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Velikas v. Berryhill

United States District Court, M.D. Pennsylvania

October 13, 2017

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



         On February 10, 2016, Plaintiff, Diane Velikas, 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. (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 will be vacated.


         Plaintiff protectively filed[3] her application for DIB on December 10, 2010, alleging disability beginning on October 24, 2009, due to a combination of “complications from neck surgery, neck pain, and herniated discs.” (Tr. 246, 249).[4] After this claim was initially denied by the Bureau of Disability Determination, (“BDD”), [5] a hearing was requested by Plaintiff, which was held on April 2, 2012, before administrative law judge Michelle Wolfe, (“ALJ”), at which Plaintiff and impartial vocational expert, Mr. Keating, testified. (Tr. 80). On June 19, 2012, the ALJ granted Plaintiff's disability application for the period of March 12, 2010 through December 22, 2011. (Tr. 140). On October 17, 2013, the matter was remanded by the Appeals Council with the instruction for the ALJ to consider additional evidence submitted for the period after December 22, 2011. (Tr. 150-152). On April 9, 2014, a remand hearing was before the ALJ, at which Plaintiff and impartial vocational expert Michelle Giorgio, (“VE”), testified. (Tr. 58). On April 25, 2014, the ALJ issued a second decision denying Plaintiff's application for DIB for the time period of December 22, 2011 through the date of the ALJ's decision. (Tr. 19-34). On December 17, 2015, the Appeals Council denied Plaintiff's appeal, thus making the decision of the ALJ final. (Tr. 2-7).

         Plaintiff filed the instant complaint on February 10, 2016. (Doc. 1). On April 13, 2016, Defendant filed an answer and transcript from the SSA proceedings. (Docs. 4 and 5). Plaintiff filed a brief in support of her complaint on June 14, 2016. (Doc. 8). Defendant filed a brief in opposition on July 14, 2016. (Doc. 9). Plaintiff did not file a reply brief.

         Plaintiff was born in the United States on September 27, 1959, and at all times relevant to this matter was considered an “individual closely approaching advanced age.”[6] (Tr. 246). Plaintiff graduated from high school in 1977, and can communicate in English. (Tr. 248, 250). Her employment records indicate that she previously worked as a caterer, a customer service representative, and a realtor. (Tr. 250).

         In a document entitled “Function Report - Adult” filed with the SSA, Plaintiff indicated that she lived in a house with her husband. (Tr. 282). From the time she woke up to the time she went to bed, Plaintiff took her medications, tended to the dishwasher, sat in a recliner with a heating pad, and performed “menial” tasks such as taking the dog outside and checking the mail. (Tr. 282). She had no problems with personal care tasks such as dressing and bathing, prepared meals such as sandwiches daily for thirty (30) minutes maximum, performed light dusting for thirty (30) minutes before needing to rest, and shopped in stores for groceries for “twice as long as [] normal . . . using the cart for support.” (Tr. 283-285). She was able to walk for up to fifteen (15) minutes before needing to rest for thirty (30) minutes before resuming walking. (Tr. 287). When asked to check items which her “illnesses, injuries, or conditions affect, ” Plaintiff did not check talking, hearing, seeing, memory, understanding, or following instructions. (Tr. 287).

         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. 284, 286). She could pay bills, use a checkbook, count change, and handle a savings account, but noted that “[b]ills are paid late once or twice a month [due to] pain and depression [that] prevent [her] from being on time.” (Tr. 285-286). She stated that “pain and medications” prevented her from paying attention, she could follow written and spoken instructions, she was not able to finish what she started, and she had worsened depression, anxiety, and blood pressure with changes in stress and routine. (Tr. 287-288).

         Socially, Plaintiff rarely left her home because she would “get too depressed because of [her] restrictions.” (Tr. 285). When she did leave the house, she noted she would have to “deprive [her]self of pain medication to go safely to the drug store or [do] menial errands.” (Tr. 285). She noted she did not spend time with others because of depression. (Tr. 286). Her hobbies included reading for fifteen (15) minutes at a time and watching television, and she indicated that she could no longer engage in former hobbies of gardening or home decorating due to her illnesses, injuries, or conditions. (Tr. 286).

