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Winters v. Colvin

United States District Court, Third Circuit

November 7, 2013

DEBRA L. WINTERS, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

Gary C. Linarducci and Steven L. Butler, LINARDUCCI & BUTLER, New Castle, Delaware; David F. Chermol, CHERMOL & FISHMAN, LLC, Philadelphia, Pennsylvania, Attorneys for Plaintiff.

David C. Weiss, United States Attorney, UNITED STATES ATTORNEY'S OFFICE Wilmington, Delaware; Patricia A. Stewart, Special Assistant United States Attorney; Eric P. Kressman, Regional Chief Counsel, Dina White Griffin, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania, Attorneys for Defendant.


CHRISTOPHER J. BURKE, Magistrate Judge.

Plaintiff Debra L. Winters ("Winters" or "Plaintiff') appeals from a decision of defendant Carolyn W. Colvin, the Commissioner of Social Security ("the Commissioner"), [1] denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-33. The Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).

Presently pending before the Court are cross-motions for summary judgment filed by Winters and the Commissioner. (D.I. 8, 10) Winters asks the Court to reverse the Commissioner's decision and order benefits or remand for further proceedings. (D.I. 9 at 18; D.I. 17 at 9) The Commissioner opposes this motion and requests that the Court affirm the ALJ's decision. (D.I. 11 at 22) For the reasons set forth below, Winters' motion for summary judgment will be GRANTED-IN-PART and DENIED-IN-PART and the Commissioner's motion for summary judgment will be DENIED. The case will be remanded for further proceedings consistent with this Memorandum Opinion.


A. Procedural History

Winters filed her claim for DIB in March 2006, alleging disability beginning on November 14, 2003. (D.I. 5 ("Transcript" and hereinafter "Tr.") at 13, 101-05, 107-09; D.I. 11 at 1) Her claimed period of disability runs through December 31, 2006, the date she was last insured for disability benefits. (Tr. at 13, 15)

Winters' application was denied initially on May 24, 2006, and was again denied on reconsideration on December 6, 2006. (Tr. at 13, 67-76; D.I. 11 at 1) On January 29, 2007, Winters filed a request for a hearing before an administrative law judge ("ALJ"). (Tr. at 77) The hearing was held on December 13, 2007. (Tr. at 22-62) On February 4, 2008, the ALJ issued a decision confirming the denial of benefits to Winters. (Tr. at 10-21) On April 3, 2008, Winters filed a request for review of the ALJ's decision. (Tr. at 6) On April 30, 2009, the Appeals Council denied that request. (Tr. at 1-5) Thus, the ALJ's decision denying DIB became the final decision of the Commissioner. See 20 C.F.R. §§ 404.955, 404.981; see also Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On June 24, 2009, Winters filed a Complaint in this Court seeking judicial review of the ALJ's February 4, 2008 decision. (D.I. 1) On November 11, 2009, Winters filed her motion for summary judgment. (D.I. 8) The Commissioner opposed Winters' motion and filed a cross-motion for summary judgment on December 10, 2009. (D.I. 10) Thereafter, the parties engaged in additional briefing regarding whether Winters could file an amended motion for summary judgment, (D.I. 12, 13, 14), a request that Winters later withdrew, (D.I. 16). Briefing on the motions currently before the Court was completed on April 18, 2012. (D.I. 17)

On March 21, 2012, this case was reassigned to Judge Richard G. Andrews. On March 28, 2012, this case was referred to the Court to hear and resolve all pretrial matters, up to and including the resolution of case dispositive motions. On April 20, 2012, the parties consented to the Court's jurisdiction to conduct all proceedings in this case. (D.I. 19)

B. Factual Background

1. Winters' Medical History, Treatment, and Condition

At the time of the alleged onset of her disability in November 2003, Winters was 46 years old; she was 49 years old as of the date last insured in December 2006. (Tr. at 20, 24-25) Winters alleges that she became disabled on November 14, 2003 when she tripped and fell, fracturing the femoral neck of her right hip. (Tr. at 13, 33, 181-84)

a. Medical Evidence Prior to Winters' Alleged Onset Date

Beginning in July of 1997, six years prior to the onset of her alleged disability, Winters sought treatment for headaches from Charles Reel, M.D. (Tr. at 272-74) Winters disclosed then that she had a history of depression and was currently being treated with anti-depressants. ( Id. ) On physical examination, Dr. Reel found Winters to be "notably anxious... with tremulousness." (Tr. at 273) Dr. Reel noted that Winters suffered from "increasing stress at work and at home" and stated that he believed Winters' headaches were "intimately related to her life stressors and depression." ( Id. ) Dr. Reel recommended that Winters continue to take her anti-depressant medications and prescribed medication for severe headaches. (Tr. at 274) In a follow-up visit two months later, Winters reported that she continued to suffer from headaches. (Tr. at 278)

