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Brown v. Berryhill

United States District Court, M.D. Pennsylvania

April 25, 2017

MARK BROWN, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         Pending before the Court is Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”). (Doc. 1.) Plaintiff filed an application for benefits on March 13, 2013, alleging a disability onset date of October 12, 2012. (R. 13.) After Plaintiff appealed the initial denial of the claims, a hearing was held on January 26, 2015, and Administrative Law Judge (“ALJ”) Natalie Appetta issued her Decision on March 6, 2015, concluding that Plaintiff had not been under a disability during the relevant time period. (R. 22.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on July 11, 2016. (R. 1-5.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on September 1, 2016. (Doc. 1.) He asserts in his supporting brief that the Acting Commissioner's determination should be remanded for the following reasons: 1) the ALJ erred in her opinion analysis; and 2) the ALJ's credibility assessment is defective. (Doc. 17 at 3.) After careful review of the record and the parties' filings, the Court concludes this appeal is properly granted.

         I. Background

         Plaintiff was born on April 8, 1962, and was fifty years old on the alleged disability onset date. (R. 23.) He has a GED and past relevant work as a carpenter and maintenance worker. (R. 21.)

         A. Medical Evidence

         William R. Milroth, M.D., was Plaintiff's primary care physician during the relevant time period. (See, e.g., R. 484-86.) His office notes consist primarily of line-entries indicating medications prescribed. (Id.) Plaintiff appears to have seen Dr. Milroth at least monthly from June 2011 through January 2012. (R. 396-99.) Conclusions regarding treatment and medications cannot be ascertained from September 2012 and June 2013 record entries. (R. 486.) December 27, 2013, notes indicated that Plaintiff was self- pay, that he stopped all medications and had been off them for one year due to no insurance, and a Medical Assistance form would be filled out. (Id.) The provider further noted that Plaintiff had “enough money to smoke.” (Id.)

         Approximately one month before Plaintiff's alleged onset date of October 12, 2012, Amatul Khalid, M.D., performed a consultative examination. (R. 418-21.) In his September 18, 2012, patient history, Dr. Khalid noted that Plaintiff's blood sugars had not been checked in four months and he had not been taking his medications since then because he did not have insurance and he was trying to control the diabetes with his diet. (R. 418.) Plaintiff reported that his toes and fingertips were burning but he did not have blurry vision and he had no kidney damage that he knew of. (Id.) Plaintiff also reported left-sided back pain which had started about two years earlier. (Id.) He said x-rays and a bone scan had not found anything to explain the pain, he had been told it was possibly arthritis, he had seen a chiropractor which had made it worse, and he had been on pain pills but was not taking anything for the pain at the time. Plaintiff rated his pain at 4/10 at the time of the visit and said it was worse if he did too much walking or standing. (Id.) Musculoskeletal physical examination showed scoliosis, decreased range of motion with lumbar flexion of 70/90 degrees, decreased left shoulder elevation of 140/150 degrees, left upper extremity decreased muscle strength/tone of 3/5, grip 60% bilaterally, decreased left lower extremity muscle strength/tone of 3/5, and single leg raise of 25 degrees on the left and 55 degrees on the right with pain in the lower back. (R. 420.) Neurologic examination showed decreased vibratory sensation of bilateral lower extremities from the ankle down and bilateral hand tremor at rest and movement. (R. 421.) Dr. Khalid's assessment included the following: Diabetes Mellitus for which Plaintiff had been prescribed Metformin and Levemir four months earlier but he was not on the medications due to cost; diabetic neuropathy; thoracic dextroscoliosis and lumbar levoscoliosis causing chronic back pain; normal gait with some minimal problem getting on and off the exam table or walking heels to toes; and “tremor, essential tremors, with activity and rest, writing is nearly impossible for him.” (Id.)

         Dr. Khalid performed another evaluation on May 21, 2013. (R. 429-32.) In the history portion of his report, he noted that Plaintiff had scoliosis for a long time and arthritis of the spine. (R. 429.) Plaintiff said he had pain in the ankles, knees, hips, and shoulders. (Id.) He rated his pain at rest at 7, it increased with movement, and he did not take pain medications because they did not help. (Id.) Plaintiff said that he was not taking the diabetes medications because he had no money or insurance and could not afford the medication. (Id.) He complained of tingling and numbness in his hands and feet and that they were cold most of the time. (R. 429.) Musculoskeletal examination showed that Plaintiff had a slight limp, upper and lower extremity power 3/5 on both sides, decreased vibration sensation on both hands up to elbows and both legs up to ankles, grip strength of 50%, deep tendon reflexes diminished on both sides, dextroscoliosis of thoracic spine and levoscoliosis of lumbosacral spine, tenderness on exam, straight leg test positive on both sides at 50 degrees, and tremors noted at rest in the left hand. (R. 431.) Neurologic exam showed decreased vibratory sensation on bilateral lower extremities from the ankle down. (Id.) Dr. Khalid's assessment was essentially the same as that rendered in September 2012. (R. 421, 431.)