         At her remand oral hearing on April 9, 2014, Plaintiff testified that, since her last hearing, she was diagnosed with Rheumatoid Arthritis, Polyarthritis, and Osteoid Osteoma. (Tr. 67). She stated that the arthritis caused severe neck pain and weakness and numbness in her hands. (Tr. 72). She indicated that her hand numbness would occur “right away almost” when using a computer keyboard. (Tr. 73). She was prescribed steroids for these condition, and indicated the steroids caused a tumor in her leg that caused leg cramps and an inability to walk quickly, made her have to stop walking after fifty (50) feet to rest or lean on something before resuming walking again, and caused a feeling like her leg was falling asleep while sitting. (Tr. 67-68). Plaintiff also indicated that, since her last hearing, she had been prescribed and was using a Fentanyl patch for pain that made her “extremely tired, ” effected her motor skills, and caused difficulty in concentrating. (Tr. 64). She stated that she still needed to have more surgery in her neck. (Tr. 72). She testified that, regarding household chores, she was only able to do light chores, and that an activity such as emptying the dishwasher could “sometimes trigger an onslaught of muscle spasms” that caused her to have to rest in a recliner with a heating pad and take a muscle relaxer, something she testified she had to do about ten (10) times a day for a half hour to an hour and a half. (Tr. 65, 67, 70). She indicated that she could no longer vacuum, scrub the windows, or crochet due to her impairments. (Tr. 71, 73). She testified that she performed very minimal work on the computer and did not read as much as she would like to because she could not concentrate, indicating that she would stop reading when she found herself concentrating more on ignoring the pain than what she was reading, which usually was about fifteen (15) minutes into reading. (Tr. 65-66, 69). She stated that her husband accompanied her to the grocery store. (Tr. 66). She also stated that her mental health impairments caused difficulty with focusing, which made her not go to church like she wanted to. (Tr. 74).


         A. Medical Evidence

         1.Wyoming Valley Medical Center

         On December 22, 2011, Plaintiff had an appointment with Alan R. Vannan, PA-C, (“PA Vannan”), at Wyoming Valley Medical Center for a routine postoperative visit. (Tr. 474). It was noted that Plaintiff was doing extremely well, was happy with the outcome of the surgery, had sixty (60) to seventy (70) percent improvement in her pre-operative symptoms, had no difficulty with swallowing, breathing, or speaking, and had some right upper extremity pain at times, but with much improvement. (Tr. 474). Her physical examination revealed: clear speech; swallowing without difficulty; a non-tender back without spasms; 5/5 bilateral upper and lower extremity strength; sensation intact to soft touch; a normal gait; and independent ambulation. (Tr. 474). The medications she was taking at the time of this appointment were listed as follows: Ativan; Methadone; Diazepam; Gabapentin; Docusate Sodium; Magnesium Aspartate; Mucinex; Celexa; and Metoprolol. (Tr. 474). Plaintiff was instructed by PA Vannan that she: could lift up to ten (10) pounds and increase by ten (10) pounds a month as tolerated; should not bend, twist, run, jump, or do sit-ups or exercise; and could walk and use stairs as tolerated. (Tr. 475). She was scheduled for a follow-up in three (3) months. (Tr. 475).

         On July 18, 2012, Plaintiff had a routine eight (8) month post-operative visit with Kara L. Sharp, PA-C, (“PA Sharp”). (Tr. 846). Plaintiff reported that: her right upper extremity pain had resolved, but that her posterior cervicalgia remained the same; her neck pain was intermittent, exacerbated with activity, and improved with ice and rest; the paresthesias of her bilateral hands and fingers remained the same as “pre-op:” she had diffuse muscular and joint pain in her trapezius area, shoulders, wrists, knees, and ankles; she had worsening chronic mid-back pain for a month that was becoming progressively worse; she had not seen a Rheumatologist due to financial concerns and stopped all medications due to cost; and she denied radicular pain, paresthesias, or weakness of her bilateral extremities. (Tr. 846). A physical examination revealed: tenderness to palpation of the cervical spine and paraspinal musculature; clear speech; swallowing without difficulty; 5/5 strength throughout the bilateral upper and lower extremities; a normal gait; and independent mobility. (Tr. 846). Plaintiff was assessed as having an acute exacerbation of chronic mid-back pain and diffuse muscular and joint pain “highly suspicious of Fibromyalgia.” (Tr. 847). Plaintiff was instructed by PA Sharp: to continue increasing activity and lift as tolerated; to not sit bolt upright for greater than forty (40) minutes for four (4) times a day; to not to run, jump, do sit-ups, or perform excessive exercise; and to continue to walk and use stairs as tolerated. (Tr. 847). Plaintiff was scheduled for a follow-up with Dr. Schlifka in three (3) months. (Tr. 847).