On October 13, 1999, two years later, Winters returned to Dr. Reel complaining of an increase in the frequency of her headaches. (Tr. at 276) Dr. Reel noted that Winters was "followed by Dr. Kunkle for depression" and continued to take various anti-depressant medications. ( Id. ) Concerned about intracranial pathology, Dr. Reel ordered an MRI of Winters' brain and suggested that Winters try a higher dose of Imitrex. (Tr. at 277) The MRI was normal. (Tr. at 232)

Nearly four years later, on May 5, 2003, Winters sought treatment for pain, numbness, and tingling in her right arm from the doctors at Southern Maryland Orthopaedic and Sports Medicine Center, including Daniel Bauk, M.D. and Michael Travis, M.D. (Tr. at 197) Winters reported to Dr. Travis that she suffered from "horrendous pain" in her right dominant arm with occasional swelling and stiffness. ( Id. ) Winters reported that she had a "both bone forearm fracture" in the past. ( Id. ) Dr. Travis noted that Winters had "significant problems with depression[, ]" was taking "multiple medications" and had a "[Nizarre affect." ( Id. ) Dr. Travis found Winters' right hand to be shiny and contracted, and reported that Winters suffered from "[p]robable type 1 complex regional pain syndrome (reflex sympathetic dystrophy.)[.]" ( Id. ) He recommended that Winters seek evaluation by a pain service, ( Id. ), and prescribed bracing for Winters' right arm, (Tr. at 270).

There is no evidence in the record indicating whether Winters sought evaluation by a pain service. However, on August 1, 2003, Winters was admitted to Saint Mary's Hospital in Maryland for an MRI of the distal right forearm, hand and cervical spine. (Tr. at 254-55) The MRI report of Winters' right forearm and hand indicated an old fracture on her wrist with no evidence of abnormality; the MRI suggested that Winters suffered from low bone mineral density, but was otherwise normal. ( Id. )

Winters returned to Dr. Reel on August 29, 2003 for evaluation of right arm pain and numbness over the past year. (Tr. at 270-71) Noting Dr. Travis' report and the MRI report, Dr. Reel suggested that Winters undergo an EMG/nerve condition study. ( Id. ) The results of the study and EMG of Winters' upper extremities revealed minimal right carpal tunnel syndrome and minimal left Guyons canal syndrome. (Tr. at 259) Dr. Reel prescribed Winters medication for nerve pain and recommended that she continue splinting her right wrist. (Tr. at 271)

b. Medical Evidence Subsequent to Winters' Alleged Onset Date

On November 14, 2003 Winters tripped and fell, suffering the right femoral neck fracture of her right hip. (Tr. at 181-84) That same day, Dr. Bauk performed an open reduction and internal fixation to repair the fracture. ( Id. )

Winters returned to Dr. Bauk six weeks later complaining of pain in her right hip. (Tr. at 195; D.I. 11 at 7)[2] Dr. Bauk noted that Winters had not returned to see him for any previously scheduled post-surgery visits, and that she arrived to the appointment "full weightbearing on her leg" without the assistance of any kind of device. (Tr. at 195) An x-ray of Winters' hip indicated that it did not appear to be healed. ( Id. ) Dr. Bauk attributed this to Winters' noncompliance regarding her weight-bearing restrictions. ( Id. ) Dr. Bauk stated that Winters "must use the walker at all times" and limited her to "toe-touch weight-bearing only." ( Id. )

On October 14, 2004, Winters returned to Dr. Bauk for a follow-up examination. (Tr. at 196) Winters complained of increasing pain in her right groin. ( Id. ) On physical examination, Dr. Bauk found Winters to have a "very labile affect[, ]" stating that she went from "defiant to crying to very flat in rapid succession." ( Id. ) An x-ray of Winters' right hip showed advanced collapse of the femoral head due to osteonecrosis. ( Id. ) Dr. Bauk again attributed Winters' continued injury to her "complete[]" noncompliance with weight-bearing restrictions. ( Id. ) Dr. Bauk noted that the recommended treatment for Winters' condition was a total hip arthroplasty. ( Id. ) However, he indicated that he was not willing to proceed with the additional surgery unless he was certain Winters would be compliant with all restrictions, including weight-bearing restrictions. ( Id. ) No further records from Dr. Bauk are found in the record.

