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Brown v. Berryhill

United States District Court, M.D. Pennsylvania

June 21, 2018

Joni L. Brown, 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 Joni Louise Brown from an adverse decision of the Social Security Administration (“SSA”) or (“Agency”) on her application for Supplemental Security Income Benefits (“SSI”). Plaintiff's claim, initially filed on April 23, 2014, was denied at the administrative level on June 25, 2014. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”) and received such a hearing on April 13, 2016. The ALJ issued an unfavorable decision on August 22, 2016 which was affirmed by the Appeals Council on September 7, 2017. The Appeals Council's affirmance constitutes a final decision of the Agency and vests this Court with jurisdiction pursuant to 42 U.S.C. § 405(g).

         II. Testimony before the ALJ.

         The Plaintiff testified at a hearing before ALJ Paula Garrety on April 13, 2016. Also present were Charles Rosamilia, Jr., her attorney, and Patricia Chilleri, a vocational expert (“VE”). Plaintiff's testimony may be summarized as follows.

         Plaintiff was forty-five years of age on the date of her hearing. She has three children all of whom have reached adulthood. She lives with one of her daughters who she described as “learning disabled”. The daughter receives SSI benefits and receives these checks in her own right. Previously, Plaintiff had been her daughter's representative payee. (R. 117-118).

         Plaintiff does not drive and has never had a driver's license. When she needs to leave the house she depends on her mother for transportation. Plaintiff stated that she does not leave the house often because being in public makes her anxious. She last worked in 1997. She did try to go back to work briefly in 2002 but could not sustain that employment. Since 2002, her physical problems have gradually gotten worse despite several surgeries. (R. 118-119).

         Plaintiff completed the tenth grade and subsequently earned a GED. She is five feet three inches tall and weighs approximately two hundred and fifteen pounds. She formerly weighed about 140 pounds and believes that her difficulty moving around has contributed to her substantial weight gain. Before her back symptomology she did “all sorts of stuff” such as photography, nature hikes, dancing, and shopping at flea markets. She no longer does these things because she has difficulty staying on her legs for more than thirty to forty-five minutes before she becomes shaky and her legs begin to swell. She stated that she can sit for forty-five minutes to an hour and then must change position due to swelling in her legs. She believes the swelling is related to her lower back problems. She was not able to estimate how long she would be capable of sitting and standing in an eight hour work day because she is on medications that make her tired and sometimes cause her blood pressure to spike. Some days are worse than others. She does not believe that she could work even as much as five hours in an eight hour workday. (R. 119-120).

         She has difficulty walking from her front door to the sidewalk and back -- a distance of less than half a block. She must sit down to rest afterward. She does not experience much of a problem manipulating things with her hands but sometimes experiences hand numbness. She stated that she had been assaulted by a boyfriend in 1997 and that the damage incurred ultimately made two back surgeries, one cervical and one lumbar, necessary. Before the surgeries Plaintiff was experiencing extreme pain in her lower back, hips, legs, neck, and down her arms into her hands. Her neck surgery “made things a little better”. However she still experiences pain in her left hand and some numbness in her right hand. Also, she began to experience headaches after her neck surgery. These headaches are severe enough that she does not do much around the house and depends on her daughter and her boyfriend to do such things as take out the trash, do the laundry, make the beds, and shop for groceries. (R. 120-122).

         Lower back surgery in 2013 actually made her low back and leg symptomology worse and further impaired her ability to function. She does not get much sleep. She naps downstairs in the afternoon and early evening and then her daughter helps her get up to her third floor bedroom. She sleeps sporadically and generally wakes up before 5:00 a.m. and, as a result, she is tired all day. This fatigue and her social anxiety are such that she rarely leaves the house. Her back pain also limits her and she finds that even minimal physical activity exacerbates back pain that radiates down her legs. R. 123-125).

         Plaintiff also relates that she feels depressed and believes that her depression stems from the assault she suffered years ago. She had gone for a time for mental health therapy and, while in therapy, was prescribed medication for her anxiety. She was told by a therapist that she did not need to go back to therapy as long as she stayed on her medication. Plaintiff also alluded to osteoarthritis which affects her knees, fingers, wrists, elbows, shoulders, and hips. When this condition is exacerbated she goes to the hospital for an injection to deal with the inflammation. She also uses heat and ice to alleviate her symptoms of osteoarthritis. (R. 125-126).

         Also testifying was VE Patricia Chilleri. Ms. Chilleri testified that she was familiar with the rules and regulations governing disability under the Social Security Act and that she had reviewed the exhibits that had been introduced and also heard Plaintiff's testimony. Her vocational testimony was entered without objection from Plaintiff's attorney.

         The ALJ phrased a hypothetical question to Ms. Chilleri in which she was asked to assume a person of Plaintiff's age, education, and work-history who was able to perform sedentary or light work that did not involve detailed or complex instructions and was confined to routine, competitive tasks and no more than occasional contact with the public. Under these assumptions, Ms. Chilleri identified sedentary occupations (including document preparer, sorter, sampler, tester, inspector, and bench worker) and light exertional occupations (including hand packer and laundry worker/folder) that would be within the hypothetical claimant's functional capacities. (R. 128-129).

         Upon questioning by the Plaintiff's attorney, Ms. Chilleri stated that if the claimant was unable to sit, stand, or walk for more than two hours in an eight hour day and could lift no more than five pounds, she would be unable to perform any of the jobs that had been identified. When Plaintiff's attorney asked whether marked limitations in understanding and carrying out simple instructions coupled with agoraphobia and panic attacks as described by Plaintiff's doctor would preclude Plaintiff from performing any of the jobs the VE had identified, Ms. Chilleri responded that, if the Plaintiff was unable to maintain consistency and persistence for at least twenty percent of an eight hour work day, she would be unemployable. (R. 129-130).

         III. Medical Evidence.[1]

         a. Clinton Medical Associates.

         Dr. Greenberg of Clinton Medical Associates saw Plaintiff on four occasions between March 4, 2014 and May 20, 2014. On March 4, 2014 Dr. Greenberg's office note refers to low back pain at ¶ 5-S1 and headaches. He recorded Plaintiff's weight at 188 pounds and her blood pressure at 122/74. He noted that he would follow up with Plaintiff after surgery. (R. 565).

         On March 7, 2014, Plaintiff called Dr. Greenberg with complaints of cold symptoms and back pain. Dr. Greenberg prescribed Hydrocodone and a cough medication. (R. 564).

         On April 4, 2014, Plaintiff presented with complaints of chest tightness, anxiety, and low back pain post-status lumbar fusion. Plaintiff's weight was recorded as 184.8 pounds and her blood pressure was measured at 132/78. (R. 563).

         Between April 15, 2014 and April 23, 2014 Plaintiff called Dr. Greenberg on three occasions to discuss her dosage of Adidex (a weight control medication), to complain of feeling odd and experiencing back pressure, and to report that she ...


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