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Moore v. Colvin

United States District Court, D. Delaware

February 17, 2017

DONNA T. MOORE, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Sherry R. Fallon United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff Donna T. Moore ("Moore") filed this action on January 22, 2016 against the defendant Carolyn W. Colvin, the Commissioner of the Social Security Administration (the "Commissioner"). Moore seeks judicial review pursuant to 42 U.S.C. § 405(g) of the Commissioner's October 21, 2015 final decision, denying Moore's claim for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-434 and §§ 1381-1383f. The court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).

         Currently before the court are Moore's and the Commissioner's cross-motions for summary judgment. (D.I. 10; D.I. 14) Moore asks the court to enter an award of benefits or, alternatively, to remand her case for further administrative proceedings. (D.I. 11) The Commissioner requests the court affirm the ALJ's decision. (D.I. 15 at 15) For the reasons set forth below, Moore's motion for summary judgment is granted and the Commissioner's cross-motion for summary judgment is denied. I recommend that the case be remanded for further administrative proceedings as outlined infra.

         II. BACKGROUND

         A. Procedural History

         Moore filed a DIB application on March 15, 2012, claiming a disability onset date of February 13, 2012. (Tr. at 174-75) Her claim was initially denied on August 15, 2012, and denied again after reconsideration on July 26, 2013. (Id. at 84-96, 98-116) Moore then filed a request for a hearing, which occurred on June 10, 2014. (Id. at 50-86) The Administrative Law Judge, Judith A. Showalter (the "ALJ"), issued an unfavorable decision, finding that Moore was not disabled under the Act. (Id. at 22-30) The Appeals Council subsequently denied Moore's request for review on October 21, 2015, rendering the ALJ's decision the final decision of the Commissioner. (Id. at 1-6, 13-15) On January 22, 2016, Moore brought a civil action in this court challenging the ALJ's decision. (D.I. 1) On June 6, 2016, Moore filed a motion for summary judgment, and on September 22, 2016, the Commissioner filed a cross-motion for summary judgment. (D.I. 10; D.I. 14)

         B. Medical History

         Moore was born on November 22, 1950, and was sixty-one years old on her alleged onset date. (Tr. at 30, 174) Moore is considered a person close to retirement age. 20 C.F.R. § 404.1563(e). Moore has a general equivalency diploma (GED). (Tr. at 43) She worked as an assistant administrative secretary in 2000, and as a car salesman from January 2001 to February 12, 2012. (Id. at 44-45, 94)

         Moore reports that she started having arthritis-type pain in the 1980s, which increased over time. (Id. at 390) In 2003, Moore was diagnosed with rheumatoid arthritis[1] by Dr. Eric Temesis, a rheumatologist. (Id.) In January 2012, Moore was diagnosed with chronic fibromyalgia[2] by Dr. Maged I. Hosny. (Id. at 324) After the diagnosis, Moore continued to work for a couple of weeks. (Id. at 256) However, during this time, Moore experienced episodes of increased stress and syncope.[3] (Id. at 256) On February 8, 2012, Adam Brownstein, M.D., wrote a letter to Moore's employer stating "she would benefit from a job with less pressure volatility." (Id. at 301)

         Moore left her job as an automobile salesperson on February 12, 2012, after experiencing another episode of syncope. (Id. at 46, 255) In May 2012, Dr. Hosny stated that Moore "is unable to do any kind of work at the present time secondary to chronic pain, fatigue, and insomnia." (Id. at 321) At the same time, Moore was being treated by Dr. Harry Tarn, DPM, for mid-foot degenerative foot disease.[4] (Id. at 342)

         On August 6, 2012, Dr. Janis Chester conducted a physical evaluation and prepared a report for the purpose of Moore's disability determination. (Id. at 367) Dr. Chester noted that Moore's medication regimen included Lyrica, Tramadol, Remicade, Lovastatin, Fludrocortisone, and Lasix. (Id.) Moore also took Cymbalta and Ambien. (Id.) Dr. Chester observed that Moore was well-nourished, well-groomed, and engaged in conversation. (Id. at 369) Dr. Chester wrote that Moore was polite, but her mood was "up and down." (Id.) Additionally, Moore's short-term and long-term memory was intact, and she showed the ability to concentrate. (Id.) Dr. Chester rated Moore as having a "moderate" degree of restriction of daily activities (ability to socialize with friends, attend church, etc.). (Id. at 371) She also rated Moore as having a "moderately severe" limitation on her ability to perform work with frequent contact with others, but a "mild" limitation on her ability to perform work with minimal contact with others. (Id.) Dr. Chester assigned Moore a GAF score of 47.[5]

