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Bosserman v. Berryhill

United States District Court, M.D. Pennsylvania

October 25, 2017

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


          William J. Nealon, United States District Judge.

         On January 17, 2016, Plaintiff, David Bosserman, 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 his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 1461, et sec[. and his application for Supplemental Security Income ("SSI")[3] under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seg. (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] his applications for DIB and SSI on September 11, 2013, alleging disability beginning on the amended onset date of June 8, 2013, due to a combination of "degenerative disc disease, bulging disc, apnea, insomnia, anxiety, depression, and adjustment disorder." (Tr. 13, 269).[5] These claims were initially denied by the Bureau of Disability Determination ("BDD")[6] on November 21, 2013. (Tr. 13). On December 12, 2013, Plaintiff filed a request for an oral hearing. (Tr. 13). On August 12, 2015, an oral hearing was held before administrative law Patrick S. Cutter ("ALJ"), at which Plaintiff and impartial vocational expert Sheryl Bustin testified. (Tr. 13). On August 19, 2015, the ALJ issued an unfavorable decision, finding Plaintiff not disabled and effectively denying his applications for DIB and SSI. (Tr. 13-26). On September 8, 2015, Plaintiff filed a request for review with the Appeals Council. (Tr. 9). On November 18, 2015, the Appeals Council denied Plaintiffs appeal, thus making the decision of the ALJ final. (Tr. 1-5).

         Plaintiff filed the instant complaint on January 17, 2016. (Doc. 1). On April 5, 2016, Defendant filed an answer and transcript from the SSA proceedings. (Docs. 8 and 9). Plaintiff filed a brief in support of his complaint on May 19, 2016. (Doc. 11). Defendant filed a brief in opposition on June 23, 2016. (Doc. 13). Plaintiff filed a reply brief on June 29, 2016. (Tr. 14).

         Plaintiff was born in the United States on August 25, 1968, and at all times relevant to this matter was considered a "younger individual."[7] (Tr. 254). Plaintiff graduated from high school in 1987, and can communicate in English. (Tr. 268, 270). His employment records indicate that he previously worked as a cook. (Tr. 257).

         In a document entitled "Function Report - Adult" filed with the SSA on November 2, 2013, Plaintiff indicated that he lived in a homeless shelter alone. (Tr. 294). He had no problems with personal care tasks, but did indicate that he "did not care about [him]self enough" to bathe. (Tr. 295). He prepared "simple dishes" daily for thirty (30) minutes, but could "no longer cook full meals." (Tr. 296). He did the laundry for fifteen (15) minutes. (Tr. 296). He shopped in stores weekly for thirty (30) minutes for food and movies. (Tr. 297). He could walk three (3) blocks before needing to rest for fifteen (15) minutes. (Tr. 299). When asked to check items which his "illnesses, injuries, or conditions affect, " Plaintiff did not check reaching, sitting, talking, hearing, seeing, memory, understanding, following instructions, using hands or getting along with others. (Tr. 299).

         Regarding concentration and memory, Plaintiff needed a special reminder to take a shower, but did not need reminders to go places or to take medicine. (Tr. 296, 298). He could pay bills, use a checkbook, count change, and handle a savings account. (Tr. 297). He was not able to finish what he started, followed written instructions "very well" and spoken instructions "good, " and did not handle stress or changes in routine well. (Tr. 299-300).

         Socially, Plaintiff went outside daily unaccompanied, used public transportation, and indicated that he was able to drive. (Tr. 297). His hobbies included, "computers, jewelry, [and] cooking, " and he noted that he did these things "very well and [three times] a week, " but that he was "not able to motivate" himself to do these activities. (Tr. 298). He spent time with others and went to church, both on a weekly basis. (Tr. 298). He did not have problems getting along with others. (Tr. 299).

         At his oral hearing on August 12, 2015, Plaintiff testified that he was living in a homeless residence. (Tr. 30). Regarding his medical conditions, he indicated that the venous insufficiency condition caused both of his legs to swell and blister, and that a vein ablation performed almost a year earlier did not reduce the swelling. (Tr. 31). He testified that his anxiety caused him to feel he "fidgety, " was triggered by stress and large groups, and was helped with therapy and medications, including Buspirone and Celexa. (Tr. 32-33). Regarding his back and neck impairments, he stated that he had "really strong constant pain in the lower back" that radiated toward the lower part of his abdomen and the belt area that felt like he was "having a railroad spike shoved in and it causes numbness across the lower abdomen." (Tr. 35). Regarding his asthma, he stated that he became short of breath every few days and that aggravating factors included humidity, being near a fryer, and sanitizer used for washing dishes. (Tr. 37).

