United States District Court, D. Delaware
DONNA T. MOORE, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
R. Fallon United States Magistrate Judge
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.
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
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)
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)
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 by Dr. Eric Temesis, a rheumatologist.
(Id.) In January 2012, Moore was diagnosed with
chronic fibromyalgia 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. (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)
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. (Id. at 342)
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.
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, 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.)
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. (Id. at 393-94)
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.)
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)
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
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 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.)
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.)
Hearing Before the ALJ
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)
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.)
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.
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)
Vocational expert testimony
posed the following hypothetical to the vocational expert
[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.
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
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