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Bell v. Berryhill

United States District Court, M.D. Pennsylvania

June 7, 2018

Carrie Ann Bell, Plaintiff
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant


          Richard P. Conaboy, Judge

         I. Procedural Background.

         We consider here Plaintiff's appeal from an adverse decision of the Social Security Administration (“SSA”) on her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). This case was initially filed in 2012 and most recently was back before the SSA after being remanded by this Court in July of 2016. After remand, Plaintiff received a new hearing before an ALJ on May 25, 2017. The ALJ issued a written a decision dated August 2, 2017, which, once again, denied Plaintiff's claims. This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).

         II. Testimony before the ALJ.

         A hearing was conducted before ALJ Randy Riley on May 25, 2017 in Harrisburg, Pennsylvania. Plaintiff Carrie Ann Bell testified on her own behalf and Michael Kibble, a vocational expert (“VE”), testified as to the availability of employment in hypothetical situations proposed by the ALJ. Also present was Plaintiff's attorney whose identity was not placed in the record.

         Plaintiff testified that she and her two children had lived with her mother since some unspecified date in 2013. Her mother was about to turn fifty-four years of age on the date of the hearing. Plaintiff went back to work briefly in 2015 despite the fact that neither her physical nor mental condition had improved. (R. 553-554). In order to obtain the job a friend helped her to complete the application. She needed assistance because she did not understand some of the questions. (R. 555).

         Plaintiff did not know anyone who worked for the employer for whom she worked in 2015. She did not have difficulty understanding the employer's directions about how to do the job. She worked for three months and then stopped because her back pain was getting worse. Her daughter is autistic and required more care as well, but the primary reason she quit the job was constant back pain. (R. 555-56). The job in question was part-time but she still needed to call off or go home early four or five times during the three months she worked there. She does not believe that she could have performed the job (a hotel maid) if it had been on a full-time basis. (R. 557). Bending down to make beds and clean the bathrooms was particularly difficult for her. She was under constant supervision and was told that she was too slow at doing the rooms. She was also told that she was forgetting to do things such as supplying cups or setting alarm clocks. She had difficulty working at the pace her supervisor preferred. She was often directed to work at a speed she found difficult to maintain. (R. 557-58).

         Since she left part-time employment as a hotel maid in 2013 her primary physical problems have been back pain and instability in her right shoulder. She takes unspecified pain medications for these conditions but denies side effects. (R. 559). She also has problems with her memory. She forgets things like paying for her children's lunch tickets. She is also reluctant to go anywhere by herself and is always accompanied by one of her daughters, her mother, or a friend. She is afraid that someone may hurt her and recounted an episode in which she was alone and had an angry encounter with another motorist. When she goes to the store she is never sure whether she has received the correct change. Her mother helps her manage her bills. (R. 560-63).

         The VE testified that he was familiar with the SSA's categories of work and with the Dictionary of Occupational Titles. He stated that he was also familiar with the Plaintiff's work history. He indicated that Plaintiff's past relevant work had been classified as light though medium as performed by the Plaintiff (housekeeper-cleaner) and medium though heavy as performed by the Plaintiff (store laborer). R. 564-65).

         The ALJ asked the VE to assume a person of the Plaintiff's age, education, and work experience with additional limitations to light work; occasional use of stairs; occasional balancing, stooping, kneeling, crouching, and crawling; never use of ladders; no exposure to irritants; work limited to routine, repetitive tasks; and a work environment that does not involve fast-paced production quotas or frequent workplace changes. Based on those assumptions, the VE stated that the Plaintiff would not be able to perform any of her past relevant work. However, given those limitations, light work would be available within the hypothetical claimant's capacities as a bindery machine feeder and a bakery racker. Also, sedentary work would be available as a table worker. (R. 565-66).

         When the ALJ altered the previous hypothetical question to include an additional limitation such that the hypothetical claimant would also need to alternate between sitting and standing every fifteen minutes, the VE stated that such a person could not perform as a bindery machine feeder or bakery racker, but would be able to perform the sedentary job of table worker. The VE added that two other sedentary jobs - - small products assembler and conveyer line bakery worker would also be within the hypothetical claimant's capacities. When the ALJ altered the hypothetical question once again to further assume that the hypothetical claimant would be unable to consistently perform sustained work activity over a forty hour week, the VE responded that the addition of such a limitation would render the hypothetical person (and hence the claimant) unemployable. (R. 566).

         Plaintiff's counsel then questioned the VE whether the sedentary jobs she had described required more than occasional supervision. The VE replied that they involved occasional supervision “on the lower end of occasional”. The VE was then asked whether the need for a supervisor to correct an employee's performance in some small way on a daily basis would affect the ability of the employee to stay employed. The VE responded that if the small corrections were made in response to some error that was resulting in a faulty product the person would be unemployable as requiring too much supervisory attention. (R. 567-568).

