, one in 2011 and one in 2013, and that litigation is pending with respect to each. (R.56-59).

         Plaintiff estimated that she could stand or walk for about 10-15 minutes before she begins to feel pressure in the small of the back which soon becomes pain that radiates down into her right leg. After a while her feet become numb. When she walks she feels unstable and lists to her left side. She can sit in place for 20-30 minutes before she becomes uncomfortable. She stated that she sleeps best when she uses sleeping medications, but she tries not to use them anymore than necessary. When she doesn't take the sleeping medications she doesn't sleep at all. She feels tired during the day whether she uses the sleep medications or not. Her most comfortable position is supine with her right leg propped up on a pillow. (R.60-62).

         Brian Bierley, a vocational expert, also testified. He indicated that he had reviewed Plaintiff's file regarding her work history and had listened to her testimony. He stated that he was familiar with the statutes and regulations regarding vocational considerations and that he would explain any statement he made that did not conform to the Dictionary of Occupational Titles (“DOT”). Mr. Bierley stated that Plaintiff was of “advanced age” with a high school education. He explained that Plaintiff's past work was secretarial in nature and that it would be classified as sedentary/skilled. This occupation requires frequent reaching forward, handling and fingering. The “acquired skills” essential to secretarial work would include operating a keyboard, general office-type activities, maintaining files, and dealing with the public. (R.62-63).

         Mr. Bierley also stated that Plaintiff's work history included bartending. Bartending is “light” work as described but “medium” work as performed. Bartending is considered semi-skilled employment. Frequent reaching in all directions, handling, customer contact and working a cash register are essential tasks of a bartender. (R.63-65).

         The ALJ asked the VE a hypothetical question in which he was asked to assume someone the same age and education as the Plaintiff with similar work experiences. The VE was asked to further assume a person who was capable of “light work” and who could work an eight-hour day taking only “normal breaks”; who had further limitations such that climbing ramps or stairs could be done only occasionally; who could not climb ropes, ladders or scaffolds; who could stoop, kneel, crouch and squat only occasionally, could reach overhead with the right arm only occasionally, and could not repetitively handle and finger with her right hand. The hypothetical question also assumed only occasional exposure to extreme cold and never exposure to large vibrating objects or hazardous machinery. Assuming these limitations, the VE stated that the hypothetical person would be capable of performing the duties of a secretary as actually and customarily performed. The VE also stated that a person with the limitations described in the ALJ's hypothetical question would also be capable of performing as a receptionist. Finally, ...

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