United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY, UNITED STATES DISTRICT JUDGE.
consider here the appeal of Plaintiff Kelly Bower 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 initially denied at the
administrative level whereupon she requested a hearing before
an Administrative Law Judge ("ALJ"). She did
receive that hearing on March 23, 2015. The ALJ denied
Plaintiff's application by written decision dated July
29, 2015. The ALJ's decision was affirmed by the Appeals
Council by letter dated May 8, 2017. The action by the
Appeals Council constitutes a final decision by the Agency
which vests this Court with jurisdiction pursuant to 42
U.S.C. § 405g. Plaintiff appealed to this Court by
Complaint (Doc. 1) filed July 7, 2017.
Testimony before the ALJ.
Plaintiff's testimony on questioning by the ALJ.
hearing was conducted before ALJ Michele Stolls in
Wilkes-Barre, Pennsylvania on March 31, 2015. Testimony was
heard from Plaintiff, Ruth Price (Plaintiff's
"aunt" who raised her), and Carmen Abraham, a
vocational expert ("VE"). Also present was
Plaintiff's attorney, Barbara Feudale. The testimony may
be summarized as follows.
lives in Shamokin, Pennsylvania. She resides with Ruth Price
along with her brother. Her brother is epileptic and has an
anxiety disorder. She helps care for her brother by
monitoring his medications and preparing meals for him in a
microwave oven. She also is the representative payee for her
brother's welfare check and handles his financial
affairs. Her activity at home is confined to light sweeping
and dusting, the care of two parakeets, reading, watching
television, and doing handicrafts with yarn. (R. 81-83).
has a driver's license but had a friend drive her to the
hearing. She can no longer drive long distances. She does
help with grocery shopping once a month. She carries light
bags but her aunt, who is eighty-one years of age, carries
the heavier items. She attends church regularly and
occasionally reads the bible aloud and leads the congregation
in song. In recent years, however, she has not been singing
because the choir has been disbanded. (R. 84-87).
walk less than one mile and can comfortably lift no more than
ten pounds. She is having trouble managing her diabetes and
her sugar level has been fluctuating widely. She does watch
her carbohydrate intake and measures her food in portions.
She goes through mood swings and sometimes yells at her aunt.
She attributes these mood swings to menopause. She also
suffers from sleep apnea and uses a CPAP machine regularly.
Her aunt has to help her shower and dress because doing so
without assistance causes her to lose her breath. She does
have an inhaler to help her breathing but does not use it
regularly because using it makes her cough. (R. 91-99).
Testimony of Ruth Price.
Price testified that she is not Plaintiff's aunt by a
blood relationship but that she did raise her from infancy.
Plaintiff was abandoned as an infant. Ms. Price stated that
Plaintiff is a very nervous person and that she must be told
several times how to do something before she can master a
task. She described Plaintiff as "very faithful at
work". Plaintiff does not drink or smoke. She has crying
spells every day and tends to sleep only three to four hours
at night. She usually naps during the day. Plaintiff has
friends who visit her at home and she sometimes goes out with
them. Plaintiff drives when she wants to. (R. 102-106).
Price relates that Plaintiff worked fifteen years at Paper
Magic but lost her job when the company moved out of
Shamokin. Since then her health has declined. She has been
diagnosed with cirrhosis of the liver and her anxiety
problems have gotten worse. Ms. Price lives next door to the
Plaintiff and spends five to six hours each day with her.
Plaintiff has never seen a psychologist. Upon hearing the
Plaintiff has not seen a psychologist, the ALJ stated that
she should schedule a consultative examination.
Plaintiff's council agreed to the examination and Ms.
Price advised that she would see to it that Plaintiff would
attend the examination. (106-110).
Plaintiff's testimony upon questioning by her
questioning by her attorney, Plaintiff stated that she has
been having a problem with numbness in her legs. This has
happened three or four times. She attributes the numbness in
her legs to her diabetes. The biggest change in her health
since she last worked is the deterioration in her breathing.
She talks to her birth mother on the telephone and she has
informed Plaintiff that she was drinking and doing drugs
during her pregnancy with Plaintiff. Plaintiff advised that
the doctors believe her mother's substance abuse caused
some of her medical problems. (R. 110-112) .
Testimony of the vocational expert.
Abraham testified that he had reviewed the file on
Plaintiff's work history and that his opinion would be
consistent with the Dictionary of Occupational Titles unless
he stated otherwise. He stated that, at forty-one years of
age, Plaintiff was a "younger individual" under the
Agency's regulations. She is a high school graduate and
her past relevant work was as a packer and assembler. The
Dictionary of Occupational Titles describes such work as
"medium, unskilled". Mr. Abraham was asked by the
ALJ (R. at 113) to respond to a hypothetical question in
which he was to assume:
... we're dealing with the hypothetical claimant who has
the same age, education, and work experience as this
claimant. Assume further that the hypothetical claimant has
the residual functional capacity to perform work at no more
that the exertional level. However, her ability to work at
that level is reduced in that she would be limited to
occupations that require no more that occasional postural
maneuvers such as balancing, stooping and climbing on ramps
and stairs, but must avoid occupations that require climbing
on ladders, ropes and scaffolds, or kneeling, crouching or
She must avoid occupations that require pushing or pulling
with the lower extremities to include the operation of
pedals. She would be limited to occupations that require no
more than occasional overhead reaching, pushing and pulling
with the upper left extremity to include the operation of
hand leavers and overhead work. She must avoid concentrated,
prolonged exposure to fumes, odors, dusts, gases, chemical
irritants, environments with poor ventilation, temperature
extremes, vibrations, extreme dampness and humidity.
She would be limited to occupations which do not require
exposure to hazards such as dangerous machinery and
unprotected heights. She would be limited to occupations
requiring no more than simple, routine tasks not performed in
a fast paced production environment involving only simple
work-related decisions and, in general, relatively few
workplace changes. She would be limited to occupations which
require no more that occasional interaction with supervisors,
coworkers and members of the general public. And, she would
be limited to occupations requiring low stress defined as
occasional decision-making required. Could such a
hypothetical claimant perform her past relevant work?
response to the hypothetical question, Mr. Abraham stated
that a person with the limitations expressed in that
hypothetical question would be unable to perform Plaintiff s
past relevant work. However, Mr. Abraham opined that the
hypothetical individual and, hence, the Plaintiff could
perform sedentary, unskilled jobs that exist in significant
numbers in the national economy including: bench assembler;
inspector; and finisher. When the ALJ added an additional
limitation to the hypothetical question such that Plaintiff
would also be off task up to 30% of the working day due to
chronic depression and chronic fatigue status post
hysterectomy, Mr. Abraham stated that such a person would not
be able to maintain any employment whatsoever. (R. 113-118).
is a great deal of medical evidence in the record indicating
that Plaintiff treats, or has treated, for numerous maladies
including: morbid obesity, diabetes mellitus, adrenal
insufficiencies, bursitis of the right hip, obstructive sleep
apathy, depressive disorder, unspecified anxiety disorder,
and unspecified personality disorder. Each of these
conditions were classified as "severe impairments"
by the ALJ. (R. at 25). There is also record evidence of
treatment for a variety of ailments that the ALJ noted but
found to be non-severe. These include: allergic rhinitis,
premature menopause, gastric reflex, mild degenerative disc
disease of the lumbar spine, transient vision loss in the
left eye consistent with migraine headaches, and
cirrhosis. The ALJ stated, however, that she had
"considered all of the Plaintiff s severe and non-severe
impairments in determining the ...