United States District Court, M.D. Pennsylvania
Richard P. Conaboy Judge
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).
Testimony before the ALJ.
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.
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) .
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).
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) .
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).
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).
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).
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
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).
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).
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).
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.
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).
Medical Evidence that Postdates Dr. ...