         On August 13, 2012, Dr. Patricia Chavarry completed a medical evaluation with respect to Moore's disability determination. (Id. at 379) During the evaluation Moore stated that she believed her fibromyalgia was in a dormant state. (Id.) In a questionnaire, Moore stated that she is responsible for feeding her cats, making her bed, and doing chores around the house. (Id. at 380) Additionally, Moore stated that she likes to garden, and prepares meals for her family. (Id.) Dr. Chavarry also witnessed differences in symptoms and restrictions during the evaluation. (Id. at 382) For example, Moore reported that she was unable to flex beyond 30 degrees at the hip during formal testing, but demonstrated full flexion without any discomfort or restriction when retrieving her belongings at the start of the evaluation when being weighed. (Id.) Additionally, Moore had diminished grip strength in her right hand when being formally tested, but had no difficulty retrieving her handbag containing multiple items. (Id.) Dr. Chavarry stated Moore's mood was normal, and no psychosis was noted. (Id.) Dr. Chavarry's findings were that Moore had rheumatoid arthritis, low blood pressure, hypercholesterolemia[6], depression (controlled on current medication), and fibromyalgia, with absent trigger points during the evaluation. (Id.) Dr. Chavarry stated that Moore's "physical findings support full functional abilities in conjunction with well controlled mood disorder on current regimen." (Id.)

         On February 27, 2013, Joseph Keyes, Ph.D., completed a psychological functioning assessment for Moore's disability determination. (Id. at 389) Dr. Keyes stated Moore's intermediate memory functioning was below average/normal. (Id. at 390) During the evaluation, Moore demonstrated the ability to focus on basic tasks. (Id.) For example, Moore was able to count backwards from twenty, and recite the alphabet with no errors. (Id.) Dr. Keyes noted that Moore's social and interpersonal skills were appropriate. (Id. at 391) Moore interacted appropriately throughout the examination. (Id.) Dr. Keyes noted that Moore exhibited mild-to-moderate clinical symptoms of depression. (Id.) During the evaluation, Moore explained that she is often sad and frustrated about her declining health. (Id.) Dr. Keyes opined that Moore is independent in her self-care skills, and is able to perform basic household chores and tasks with the help of her family. (Id.) Dr. Keyes noted that Moore was able to switch and change tasks without difficulty during the evaluation. (Id.) Dr. Keyes concluded that Moore has an adjustment disorder with a depressed mood, and assigned her a GAF score of 65. (Id. at 392) Dr. Keyes also completed a functional capacities evaluation form rating Moore with "none" or a "mild" degree of impairment in the majority of areas, and with a "moderate" limitation in sustaining performance in attendance and in coping with the pressures of ordinary work.[7] (Id. at 393-94)

         In April 2013, Moore went to Dr. Brownstein complaining of an upper respiratory infection, and reported falling six times in four months. (Id. at 404) During the visit, Moore failed a Romberg test, and was referred to neurologist, Dr. Jay Dave. (Id.)

         In June 2013, Dr. Hosny's nurse practitioner, Linda Ashley, FNP, reported that Moore had severe restrictions in her ability to maintain attention and concentration due to the effect of pain and/or side effects of medication. (Id. at 410) It was noted that Moore could only sit two hours per day and stand/walk one hour per day, could not use her hands for pushing/pulling, simple grasping, or fine manipulation, could only lift five pounds occasionally, could never perform postural activities, and had significant environmental limitations. (Id. at 411-12) Around the same time, x-rays showed Moore as having mild degenerative changes in her left foot, resulting in foot surgery on July 17, 2013. (Id. at 440, 451-53)

         On February 3, 2014, Dr. Brownstein wrote a letter stating he "perceive[d] that [Moore] could work 5-10 hours per week, if her employer would allow her to set her hours on the fly, but that is simply not realistic, " and that "her well-being would make her very undependable, and therefore, unreliable and unemployable." (Id. at 479) On February 19, 2014, Dr. Tarn wrote a similar letter, stating her condition had deteriorated over the past 2-3 years, and that it was his "medical opinion that she is unable to perform work of any type." (Id. at 486)

         On April 27, 2014, Dr. Hosny wrote a report stating that Moore had gotten progressively worse due to "chronic pain, which has caused extreme fatigue, inability to concentrate, generalized body stiffness in the morning, which can last up to two hours, short term memory loss, which is due to the combined effect of fibromyalgia and osteoarthritis[8] in addition to medications taken by the patient." (Id. at 493) Dr. Hosny further stated that Moore is "unable to sit or stand for more than an hour in an eight hour working day, " and "unable to sit or stand for more than fifteen minutes at a time without the need to change positions secondary to pain." (Id.) Dr. Hosny concluded that Moore is unable to do any type of work. (Id.)

