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Gibbs v. Colvin

United States District Court, D. Delaware

August 19, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


MARY PAT THYNGE Magistrate Judge.


On May 16, 2014, plaintiff Desarie Gibbs ("plaintiff") filed this action against Carolyn W. Colvin, Acting Commissioner of Social Security, ("defendant") seeking judicial review of a final decision denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act.[1] Presently before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, the court recommends plaintiff's motion for summary judgment be denied, and defendant's cross-motion for summary judgment be granted.


A district court has jurisdiction to review an administrative law judge's ("ALJ") decision in a Title II DIB case once it becomes the final decision of the Commissioner.[2] A decision of the Commissioner becomes final when the Appeals Council affirms or denies review of an ALJ decision.[3] Here, the ALJ's decision is the final decision of the Commissioner because the Appeals Council denied plaintiff's request for appeal.[4] Therefore, this court has jurisdiction to review the ALJ's decision.


On May 5, 2010, plaintiff applied for DIB, asserting a disability onset date of April 15, 2010, and citing sickle cell anemia, beta thalassemia, hypertension, carpal tunnel syndrome, bursitis, and a torn rotator cuff as alleged causes of her disability.[5] The claim was initially denied on November 9, 2010, and upon reconsideration on April 21, 2011.[6] Plaintiff subsequently filed a written request for an administrative hearing before an ALJ on June 20, 2011.[7] On September 25, 2012, ALJ Melvin D. Benitz held a hearing to determine whether plaintiff was disabled.[8] Plaintiff was represented by counsel and testified, and an impartial vocational expert ("VE"), Christina Beatty-Cody, also testified.[9] On October 19, 2012, based on the hearing testimony and the record, the ALJ found plaintiff not disabled within the meaning of the Act[10] and, therefore, not eligible for DIB.[11] The Appeals Council denied plaintiff's request for review.[12] Thereafter, plaintiff brought the present action seeking judicial review of the Commissioner's final decision.[13]


Plaintiff was 41 years old at the alleged onset date of disability in 2010, 44 years old at the time of the hearing in 2012, and is considered a "younger person" at all times relevant to her DIB application.[14] She completed one year of college, and holds a certificate in medical billing.[15] Her past relevant work includes customer service, data entry clerk, and insurance clerk.[16] Plaintiff stopped working on April 14, 2010, after she was terminated by State Farm Insurance for absences due to her medical problems.[17] In finding plaintiff not disabled, the ALJ also concluded she could no longer perform her previous jobs.[18]

At the time of the hearing, plaintiff lived with her eleven year old daughter, who has cancer and sickle cell disease.[19] Plaintiff receives assistance from her mother, cousin, and sister with household chores, grocery shopping, childcare, and bathing.[20] Plaintiff reported she experiences sickle cell crises about once every other week that last from three to five days.[21] Plaintiff also notes difficulty sitting or standing for prolonged periods, lifting heavy objects, reaching, and concentrating.[22] Due to side effects from her medications, plaintiff claims she is unable to work because of lack of focus and concentration, and an inability "to give 100 percent."[23]

A. Medical Evidence

Prior to the alleged onset date, plaintiff was diagnosed with sickle cell anemia and beta thalassemia in 2001.[24] She was diagnosed with carpal tunnel syndrome in both hands in 2008.[25] On February 10, 2009, Dr. Andrew J. Gelman, D.O., performed surgery to remove a benign tissue mass from her right shoulder.[26] Plaintiff returned to work within two weeks.[27] On February 13, 2009, plaintiff, suffering from leg pain, began seeing a pain management specialist, Dr. John J. Goodill, M.D.[28] Dr. Goodill prescribed OxyContin, Percocet, Dilaudid, and Promethazine.[29]

