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Bower v. Berryhill

United States District Court, M.D. Pennsylvania

May 9, 2018

Kelly Renee Bower, Plaintiff
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Defendant

          MEMORANDUM

          RICHARD P. CONABOY, UNITED STATES DISTRICT JUDGE.

         I. Procedural Background.

         We 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.

         II. Testimony before the ALJ.

         A. Plaintiff's testimony on questioning by the ALJ.

         A 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.

         Plaintiff 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).

         Plaintiff 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).

         She can 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).

         B. Testimony of Ruth Price.

         Ms. 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).

         Ms. 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).

         C. Plaintiff's testimony upon questioning by her attorney.

         Upon 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) .

         D. Testimony of the vocational expert.

         Mr. 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 crawling.
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?

         In 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).

         III. Medical Evidence.

         There 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.[1] The ALJ stated, however, that she had "considered all of the Plaintiff s severe and non-severe impairments in determining the ...


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