Shortly thereafter, on October 22, 2004, Winters began seeing a different orthopedic surgeon, Bruce Beck, M.D., for an orthopedic consultation to address increasing pain in her right hip. (Tr. at 191) Dr. Beck reviewed the x-rays taken by Dr. Bauk and concluded that Winters had a collapsing right femoral head. (Tr. at 192) Dr. Beck recommended that Winters undergo either a hemiarthroplasty or a total hip replacement, dependant on the appearance of the acetabulum. ( Id. )

On November 29, 2004, just over a year since Winters' first surgery, Dr. Beck performed a right hemiarthroplasty on her. (Tr. at 189-90) On a follow-up visit nineteen days later, Dr. Beck reported that Winters had good range of motion, normal strength, no acute distress, and walked using a walker. (Tr. at 190) Dr. Beck recommended that Winters continue to ambulate and attend therapy. ( Id. ) On January 1, 2005, Dr. Beck reported that Winters was "getting along well" and Winters stated that she was "doing very well." (Tr. at 189) Although Dr. Beck noted that Winters walked with a "very slight limp[, ]" he found her ability to ambulate "quite good." ( Id. )

On February 25, 2005, Winters returned to Dr. Beck, complaining of pain in her right heel and ankle. (Tr. at 187-88) Winters reported that her ankle ached when she walked. (Tr. at 187) A physical examination revealed ankle swelling, puffiness, and pain to palpation in Winters' right ankle and heel. ( Id. ) Dr. Beck found Winters' ankle was stable with normal motor strength and intact sensation. ( Id. ) An x-ray of the ankle did not show any injury; however, it did show mild generalized osteopenia (low bone mineral density). (Tr. at 188, 279) Dr. Beck recommended that Winters attend physical therapy. (Tr. at 188)

On follow-up examination with Dr. Beck on April 18, 2005, Winters reported that she had been attending physical therapy and felt her right ankle was improving, though it still occasionally bothered her. (Tr. at 186) Winters reported that she was not experiencing any pain in her right hip and was "very pleased with it." ( Id. ) Dr. Beck did not find any abnormalities in either Winters' right hip or ankle, but noted that she walked with a slight limp. ( Id. )

On January 4, 2006, Winters was referred to an orthopedist, Bryan Herron, M.D., for consultation regarding hip pain. (Tr. at 209-10) Winters reported "aching, giving way, locking/catching pain, stiffness and swelling" in her right hip. (Tr. at 209) Winters described the pain as "inconsistent and aching[, ]" that its severity was "moderate and worsening" and that it was a "10" on a "scale of 1 to 10[.]" ( Id. ) She also indicated that her symptoms worsened with movement of the right hip and with changes in the weather. ( Id. ) On physical examination of Winters, Dr. Herron found her to have normal gait and station, muscle tone, and range of motion. (Tr. at 209-10) Dr. Herron noted that Winters' muscle strength was "5/5 for all groups tested." (Tr. at 209) He found moderate tenderness in the greater trochanter of the right femur and right ala of the ilium. ( Id. ) Dr. Herron recommended that Winters "gradually increase activities as tolerated without restrictions." (Tr. at 210) He also recommended that she attend physical/occupational therapy. (Tr. at 210-11)

A request for physical/occupational therapy by Dr. Herron, dated January 4, 2006, diagnosed Winters with persistent trochanteric bursitis and abductor tendonosis in her right hip. (Tr. at 211) Dr. Herron listed that his goals for the therapy were to "improve function, increase strength, improve mobility, and relieve pain[.]" ( Id. ) An undated prescription pad note from Dr. Herron appears in the record immediately after the January 4, 2006 request form. This note, apparently written in this same time period, notes that Winters was limited to "lifting - 5 lbs pushing/pulling 10 lbs[.]" (Tr. at 212)

