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Harper v. Berryhill

United States District Court, M.D. Pennsylvania

August 29, 2017

KAREN HARPER, Plaintiff
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant

          MEMORANDUM

          William J. Nealon United States District Judge

         On December 2, 2015, Plaintiff, Karen Harper, filed this instant appeal[2]under 42 U.S.C. § 405(g) for review of the decision of the Commissioner of the Social Security Administration (“SSA”) denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 1461, et seq. and her application for supplemental security income (“SSI”)[3] under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiff's application for DIB and SSI will be vacated.

         BACKGROUND

         Plaintiff protectively filed[4] her applications for DIB and SSI on November 7, 2012, and November 8, 2012, respectively, alleging disability beginning on October 12, 2012, due to a combination of “fibromyalgia, asthma, high blood pressure, and migraines.” (Tr. 18, 168).[5] These claims were initially denied by the Bureau of Disability Determination (“BDD”)[6] on December 21, 2012. (Tr. 18). On March 8, 2013, Plaintiff filed a request for an oral hearing. (Tr. 18). On February 4, 2014, an oral hearing was conducted by administrative law judge Susan L. Torres, (“ALJ”), at which Plaintiff and impartial vocational expert Michele C. Giorgio, (“VE”), testified. (Tr. 18). On March 13, 2014, the ALJ issued a decision again denying Plaintiff's applications for SSI and DIB. (Tr. 18-29). On May 8, 2014, Plaintiff filed a request for review with the Appeals Council. (Tr. 9). On November 13, 2015, the Appeals Council denied Plaintiff's appeal, thus making the decision of the ALJ final. (Tr. 1-3).

         Plaintiff filed the instant complaint on December 2, 2015. (Doc. 1). On March 9, 2016, Defendant filed an answer and transcript from the SSA proceedings. (Docs. 9 and 10). Plaintiff filed a brief in support of her complaint on April 21, 2016. (Doc. 12). Defendant filed a brief in opposition on May 16, 2016. (Doc. 13). Plaintiff filed a reply brief on May 31, 2016. (Tr. 14).

         Plaintiff was born in the United States on December 7, 1962, and at all times relevant to this matter was considered an “individual closely approaching advanced age.”[7] (Tr. 164). Plaintiff graduated from high school in 1980, and can communicate in English. (Tr. 167, 169). Her employment records indicate that she previously worked in a sewing factory as a cutting room supervisor and quality control supervisor and at a non-profit organization as a warehouse supervisor. (Tr. 170).

         In a document entitled “Function Report - Adult” filed with the SSA on November 26, 2012, Plaintiff indicated that she lived in a house with her family. (Tr. 181). When asked how her illnesses, injuries, or conditions limited her ability to work, she stated that she was in constant pain regardless of whether she was sitting or standing, that she could not stay in one (1) position for any extended period of time, and that the numbness in her hands limited her ability to use them. (Tr. 181). From the time she woke up to the time she went to bed, Plaintiff would “shower, clean, get on computer.” (Tr. 181). She was able to slowly take care of personal care tasks such as dressing and bathing, shopped for groceries two (2) to three (3) times a week for one (1) to two (2) hours at a time, performed housework, and prepared meals, but indicated it took her “a lot longer” to do these activities because of pain. (Tr. 182-183, 191). She indicated she had to walk very slowly and had to rest for five (5) minutes before resuming walking. (Tr. 185). When asked to check items which her “illnesses, injuries, or conditions affect, ” Plaintiff did not check talking, hearing, seeing, memory, completing tasks, concentration, understanding, following instructions, or getting along with others. (Tr. 185).

         Regarding concentration and memory, Plaintiff did not need special reminders to take care of her personal need or to go places, but did need special reminders to take her medicine. (Tr. 184, 191). She could pay bills, use a checkbook, count change, and handle a savings account. (Tr. 183). She could pay attention for “a long time, ” followed written and spoken instructions well, was able to finish what she started, and handled stress and changes in routine well. (Tr. 185-186).

         Socially, Plaintiff went outside two (2) to three (3) times daily. (Tr. 183). She indicated that she was able to travel alone by walking, driving a car, and riding in a car. (Tr. 183). She did not go anywhere on a daily basis. (Tr. 184). Her hobbies included using the computer and “games.” (Tr. 184). She spent time with her grandchildren a few times a week. (Tr. 184).