         III. Medical Evidence. A. Pinnacle Health.

         Plaintiff's primary health care provider from April of 2011 to at least September of 2014 was Pinnacle Health in Middletown, Pennsylvania. Dr. William Albright provided the bulk of her care. Dr. Joseph W. Lohr and Nurse Practitioner Linda Ulrich also provided medical services to Plaintiff during this period. Throughout Plaintiff's involvement with Pinnacle Health, progress notes indicate diagnoses of low back pain, migraine headaches, and fibromyalgia. Plaintiff's treatment at Pinnacle Health consisted of prescription pain medications, several trigger point injections, and physical therapy. An office note of October 11, 2012 suggests that x-rays and an MRI produced no answer regarding the etiology of Plaintiff's back pain and that the advisability of seeing a pain psychologist was discussed.[1]While the office notes from Pinnacle Health bear out the fact that Plaintiff complained continuously of back pain throughout the relevant period, the progress notes typically describe her distress level as “mild” or “moderate” and, on some occasions, as “no apparent distress”.

         Nurse Practitioner Lisa Ulrich executed a Residual Functional Capacity Questionnaire with respect to Plaintiff on July 27, 2012 (R. 388-89). Ms. Ulrich opined that Plaintiff suffered from migraines, low back pain and fibromyalgia. Ms. Ulrich indicated the Plaintiff's symptoms would “seldom” interfere with her ability to perform simple work-related tasks; that Plaintiff could walk one-half block without rest or significant pain; that Plaintiff could sit for thirty minutes at a time and stand-walk for fifteen minutes at a time; that Plaintiff could sit for up to three hours in an eight hour work day and stand/walk for up to three hours in an eight hour work day; that Plaintiff required a job which would permit her to shift positions at will; that Plaintiff would need to take unscheduled breaks of twenty to thirty minutes every two hours while at work; that Plaintiff could frequently lift up to ten pounds and occasionally lift up to twenty pounds; that Plaintiff had no limitation with respect to grasping, turning, or twisting objects or with fine manipulation; that Plaintiff would miss three to four work days each month; that Plaintiff was not a malinger; and that Plaintiff was incapable of sustained fulltime employment.

         On December 10, 2012, Dr. Albright completed a Residual Functional Capacity Questionnaire concerning Plaintiff. His findings largely mirrored those of Nurse Practitioner Ulrich five months earlier. Dr. Albright did place even more restrictions on Plaintiff's ability to sit, stand/walk, and lift. He also found that Plaintiff's ability to perform repetitive reaching, handling, or fingering was significantly limited. He stated that he could not say whether Plaintiff was a malingerer but, like Ms. Ulrich, he concluded that Plaintiff was incapable of full-time employment.

         B. Dr. Bruce Goodman.

         On March 24, 2010, Dr. Goodman evaluated Plaintiff at the request of the Bureau of Disability Determination. Dr. Goodman did not have the benefit of Plaintiff's medical records and he relied on Plaintiff's recitation of her medical history. Plaintiff told Dr. Goodman that she was looking for work but had been unable to find a job that she could tolerate. Dr. Goodman stated that Plaintiff also told him that she had two children age two and six and that she was capable of cooking, cleaning, grocery shopping, driving, and child care. She walked with a normal gait, could heel/toe walk easily, exhibited no muscle spasm, exhibited negative straight leg raising in the supine position, and displayed no muscular atrophy or weakness. Dr. Goodman assessed that Plaintiff could stand/walk and sit without limitations; could frequently lift up to twenty pounds and had no limitation with respect to reaching, handling, fingering, or feeling.

         C. Dr. Joseph Agliotta.

         Dr. Agliotta, a psychologist evaluated Plaintiff's intellectual functioning on March 31, 2010 at the request of the Bureau of Disability Determination. He administered the Wechsler Adult Intelligent Test, reviewed Plaintiff's records, and interviewed her. Dr. Agliotta found her to be oriented to person, place, and time with concrete thought processes. He found also that her mood was pleasant and her affect was full range. He assessed her verbal IQ at 66, performance IQ at 64, and full scale IQ at 63. These scores were indicative of mild mental retardation. He observed also that Plaintiff “would need assistance and oversight in managing any financial benefits.” In terms of her ability to understand, remember, and carry out instructions, Dr. Agliotta found only slight to moderate impairment. Dr. Agliotta also assessed slight to moderate impairment in Plaintiff's ability to interact with the public, coworkers, and supervisors.

         IV. ...

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