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Gardner v. Berryhill

United States District Court, D. Delaware

September 14, 2017

NANCY A. BERRYHILL[1] Acting Commissioner of Social Security, Defendant.

          Vanessa L. Kassab, DOROSHOW, PASQUALE, KRAWITZ, SIEGEL & BHAYA, Wilmington, DE. Attorney for Plaintiff.

          David C. Weiss, Acting United States Attorney, and Heather Benderson, Special Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Wilmington, DE.

          Of Counsel: Nora Koch, Acting Regional Chief Counsel, Region III, and Stephen M. Ball, Assistant Regional Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, PA. Attorneys for Defendant.




         Plaintiff Kimberly Ann Gardner ("Plaintiff or "Gardner") appeals the decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security ("the Commissioner" or "Defendant"), denying Gardner's application for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-34.[2] The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

         Pending before the Court are the parties' cross-motions for summary judgment. (D.I. 16, 19) Plaintiff seeks reversal and remand, either with instructions to award DIB or for further proceedings, as well as attorney's fees. (D.I. 17 at 2) The Commissioner requests that the Court affirm the decision denying Plaintiffs claim for DIB. (D.I. 20)

         For the reasons stated below, the Court will deny Plaintiffs motion for summary judgment and will grant Defendant's motion.

         II. Background

         A. Procedural History

         On May 25, 2011, Gardner protectively filed a Title II application for a period of disability and DIB, alleging a disability onset date of April 13, 2010. (D.I. 7 ("Transcript" and hereinafter "Tr.") at 152-61) Gardner's claim was denied on August 31, 2011, and again upon reconsideration on April 5, 2012. (Tr. at 83-86, 90-95) Following these denials, Gardner requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. at 97) Gardner's hearing took place on February 18, 2014, and both Gardner, who was represented by counsel, and an impartial vocational expert ("VE") testified. (Tr. at 35-57, 57-60) On March 24, 2015, the ALJ issued a decision in the case, finding that Gardner had two severe impairments - fibromyalgia and a mood disorder - but was not disabled within the meaning of the Social Security Act and could perform jobs that exist in significant numbers in the national economy. (Tr. at 18, 21, 26) Gardner filed a request for review by the Appeals Council, which was denied on December 10, 2015, making the ALJ's decision the final decision of the Commissioner. (Tr. at 1)

         On February 10, 2016, Gardner filed a Complaint seeking judicial review of the Commissioner's denial of benefits. (D.I. 2) Gardner moved for summary judgment on May 12, 2017. (D.I. 16) The Commissioner filed a cross-motion for summary judgment on June 12, 2017. (D.I. 19)

         B. Factual History

         At the time of her alleged onset of disability, Gardner was 39 years old and defined as a "younger individual" under 20 C.F.R. § 416.963. (Tr. at 26) She has a high school education and past relevant work experience as an administrative assistant, data entry clerk, proofer, and manager. (Tr. at 26) In seeking DIB, Gardner asserted she is unable to work because of bipolar disorder, attention deficit disorder (ADD), and fibromyalgia - but not lumbar and cervical discogenic disease (the "discogenic disease").[3] (Tr. at 199)

         1. Medical History, Treatment, and Conditions

         a. Physical Health Evaluations and Treatment

         From 2010 to 2013, Gardner received treatment for her discogenic disease and resulting neck and back pain from multiple doctors. On September 1, 2010, Dr. Laura Manfleld, Gardner's primary care physician, determined Gardner had lumbar radiculopathy.[4] (Tr. at 342) Gardner continued to see Dr. Manfleld for this condition through 2011. (Tr. at 340, 339) During her January 8, 2011 visit, Gardner was referred by Dr. Manfleld to Dr. Eric Ratner. (Tr. at 338) On March 8, 2011, after completing a comprehensive consultation, Dr. Ratner found Gardner suffered from lower back and cervical neck pain and recommended epidural steroid injunctions. (Tr. at 306-07)

