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Stracco v. Berryhill

United States District Court, D. Delaware

March 16, 2017

NANCY A. BERRYHILL, Commissioner of Social Security Defendant.

          Kerby Stracco, Gaithersburg, Maryland. Pro se Plaintiff.

          David C. Weiss, Acting United States Attorney, Office of the United States Attorney, Wilmington, Delaware and Dina White Griffin, Special Assistant United States Attorney, Office of the General Counsel, of the Social Security Administration, Philadelphia, Pennsylvania.

          Of Counsel: Nora Koch, Acting Regional Chief Counsel, Region III and Theresa A. Casey, Assistant Regional Counsel, of the Social Security Administration, Philadelphia, Pennsylvania.


          STARTS U.S. District Judge


         Plaintiff Kerby Stracco ("Stracco" or "Plaintiff) appeals from the decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security ("Commissioner" or "Defendant"), denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).[1] Presently pending before the Court are cross-motions for summary judgment filed by Stracco and the Commissioner.[2] (D.I. 16, 17) For the reasons set forth below, the Court will grant Plaintiffs motion to the extent she seeks a remand, will deny Defendant's motion, and will remand the matter for further proceedings.


         A. Procedural History

         Stracco filed her application for DIB on May 15, 2013, alleging disability beginning January 1, 2012, and later amended the onset date to July 9, 2013, due to traumatic brain injury ("TBI"), post-traumatic stress disorder ("PTSD"), bilateral plantar fasciitis and foot pronation, and bunions. (D.I. 14-6 at 41) The application was denied on July 31, 2013, and upon reconsideration on September 20, 2013. (D.I. 14-3 at 2-9, 21-40) Stracco filed a request for hearing on September 27, 2013. Hearings were held before an Administrative Law Judge ("ALJ") on February 11, 2014 and August 18, 2014. The ALJ issued a decision finding that Stracco was not disabled under the Act. Stracco filed a request for review by the Appeals Council, which was denied on November 20, 2014, and the ALJ's decision became the final decision of the Commissioner. (D.I. 14-2 at 7-9)

         On March 30, 2015, Stracco filed a Complaint seeking judicial review of the ALJ's September 24, 2014 decision. (D.I 1) Stracco moved for summary judgment on December 17, 2015, and the Commissioner filed a cross-motion for summary judgment on January 15, 2016. (D.I. 16, 17)

         B. Medical Evidence

         Plaintiff complained of hip pain in August 2009. (D.I. 14-15 at 26-28) Examination revealed unremarkable results, including no instability or tenderness on palpation, and normal motion, gait, and stability. (Id.) Plaintiff was diagnosed with left ear hearing loss and tinnitus in February 2010. (D.I 14-14 at 111) In February 2011, Plaintiff complained of foot pain while training for a marathon. (D.I 14-13 at 118, 119; D.I 14-14 at 16) Her foot was x-rayed, with normal results. (D.I 14-13 at 119) The same year, Plaintiff was diagnosed with bunions. (D.I 14-8 at 53, 105)

         Plaintiff complained of hearing loss in August 2011. (D.I. 14-13 at 43) Plaintiff completed a Hearing Loss Questionnaire in December 2011 and reported that she had suffered two TBIs and a concussion. (D.I 14-12 at 26) She was diagnosed with asymmetrical sensorineural hearing loss. (Id. at 23) Plaintiff was unable to complete follow-up audiology testing in May 2012 due to dizziness. (D.I 14-7 at 10)

         A March 2012 bilateral hip x-ray revealed normal results. (D.I 14-8 at 80) An April 2012 brain MRI revealed normal result, as did a January 2013 ECG. (D.I 14-7 at 50-51; D.L 15-10 at 67) January 2013 treatment notes indicate that Plaintiff was pregnant. (D.I 15-9 at 68)

         Plaintiff was seen by consultative examiner Walid Chalhoub, M.D. ("Dr. Chalhoub") in April 2014. (D.I. 15-14 at 46-57) Plaintiff provided a history of lower back pain and left hip pain, which affected her ability to sit, stand, walk, bend and lift; foot pain, which affected her ability to perform prolonged standing, walking, and sitting; TBI, which affected her ability to be around others and deal with stress; and depression/PTSD, which caused poor mood control. (Id. at 46-47) Plaintiff stated that she was able to sit for twenty minutes, stand for twenty minutes, walk one-half mile, and occasionally lift and carry fifteen pounds. (Id. at 47)

         Examination revealed that Plaintiff was alert and oriented, made good eye contact, had fluent speech, an appropriate mood, clear thought processes, a normal memory, and good concentration. (Id. at 49) The examination revealed full muscle strength, positive straight leg raising test, symmetric reflexes, and normal joints. (Id. at 49-50) Plaintiff was able to lift, carry, and handle light objects, and squat and rise with ease. (Id. at 50) During the examination, Plaintiff refused to walk on heels and toes, tandem walk, or hop on either foot. (Id.) Dr. Chalhoub stated that Plaintiff was uncooperative and did not give a good effort during the examination. (Id.)

