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Cordova v. Berryhill

United States District Court, M.D. Pennsylvania

December 19, 2017

Lucila Cordova, Plaintiff,
v.
Nancy A. Berryhill[1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM

          Richard P. Conaboy Judge

         I. Procedural Background

         We consider here the appeal of Plaintiff Lucila Cordova from an adverse decision of the Social Security Administration ("SSA" or "Agency") on her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff's application was denied at the administrative level on September 10, 2017 whereupon she requested a hearing before an administrative law judge ("ALJ"). That hearing was held on April 16, 2015 and it resulted in a written decision dated November 12, 2015 that denied Plaintiff's application once again. Plaintiff then requested review by the Appeals Council. The Appeals Council denied Plaintiff's request and that denial constitutes a final decision by the Agency. This Court now has jurisdiction over this appeal pursuant to 42 U.S.C. § 405(g).

         II. Testimony before the ALJ.

         Plaintiff's hearing was conducted on April 16, 2015 in Wilkes Barre, Pennsylvania. Present were the Plaintiff, her attorney, and Gerald Keating, a vocational expert ("VE"). Plaintiff's testimony may be summarized as follows.

         Plaintiff was soon to be forty-eight years of age on the date of her hearing. She is not married, has no children, graduated from high school, and holds an associate's degree in Computer Science with specialized training in Web Design. She has a driver's license and receives public assistance and food stamps. (R. 51-52) .

         Plaintiff has not worked since October of 2012 when a prior application for DIB was denied. She then enrolled in a web design course. Before that she had worked for more than twenty years as a Graphic Designer and Event Coordinator. Some of this employment involved commuting to New York. She has received neither Unemployment Compensation Benefits nor Workers' Compensation Benefits since 2012. (R. 52-54).

         She had seen Dr. Lee her Neurosurgeon about one week before the hearing. She had been seeing him periodically since undergoing back surgery in 2013. She saw him at least twice in November and December of 2013 before he directed her to follow up with a Neurologist and a Pain Management Specialist. Approximately six month before her hearing she went to an emergency room due to heart palpations and difficulty breathing. During the ER visit an EKG and several other tests were performed on her. She reported that the tests came back fine and the ER doctors felt her symptoms were neurologically based. Dr. Lee referred her to a pulmonary specialist who was to examine her approximately one month after the hearing. (R. 54-60) .

         Plaintiff stated that she can dress and take care of her hygienic and grooming needs but that she does require some help. Specifically, she needs help putting her shoes and socks on and, at times, pulling her pants up. When necessary her sister assists her with these activities. She cannot do household chores except for dusting. She does not cook, clean, or do laundry. She reads on the Internet, listens to music, and watches movies or television. She does attend church and shop occasionally in the company of her sister. She could not do these things alone. (R.60-61).

         Plaintiff resides in a two story home but lives almost exclusively on the first floor. She testified she does not lift anything heavier that a quart of milk. She can pick light items of clothing off the floor with a "reacher". She cannot sit with her legs dangling because this produces pain in the back of her thighs. She can straighten her left leg completely while seated but cannot do so with her right leg. She can extend her arms forward and can reach overhead. She does not smoke. (R.62).

         Plaintiff's routine involves getting up between 8:30 and 9:00 am, and she generally gets to bed by 11:00 pm. Her sleep is interrupted and, despite the fact that she is normally in bed for about ten hours, she estimates that she gets only four to five hours of actual sleep due to "nerve pains in her legs and knees". She states that she can stand for about ten minutes and can remain seated for about thirty minutes before she needs to get up and move around. She can walk unassisted only from one room to another but, with the aid of her assisted device, she can go farther as long as steps are not involved. She states that she does need the device for balance. (R. 62-63).

         With respect to medications, Plaintiff testified that she takes Percoset, Gabapentin, and Cyclobenzaprine, and an additional medication that she could not name to alleviate nerve pain, muscle spasms, and tremors. She states that these medication are helpful but do not afford complete relief. She also indicated that a side effect of these medications is frequent drowsiness. (R.64-65).

         Plaintiff stated further that, while moving around periodically can alleviate her pain, the best position for her is lying down. She testified that she uses a TENS machine daily at home three times for twenty minutes each time to alleviate her back pain. She finds that trying to do anything physical such as climbing the stairs to shower exacerbates her pain. As a consequence, she goes upstairs only three times each week and requires assistance to do so. Other than these forays to use the shower Plaintiff lives on the first floor of her home. She also uses a heating pad and cold-compresses several times daily to help control her pain. (R. 65-66).

         While Plaintiff can extend her arms overhead, she cannot control any objects that she is holding while doing so. She is incapable of doing anything that would require her to place objects on an overhead shelf. Accordingly, she does not do dishes or put them away. She mentioned that she has gained thirty pounds since she filed her application for benefits due to her lack of mobility and steroid use. In addition to her low back pain, she experiences neck pain along with pain that radiates down her arms and into her ring and little fingers. She uses her TENS unit daily to alleviate pain in her neck and shoulder area. Plaintiff also testified that she has a torn meniscus in her right knee and problems with her left knee which further impair her mobility and for which she periodically receives cortisone shots. She added that because she is so unsteady on her feet she must use an assist bar, a shower chair, and a flexible hand-held shower to cleanse herself. (R. 66-70).

         VE Gerald Keating also testified. Mr. Keating stated that he had reviewed Plaintiff s work history and was familiar with her educational background. He described her educational status as "high school and above" and described her prior jobs as "sedentary, skilled". Mr. Keating was asked a hypothetical question in which he was to assume a person of Plaintiff's age, education, and past work experience who retains the capacity to perform "light work" with limitations including: standing and walking limited to two hours in an eight hour day; sitting limited to six hours in and eight hour day; no right leg pushing or pulling and only occasional left leg pushing or pulling; occasional climbing, balancing, stooping, kneeling, crouching and crawling; no work on ladders; no exposure to vibration and hazards; and only occasional bilateral overhead reaching. Based on the hypothetical question the VE stated that such a person could not perform Plaintiff's past work as Event Coordinator but could perform her past work as a Graphic Designer. When the ALJ posed a second hypothetical question to the VE that also asked him to assume, in addition to all the limitations expressed in the first hypothetical question, that Plaintiff would also require unscheduled breaks throughout the workday and be off task 20% of the day the VE stated that such an individual would be unemployable. (R.72-76).

         III. Medical Evidence[2]

         A. Dr. Kamenar

         Dr. Elizabeth Kamenar reviewed Plaintiff's medical record in her role as a state agency consultant. She never examined Plaintiff. Her report dated September 10, 2013 noted the Plaintiff's alleged onset of disability date was June 4, 2010. While her analysis indicates that Plaintiff was "unable to completely empty bladder" and that she "self catheterizes", the only impairment that Dr. Kamenar noted concerned Plaintiff's spinal disorders.

         Dr. Kamenar opined that Plaintiff could: frequently lift up to ten pounds; stand and walk for up to two hours with normal breaks; sit with normal breaks for up to six hours; push and pull hand and foot controls without limitations; occasionally climb stairs; never climb ladders or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; never work in extreme cold or high humidity; never work around excessive vibration, moving machinery, or heights; and never be exposed to fumes, odors, dust, gases or poorly ventilated conditions. Based on this assessment, Dr. Kamenar determined that Plaintiff could not perform any of her past relevant work but could work as a lens inserter, nut sorter or sack repairer, and, as such, was not disabled. (R 80-88).

         B. Medical Evidence that Postdates Dr. ...


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