United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge
December 8, 2015, Plaintiff, Diana Gee, filed this instant
appeal under 42 U.S.C. § 405(g) for review
of the decision of the Commissioner of the Social Security
Administration ("SSA") denying her applications for
disability insurance benefits ("DIB") and
supplemental security income ("SSI") under Titles II
and XVI of the Social Security Act, 42 U.S.C. § 1461, et
seq and U.S.C. § 1381 et seq. respectively. (Doc. 1).
The parties have fully briefed the appeal. For the reasons
set forth below, the decision of the Commissioner denying
Plaintiffs applications for DIB and SSI will be vacated.
protectively filed her applications for DIB and SSI on
November 8, 2012, alleging disability beginning on July 4,
2012, due to a combination of "left foot problems,
arthritis (upper back)." (Tr. 15, 176,
179). These claims were initially denied by the
Bureau of Disability Determination
("BDD") on February 6, 2013. (Tr. 15). On March
11, 2013, Plaintiff filed a written request for a hearing
before an administrative law judge. (Tr. 15). A video hearing
was held on March 24, 2014, before administrative law judge
F. Patrick Flanagan, ("ALJ"), at which Plaintiff
and impartial vocational expert Linda Vause,
("VE"), testified. (Tr. 15). On August 4, 2014, the
ALJ issued a unfavorable decision denying Plaintiffs DIB and
SSI applications. (Tr. 15-24). On August 13, 2014, Plaintiff
filed a request for review with the Appeals Council. (Tr.
11). On November 4, 2015, the Appeals Council concluded that
there was no basis upon which to grant Plaintiff s request
for review. (Tr. 1-6). Thus, the ALJ's decision stood as
the final decision of the Commissioner.
filed the instant complaint on December 8, 2015. (Doc. 1). On
April 11, 2015, Defendant filed an answer and transcript from
the SSA proceedings. (Docs. 11 and 12). Plaintiff filed a
brief in support of her complaint on May 9, 2016. (Doc. 16).
Defendant filed a brief in opposition on July 12, 2016. (Doc.
19). Plaintiff did not file a reply brief.
was born in the United States on August 7, 1968, and at all
times relevant to this matter was considered a "younger
individual." (Tr. 175). Plaintiff graduated from high
school in 1987, and can communicate in English. (Tr. 176,
180). Her employment records indicate that she previously
worked as a cashier, housekeeper, laborer in a factory, and a
waitress. (Tr. 181). The records of the SSA reveal that
Plaintiff had earnings in the years 1987 through 1991, 1996,
1998 through 2000, and 2002 through 2012. (Tr. 164). Her
annual earnings range from a low of thirty-seven dollars and
fifty cents ($37.50) in 1988 to a high of thirteen thousand
sixty-six dollars and five cents ($13, 066.05) in 2008. (Tr.
document entitled "Function Report - Adult" filed
with the SSA on December 20, 2012, Plaintiff indicated that
she lived in an apartment with her family. (Tr. 186). From
the time she woke up to the time she went to bed, Plaintiff
would "do what [she] could, like clean, cook, take care
of [her] son, go to the store ..." (Tr. 187). She took
care of her son by herself as she was a single parent. (Tr.
187). She had no problems with personal care, prepared meals
daily for her son "as simple as possible because [she
could not] stand for a long time, " and, with help,
cleaned, cooked, went to the store two (2) to three (3) times
a month for at least two (2) hours, and did laundry
"with a lot of breaks in between everything." (Tr.
terms of physical abilities and limitations, she noted that:
(1) she tried "not to lift anything heavy because it
hurt [her back];" (2) she could stand for "maybe
ten minutes before [she started] to hurt and have to sit
down;" (3) she could walk "very short distances
because of the pain;" (4) she had "no problem"
with sitting; (5) she could kneel but had "a hard time
getting up;" (6) she could not squat "for
long;" and (7) she had "no problem" reaching,
using hands, seeing, hearing, or talking. (Tr. 191-192). She
was able to walk "maybe 200 feet" before needing to
stop and rest for "a couple of minutes' before
resuming walking. (Tr. 193). She noted an air cast was
prescribed by a doctor for walking, but that it did not
"help at all." (Tr. 193).
concentration and memory, Plaintiff did not need special
reminders to take care of her personal needs, take her
medicine, or attend her appointments. (Tr. 188, 190). She
could pay bills, handle a savings account, and count change.
