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Cerro v. Colvin

United States District Court, D. Delaware

September 30, 2014

CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

Stephen A. Hampton, GRADY & HAMPTON, LLC, Dover, DE Attorney for Plaintiff.

Charles M. Oberly, III, United States Attorney, and Dina W. Griffin, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wilmington, DE. Eric P. Kressman, Regional Chief Counsel, and Allyson Jozwik, Assistant Regional Counsel, SOCIAL SECURITY ADMINISTRATION-REGION III OFFICE OF GENERAL COUNSEL, Philadelphia, PA. Attorneys for Defendant.


LEONARD P. STARK, District Judge.


Plaintiff Suzanne Cerro ("Cerro" or "Plaintiff') appeals from a decision of Carolyn Covin, the Acting Commissioner of the Social Security Administration ("Commissioner" or "Defendant"), denying her claim for supplemental security income ("SSI") under Title XVI of the Social Security Act. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

Presently pending before the Court are cross-motions for summary judgment filed by Plaintiff and Defendant. (D.I. 19, 22) Plaintiff seeks partial reversal of Defendant's decision and an award of benefits back through 2006, or, in the alternative, remand for another hearing. (D.I. 20 at 21) Defendant requests that the Court affirm her decision. (D.I. 23 at 14) For the reasons set forth below, the Court will deny Plaintiff's motion for summary judgment and grant Defendant's motion.


A. Procedural History

Plaintiff filed her claim for SSI on October 24, 2003, alleging disability since September 29, 2003. (D.I. 11 (hereinafter "Tr.") at 18) Her application was denied at the pre-hearing levels. (Id.) She appeared before an Administrative Law Judge ("ALJ") on March 8, 2005; on April 28, 2005, the ALJ issued a decision unfavorable to Plaintiff. (Id. at 73-80, 267) The Appeals Council granted Plaintiff's request for review and remanded the case to the ALJ on September 21, 2006. (Id. at 140-43) The ALJ conducted a remand hearing on May 1, 2007 and, on November 20, 2007, issued a partially favorable decision. (Id. at 87-105) The Appeals Council was unable to take action on Plaintiffs request for review of this decision because the written record and accompanying materials could not be found. (Id. at 107-08) Accordingly, the Appeals Council remanded the case for another hearing and reconstruction of the missing file. (Id. at 108) The subsequent hearing was conducted by a different ALJ on February 23, 2010. (Id. at 18) On March 23, 2010, this ALJ issued a decision upholding the prior determination that Plaintiff was disabled beginning on February 2, 2006, but not disabled between her protective filing date of October 1, 2003 and her 50th birthday on February 2, 2006. (Id. at 18-34) Plaintiffs request for review by the Appeals Council was denied on April 19, 2012. Thus, the March 23, 2010 decision by the ALJ became the final decision of the Commissioner. See 20 CFR §§ 404.955, 404.981; Sims v. Apfel, 530 U.S. 103, 107 (2000).

On June 18, 2012, Plaintiff filed a complaint seeking judicial review of the ALJ's March 23, 2010 decision. (D.I. 1) Subsequently, on March 7, 2013, Plaintiff moved for summary judgment. (D.I. 19) On April 15, 2013, the Commissioner filed a cross-motion for summary judgment. (D.I. 22)

B. Factual Background

1. Plaintiff's Medical History, Treatment, and Condition

Plaintiff was forty-eight years old on her alleged disability onset date and considered a younger individual for disability determination purposes, but on February 2, 2006 Plaintiff's age category for disability purposes changed to an individual approaching advanced age. (Tr. at 32; see also 20 CFR 404.1563 and 416.963) She was fifty-four years old when the ALJ rendered the decision that is now the subject ofreview. (Tr. at 34)

Plaintiff has at least a high-school education and is able to communicate in English. (Id. at 32) Plaintiff has past relevant work history as a tax preparer, mail carrier, and secretary. (Id.) Plaintiff last worked in January 2003 as a part-time bookkeeper. (Id. at 32) Plaintiffs relevant medical history is detailed below.

a. Knee Pain

On three occasions between September 29, 2003 and October 27, 2003, Cerro was treated by John Meccoro, a physician at Dr. DeShuttle's office, with complaints of bilateral knee pain, with the pain in her right knee being greater. (Id. at 326-30) On September 29, 2003, Cerro was diagnosed with bilateral patellofemoral syndrome. (Id. at 330) Cerro had full flexion and extension of the knee with a positive patellofemoral grinding test and a painful McMurray's test but a negative Drawer test. (Id.) On October 8, 2003, Cerro was again seen for complaints of pain to the right knee. (Id. at 328) Cerro retained full extension but had only 90 degree flexion and had mild swelling; X-rays were unremarkable and an MRI was ordered. (Id.) Dr. Meccoro recommended Cerro use crutches and refrain from driving and working until she could be re-evaluated. (Id.)

