United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge
January 16, 2016, Plaintiff, Melissa Koger, filed this
instant appealunder 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 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.
protectively filed 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).These claims were initially denied
by the Bureau of Disability Determination
(“BDD”) 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.
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.
was born in the United States on June 11, 1967, and at all
times relevant to this matter was considered a “younger
individual.” (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).
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
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).
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).
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).
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).
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).
Katherine Curci, Ph.D, CRNP
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).
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.
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).
Linda Chambers, M.D.
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).
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).
Karen Newman, MS, RN
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).
Debra Gray-Felty, MS
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).
Karen Rizzo, M.D.
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).
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).
John A. Biever, M.D.
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]
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).
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,
Joan L. Brauckmann, M.D.
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).
Barbara J. Trandel, M.D.
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