(Tr. 190). She did not have problems paying attention and
could follow written and spoken instructions, but was not
able to finish what she started "because of the
pain." (Tr. 193). She noted that stress or changes in a
schedule did not affect her, and that she did not have
trouble remembering things. (Tr. 194).
Plaintiff went outside "maybe three times a week, "
drove or rode in a car when she went out, and was able to go
out alone. (Tr. 189). Her hobbies included reading, watching
television, sewing, taking walks, and playing with her son,
and she noted that she did these activities "a
lot." (Tr. 190). She spent time with others every day on
the computer and on the phone. (Tr. 191). She noted that
since her illnesses, injuries or conditions began, she did
not "go anywhere unless [she] need[ed] to." (Tr.
191). She did not have problems getting along with family,
friends, neighbors, authority figures, or others. (Tr. 191).
also completed a questionnaire for her pain. (Tr. 194-196).
She stated that her foot pain began in July 2012 and her back
pain in 2007. (Tr. 194). She indicated she did not have
special tests to evaluate her pain. (Tr. 194). Plaintiff
described the pain in her left foot as an ache when not
"on it" and as stabbing when "on" it, and
noted that she stayed off of her left foot as much as
possible to relieve the pain. (Tr. 194, 196). Plaintiff
described the pain in her back as being located from the
"middle of [her] back down, " and as a stabbing
ache that occurred "all the time." (Tr. 194).
the administrative hearing on March 24, 2014, Plaintiff
testified that she was disabled due to problems with her left
foot and back pain. (Tr. 39-40). Regarding her left foot, she
testified that, on July 4, 2012, she twisted it and went to
the emergency room, where she was diagnosed with an ankle
sprain. She stated that, at the time of her hearing, she was
still having pain, and that it ached if she walked on it too
much, but that it was "comfortable" when she was
sitting or not putting weight on it. (Tr. 39). She testified
that, regarding her back pain, it was located in between in
shoulder blades toward her neck. (Tr. 40). She stated that,
to relieve her pain, she went to a chiropractor and took
prescription pain medication and Gabapentin. (Tr. 40). She
testified that, other than stomach pains when she was on too
high of a dosage, she had no side effects from Gabapentin.
terms of limitations, Plaintiff testified that, because of
her back pain: she was able to stand and/ or walk for fifteen
(15) to twenty (20) minutes maximum; she had difficulty
reaching with her arms; she was able to sit for ten (10)
minutes before needing to adjust her position; and she could
lift and/ or carry up to ten (10) pounds comfortably without
hurting her back. (Tr. 42, 51).
terms of daily activities, Plaintiff stated that she was able
to perform household chores for five (5) minutes before
needing to sit down to rest for fifteen (15) minutes before
continuing. (Tr. 43-44). She testified that she was able to
take care of her own personal needs without any difficulty
and that she tried to walk regularly, which involved walking
around her apartment building two (2) or three (3) times.
(Tr. 44, 47). Her hobbies included reading while resting from
doing household chores. (Tr. 45). She described a typical day
as waking up, getting her four (4) year old son to school,
and completing household tasks while her son was at school
with breaks every fifteen (15) to twenty (20) minutes. (Tr.
4, 2012, Plaintiff presented to the emergency room
("ER") at Soldiers and Sailors Memorial Hospital
after her left foot became stuck between a boat and the dock
while she was stepping onto the boat. (Tr. 261). Plaintiff
reported that her pain was mild and that it occurred with
weight bearing activities. (Tr. 261). An examination revealed
swelling of the left ankle with tenderness and limited range
of motion secondary to pain. (Tr. 261-262). An x-ray of
Plaintiff s left foot and ankle was performed, and the
impression was that there was no evidence of fracture
dislocation, but that there was soft tissue swelling in the
left ankle, and also revealed calcaneal spurs. (Tr. 267).
Plaintiff was diagnosed with a sprained left ankle. (Tr.
262). She was instructed to apply ice intermittently four (4)
to six (6) times daily, to wear a splint as needed, and to
elevate her the affected area. (Tr. 262). Upon discharge,
Plaintiff reported that her pain level was a two (2) out
often (10). (Tr. 264).
12, 2012, Plaintiff had an appointment at Elkland Laurel
Health Center ("ELHC") for a follow-up of her visit
to the ER due to foot pain. (Tr. 249). Plaintiff reported she
still had pain and swelling localized to the medial ankle.
