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Weikel v. Berryhill

United States District Court, M.D. Pennsylvania

April 21, 2017

Tonya Marie Weikel Plaintiff
v.
Nancy A. Berryhill[1]Acting Commissioner of Social Security Defendant

          MEMORANDUM

          Honorable Richard P. Conaboy United States District Judge

         I. Background.

         We consider here Plaintiff's appeal from an adverse decision of the Social Security Administration (“SSA”) on her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”). Plaintiff filed applications for both forms of benefit on March 19, 2013. These claims were initially denied at the administrative level on May 15, 2013 whereupon Plaintiff filed a written request for hearing on September 13, 2013. Plaintiff did receive a hearing before an administrative law judge (“ALJ”) on September 30, 2014. The ALJ issued an unfavorable Notice of Decision on October 7, 2014. Plaintiff then filed an appeal with the Appeals Council. The Appeals Council ratified the ALJ's denial of benefits by decision dated June 8, 2016. The Appeals Council's denial prompted Plaintiff to file an appeal with this Court by timely complaint dated August 4, 2016.. This Court has jurisdiction over this appeal pursuant to 42 U.S.C. § 405(g).

         II. Testimony Before the ALJ.

         On September 30, 2014, Plaintiff had her hearing before the ALJ. Plaintiff testified as did Michelle Georgio, a vocational expert (“VE”). Plaintiff was represented at this hearing by her attorney, Barbara Feudale.

         A. Plaintiff's Testimony.[2]

         Plaintiff's testimony may be summarized as follows. She resides in Girardville, Pennsylvania with her fiancee and her daughter. She and her fiancee have been together for 13 years. Her fiancee works day shift from 8:00 a.m. to 4:00 p.m. from Monday through Friday. While her fiancee is at work, Plaintiff cares for her daughter who at the time of the hearing was three years of age.

         By her own estimation, Plaintiff can lift and carry her daughter, who weighs about 35 pounds, but at times finds this difficult because of complications with her feet. Plaintiff states that 35 pounds is about the limit of what she can lift or carry. She can remain on her feet for variable amounts of time depending upon whether she is experiencing a “flare-up”. These flare-ups last for about half and hour.

         After her alleged onset date (December 18, 2012) Plaintiff worked briefly as a telemarketer at a shopping mall. She was not able to maintain that employment because she was having difficulty hearing over the phone and she was just too nervous. She wears hearing aids but has lost the one for her right ear. She can compensate for her hearing deficit by reading lips.

         Plaintiff has been affected by psoriasis for seven years. She has used Enbrel injections for her psoriasis as well as Clobetasol ointment. The psoriasis affects her feet and hands and when she experiencing exacerbations she wears gloves on her hands. She acknowledged that, although Enbrel helps her condition, she did not use it for an extended period of time at one point. She stated that the injections, which she administers herself, burn and she dislikes injecting herself.

         Plaintiff last saw a dermatologist one month before her hearing. She has also taken Lithium for anxiety but stopped taking it because her research indicated that Lithium can cause psoriasis. At one point she concluded that she was on too many medications and stopped all medication but for Seroquel. Currently, she is taking Effexor, Prilosec, and Lamictal. She also continues to use Clobetasol ointment.

         Plaintiff testified that she sees a Dr. Khan for mental health concerns every three months. He manages her medications. She also sees a counselor for therapy. The counselor has been seeing Plaintiff for seven years. Plaintiff feels that these counseling sessions help her. She states that, while she takes care of her young daughter all day, at times she has a bad day that makes it very hard to function in her role as a care giver. When she isn't home with her daughter, she usually goes to visit her mother who lives only two or three blocks away. She can drive to the store to get groceries and goes to her counseling sessions alone.

         Plaintiff is restricted to a low protein diet because she has been diagnosed with phenylketonuria (“PKU”).[3] She drinks a special fortified milk that is high on “good protein” and low on “bad protein”. She eats cheese but avoids meat and eggs because of the amount and type of protein they provide.