On December 22, 2003, Dr. Glenn Rowe reviewed the MRI from October 23, 2003 and determined that Cerro had a tear of the posterior horn of the medial meniscus of the right knee; he recommended surgery and an MRI of the left knee. (Id. at 381-82) The left knee MRI showed a horizontal tear of the posterior horn and mid-body of the medial meniscus. (Id. at 605)

On February 10, 2004, Cerro underwent a right knee arthroscopy, partial medial meniscectomy, chondroplasty of the patella, medial femoral condyle and medial tibial plateau. (Id. at 695-96) On July 8, 2004, Dr. Rowe postponed left knee surgery until the right knee was better. (Id. at 690) Between February and July 2004, Cerro was given four injections in her knee and ordered to go to physical therapy; however, she was unable to attend physical therapy for msurance reasons. (Id. at 690) Cerro received right knee manipulation at Christiana Care Physical Therapy 25 times between September 28, 2004 and November 30, 2004. (Id. at 610)

b. Neck, head, and back pain

Cerro saw Dr. Rowe on October 19, 2004 with complaints of neck, head, and back pain. (Id. at 591) She was treated by a chiropractor, Dr. Gondolfo, 18 times between October 13, 2003 and September 27, 2004. (Id. at 1128-30) An MRI of the lumbar spine was performed on November 11, 2004, which showed multilevel disk desiccation and degenerative spondylosis. (Id. at 589-90) An MRI of the cervical spine on November 23, 2004 showed multilevel disc desiccation and degenerative spondylosis and bulges pressing upon the thecal sac at C5-6 and C6-7. (Id. at 586-87) A thoracic spine MRI was performed on February 3, 2005 due to continued complaints of pain. (Id. at 812) Cerro was treated at Christiana Care Physical Therapy 21 times between November 11, 2004 and February 10, 2005 for low back pain. (Id. at 766)

c. Fibromyalgia

Cerro saw a neurosurgeon, Dr. Koyfman, on September 29, 2004, for her complaints of neck, head, and back pain. (Id. at 662) Dr. Koyfman found that Cerro had diffuse degenerative cervical and lumbar spine disease and multiple areas of tenderness that suggested fibromyalgia. (Id. at 661-63) On December 3, 2004, Dr. Lloyd, a neurologist, examined Cerro and also felt she had fibromyalgia. (Id. at 638-40) Dr. Lloyd recommended follow-up with a rheumatologist. (Id. at 641)

Cerro began seeing Dr. Tamesis, a rheumatologist, on January 31, 2005. (Id. at 665-67) After reviewing her medical history and multiple studies and tests, Dr. Tamesis determined that Cerro could have fibromyalgia or inflammatory arthritis and referred her for pain management. (Id.) Cerro saw Dr. Tamesis regularly in 2005 and 2006 for symptoms related to fibromyalgia. (Id. at 664, 796, 864, 857-62) Dr. Tamesis evaluated Cerro on March 8, 2005, noting that she met the criteria for fibromyalgia. (Id. at 797) Dr. Tamesis completed an Impairment Questionnaire for Fibromyalgia on March 14, 2007, and again noted Cerro met the criteria for fibromyalgia. (Id. at 875-77)

d. Mental health and memory loss

Cerro's neurologist, Dr. Lloyd, referred her for neuropsychological testing on December 3, 2004, after seeing her for chronic migraine headaches. (Id. at 638, 640) On February 14, 2005, Cerro met with neuropsychologist Dr. Greenberg for this testing. (Id. at 657-60) Based on the battery of tests performed, Dr. Greenberg concluded that Cerro had Dysthymic Disorder; her Immediate Memory Index, a measure of her capacity to immediately recall visual or auditory information, was lower than 95% of people her age, but her General Memory Index was only lower than 77% of people her age. (Id. at 659, 660) Overall, Dr. Greenberg found Cerro to be a woman of above average intelligence whose memory test scores are below average, which may reflect difficulty learning, possibly related to depression and pain. (Id. at 660)

Dr. Hazlett, a psychologist, treated Cerro for memory loss in several counseling sessions beginning in March, 2007. (Id. at 1049-54) Cerro was diagnosed with bipolar disorder, ADHD with dementia like symptoms, and depression. (Id.)

e. Visual impairments

Cerro saw Dr. Forgnoni, an optometrist, three times between October and December 2004. (Tr. at 643-44, 936-40) Dr. Forgnoni determined that Cerro has a visual disability and noted that any type of desk or computer work would be visually overwhelming and too demanding for her. (Id. at 937)

Cerro continued seeing another optometrist, Dr. Blackbum, beginning in 2006, for complaints of skipping lines and losing place when reading, and poor comprehension. (Id. at 844) Dr. Blackbum examined Cerro and determined she had convergence insufficiency which ...

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