(Tr. 249). An examination revealed Plaintiffs left ankle was
swollen and tender, and had a decreased range of motion on
inversion and eversion and a positive squeeze test to the
metacarpals. (Tr. 250). Plaintiff was prescribed a walking
boot to wear daily and was instructed to apply ice three (3)
times daily to the affected area, to perform range of motion
exercises, and to see an Orthopedist if her pain persisted.
13, 2012, Plaintiff underwent an x-ray of her left foot and
ankle. (Tr. 252). The impression was that Plaintiff had
calcaneal spurs and resolving soft tissue swelling. (Tr. 252,
August 13, 2012, Plaintiff visited the ER at Soldiers and
Sailors Memorial Hospital for eye pain and redness. (Tr.
254). A physical examination performed by Andrew Sayre
revealed mild tenderness in her left foot with limited
ability to bear weight secondary to pain. (Tr. 255). There
was no mention of an examination of Plaintiff s back or upper
extremities in the notes from the visit prepared by either
Dr. Sayre or Martha Williams, RN, ("Nurse
Williams"). (Tr. 255-256). Dr. Sayre diagnosed Plaintiff
with acute blepharitis. Plaintiff was discharged with no
activity restrictions, according to the notes of both Dr.
Sayre and Nurse Williams. (Tr. 257).
January 9, 2013, Plaintiff underwent an examination performed
by Frank Norsky, M.D. due to persistent left foot pain and
chronic low back pain. (Tr. 270). It was noted Plaintiff was
able to do housework, shop, drive a car, and walk "at
least a two block distance." (Tr. 271). Her physical
examination revealed a normal gait and station; no
deformities of her lumbar spine; a normal range of motion in
forward flexion and extension of the lumbar spine; and morbid
obesity. (Tr. 271). She was diagnosed with morbid obesity,
and it was noted that her "prognosis for resumption of
physical activities depended on the control of her
weight." (Tr. 271).
March 3, 2013, Plaintiff presented to the ER at Saint James
Mercy Hospital, where she was diagnosed with morbid obesity,
mild asthma, and sepsis secondary to acute bilateral
exudative tonsillitis and right breast fold cellulitis. (Tr.
293). Her physical examination revealed 5/5 muscle strength
symmetrically with no edema. (Tr. 295). She was discharged on
March 7, 2013. (Tr. 293).
March 13, 2013, Plaintiff had an appointment with John
Halpenny, M.D. for left foot pain and ankle problems. (Tr.
299). It was noted that Plaintiff: was limping on her left
leg; had slight swelling of the left foot; had tenderness
over the lateral side of the foot; had weakness of dorsi
flexion and eversion; had good range of motion in the left
ankle; and had a palpable pedal pulse. (Tr. 299). An x-ray of
her left foot and ankle was ordered to check for a fracture.
March 14, 2013, Plaintiff underwent another x-ray of her left
foot. (Tr. 282). No fractures were found. (Tr. 282).
March 27, 2013, Plaintiff had a follow-up appointment with
Dr. Halpenny for bilateral foot pain. (Tr. 301). It was
reported that Plaintiff had: a slight limp; tenderness over
the dorsum of left foot; a good range of motion with mild
discomfort; pain on inversion and dorsi flexion against
resistence; and an unremarkable x-ray of her foot. (Tr. 301).
21, 2013, Plaintiff had an appointment with treating
physician Adrian Ashburn, M.D. due to "longstanding pain
at the base of the neck for the past couple of years which
seems to be getting progressively worse." (Tr. 323).
Plaintiff reported the pain in her neck as "a cross
between a toothache and tingling." (Tr. 323). A physical
examination revealed: full range of motion in the neck;
tender paravertebral muscles at the base of the neck and
thoracic spine; and normal and symmetrical upper extremity
sensation, tone, and power. (Tr. 323).
11, 2013, Plaintiff had a follow-up appointment with Dr.
Ashburn for neck pain. (Tr. 320). It was noted that Plaintiff
had not noticed any improvement since starting physical
therapy, and that she complained of a burning sensation from
her neck to her mid-back. (Tr. 320). Dr. Ashburn assessed
Plaintiff as being obese and having neck and upper back pain
in the area of the trapezius muscle. (Tr. 320). Dr. Ashburn