         Upon questioning by her lawyer, Plaintiff stated that when she is in a setting where there is a lot of background noise, her hearing problems are magnified and she must read lips. She experiences swelling of her hands and feet due to her psoriasis and this happens almost every day. At times her feet crack and bleed forcing her to walk on her toes. Plaintiff also stated that she has arthritic pain in her hands. She does acknowledge that this pain has been alleviated since she began taking Enbrel and Humira. The pain occasionally comes and goes.

         Plaintiff states that she has been diagnosed with explosive personality disorder but she acknowledges that recently her problems with anger have lessened. She stated that her biggest mental problem is the fear that she will do something wrong. She feels this fear all the time but being in her mother's company helps her feel more secure. Her mother is available to help her care for her daughter when she feels the need for such assistance. The final problem the Plaintiff identified was restless leg syndrome. She states that without the medicine she would fidget all night. When taking the prescribed medication these symptoms improve.

         B. Testimony by the VE.[4]

         Michelle Georgio, Vocational Expert, also testified. Ms. Georgio indicated that the records she had reviewed regarding Plaintiff's prior employment were incomplete. The ALJ suggested that the VE question Plaintiff directly to better understand her employment background. Plaintiff's counsel had no objection to the VE functioning in this way. Upon questioning by the VE, Plaintiff testified that she worked as a vinyl window welder for a window manufacturer from 2004 through 2006. In this job she welded, cleaned the glass, and installed the glass in the window frames. The entire window assembly weighed 30-40 pounds. After hearing the Plaintiff's explanation of the tasks she had performed in this job, the VE classified the job as a “production spot welder” and specified that it was “medium/unskilled” employment.

         The ALJ asked the VE to respond to a hypothetical question that assumed a person of the same age, education and work experience as the Plaintiff with limitations including: (1) the capability of performing only sedentary work; (2) the inability to climb ladders or scaffolds; (3) the inability to operate levers or foot pedals; (4) no exposure to dangerous machinery or protected heights; (5) exposure to no more than moderate noise levels; (6) a work environment without fast-paced production quotas involving only simple routine tasks, simple work-related decisions, and few work place changes; and (7) a work environment that involves no more than occasional interaction with supervisors, co-workers, or the public. Assuming these restriction, the VE opined that such a hypothetical person could not perform Plaintiff's last relevant employment as a production spot welder. The VE did state, however, that the hypothetical person would be able to perform three representative jobs (sorter, sampler, or inspector) that exist in significant numbers in the national economy.

         The VE stated that there would be no erosion of the hypothetical person's ability to perform these jobs even when the ALJ imposed an additional limitation such that the hypothetical person would need to work with medical gloves covering her hands. The VE certified further that her testimony was consistent with the Dictionary of Occupational Titles and her professional experience as to how the jobs she identified are customarily performed.

         III. Mental Impairment Evidence.

         Plaintiff saw Kathleen McDonald-Gilfer, a Licensed Professional Counselor, on at least five occasions between April 4, 2013 and September 1, 2014. Ms. McDonald-Gilfer diagnosed Plaintiff with bipolar I disorder, generalized anxiety disorder, and borderline personality disorder. At various times during Ms. McDonald-Gilfer's counseling relationship with Plaintiff, she assessed GAF (Global Assessment of Function) scores ranging from 48-52. During the time Plaintiff was seeing Ms. McDonald-Gilfer she was taking Lithium but she was non-compliant with the medication at times. (R.271-233).

         Plaintiff also treated with a Dr. Kahn from July of 2013 through September of 2014. During that time, Dr. Kahn saw Plaintiff on at least five occasions. Dr. Kahn diagnosed Plaintiff to be suffering from bipolar disorder NOS. Yet, his office notes of his sessions with Plaintiff indicate that she was consistently alert with cognition grossly intact, possessed of normal attention and concentration, presented with normal appearance, behavior and speech, exhibited goal-directed thought process, exhibited fair insight and judgement, and did not exhibit homicidal ideation, hallucinations, delusions, psychoses, or obsessions. On three occasions (July 22, 2013, September 24, 2013, and August 26, 2014) Plaintiff's mood was dysthymic[5] and irritable. During his relationship with Plaintiff Dr. Khan assessed her GAF ...


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