On August 13, 2009, plaintiff went to the emergency room at Christiana Care Health Services for a sickle cell pain crisis.[30] Her last hospital admission for a pain crisis was eight years prior.[31] She was discharged the next day with diagnoses of sickle cell crisis, thrombocytopenia, left hip pain, sclerosis in both humeral heads consistent with avascular necrosis, hypertension, obesity, a history of ventricular ectopy, and microcytic anemia.[32] Upon discharge, she was instructed to continue with her present medications, including OxyContin, Percocet, Dilaudid, and Exforge.[33]

In August 2009, plaintiff started taking Hydroxyurea for severe bone pain, as prescribed by Dr. Philip M. Blatt, M.D., a hematologist.[34] On April 13, 2010, Dr. Blatt noted no significant improvement in her pain, or increase in hemoglobin F level, since starting Hydroxyurea.[35] During an April 23 visit with Dr. Goodill, plaintiff reported leg pain and fatigue, and two episodes of sickling pain since the previous visit six weeks before.[36] On July 12, 2010, plaintiff informed Dr. Goodill because of the loss of health insurance, she could not afford to refill her OxyContin prescription.[37] Dr. Goodill suggested that she may need to switch from OxyContin to Duragesic if she qualified for Medicaid.[38] During the interim, she continued with Percocet as needed.[39]

On September 11, 2010, plaintiff was again admitted to the emergency room at Christiana Care Health Services for a sickle cell crisis.[40] Her pain was managed with intravenous Dilaudid.[41] She was advised to return on an outpatient basis for treatment with Hydroxyurea.[42] She was also diagnosed with chronic pain syndrome.[43] On September 13, during an appointment with Dr. Goodill, plaintiff rated her pain level at "7 [out of] 10."[44]

On November 8, 2010, Dr. Anne Aldridge, M.D., a state agency physician, reviewed plaintiff's medical records and completed a physical Residual Functional Capacity ("RFC") assessment.[45] Dr. Aldridge determined plaintiff was able to perform light work with no climbing of ladders, ropes or scaffolds; occasional climbing of stairs and ramps; occasional balancing, stooping, kneeling, crouching, and crawling; occasional overhead reaching with her right upper extremity; and frequent (but not continuous) bilateral handing.[46] Her environmental limitations included avoiding concentrated exposure to temperature extremes, vibration, respiratory irritants, and hazards.[47] Dr. Aldridge noted plaintiff's medical records confirmed a sickle cell related hospitalization approximately once per year, with symptoms responding well to medication.[48] Her carpal tunnel syndrome was only symptomatic with repetitive use of the hands, and her hypertension was controlled.[49] Plaintiff's chronic impingement syndrome "responded only partially to conservative treatment."[50] Dr. Aldridge concluded plaintiff was able to occasionally lift twenty pounds with frequent lifting of up to ten pounds; stand or walk for at least two hours and sit for at least six hours per workday; and push and pull on an unlimited basis.[51]

A November 8, 2010 Social Security "report of contact" noted plaintiff reported her carpal tunnel symptoms increased during work and continuous typing.[52] On December 21, 2010, Dr. Michael W. Lankiewicz, M.D., [53] a hematologist, recommended upward titration of Hydroxyurea to test whether it would improve her sickle cell disease.[54] On December 27, plaintiff visited Dr. Gregory D. Adams, M.D., her primary care doctor, for complaints of neck and bilateral shoulder pain.[55] Dr. Adams ordered x-rays, which were taken on January 5, 2011, and showed mild degenerative changes of her shoulder joints, and irregular bilateral sclerosis of the humeral heads.[56] On March 16, 2011, Dr. Lankiewicz recommended anti-inflammatory medication after plaintiff reported a pain crisis in her knees.[57] On June 15, 2011, Dr. Lankiewicz noted plaintiff "frequently aborts the Hydroxyurea trial prior to a significant titration."[58] After Dr. Lankiewicz instructed plaintiff on the purpose of continued use of Hydroxyurea to raise fetal hemoglobin levels, the medication was restarted for a full three month trial.[59]