         Plaintiff also completed Supplemental Functional Questionnaires for fatigue and pain. (Tr. 188-190). In terms of fatigue, Plaintiff indicated that it began with the onset of her Fibromyalgia, had increased since it began, was worse about an hour after she took her medications, occurred daily, varied in the length of time it lasted, and was relieved by rest. (Tr. 188). In terms of pain, Plaintiff indicated that it began one (1) year prior; was constant; occurred in her wrists, hands, knees, hips, feet, and ankles; had increased since it began; worsened with walking, sitting, and using stairs; was relieved for a few hours with medication; and was relieved by hot baths. (Tr. 189-190).

         At her oral hearing on February 4, 2014, Plaintiff testified that she was unable to work due to pain from Fibromyalgia. (Tr. 69). She testified that her pain level was constantly between a five (5) and a six (6) out of ten (10), that her pain was “everywhere, ” and that it never went away. (Tr. 69). The medications she was taking for pain included a Fentanyl patch, Tramadol, Gabapentine, and Vicodin. (Tr. 70). The side effects from these medications included drowsiness, dizziness, and difficulty sleeping. (Tr. 70). Because of difficulty sleeping, Plaintiff testified that she napped three (3) to four (4) times a day for anywhere from one (1) to ten (10) hours at a time. (Tr. 71). She stated she would be dizzy upon standing and it would take her three (3) to five (5) minutes before sheh was able to walk, and that she was able to walk three (3) to six (6) feet before she would start shaking in her hands and legs. (Tr. 71-72). She testified that she was unable to walk on her own completely. (Tr. 72). She stated that cooking and laundry took her twice as long, and she needed help with getting dressed, stabilizing in the shower, and getting in and out of the shower. (Tr. 72). She also needed help using the stairs, and if someone was not there to help her, she would crawl on the stairs. (Tr. 73). She testified that she also experienced symptoms such as nausea, frequent urination, easy bruising, loss of appetite, ringing in her ears, vomiting, and numbness in her hands and feet that caused an inability to pick up or open items. (Tr. 74-76). She testified that she was unable to drive and lift things because of pain and that her short-term memory was not good. (Tr. 77-78). Plaintiff also testified that she had asthma, acid reflux, and hypertension. (Tr. 77-78).

         MEDICAL RECORDS

         On November 29, 2012, Plaintiff had an appointment with Theresa Tarquinio, PA-C due to pain from Fibromyalgia. (Tr. 476). Plaintiff rated her pain at a five (5), reported it was constant and worsening, that it originated in her shoulders and radiated to her neck where the pain was aching and throbbing in nature. (Tr. 476). She reported that her pain was aggravated by lifting and movement, was not relieved by anything, and was associated with difficulty initiating sleep, joint tenderness, and nocturnal awakening. (Tr. 476). Her physical examination revealed normal respiratory effort; normal range of motion, muscle strength, and stability in all extremities with tender trigger points in her bilateral deltoids, scapula, and spine; no edema or sensory loss; an intact memory; and preserved and symmetric deep tendon reflexes. (Tr. 478). Plaintiff was prescribed a Prednisone burst and her Neurontin dosage was increased. (Tr. 478).

         On December 13, 2012, Plaintiff had an appointment with Theresa Tarquinio, PA-C for a follow-up of arthritic pain, hypertension, weight gain, and fatigue. (Tr. 472). It was noted that Plaintiff was taking Gabapentin, was on a low dose of Prednisone that did not help her pain, and that a recent ANA test was positive. (Tr. 472). Plaintiff stated that the worst pain was in her bilateral shoulders. (Tr. 472). Her physical examination revealed forced expiratory wheezing; normal range of motion muscle strength and stability in all extremities with pain with palpation of the bilateral deltoids and bilateral pectoral and trapezius muscles; no edema; and an intact memory. (Tr. 474). Plaintiff's Gabapentin dose was increased for pain and she was instructed to monitor her blood pressure at home. (Tr. 474).

         On January 8, 2013, Theresa Tarquinion, PA-C opined that Plaintiff was temporarily disabled from December 1, 2012 to December 1, 2013 due to Fibromyalgia, Asthma, Hypertension, and Depression. (Tr. 315-316). Her opinion was based on physical examination. (Tr. 315).

