United States District Court, M.D. Pennsylvania
Honorable Richard P. Conaboy United States District Court
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).
Testimony before the ALJ.
Hearing of February 11, 2015.
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).
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).
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).
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
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
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.
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).
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).
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).
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).
Hearing of April 27, 2015.
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.
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.
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 up...so 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..
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).
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).
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.
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).
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).
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.
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, ...