         In March 2014, Dr. Milroth referred Plaintiff to Jeffrey Small, D.O., for a colonoscopy. (R. 488.) Office notes in March and April include the assessments that Plaintiff had diabetes mellitis “without mention of complication, . . . not stated as uncontrolled.” (R. 488, 493.) The records indicate physical examination showed “[e]xtremities: unremarkable” with no elaboration regarding the extent of the examination performed. (Id.) By history, neuropathy was noted. (R. 475.)

         B. Opinion Evidence

         1. Consultative Examiner

         Dr. Khalid completed a Medical Source Statement of Claimant's Ability to Perform Work-Related Physical Activities on September 24, 2012. (R. 422-27.) He found the following: Plaintiff could lift and carry 2-3 pounds frequently and no more than that occasionally; he could stand and walk for 1-2 hours in an 8-hour day and sit for 1-1½ hours; his abilities to push and pull were limited in the lower extremities because he was unable to feel pedals due to neuropathy; he could occasionally bend, kneel, stoop, crouch, and balance and he could never climb; he was limited in his ability to reach above his head, feel and see; and his impairments were affected by vibration and temperature extremes. (R. 422-23.)

         On the Medical Source Statement of Ability to Do Work-Related Activities (Physical) dated May 21, 2013, Dr. Khalid opined that Plaintiff could lift and carry up to twenty pounds occasionally; without interruption he could sit for one hour at a time, stand for twenty minutes, and walk for thirty minutes; and, in an eight-hour day, he could sit for one hour, stand for thirty minutes, and walk for thirty minutes. (R. 438.) Regarding the use of his hands, Dr. Khalid found that Plaintiff could occasionally reach overhead, could frequently reach otherwise, could frequently handle, could occasionally finger with his right hand and never with his left, and could frequently push and pull. (R. 439.) Regarding the use of his feet, Dr. Khalid opined that Plaintiff could occasionally operate foot controls. (Id.) He concluded that Plaintiff could occasionally climb stairs and ramps, balance, and stoop, and he could never climb ladders or scaffolds, kneel, crouch, and crawl. (R. 440.) Noted environmental limitations were that Plaintiff could never tolerate exposure to unprotected heights, occasionally tolerate exposure to moving mechanical parts and operating a motor vehicle, and at least frequently tolerate exposure to other environmental conditions. (R. 441.) Regarding Plaintiff's ability to perform other activities, Dr. Khalid noted that Plaintiff could not travel without a companion for assistance. (R. 442.)

         2. Treating Physician

         Dr. Milroth completed a Medical Opinion Re: Ability to Do Work-Related Activities (Physical) on November 20, 2011. (R. 482-83.) He made the following findings: Plaintiff could lift and carry less than ten pounds on an occasional basis; he could lift and carry a maximum of ten pounds on a frequent basis; he could stand and walk less than two hours in an eight-hour day; he could sit less than two hours in an eight-hour day; without changing positions, Plaintiff could sit for twenty minutes and stand for twenty minutes; he would need to walk around every thirty minutes for five minutes at a time; he would need to shift at will from sitting or standing/walking; and he would frequently need to lie down. (R. 482.) Dr. Milroth noted that his assessments were supported by medical findings of severe neuropathic pain in Plaintiff's legs, feet, and hands. (Id.) Regarding postural activities, Dr. Milroth concluded that pain in the extremities prevented Plaintiff from climbing ladders, and he could occasionally twist, stoop, crouch, and climb stairs. (R. 483.) He opined that Plaintiff was unable to reach, finger, and push/pull because of pain and his ability to kneel, balance and crawl were also affected. (Id.) Dr. Milroth noted that Plaintiff's symptoms would seldom interfere with the attention and concentration required to perform simple, work-related tasks and Plaintiff would likely miss more than four days per month because of his impairments. (Id.)