         On March 7, 2013, Plaintiff presented to the Emergency Room at Muncy Valley Hospital due to complaints of shortness of breath and wheezing. (Tr. 366). Her physical examination revealed moderate respiratory distress with accessory muscle use and tachypnea. (Tr. 371). Plaintiff was diagnosed with an upper respiratory infection and an exacerbation of Chronic Obstructive Pulmonary Disease, was prescribed medications, and was discharged the same day. (Tr. 364). Plaintiff was also advised to stop smoking. (Tr. 364).

         On May 5, 2013, Plaintiff had an appointment with Theresa Tarquinio, PA-C for “a review of her chronic problems. She has not been able to followup regularly due to no insurance.” (Tr. 467). Her physical examination revealed a normal respiratory effort with mild wheezing; a “gingerly” gait; tenderness in the cervical, thoracic, and lumbar spine; tenderness on both sides of the spine, deltoids, anterior thighs, and buttocks; no edema; and an intact memory. (Tr. 469). Plaintiff was encouraged to walk even when in pain, and was instructed to quit smoking. (Tr. 470).

         On May 9, 2013, Plaintiff had a follow-up appointment with Theresa Tarquinio, PA-C. (Tr. 463). Plaintiff reported she would start patches for smoking cessation, that she had been doing well with her medications, that she had been walking daily, and that she was “doing better.” (Tr. 463). Her physical examination revealed a normal respiratory effort; normal range of motion, muscle strength, and stability in all extremities with no pain on inspection; and an intact memory. (Tr. 465).

         On May 20, 2013, Plaintiff presented to the Emergency Room at Muncy Valley Hospital due to complaints of a migraine headache. (Tr. 340). A physical examination revealed no motor or sensory deficits, speech within normal limits, movement of all extremities equally, normal range of motion in the extremities, and “ambulatory to room.” (Tr. 341). Plaintiff was diagnosed with sinusitis after a CT scan of her head revealed left ethmoid sinusitis, and was discharged the same day. (Tr. 339, 346, 353).

         On June 10, 2013, Plaintiff had an appointment with Theresa Tarquinio, PA-C due to complaints of wheezing, pain, and uncontrolled blood pressure. (Tr. 458). It was noted that “[o]verall appearance is chronically ill-appearing.” (Tr. 460). Her physical examination revealed a normal respiratory effort; normal range of motion, muscle strength, and stability in all extremities with point tenderness on both sides of the spine, anterior and posterior chest wall, and the large muscle groups of the upper and lower bilateral extremities; no edema; preserved and symmetric deep tendon reflexes; and an intact memory. (Tr. 460). Plaintiff's Tramadol dose for Fibromyalgia and Flovent for Asthma were increased. (Tr. 460-461).

         On July 9, 2013, Plaintiff had an appointment with Theresa Tarquinio, PA-C due to complaints of increased memory loss and edema in her legs, hands, and face. (Tr. 452). Plaintiff reported that she could not remember “anything that occurred 15 min ago. She has good recall of events that led up to edema.' (Tr. 452). Her physical examination revealed a normal respiratory effort; normal range of motion, muscle strength, and stability in all extremities with no pain on inspection; edema in her bilateral lower extremities; preserved and symmetric deep tendon reflexes; and an intact memory. (Tr. 454). Plaintiff was instructed to avoid salt in order to help the edema. (Tr. 455).

         On August 20, 2013, Plaintiff had an appointment with Theresa Tarquinio, PA-C due to complaints of insomnia and pain. (Tr. 443). She was assessed as having chronic arthralgia helped by Gabapentin. (Tr. 443). Her physical examination revealed a normal respiratory effort; normal range of motion, muscle strength, and stability in all extremities with no pain on inspection; and an intact memory. (Tr. 445). Plaintiff was assessed as having arthralgia, and was told that the Gabapentin may be causing the problems with memory that she had been having. (Tr. 446).

         On September 3, 2013, Plaintiff had an appointment with Theresa Tarquinio, PA-C due to complaints that “her memory is bad.” (Tr. 438). Her physical examination revealed a mild wheeze; normal range of motion, muscle strength, and stability in all extremities with multiple trigger points tender to palpation; no edema; intact balance and gait; intact coordination; grossly intact cranial nerves; intact memory; and grossly normal intellect. (Tr. 440). It was explained to Plaintiff that her mild amnesia was ...


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