         On May 5, 2014, Dr. Brownstein came to a similar conclusion that due to Moore's medical condition, full time, or even part time work, would be "impossible." (Id. at 494) Dr. Brownstein stated that Moore easily becomes fatigued and has "good and bad days" from her rheumatoid arthritis injections. (Id.)

         C. Hearing Before the ALJ

         1. Moore's testimony

         Moore testified that she became unable to work February 2012 after passing out at work one day. (Tr. at 46) She stated that the pain from her arthritis limits her the most, and that she is in constant pain from her feet to her knees, into her hips, shoulders and hands. (Id. at 50) Moore testified that she would rate her pain as a "nine" (on a scale to ten). (Id.) She stated that she also has problems with her hands, elbows, knees, ankles, and jaws swelling up at the joints. (Id. at 51) Moore also explained that she has fibromyalgia which causes intense pain about ten times per month. (Id. at 52-53) Moore stated she also experiences dizziness from swelling in her ears. (Id. at 53)

         Moore explained that she has had surgeries on both feet. (Id. at 54-55) Moore stated that the July 2013 procedure on her left foot was not successful. (Id. at 54) In July 2014, Moore had surgery on her right foot. (Id. at 55) She explained that the bone in her right toe was shaved down, and a pin was inserted to straighten the toe. (Id.) Moore stated the surgery on her right foot was also unsuccessful. (Id.)

         Moore testified that she is able to walk and stand an average of 20 minutes per day. (Id. at 62) She stated she can sit for 10 minutes at a time, and is able to lift one pound. (Id.) Moore testified that she cannot bend over at the waist, and is unable to pick up items that have dropped on the floor. (Id. at 63-64) Moore explained that she is able to brush her own teeth, but that it is very difficult for her to dry her hair and use a curling iron. (Id.)

         Moore also testified that her husband and children help her with daily activities. (Id. at 66-67) She explained that her son moved back into her home to help her with daily activities. (Id. at 59) Her son helps with groceries, laundry, and cooking on a daily basis. (Id. at 66-67) Moore explained that she is no longer able to attend church or social activities with friends. (Id. 59, 69) She testified that she has become depressed because she is unable to engage in activities she used to do, and is currently on medication for her depression. (Id. at 60) Moore stated that she also takes medication for anxiety. (Id. at 61)

         2. Vocational expert testimony

         The ALJ posed the following hypothetical to the vocational expert (the "VE"):

[T]his is an individual who is approximately the age of the claimant at the onset year, about age 61. Has a high school education. Able to read, write, and do at least simple math. I will start with a light level of exertion. In this particular hypothetical the posturals are occasional, but no climbing of a ladder, a rope, or a scaffold. In the environmental area, this person should avoid concentrated exposure to extreme cold and vibration. In general, handling, fingering, feeling would be frequent as opposed to constant. Now, with this hypothetical, in your opinion, could such a person do the past work?

(Id. at 79) The VE testified that at the light exertional level, the individual described would be able to work in occupations including information clerk, office helper, or sales attendant. (Id. at 80-81) The VE explained that Moore's prior work experience as an administrative secretary would apply. (Id. at 80) However, Moore could not return to her position as an automobile sales person, because of the possibility of working in extremely cold temperatures during the winter.

(Id.)

         On cross examination, Moore's attorney asked whether a hypothetical individual who was "limited to sitting two hours total in an eight-hour day and standing or walking one-hour total in an eight-hour day" would be able to perform full time work. (Id. at 81) The VE stated that such a hypothetical is not representative of full time work. (Id.)

         Moore's attorney then cited the report by Moore's rheumatologist, Dr. Hosny, and asked whether a hypothetical person with the limitations expressed in that report would be able to perform a secretarial job. (Id. at 81-82) The VE stated that the ...


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