         3. Medical Consultants

         State non-examining medical consultants Abu N. Ali, M.D., and Hong S. Park, M.D., provided medical assessments on October 11, 2012, and May 30, 2013, respectively. (R. 77-81, 88-91.) Both doctors opined that Plaintiff could occasionally lift and/or carry twenty pounds; he could frequently lift and/or carry ten pounds; he could stand and/or walk for a total of about six hours in an eight-hour day; and he could sit for a total of about six hours in an eight-hour day. (R. 79, 89.) Dr. Ali opined that Plaintiff had no limitations in his abilities to push and/or pull other than what was shown for lifting and carrying. (R. 79.) Dr. Park opined that Plaintiff's abilities to push and/or pull were limited in both lower extremities. (R. 90.) Dr. Ali found that Plaintiff could occasionally climb ramps/stairs and ladders/ropes/scaffolds, and he could occasionally balance, stoop, kneel, crouch, and crawl. (R. 80.) Dr. Park found the same except he concluded that Plaintiff could never climb ladders, ropes or scaffolds. (R. 90.)

         C. Hearing Testimony

         Plaintiff testified that he had a maintenance job at Hagerstown College from September 2002 to June 2011 and he stopped working because of his back. (R. 38.) At the time of the hearing he said that neuropathy (problems with his feet, hands, and left shoulder) also made it difficult to work a full-time job year round. (R. 40.) He reported that the neuropathy in his hands had been getting worse over the preceding year. (R. 41.)

         ALJ Appetta asked Plaintiff about his medication compliance. (R. 41.) Initially Plaintiff responded that he had been compliant. (Id.) Upon further questioning and the suggestion that Plaintiff may not have taken medication “because you didn't have insurance, ” Plaintiff acknowledged that he had stopped taking medication for a while. (R. 42.) He further explained that he had also stopped briefly when he was feeling better but started again when he was not feeling well and, at the time of the hearing, he was taking medication again. (Id.)

         Regarding activities of daily living, Plaintiff, who lives in an apartment in his parents' house, said that he does a little cooking, does small projects for his parents, and does some grocery shopping. (R. 35, 44.) He testified that he does not lift or carry anything over ten or fifteen pounds, he goes for short walks (up to fifteen or twenty minutes), and standing in place bothers his feet and back. (R. 45.) He estimated that he could stand for up to an hour. (R. 46.) Plaintiff also said he had problems sleeping because of his back. (R. 48.)

         Both the ALJ and Plaintiff's attorney questioned him about work he had done the previous summer at his brother's business. (R. 39-40.) Plaintiff testified that he worked at his brother's seasonal concession business between Memorial Day and Labor Day in 2014. (R. 39.) He worked at most five days a week for eight hours or less and his job was to supervise “kids” who were renting out boats. (R. 39-40.) Plaintiff said he would consider working at the concession again depending on how his back was doing because the sitting and standing on concrete had been difficult. (R. 40.) He also explained that he was able to stretch out in a recliner during the day and he did so at least eight or ten times a day for ten to thirty minutes. (R. 48-49, 54.) Plaintiff said he missed about two or three days a month, primarily when his back was bothering him too much. (R. 49.)

         Plaintiff testified that on a bad day he alternated between sitting in the recliner and standing for five to fifteen minutes, then lying down for up to an hour and a half. (R. 51.) He said his tremors were bilateral and constant, he had trouble writing and baiting fish hooks, and the numbness in his extremities was constant and disrupted his balance. (R. 52.)

         ALJ Appetta asked Vocational Expert Alina Kurtanich (“VE”) to consider a hypothetical individual of Plaintiff's age, education, and work experience who could perform light work with the following limitations:

[n]o climbing ladders, ropes, or scaffolds, can perform other postural maneuvers only occasionally, must avoid hazards such as unprotected heights, or dangerous or moving machinery or parts, and must avoid vibrations such as vibrating machinery, or equipment, and must avoid temperature extremes such as extreme cold or wetness, as well as heat and humidity.

         (R. 61.) The VE testified that such an individual could not perform Plaintiff's past work but jobs existed in the national economy that he could perform such as electronic worker, sorter, and mail clerk. (R. 61-62, 64.) She also testified that there would be no change if the individual required a sit/stand option allowing him to alternate or change positions five minutes of every hour while remaining on task. (R. 62.) ALJ Appetta than asked how employment would be impacted if the individual “needed to lie down or lay in a recliner for roughly an additional hour beyond the scheduled breaks, or what is customarily allowed in terms of breaks.” (R. 63.) The VE responded that the individual would not be ...

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