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Koger v. Berryhill

United States District Court, M.D. Pennsylvania

October 11, 2017

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


          William J. Nealon United States District Judge

         On January 16, 2016, Plaintiff, Melissa Koger, 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 42 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 Plaintiff's applications for DIB and SSI will be vacated.


         Plaintiff protectively filed[4] her applications for DIB and SSI on September 23, 2012, alleging disability beginning on August 4, 2012, due to a combination of “Major Depression, Panic Disorder with Agoraphobia, Diabetes, Hypertension, Hypothyroidism, allergies, and Polycystic Ovarian Syndrome.” (Tr. 12, 176).[5]These claims were initially denied by the Bureau of Disability Determination (“BDD”)[6] on October 25, 2012. (Tr. 12). On December 14, 2012, Plaintiff filed a written request for a hearing before an administrative law judge. (Tr. 12). On April 16, 2014, an oral hearing was held before administrative law judge Daniel Myers, (“ALJ”), at which Plaintiff and vocational expert Andrew Caporale, (“VE”), testified. (Tr. 12). On July 23, 2014, Plaintiff filed a request for review with the Appeals Council. (Tr. 8). On December 28, 2015, the Appeals Council concluded that there was no basis upon which to grant Plaintiff's request for review. (Tr. 1-7). Thus, the ALJ's decision stood as the final decision of the Commissioner.

         Plaintiff filed the instant complaint on January 6, 2016. (Doc. 1). On April 4, 2016, Defendant filed an answer and transcript from the SSA proceedings. (Docs. 7 and 8). Plaintiff filed a brief in support of her complaint on May 10, 2016. (Doc. 10). Defendant filed a brief in opposition on June 1, 2016. (Doc. 12). On June 9, 2016, Plaintiff filed a reply brief. (Doc. 13).

         Plaintiff was born in the United States on June 11, 1967, and at all times relevant to this matter was considered a “younger individual.”[7] (Tr. 173). Plaintiff completed two (2) years of college and can communicate in English. (Tr. 175, 177). Her employment records indicate that she previously worked as a collection agent, credit analyst, and service representative. (Tr. 177). The records of the SSA reveal that Plaintiff had earnings in the years 1981 through 2012. (Tr. 170). Her annual earnings range from a low of two hundred six dollars and sixty cents ($206.60) in 1982 to a high of forty-five thousand one hundred forty-two dollars and three cents ($45, 142.03) in 2009. (Tr. 170).

         In a document entitled “Function Report - Adult” filed with the SSA on October 4, 2012, Plaintiff indicated that she lived in a house with her family. (Tr. 203). She noted that her illnesses, injuries or conditions limited her ability to work, stating:

I have trouble driving because of head spins and being lightheaded and panic attacks. I can only stand to be around people for short periods and when I get home I'm completely exhausted. I can't remember things/ words. I forget what I'm doing and have to concentrate to remember. Other tasks are hard because I am always shaking . . .

(Tr. 203). She indicated that from the time she woke up until the time she went to bed, she took her medicine, slept, and separated herself from everyone. (Tr. 204). She had difficulty with personal care, noting that dressing, caring for her hair, and shaving were difficulty due to shakiness and lightheadedness. (Tr. 204). She was able to prepare meals daily, cleaned and did the laundry once a week, and shopped in stores for groceries and clothing. (Tr. 205-206). When asked to check which items were affected by her illnesses, injuries, or conditions, Plaintiff did not check: lifting; squatting; bending; standing; reaching; walking; sitting; kneeling; hearing; stair climbing; or seeing. (Tr. 208).

         Regarding concentration and memory, Plaintiff did not need special reminders to take care of her personal needs, to go places, or to take her medicine. (Tr. 205, 207). She could pay bills, handle a savings account, count change, and use a checkbook as long as she “double checked [her]self.” (Tr. 206). She noted that she could pay attention for about five (5) to ten (10) minutes at a time, did not finish what she started, had to re-read written instructions, and sometimes jumbled up spoken instructions. (Tr. 208).

