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Volpicella v. Saul

United States District Court, E.D. Pennsylvania

September 17, 2019

SHERRY LYNN VOLPICELLA, Plaintiff,
v.
ANDREW M. SAUL, [1]Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE.

         This action was brought pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), which denied the application of Sherry Lynn Volpicella (“Volpicella”) for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 301, et seq. Presently before the Court is Plaintiff's Brief and Statement of Issues in Support of Request for Review (“Pl. Br.”) (Doc. 10); Defendant's Response to Request for Review (“Def. Br.”) (Doc. 11); and the record (“R.”) of the proceedings before the Administrative Law Judge (“ALJ”) (Doc. 8). Plaintiff asks the Court to vacate the Commissioner's final administrative decision and remand either for payment of benefits or for further proceedings. The Commissioner seeks the entry of an order affirming the decision of the ALJ that the Plaintiff was not disabled. For the reasons set forth below, we recommend that the Court vacate the final decision and remand the case for further proceedings.

         I. FACTUAL AND PROCEDURAL HISTORY

         A. Benefits application and early treatment

         Volpicella protectively filed applications for DIB and SSI disability benefits on June 2, 2014. She has a history of work as a customer service clerk and supervisor, an office manager, and a real estate clerk. (R. 25.) She contends that she is disabled due to symptoms and limitations from fibromyalgia, osteoarthritis, and degenerative disc disease. She alleges that her condition rendered her disabled as of November 20, 2013, when she was 54 years old, although she had stopped working due to her condition six months earlier. (R. 18, 22, 25, 219.) She explained in her application paperwork that her back condition precluded prolonged sitting and that she was no longer able to engage in jobs such as waitressing, as she had done for short periods in the past. She further explained that she was unable to take pain medications due to allergies and was thus in constant pain. (R. 225.)

         Although she stopped working due to her condition in 2013, Plaintiff did not obtain any medical treatment at that time, as she had no health insurance. Inasmuch as she simply “hurt all the time, ” she found no particular occasion to go to the emergency room. (R. 53-54.) Her earliest treatment records date to April 2014, when she had acquired coverage and saw Steven Blasi, D.O., in the St. Luke's Warner Palmer Family Practice in Easton. (R. 302-35, 338-417.) She also received physical therapy for a time in May 2014 at a practice known as Coordinated Health, although she was unable to tolerate the therapy due to pain. (R. 223-24, 277-301.) Upon Dr. Blasi's referral, in August 2014 she was seen by Nicole Chiappetta, D.O., a rheumatologist at Coordinated Health. Dr. Chiappetta diagnosed her with both myofascial pain syndrome, for which she prescribed Cymbalta and aquatic therapy, and generalized osteoarthritis of multiple sites, for which she ordered further studies. Dr. Chiappetta noted that “clinically, ” Volpicella had fibromyalgia, and she “believe[d] a combination of medicinal therapy as well as alternative therapies” would be beneficial for her. (R. 384.) As Plaintiff reported at her follow-up appointment in November 2014, however, she discontinued the Cymbalta due to side effects, and she found that the physical therapy worsened her condition. She continued to have complaints of back pain and had purchased a TENS unit. Dr. Chiappetta could not recommend a more successful course of treatment. (R. 370-72.) Accordingly, Plaintiff continued to follow-up with Dr. Blasi, who prescribed her various medications and referred her for various tests.

         Plaintiff twice sought treatment in the ER for chest pains, and it was unclear whether the etiology of her pain was psychiatric (anxiety) or cardiac. The July 2014 ER visit was prompted by Dr. Blasi, who was seeing her in his office for complaints of chest pain and noted that her EKG was abnormal. He had her take a dose of nitroglycerine and arranged for her to be transported to the hospital for further evaluation of her unstable angina. (R. 390.) The July 2015 ER visit, which Plaintiff self-initiated, concluded with a diagnosis for pneumonia. (R. 53, 429-57.)

         B. Adjudication of application and additional evidence submitted

         Based on the records before it at that time, the state agency denied Volpicella's claim on September 3, 2014. (R. 94-101.) She requested a hearing, and her file was transferred to a hearing office in Texas, where she had moved. (R. 116.) Although she had been represented by counsel in the earlier stages of her proceedings before the state agency in Pennsylvania, she proceeded pro se in Texas. She acknowledged at the hearing that she had been provided with a list of organizations that could provide representation but that she waived her right to representation at her hearing. (R. 116, 172.)

         When asked by the ALJ at the August 10, 2016 hearing why she could not work, Volpicella replied:

Well, I have a hard time sitting for any length of time. I have a hard time standing for any length of time. … I feel like my neck is going to - like I can't hold my neck up. My back just throbs all the time. It's hard to explain. I'm in pain constantly. It never goes away. … It's between my shoulder blades. It's down my thighs. My neck, I know I have bone spurs in my neck. I can't hold my head up. I constantly want to put my head down. … I have more bad days than I have good days and those have been - I don't remember a good day at this point.