Plaintiff saw Dr. Goodill on August 22, 2011.[60] He noted her chronic pain syndrome resulted in frequent crises every other week lasting three to five days, with plaintiff recently taking twenty to thirty Oxycontin pills to manage pain.[61] On September 14, 2011, plaintiff saw Dr. Lankiewicz with complaints of persistent right groin pain, radiating into the hip, difficulty sleeping and tiredness.[62] The doctor ordered an MRI of the right hip.[63] Dr. Lankiewicz noted plaintiff once again discontinued Hydroxyurea on her own, "convinced that it was no help to her."[64] As a result, the doctor discontinued the Hydroxyurea trial.[65]

The October 20, 2011 MRI revealed avascular necrosis in the pelvic area, with the chronic bone infarcts more pronounced on the left, mild arthritic changes of the hip joints and mild insertional tendinosis of the right gluteus medius.[66] After discussing the MRI findings with Dr. Lankiewicz on October 24, 2011, plaintiff expressed no interest in a referral to an orthopedic surgeon for her hip avascular necrosis.[67] However, she mentioned some interest in surgery for carpal tunnel syndrome.[68] The findings of a sleep study performed by Dr. Goodill which showed moderate sleep apnea were also discussed.[69] Plaintiff reiterated she awakens with significant pain on a daily basis.[70] On October 28, 2011, Dr. Goodill provided a note recommending that plaintiff refrain from working for a period of one year, due to disabling pain from sickle cell disease and avascular necrosis of both hips.[71] On November 16, 2011, Dr. Gelman told plaintiff to use a crutch or cane as needed, lose weight, and advise to when she wanted to proceed with carpal tunnel surgery.[72] During a routine visit with Dr. Lankiewicz on February 22, 2012, plaintiff described occasional vaso-occlusive crises which she "manage[d] at home, " and low thoracic and lumbar back pain.[73] Dr. Lankiewicz ordered an MRI of the thoracic and lumbar spine to determine whether there were any new structural lesions.[74] The MRI of the lumbar spine, completed on March 23, 2012, showed small disc protrusions and facet hypertrophy contributing to mild bilateral foraminal stenosis.[75]

On March 20, 2012, Dr. Lankiewicz completed a "Multiple Impairment Questionnaire" regarding plaintiff's treatment history and status.[76] Dr. Lankiewicz listed plaintiff's pain as a five, and her fatigue as a seven on a zero-to-ten scale.[77] He concluded plaintiff could sit for one hour, and stand or walk for zero to one hours in an eight-hour workday, with ambulation every half hour for ten to fifteen minutes.[78] Dr. Lankiewicz found significant limitation in reaching, handling, fingering, grasping, twisting, pushing, pulling, kneeling, bending, stooping, and lifting or carrying even light items, due to severe pain.[79] The doctor determined plaintiff's conditions, including constant pain, fatigue, and other symptoms, interfered with her ability to work a full-time competitive job on a sustained basis, and were ongoing (defined as lasting at least twelve months).[80] He found no evidence of malingering.[81] Dr. Lankiewicz noted plaintiff would need thirty minute breaks three to four times during an eight-hour work day, with at least four absences per month.[82]

On April 11, 2012, Dr. Goodill completed the same questionnaire on plaintiff's behalf, noting "her condition has slowly worsened over time."[83] On a zero-to-ten scale, her pain was measured at eight, and her fatigue at four.[84] Dr. Goodill noted plaintiff could stand or walk from zero to one hours, and sit for up to two hours per eight-hour workday.[85] He recommended plaintiff not sit, stand, or walk continuously, but to ambulate for fifteen minutes every two hours.[86] The doctor estimated plaintiff could lift and carry zero to ten pounds occasionally, but never lift or carry beyond ten pounds.[87] He opined her symptoms would likely increase in a competitive environment, and concluded she could not work full-time in a competitive job requiring sustained activity, and would require at least four absences per month due to her frequent and ongoing pain.[88] He found no malingering.[89]

In early June 2012, plaintiff went to the emergency room for bilateral leg pain, and was discharged after a short stay; she ...

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