         Socially, Plaintiff noted it varied how often she left her home and that she was able to do so unaccompanied, but felt better when she was with someone she trusted. (Tr. 206). Her hobbies included reading, crafts, and motorcycle riding, the latter which she stated she no longer did because of difficulty concentrating and with hand coordination. (Tr. 207). The places she went on a regular basis included the doctor's office, pharmacy, and houses of immediate family members. (Tr. 207). Plaintiff noted she was able to drive to these places, but that she experienced panic attacks. (Tr. 206). Regarding spending time with others, she spent time talking to others daily. (Tr. 207). She had problems getting along with family, friends, neighbors, authority figures, or others, explaining, “I find I can no longer tolerate negative or hyper people.” (Tr. 208).

         On February 18, 2013, Plaintiff completed a form titled “Activities of Daily Living.” (Tr. 223-226). Plaintiff indicated that she: did the laundry every one (1) to two (2) weeks, with her husband carrying it for her; did the dishes as necessary; cleaned only when her husband could not clean due to her allergies and back problems; shopped for groceries every three (3) weeks when she was having a “good day” and would go early in the morning to avoid crowds; took care of her personal needs, but at twice the amount of time due to panic attacks; read books; drove about thirty-five (35) miles per month; visited family members every one (1) to two (2) months; did not attend social activities due to “too many people [and] noise;” slept between five (5) and eleven (11) hours a night; and took naps during the day. (Tr. 223-226).

         During the oral hearing on April 16, 2014, Plaintiff testified that she was unable to work due to a combination of sleep problems, diabetes, panic attacks, and back problems. She reported that her panic attack symptoms included shaking uncontrollably, chest pressure, feelings of a heart attack, and rage. (Tr. 56-57). She stated that, as of late, she had experienced panic attacks and rage a couple of times a week, describing the rage as wanting to physically hurt someone that was intrusive on her feelings of safety. (Tr. 57-58). She also experienced crying spells a few times a week. (Tr. 62). She stated that her ability to concentrate and focus was “all over the place.” (Tr. 59). She also noted she had to take breaks for a length of time that was dependent on how much she had slept the night before and on how her back was feeling. (Tr. 59-60). Plaintiff testified she did very little driving because she was having “sleep issues” that caused her to fall asleep behind the wheel when her husband was in the car with her a year prior to the hearing. (Tr. 46-47).


         A. Medical Evidence

         1. Katherine Curci, Ph.D, CRNP

         On August 6, 2012, Plaintiff had an appointment with Katherine Curci, Ph.D, CRNP, after an episode of nausea, lightheadedness, and near fainting. The medications she was taking at the time of this appointment included Amlodipine-Benazepril; Levothyroxine; Montelukast; Sertraline; and Tranexamic Acid. (Tr. 332). Dr. Curci ordered lab work and instructed Plaintiff to take off work until her follow-up appointment. (Tr. 332).

         On August 9, 2012, Plaintiff had a follow-up appointment with Dr. Curci. (Tr. 327). The medications she was taking at the time of this appointment included Amlodipine-Benazepril; Levothyroxine; Montelukast; Sertraline; and Tranexamic Acid. (Tr. 327). Dr. Curci ordered more lab work and instructed Plaintiff to schedule an appointment with Dr. Chambers. (Tr. 330).

         On February 14, 2013, Plaintiff had a follow-up appointment with Dr. Curci for thyroid disease, excessive malaise and fatigue, an enlarged thyroid, diabetes, hypertension, and “PTSD.” (Tr. 590). Plaintiff reported she had not been sleeping well at night and felt excessively fatigued. (Tr. 590). An examination revealed a slightly enlarged thyroid. (Tr. 590). Dr. Curci ordered lab work and a thyroid ultrasound. (Tr. 590).

         2. Linda Chambers, M.D.

         On August 15, 2012, Plaintiff had an appointment with Linda Chambers, M.D., for follow-up of lab work and complaints of anxiety and not feeling well. (Tr. 322). It was noted that Plaintiff: had been taking Sertraline for anxiety as prescribed by Dr. Curci; had panic attacks at work with chest pressure; passed out at a recent wedding; did not have anxiety attacks at home; and experienced nervousness, dizziness, depression, tiredness, and headaches. (Tr. 322-323). Plaintiff's examination revealed she: was well-developed, well-nourished, and appropriately dressed; had good eye contact, but was tearful at times; had a regular heart without murmur or gallop; and had lungs clear to auscultation anteriorly and posteriorly. (Tr. 323). Based on lab work done a few weeks prior, Dr. Chambers diagnosed Plaintiff with diabetes with a “significantly elevated A1c.” (Tr. 323). Plaintiff was counseled to quit smoking as she noted she smoked a pack of cigarettes per day, was given extensive counseling for her diet and exercise program, was referred to the care coordinator Karen Newman for diabetes education and support of anxiety, and was prescribed Metformin and aspirin. (Tr. 323).