         In terms of abilities, Plaintiff indicated he was able to sometimes stand for a couple of hours if standing still, was able to walk about twenty (20) minutes before needing to "take a break for a couple of minutes" before resuming walking, and was able to lift thirty (30) pound items at work. (Tr. 33-34). He worked as a fry cook part-time, and stated that he could not do this job on a full time basis due to pain in his back and legs and his asthma. (Tr. 30, 35). He testified that he would not be able to perform a job in a seated position because he would get restless and fall asleep and because sitting for a long time caused his legs to hurt. (Tr. 36).


         A. Medical Evidence

         1. Mental Health Impairments

         a. Pressley Ridge

         Plaintiff had pharmacotherapy appointments at Pressley Ridge on July 3, 2013, October 23, 2013, January 29, 2014, February 5, 2014, March 10, 2014, April 21, 2014, April 23, 2014, April 28, 2014, July 14, 2014, September 22, 2014, and October 20, 2014. (Tr. 449, 653, 658-662, 693-698). It was noted that Plaintiff's diagnoses include Depressive Disorder and Anxiety Disorder, that his medications included Citalopram and Buspar, and that his strengths were "sense of humor, cooking, fixing things, very caring person." (Tr. 449, 653-658, 693-696). Examinations revealed: a groomed appearance; cooperative behavior; a euthymic mood; normal speech; goal-directed and logical thought processes; good attention and concentration; and fair judgment. (Tr. 659-662, 697-698).

         On August 7, 2013, Plaintiff had an appointment at Pressley Ridge. (Tr. 451). He completed a "Sheehan Adult Scale, " on which he indicated that his anxiety symptoms moderately disrupted work; mildly disrupted family life and home responsibilities; and had reduced his productivity two (2) days in the last week due to his symptoms. (Tr. 451).

         b. Harrisburg Hospital

         On October 21, 2013, Plaintiff presented to the emergency room at Harrisburg Hospital for depression and anxiety after being told four (4) days prior that he could no longer live at Safe Haven. (Tr. 586, 588). A psychiatric examination was normal. (Tr. 587). Plaintiff was discharged as stable and was instructed to continue taking his medications, and arrangements were made for him to live at "Windows CDA." (Tr. 587-588).

         c. Team Care Behavioral Health

         On December 2, 2014, December 8, 2014, December 15, 2014, December 22, 2014, January 5, 2015, January 16, 2015, January 26, 2015, February 2, 2015, February 10, 2015, February 23, 2015, March 16, 2015, March 23, 2015, March 30, 2015, June 30, 2015, July 7, 2015, July 9, 2015, July 14, 2015, and July 28, 2015, Plaintiff had therapy appointments at Team Care Behavioral Health. (Tr. 818-823, 922-925, 953-955, 976-982). Plaintiffs mood ranged from depressed to anxious to euthymic, his affect was full, and his behavior ranged from cooperative to agitated to a loss of interest. (Tr. 818-823, 922-925, 953-955, 976-982). It was noted he felt uncomfortable and slightly panicked with the thought of a crowd and that there appeared to be a fear of being out of control. (Tr. 818-823, 922-925, 953-955, 976-982). A psychiatric specialty examination performed on July 9, 2015 revealed: a well groomed appearance; normal speech; a logical thought process; fair judgment; intact recent memory; fair attention and concentration; a euthymic mood; a congruent affect; and an intact fund of knowledge. (Tr. 979).

         2. Back and Neck Impairments

         a. Orthopedic Spine Institute of Pennsylvania

         On August 13, 2013, Plaintiff had an appointment with Danielle Miller-Griffie, PA-C, for neck pain. Plaintiff reported his symptoms of neck pain with left hand numbness and tingling in the glove distribution had increased since the last appointment, and that he also had decreased sensation over "the arm itself." (Tr. 464). A physical examination revealed Plaintiff: was pleasant, cooperative, awake, alert, and with a normal attitude; had a decent range of motion in his neck that was painful; had no tenderness over the spinous processes; had neurovascularly intact upper extremities, but with decreased sensation over the left arm and hand; and had equal and symmetrical "DTRs" over the upper and lower extremities. (Tr. 464). His diagnoses included cervicalgia and left hand numbness. (Tr. 464). A nerve conduction study was ordered to rule out cervical radiculopathy versus peripheral neuropathy. (Tr. 464).

         On September 30, 2013, Plaintiff had an appointment with Robert Dahmus, M.D., for "trouble with both arms, right much worse than left." (Tr. 462). He described his pain as starting in his neck and radiating down his arm into his hand, and reported that he had numbness from his neck into his hands, with none of these symptoms being aggravated by shoulder movement, but rather with certain positions of the neck. (Tr. 462). A physical examination revealed he: was alert and oriented with a pleasant, but somewhat depressed, affect; had excellent motion of his shoulder without pain; had excellent strength to resistive exercise with his rotator cuff; had good grip and pinch strength; and had no atrophy in either arm or hand. (Tr. 462). Dr. Dahmus referred Plaintiff to others in his office for treatment of the neck pain. (Tr. 463).

