United States District Court, M.D. Pennsylvania
William J. Nealon, United States District Judge.
January 17, 2016, Plaintiff, David Bosserman, 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 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") 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.
protectively filed 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). These claims were initially denied by the
Bureau of Disability Determination
("BDD") 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).
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.
was born in the United States on August 25, 1968, and at all
times relevant to this matter was considered a "younger
individual." (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).
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).
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).
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).
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).
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).
Mental Health Impairments
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,
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).
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).
Team Care Behavioral Health
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).
Back and Neck Impairments
Orthopedic Spine Institute of Pennsylvania
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).
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.
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).
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).
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).
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).
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).
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).
Pinnacle Health- Physical Therapy
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 ...