(R. 59.) Volpicella explained that she does stretches, applies heat, and uses a TENS unit for her head and a “backnobber” tool to relieve trigger points in her back. (R. 56, 61.) She testified that she has arthritis throughout her body and that “walking just kills me.” (R. 56.) At the time of the hearing, she was still taking medications that had been prescribed by her Pennsylvania doctors months earlier, which she had rationed.[2]

         The ALJ issued an unfavorable decision on January 30, 2017. She determined that Volpicella was not disabled because her transferable skills and what the ALJ found to be her residual functional capacity (“RFC”) would allow her to perform several representative occupations at the light exertional level. (R. 26.) The ALJ explained, as we discuss below, that in reaching this conclusion she gave “little weight” to the opinion of Dr. Blasi in a medical source statement that Plaintiff was “permanently disabled.” At the same time, she gave “great weight” to a state agency reviewing physician opinion that Volpicella could perform a limited range of light work. (R. 24-25.) The ALJ also pointed to evidence of what she considered to be a “willingness [by Volpicella] to provide false and misleading information specifically to the government for personal gain from public benefits, ” which she considered relevant to the claim for disability. (R. 22-23.) Volpicella, still proceeding pro se, sought review in the Appeals Council, but that body found no reason to set aside the ALJ's decision, leaving it the final decision of the Commissioner. (R. 1-5.) With new counsel in Pennsylvania upon her return from Texas, Plaintiff brought this litigation.

         II. STANDARD OF REVIEW

         This Court must determine whether substantial evidence supports the Commissioner's decision. 42 U.S.C. § 405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). Substantial evidence is “more than a mere scintilla but may be somewhat less than a preponderance of evidence.” Rutherford, 399 F.3d at 552. The factual findings of the Commissioner must be accepted as conclusive, provided they are supported by substantial evidence. Richardson, 402 U.S. at 390 (citing 42 U.S.C § 405(g); Rutherford, 39 F.3d at 552). The review of legal questions presented by the Commissioner's decision, however, is plenary. Shaudeck v. Commissioner of Social Security Admin., 181 F.3d 429, 431 (3d Cir. 1999).

         III. DECISION UNDER REVIEW

         The issue before the ALJ at the time of her January 30, 2017 decision was whether Plaintiff had been disabled within the meaning of the Act at any time since her November 20, 2013 alleged onset date. In making this determination, she relied upon the five-step sequential evaluation process set forth in 20 C.F.R. § 404.1520(a). At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful activity at any time since the alleged onset date. (R. 20.)[3] At Step Two, she found that Volpicella suffered from a severe, medically-determinable impairment, e.g., one that causes functional limitations and has more than a de minimus effect on his ability to perform basic work activities. (Id.) At Step Three, the ALJ concluded that Volpicella did not have an impairment or combination of impairments that satisfy the criteria of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1, and therefore could not establish her entitlement to benefits on that basis, requiring that the evaluation process continue. (R. 20-21.) Plaintiff does not challenge these findings.

         The ALJ then considered Volpicella's residual functional capacity (“RFC”), which is defined as “the most [a claimant] can do despite [her] limitations.” 20 C.F.R. § 416.945(a)(1).

         The ALJ determined:

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). She can lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for 6 hours in an 8-hour workday; and sit for 6 hours in an 8-hour workday. She can occasionally climb, balance, stoop, crouch, crawl or kneel. She should avoid concentrated exposure to airborne irritants including dust, fumes or gases and avoid concentrated exposure to temperature and weather extremes. From a mental standpoint, she retains the ability to understand, remember and carry out detailed but not complex instructions.

(R. 21-22) (bold in original). Applying this RFC and relying upon the characterization of Volpicella's past relevant work as skilled, the ALJ found at Step Four that Plaintiff was unable to perform any past relevant work. (R. 25. See also R. 64-65.) The ALJ then proceeded to Step Five to determine whether Volpicella was capable of performing any other jobs that exist in significant numbers in the national economy. Considering Plaintiff's RFC, age, high school education, and transferable skills acquired from past skilled work, the ALJ used Medical-Vocational Rules 202.15 and 202.07 as a framework for decisionmaking. Applying the VE testimony, the ALJ concluded that there were several occupations that Volpicella could perform, including assignment clerk, loan clerk, and industrial order clerk. She thus found that Plaintiff was not under a disability as defined in the Act from November 30, 2013 to the date of her decision. (R. 25-26.)

         IV. ...


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