         2. InterMountain Medical Group

         On December 27, 2011, February 16, 2012, February 22, 2012, March 8, 2012, July 25, 2012, and August 8, 2012, Plaintiff had an appointments with John Menio, M.D. due for a follow-up of her “active problems, ” which included Chronic Pain Syndrome, Depressive Disorder, cervical pain, and pre-diabetes. (Tr. 712, 716, 720, 727, 889, 894). Plaintiff's self-reported symptoms included edema, muscle and bone aches, insomnia, clavicle symptoms, muscle spasms, back pain, knee pain, bilateral foot pain, and diffuse pain localized to her joints. (Tr. 714, 720, 727, 729, 889, 894). Her physical examination revealed: a well nourished and developed appearance with no acute distress; tenderness with palpation and movement in her bilateral shoulders and knees and cervical spine in the trapezius area; normal motor strength, deep tendon reflexes, and sensation; paracervical spasm in her back; an impaired and anxious thought process; decreased range of motion in the cervical spine; and no tenderness on palpation of the legs. (Tr. 714, 719, 723, 891, 898). Dr. Menio diagnosed Plaintiff with Hypertension, Hyperlipidemia, Chronic Pain Sydrome, Generalized Anxiety Disorder, Edema, and Polyarthritis of multiple sites, and referred Plaintiff to Rheumatology. (Tr. 714-715, 719, 723, 892, 898).

         On May 9, 2012, Plaintiff had an appointment with Mary Jo Bishop, CRNP, of InterMountain Medical Group for evaluation and treatment of polyarthralgias. (Tr. 706). Plaintiff's self-reported symptoms included: pain and swelling in her lower legs; a constant burning in her shoulders; malaise; headaches twice a month; neck pain and stiffness; stiffness and pain in her joints, wrists, hands, and ankles; muscle aches and spasms in her shoulders; anxiety; sleep disturbances; depression; and dry skin. (Tr. 706). A physical examination revealed Plaintiff: was well nourished and developed and in no acute distress; had edema in her lower legs; had normal range of motion in all joints; had swelling and tenderness on palpation in her bilateral fingers; had tenderness on palpation in her bilateral wrists and shoulders; had decreased grip strength in her bilateral hands; had a normal appearance and no tenderness or spasms of all areas of her spine; had tenderness on palpation of her bilateral hips and knees; had a normal gait, stance, balance, reflexes, and sensation; had a pleasant mood; and had dry skin. (Tr. 708-709). Plaintiff was assessed as having arthralgias in multiple sites and myalgia and myositis. (Tr. 709). It was noted that Dr. Blidner reviewed the data and examined Plaintiff and assisted in the formulation of the plan for Plaintiff. Plaintiff was given Prednisone for a week-long trial period, was scheduled for a follow-up in two (2) weeks, and was to undergo x-rays of her bilateral hands and wrists due to suspicion of inflammatory arthritic disease. (Tr. 710).

         3. Arthritis Center

         On July 23, 2012, and August 20, 2012, Plaintiff had appointments at the Arthritis Center for diffuse pain in her bilateral shoulders, knees, and feet. (Tr. 904-905). A physical examination revealed joint tenderness and moderate pain on range of the shoulders with mild limitation and no swelling in the knees or feet. (Tr. 904-905). Plaintiff was assessed as having Diffuse Polyarthritis, Chronic Pain Syndrome, and abnormality of the right femur, and was given a prescription for Prednisone. (Tr. 904-905). Imaging of her right femur was ordered.

         B. Medical Testing

         1.X-rays of Bilateral Hands and Wrists

         On May 9, 2012, Plaintiff underwent x-rays of her bilateral hands and wrists. (Tr. 786). The x-rays revealed changes in the right hand that are degenerative in nature with possible erosion at the second “MCP” and mild degenerative changes at the carpal metacarpal joint in the left wrist and hand. (Tr. 786).

         2. X-rays of Cervical Spine

         On July 18, 2012, Plaintiff underwent x-rays of her cervical spine due to left arm pain and spasms “radiating down, ” mid-back pain, and status post anterior cervical diskectomy and fusion. (Tr. 860). The x-rays revealed stable postoperative and degenerative changes at the C4-C5 level with minimal endplate osteophyte at the C3-C4 level. (Tr. 860).

         3. X-rays of Thoracolumbar Spine

         On July 30, 2012, Plaintiff underwent x-rays of her thoracolumbar spine for back pain. (Tr. 861). The x-rays revealed moderate degenerative disease at L1-L2 and L5-S1 with ...

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