         On December 3, 2012, Plaintiff had an appointment with Dr. Chambers for follow-up of her anxiety, diabetes, hyperlipidemia, and tobacco use. (Tr. 400). On December 27, 2012, Plaintiff had an appointment with Dr. Chambers for Polycystic Ovarian Syndrome. (Tr. 410).

         3. Karen Newman, MS, RN

         On August 23, 2012, Plaintiff had an appointment with Karen Newman, MS, RN, for management of diabetes and anxiety. Plaintiff reported that she wanted to get her anxiety under control, had been shaky and anxious while getting ready for her appointment, and that she was unsure whether she was able to function at work. (Tr. 319-320). Ms. Newman noted that Plaintiff was: tearful; compliant with her diabetes and anxiety medications; was decreasing her once “enormous” amount of intake of regular soda and energy drinks; not ready for smoking cessation; and improving her glucose levels. (Tr. 319-320).

         4. Debra Gray-Felty, MS

         From August 30, 2012, through October 1, 2012, Plaintiff attended therapy appointments with Debra Gray-Felty, MS (“Ms. Gray-Felty”). (Tr. 365-368). Plaintiff's self-reported symptoms included: an inability to “handle anything;” shakiness; a pounding heart; shortness of breath; a feeling like she was going to faint; anxiety when leaving her home; an inability to sleep; agitation; dizziness; lightheadedness; napping during the day; tiredness; feelings of wanting to be alone; poor concentration; nightmares; difficulty focusing; and ruminations. (Tr. 365-368). Ms. Gray-Felty noted Plaintiff was tearful and shaky and had a broad affect appropriate to the discussion. (Tr. 365-368). It was noted that Plaintiff's mother drove her to her appointments due to Plaintiff's poor concentration and fear of having a panic attack. (Tr. 365-368).

         5. Karen Rizzo, M.D.

         On August 7, 2012, Plaintiff had an appointment with Dr. Rizzo for evaluation of ongoing nasal and sinus congestion. (Tr. 374). Plaintiff reported she did not breathe well on the right side of her nose, had right ear fullness with right-sided ostiomeatal complex pressure, and experienced post-nasal drip and a decreased sense of smell. (Tr. 374). It was noted Plaintiff smoked a pack of cigarettes a day and had numerous allergies. (Tr. 374). She had minimal relief with decongestants, antibiotics, and nasal sprays. (Tr. 374). Physical examination revealed: a deviated septum to the right obstructing eighty percent (80%) of the right side; narrowing of the right middle meatal area; and enlarged turbinates. (Tr. 374). Dr. Rizzo ordered a CT scan of the sinuses, prescribed a Z-Pak and Medrol dose pack for Plaintiff, and scheduled Plaintiff for a follow-up appointment. (Tr. 374).

         On December 28, 2012, Plaintiff had an appointment with Dr. Rizzo for a recheck of chronic sinusitis. (Tr. 375). Plaintiff reported that it took her months to get back to Dr. Chambers because of anxiety attacks and trying to get her diabetes under control. (Tr. 375). It was noted she was still smoking a pack of cigarettes a day. (Tr. 375). The medications Plaintiff was taking at the time of this appointment included Amlodipine; aspirin; Benazepril; Clonazepam; Levothryoxine; Metformin; Montelukast; and Sertraline. (Tr. 377). Her physical examination revealed Plaintiff: was alert, oriented, and in no acute distress; had moderate nasal congestion with swollen inferior turbinates, a deviated septum on the left anterior and right posterior side, and a narrowed right middle meatus; had a normal mood and appropriate affect; had intact judgment; had good insight; and was orientated to time, place, and person. (Tr. 379). Plaintiff was diagnosed with a deviated nasal septum, Concha Bullosa, hypertrophy of nasal turbinates, allergic rhinitis, and sinusitis of the maxillary sinuses of chronic nature. (Tr. 379). Dr. Rizzo recommended Plaintiff undergo a septoplasty, bilateral inferior turbinoplasty, bilateral resection of concha bullosa, and bilateral maxillary balloon sinuplasty. (Tr. 379).