         Gardner's discogenic disease-related care then shifted to Dr. Randy C. Robinson. Gardner began treatment with Dr. Robinson on May 13, 2011, at which time Dr. Robinson diagnosed her with "significant" cervical and thoracic disc disease and lumbar disc disease, but noted that "medications do help her alleviate approximately 70% to 80% of the pain." (Tr. at 329) Gardner continued to visit Dr. Robinson regularly until April 27, 2012. (See Tr. at 329, 334-35, 910-11, 906-07, 902, 899-900, 896-97) At each visit, Gardner's treatment plan remained largely unaltered because Gardner reported "the medications ... helped] to get her through [the] activities of daily living." (Tr. at 330, 332, 911, 907, 903) In particular, during a June 22, 2012 visit, Dr. Robinson indicated Gardner experienced 50-60% relief from pain under her current treatment plan. (Tr. at 893)

         On March 6, 2012, Dr. Irwin Lifrak examined Gardner at the request of Disability Determination Services. (Tr. at 425) Gardner reported experiencing "[p]ain extending throughout the entire vertebral column" that "var[ied] from relatively mild to quite severe." (Tr. at 425) Dr. Lifrak diagnosed Gardner with "[d]egenerative joint disease and possible disc damage." (Tr. at 428)

         Beginning in August 2012, Dr. Simon Galapo began treating Gardner for her disco genie disease. Like Dr. Robinson, Dr. Galapo saw Gardner approximately every two months from August 2012 to June 7, 2013. (See Tr. at 890, 887-88, 883, 878, 865, 860) At each visit, Dr. Galapo continued Gardner on Roxicodone for her pain because Gardner expressed that the medicine "helped] to a significant degree, without side effect or aberrant behavior." (Tr. at 890, 888, 883-84, 879, 866, 861) In particular, on February 15, 2013, Gardner told Dr. Galapo "the medication continues to work quite well for her pain, allowing her to do her activities of daily living." (Tr. at 878)

         On April 4, 2013, Dr. Lisa Lescheck-Gelman of Christiana Care Neurology Specialists found Gardner had "constant" but "stable" cervicalgia. (Tr. at 779-80)

         Over the course of her treatment, Gardner underwent a number of diagnostic tests. An MRI of her cervical spine from October 4, 2010 revealed "very early degenerative disc disease throughout but no single focal level of significant damage." (Tr. at 295) An MRI from June 22, 2010 showed "degenerative cervical spondylosis, " but no spinal narrowing or disc herniation. (Tr at. 286) On September 10, 2010, Gardner's lumbar spine MRI demonstrated a "straightening of the normal lordotic curvature, compatible with muscle spasm" and "broad-based disk bulges" at two locations. (Tr. at 289) A November 8, 2010 cervical spin CT scan revealed "osteophyte and disc protrusion" at two locations as well as degenerative arthritis. (Tr. at 291) Finally, an October 13, 2012 cervical spine MRI showed "mild degenerative discogenic disease of the cervical spine." (Tr. at 754)

         b. Mental Health Evaluations and Treatment

         In April 2010, Gardner left her long-time position at the Yellow Book Company and immediately entered inpatient psychiatric treatment programs at Dover Behavioral Health and Fairmount Institute, followed by an outpatient treatment program at Meadow Wood. (Tr. at 41, 243, 248, 277) In early 2012, Gardner was admitted to Rockford Center for a one-day hospitalization. (Tr. at 446)

         Gardner's most consistent mental health treatment has been with Drs. Cindy Elko and Kimberly Valentine. (See Tr. 442-44, 453-553, 581-746, 788-825) On May 21, 2013, Dr. Elko diagnosed Gardner with bipolar disorder and generalized anxiety. (Tr. at 443-44) On August 8, 2012, Dr. Elko conducted a psychiatric diagnostic interview exam. (Tr. at 441-54) Dr. Elko uniformly marked Gardner as "unable to meet competitive standards" in all categories related to unskilled, semi-skilled, or skilled work. (Tr. at 743-44) She also indicated Gardner had "marked" limitations in many categories of functional living and expected Gardner's impairments would cause her to be absent from work four days per month (the highest option given). (Tr. at 745-46)

         Throughout 2013, Drs. Elko and Valentine's treatment notes indicate Gardner struggled with bipolar disorder, anxiety, and, at times, hallucinations. (See, e.g., Tr. at 661, 687-88, 734) However, the progress notes also state Gardner was "alert, " "presented herself in a neatly dressed and well-groomed fashion, " had good eye contact, and was "cooperative and interested." (Tr. at 582, 586, 590, 593, 599, 601, 608, 613, 617, 626, 630, 634, 638, 651, 655, 667) Similar progress notes were made into the winter of 2014. (Tr. at 723, 736-38)

         2. The ...

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