         Dr. Chalhoub opined that Plaintiff could sit and stand normally in an eight-hour day with normal breaks; walk at least one hour at a time without a break, and at least two to three hours in an eight-hour workday and without an assistive device; and lift and carry at least fifty pounds frequently and seventy-five pounds occasionally. (Id. at 51) He found no limitations in Plaintiffs ability to bend, stoop, crouch, or squat, and no manipulative, visual, communicative, or environmental limitations. (Id. at 51-56)

         On July 31, 2013, state agency physician Lewis Singer, M.D. ("Dr. Singer") reviewed the record and opined that Plaintiff had no severe physical impairments. (D.I. 14-3 at 9) On September 9, 2013, state agency physician Richard Surrusco, M.D. ("Dr. Surrusco") reviewed the record and also opined that Plaintiff had no severe physical impairments. (Id. at 30)

         C. Mental Health Evidence

         Plaintiff was deployed to Iraq in 2007-2008. (D.I 14-11 at 35-38) She has a history of sexual trauma as well as combat related trauma. (D.I 14-9 at 26) Plaintiff was stationed in Okinawa and, on October 25, 2010, she provided a history to Carolina Nisenoff, M.D. ("Dr. Nisenoff') that she had experienced a mild TBI following an improvised explosive device ("IED") blast in Iraq. (D.I 14-14 at 46) Plaintiff reported symptoms of dizziness and disorientation. (Id.) She also reported that she experienced "temper problems" after she returned from deployment to Iraq in December 2008, that her symptoms worsened as she continued her career in the Army and this reminded her of her deployment experiences, and her symptoms related to her attention deficit hyperactivity disorder ("ADHD") had worsened. (Id.)

         Upon examination Plaintiff had normal cognitive functioning, normal memory, normal judgment, normal speech, euthymic mood, normal affect, normal thought process, and no evidence of homicidal or suicidal ideation. (Id. at 14-14 at 37-38) Dr. Nisenoff diagnosed chronic PTSD and a personal history of TBI, assessed Plaintiffs GAF at 75-80, [3] and prescribed medication. (D.I 14-14 at 38-39) On November 9, 2010, Plaintiff reported that her symptoms had improved. (Id. at 35-37)

         In December 2010, Plaintiff reported that her primary issue was related to marital problems. (Id. at 37) Therapist Daniel Murphy ("Murphy") diagnosed chronic PTSD, a history of TBI by personal history, and marital problems, and assessed Plaintiffs GAF at 65.[4] (Id.)

         A March 2011 evaluation by Dr. Nisenoff recorded unremarkable mental status findings, assessed Plaintiffs GAF at 75-80, and prescribed medication. (Id. at 5-11) Other than a GAF of 65-70, Dr. Nisenoff made similar findings in May 2011, July 2011, and August 2011, and noted that Plaintiff was doing well. (D.I. 14-13 at 44-48, 53-57, 60-62, 100-01) In June 2011, Plaintiff continued to deal with symptoms of anxiety related to her experiences in Iraq. (D.I 14-13 at 90) Clinical psychologist Steven Jacobson, Ph.D. ("Dr. Jacobson"), recorded normal mental status examination findings and assessed Plaintiffs GAF at 70. (D.I 14-13 at 90) He noted similar findings when Plaintiff was seen in July 2011 and August 2011. (Id. at 36, 50-51) Evelyn Stender, M.D. ("Dr. Stender"), recorded normal mental status finding in August 2011 and noted that Plaintiff reported no side effects from her medication. (Id. at 34-35)

         In October 2011, Cynthia Page, M.D. ("Dr. Page"), noted that Plaintiff sought inpatient mental health treatment after her husband requested a divorce. (Id. at 20) Plaintiff also reported that she experienced a "serious" flashback during a fire drill. (Id. at 20) Later that month, Plaintiff reported that she occasionally felt anxious, but her symptoms were manageable on medication. (Id. at 11) Dr. Stender assessed Plaintiff s GAF at 55.[5] (Id. at 12) The next day, October 27, 2011, Dr. Nisenoff opined that Plaintiff was responding moderately well to treatment. (Id. at 9)

         In November 2011, Plaintiff reported that she was getting better. (D.I 14-13 at 2) On November 8, 2011, she indicated that she was overwhelmed by thoughts of her husband's infidelity and his request to separate. (D.I. 14-12 at 75) By December 2011, Plaintiff was doing better after deciding to pursue divorce. (Id. at 35) At her next session, Plaintiff reported that she became angry when her husband refused to fax a document necessary for her to finish her divorce paperwork and that she smashed items in her apartment. (Id. at 16) In late December 2011, Plaintiff discussed her future goals, including leaving Okinawa, where Plaintiff was stationed, and avoiding her husband and his girlfriend. (Id. at 17)

         By January 2012, Plaintiff reported that her divorce was nearly finalized. (Id. at 7) She was doing well and taking Ativan and Valium less often because she did not need them. (Id.) On January 19, 2012, she complained of irritability, hallucinations, flashbacks, and difficulty sleeping, but she continued to exercise two hours a day, six days a week. (D.I 14-11 at 76) Dr. Nisenoff noticed a change in Plaintiffs presentation and diagnosed bipolar disorder. (Id. at 78-79) When Plaintiff was seen on ...

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