On May 24, 2006, Phillip Moore, M.D., a state agency physician, performed an Residual Functional Capacity ("RFC") assessment based upon his review of the record.[3] (Tr. at 199-206) Dr. Moore concluded that Winters could occasionally lift 20 pounds, frequently lift 10 pounds, could stand and/or walk for a total of six hours in an eight-hour workday, and could sit for a total of six hours in an eight-hour workday. (Tr. at 200) He also found Winters was unlimited in her ability to push and/or pull, and had occasional postural limitations. (Tr. at 200-01) Dr. Moore noted that Winters occasionally used a cane and that her complaints regarding her limited ability to lift and walk were credible. (Tr. at 204)

On June 23, 2006, Winters returned to Dr. Herron complaining of burning and sharp pain in her right hip. (Tr. at 208) Winters reported that these symptoms worsened with lifting, moving from sitting to standing, moving the affected area, standing, and walking. ( Id. ) Winters also reported: (1) that the pain was "sharp[;]" (2) that it "radiates to the back[;]" (3) that it was an "8" on a "scale of 1 to 10[;]" and (4) that it occurred on a constant basis anytime she used her hip. ( Id. ) Dr. Herron observed that Winters appeared tired and that her mood and affect was sad. ( Id. ) He reported that Winters had moderate tenderness in her right hip, right buttock, and sacral region. ( Id. ) Dr. Herron noted that he discussed activity restrictions with Winters, emphasizing the need for "gentle handling." ( Id. ) Dr. Herron reported that non-compliance with the treatment plan greatly increased the risk of a poor outcome. ( Id. ) Dr. Herron concluded that Winters' prognosis was "fair." ( Id. )

On December 6, 2006, Irving Kramer, M.D., a state agency physician, reaffirmed the RFC completed by Dr. Moore. (Tr. at 213)

c. Medical Evidence Subsequent to the Date Last Insured

On March 26, 2007, Winters visited Odilon Claravall, M.D., for general medical care. (Tr. at 283-86) Winters disclosed a history of anxiety and tuberculosis. (Tr. at 283) Dr. Claravall diagnosed Winters with insomnia and generalized anxiety disorder and prescribed Xanax (at a later visit in September 2007, he prescribed Lexapro). (Tr. at 281, 286)

On May 21, 2007, a bone density scan ordered by Dr. Claravall revealed mild to moderate osteoporosis in the left femoral neck and left proximal femur and borderline osteoporosis in the lumbar spine. (Tr. at 292)

On June 2, 2007, Dr. Claravall completed a non-agency form entitled "Medical Assessment of Ability to Do Work Related Activities (Physical)." (Tr. at 215-17) Dr. Claravall found that, due to back pain, Winters could lift less than 10 pounds occasionally and less than 10 pounds frequently, could stand/walk for a total of six hours in an eight-hour workday, could sit for a total of six hours in an eight-hour workday, had limited ability to push and/or pull in her upper extremities, and could occasionally perform postural activities. (Tr. at 215-16) Dr. Claravall noted that during an eight-hour workday Winters would need to rest or lie down. (Tr. at 217) He opined that the "level of severity reflected" had existed since Winters began seeing Dr. Herron. ( Id. ) On July 12, 2007, a prescription blank signed by Dr. Claravall stated "[p]atient is to do no exercise except for walking." (Tr. at 218)

2. Administrative Hearing

At an administrative hearing on December 13, 2007, the ALJ heard the testimony of Winters and Janet Howard Reed ("Reed"), an impartial Vocational Expert ("VE"). (Tr. at 22-62)

a. Winters' Testimony

Plaintiff testified that she had prior work experience as a secretary and a bartender. (Tr. at 25-28) She stated that her work as a secretary was at her husband's company, from approximately 1996 through 2001, and said that she would occasionally provide extra help for an hour or two per day by answering phones. (Tr. at 27-28) With regard to her prior work as a bartender, this work involved standing, walking, and frequently lifting 15-20 pounds throughout an eight- to 12-hour work day. ( Id. at 28-29) Winters testified that in recent years, after she broke her hip in November 2003, she was unable to return to the "rigorous routine" she had previously undertaken as a bartender. (Tr. at 29) In 2005, for example, she took a part-time job as a bartender, but after two months she left the job, because her impairments prevented her from performing ...

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