         On October 4, 2013, Plaintiff had an appointment with Danielle Miller-Griffie, PA-C, for neck pain. (Tr. 460). Plaintiff noted he had increased pain that was causing numbness and tingling in his right arm and had decreased sensation involving the left side of his body. (Tr. 460). The medications he took included Tramadol and Naproxen. (Tr. 460). His physical examination revealed he: was awake, alert, pleasant, cooperative, and with a normal attitude; had decent range of motion in his neck; had neurovascularly intact upper extremities; and had equal and symmetrical sensory, motor, and reflex examinations of the upper extremities. (Tr. 460). Plaintiff was assessed as having bilateral upper extremity pain and Cervicalgia, he was instructed to reschedule an EMG, and he was prescribed Neurontin. (Tr. 460).

         b. Harrisburg Hospital

         On September 5, 2013, Plaintiff presented to the emergency room at Harrisburg Hospital for right shoulder and neck pain that was worse with movement. (Tr. 610). A physical examination revealed: a normal upper extremity exam; normal speech; orientation to person, place, and time; a normal respiratory exam; and a normal affect. (Tr. 611). Plaintiff was discharged with the instruction to follow up with a primary care physician in one (1) to two (2) days. (Tr. 612).

         On February 3, 2014, Plaintiff presented to the emergency room at Harrisburg Hospital due to right-sided neck pain that radiated down his right arm, which he reported felt like it was tingling. (Tr. 553). The medications he was taking at the time of this visit included Lasix, Compazine, Celexa, Neurontin, Pravastatin, Loratadine, Protonix, Tramadol, Naproxen, Klorcon, Amlodipine, Metoprolol, Tylenol, Aspirin, and BuSpar. (Tr. 554). A physical examination revealed: a normal range of motion in the neck with a paraspinal muscle spasms in the right cervical region; no wheezing, rales, or rhonchi; normal range of motion in the back without tenderness; normal range of motion in the upper and lower bilateral extremities; normal speech; normal memory; and no focal sensory, motor, or cerebral deficits. (Tr. 554-555). At discharge on the same day, it was noted that the pain seemed to be musculoskeletal in nature and that Plaintiff was feeling slightly better with pain "likely related to underlying bulging discs, stenosis." (Tr. 555). Plaintiff was prescribed Norco and Valium and was discharged in stable condition. (Tr. 555).

         On December 12, 2014, Plaintiff presented to the emergency room for upper back and neck pain after a motor vehicle accident. (Tr. 810). A physical examination revealed Plaintiff's back, extremities, gait, speech, skin, neck, eyes, and head were normal. (Tr. 811). X-rays showed: mild disc space narrowing at the C5-C6 level with marginal endplate osteophytes; well-maintained disc spaces and verteral body heights; normal alignment of the cervical spine; and no acute osseous abnormality in the cervical spine. (Tr. 816). Plaintiff was discharged on the same day. (Tr. 812).

         c. Kline Health

         On August 8, 2013 and September 10, 2013, Plaintiff had appointments for back pain. (Tr. 798). While the notes from these visits are largely illegible, it was noted that Plaintiff was obese and was able to perform spinal flexion and extension without discomfort. (Tr. 797). Plaintiff was instructed to start physical therapy. (Tr. 797).

         On August 13, 2014, Plaintiff presented to urgent care of Kline Health for neck pain that began three (3) weeks prior, with the pain located in the bilateral lateral neck that Plaintiff described as aching and that caused tingling sensations in the right arm intermittently. (Tr. 798). Aggravating factors were rotation and "turning head, " and Plaintiff reported she did not experience relief from Tylenol, NSAIDs, or Tramadol. (Tr. 798). It was noted that an MRI from April 2013 showed disc bulges at ¶ 3-C4 and C6-C7 with mild central spinal canal narrowing at ¶ 3-C4 and varying degrees of neural foraminal narrowing. (Tr. 798). A physical examination revealed: active painful range of motion in her cervical spine without atrophy; normal gait; normal and pain-free range of motion in the left bilateral shoulders; normal bilateral upper extremity strength; orientation to time, place, person, and situation; and an appropriate mood and affect. (Tr. 799). Plaintiff was prescribed Percocet for the pain. (Tr. 800).

         d. Pinnacle Health- Physical Therapy

         From August 15, 2013, through September 10, 2013, Plaintiff attended physical therapy for lumbar degenerative disc disease. (Tr. 898-918). Plaintiffs self-reported symptoms included: a pain level of four (4) out often (10); an inability to sit for more than two (2) hours; and alternating difficulty with putting on socks. (Tr. 898-918). His therapy included therapeutic exercises and moist ...

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