         6. John A. Biever, M.D.

         On September 1, 2012, Plaintiff underwent a psychiatric evaluation performed by John A. Biever, M.D. (Tr. 363). Plaintiff's self-reported symptoms included: “reawaking” insomnia; not feeling rested; acrophobia; bouts of depression; and panic attacks. (Tr. 513). Plaintiff's mental status examination revealed she: was appropriately dressed; had a sad and worried facial expression; had no peculiarities of movement or speech; had a depressed mood and affect appropriate to this mood; had intact practical judgment; and had perfect recall of “3 of 3 items after several minutes, intact abstractions, [and] accurate subtraction of serial 3's.” (Tr. 514). The medications she was taking at this appointment included: Metformin; Zoloft; Synthroid; allergy shots; Singulair; and Amlodipine. (Tr. 513). Dr. Biever stated, “[u]ltimately the patient has been experiencing panic attacks when she knows she has to travel to be somewhere.” (Tr. 513). It was noted that Plaintiff had “chronic, serious and complicated psychiatric condition[s]

         including Major Depression and Panic Disorder with Agoraphobia, further complicated by chronic physical disorders including diabetes mellitus and hypertension.” (Tr. 363). Dr. Biever stated, “[t]hese conditions cause [Plaintiff] intolerable anxiety and exacerbation of her physical illnesses when she is exposed to the stresses she routinely faces at the workplace. At this point she experiences a significant increase in anxiety upon leaving her house for any reason.” (Tr. 363). Dr. Biever noted Plaintiff had been attending psychotherapy sessions, and that her response to medication has been positive, but slow “given the chronic and complicated nature of her illness.” Dr. Biever opined, “employment is currently contraindicated for [Plaintiff], ” and that he could not predict when she would become employable again. (Tr. 363).

         From September 5, 2012 through July 27, 2013, Plaintiff had follow-up appointments with Dr. Biever. (Tr. 516-517, 639-640). Her medications included Zoloft, Clonazepam, and Prazosin. (Tr. 516, 639-640). Her symptoms included: anticipatory anxiety; nightmares; tremors; a depressed mood; anger; panic; insomnia; and depression. (Tr. 516-517, 639-640).

         7. Joan L. Brauckmann, M.D.

         On July 3, 2013, Plaintiff had an initial appointment with Dr. Brauckmann to initiate immunotherapy for allergic rhinitis and her allergies to dust mites and mold. (Tr. 631). It was noted that Plaintiff had received immunotherapy from a previous physician and that this therapy, along with Singulair and Nasonex, helped to control her allergies. (Tr. 631). Plaintiff's other self-reported symptoms included depression and anxiety. (Tr. 633). A physical examination of Plaintiff revealed a nasal mucosa that was pale and boggy with moderate engorgement of the turbinates and clear drainage and papular excoriations on the upper arms and back. (Tr. 633). Plaintiff was tested for allergies, which revealed she was allergic to mold, dust mites, cockroaches, and mice. (Tr. 634). The plan was for Plaintiff to continue taking Singulair and Naxonex, to continue on immunotherapy “with the serum she brought from Pennsylvania, ” and to follow-up in six (6) months or sooner. (Tr. 634).

         8. Barbara J. Trandel, M.D.

         On October 3, 2013, Plaintiff had an appointment with Dr. Trandel to establish herself as a new patient after moving from Pennsylvania. (Tr. 653). Plaintiff's self-reported symptoms included daytime fatigue; somnolence; snoring; a rash; back pain; and allergies. (Tr. 654). A physical examination revealed Plaintiff had: a well-nourished, well developed appearance; a normal gait and station; intact recent and remote memory; an appropriate mood and affect; and widespread erythematous papules. (Tr. 654). It was noted Plaintiff was receiving disability retirement and a federal ...

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