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Gee v. Berryhill

United States District Court, M.D. Pennsylvania

September 15, 2017

DIANA GEE, Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant


          William J. Nealon United States District Judge

         On December 8, 2015, Plaintiff, Diana Gee, 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 applications for disability insurance benefits ("DIB") and supplemental security income ("SSI")[3] 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.


         Plaintiff protectively filed[4] 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).[5] These claims were initially denied by the Bureau of Disability Determination ("BDD")[6] 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.

         Plaintiff 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.

         Plaintiff was born in the United States on August 7, 1968, and at all times relevant to this matter was considered a "younger individual."[7] (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. 164).

         In a 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. 187-190).

         In 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).

         Regarding 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).

         Socially, 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).

         Plaintiff 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).

         During 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. (Tr. 41).

         In 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).

         In 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. 45).


         On July 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).

         On July 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. (Tr. 250).

         On July 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, 268).

         On 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).

         On 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).

         On 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).

         On 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. (Tr. 299).

         On March 14, 2013, Plaintiff underwent another x-ray of her left foot. (Tr. 282). No fractures were found. (Tr. 282).

         On 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).

         On May 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).

         On June 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 ...

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