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Sammons v. Berryhill

United States District Court, D. Delaware

February 4, 2019

BRIAN K. SAMMONS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commission of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          SHERRY R. FAHON, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff Brian Sammons ("Sammons") filed this action on October 2, 2017 against the Defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration ("Commissioner"). Sammons seeks judicial review pursuant to 42 U.S.C. § 405(g) of the Commissioner's July 31, 2017 final decision, denying Sammons' claim for Social Security Disability Insurance Benefits ("DIB") under Title II, and Supplemental Security Income Benefits ("SSI") under Title XVI of the Social Security Act (the "Act"). 42 U.S.C. §§ 401-434, 1381-l383f. This court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).

         Currently before the court are cross-motions for summary judgment filed by Sammons and the Commissioner. (D.I. 8; D.I. 11) Sammons asks the court to reverse the Administrative Law Judge's ("ALJ") decision for an award for benefits, or, alternatively, remand for a new hearing and decision. (D.I. 9 at 20) The Commissioner requests the court to affirm the ALJ's decision. (D.I. 12 at 2, 19) For the reasons set forth below, the court recommends denying Sammons' motion for summary judgment and granting the Commissioner's motion for summary judgment.

         II. BACKGROUND

         A. Procedural History

         Sammons filed DIB and SSI applications on August 9, 2012, claiming a disability onset date of January 3, 2010. (Tr. at 184-94, 211) The Social Security Administration ("SSA") initially denied Sammons' claim on September 12, 2013, and SSA denied his claim again, after reconsideration, on March 26, 2014. (Id. at 114-26, 129-42) On May 14, 2014, Sammons requested a hearing, which occurred on April 1, 2016. (Id. at 143-44, 32-66) On July 25, 2016, Administrative Law Judge Jennifer M. Lash issued an unfavorable decision, finding Sammons was not qualified as disabled under the Act. (Id. at 7-19) On July 26, 2017, Sammons immediately requested an appeal. (Id. at 182) The Appeals Council denied his appeal on July 31, 2017. (Id. at 1-5)

         On October 2, 2017, Sammons brought this action against the Commissioner, challenging the ALJ's decision. (D.I. 1) On February 7, 2018, Sammons filed a motion for summary judgment, and on April 9, 2018, the Commissioner filed a cross-motion for summary judgment. (D.I. 8; D.I. 11)

         B. Medical History

         The ALJ found Sammons has the following severe impairments: fibromyalgia/arthralgia, headaches, an affective disorder, and anxiety disorders. (Tr. at 12) The onset date of Sammons' impairments is January 3, 2010. (Id. at 19)

         On September 19, 2011, Sammons saw Dr. David M. Bercaw ("Dr. Bercaw"), and Dr. Bercaw reported Sammons was slow to ambulate and had multiple joint and muscle aches with fatigue. (Id. at 290-91) At that time, Dr. Bercaw recommended a rheumatologist consultation if Sammons' lab results were negative. (Id. at 291) According to the record, Sammons next saw Dr. Bercaw on March 12, 2012 and April 16, 2012 for intermittent vertigo. (Id. at 285-86, 288) On June 2, 2012, Sammons went to the emergency room for dizziness and abdominal pain. (Id. at 319-25)

         Dr. Hoskote Nagraj ("Dr. Nagraj"), examined Sammons on March 10, 2014.[1] (Id. at 326) In his examination of Sammons, Dr. Nagraj found Sammons could walk for thirty to sixty minutes at a time, stand for fifty minutes at a time, sit for a prolonged period, and lift thirty to forty pounds of weight at a time. (Id. at 328) Further, Dr. Nagraj "advised [Sammons] to follow up with his psychiatrist and see his primary care physician on a regular basis." (Id.)

         According to the record, Sammons did not receive additional medical care until January 29, 2015. (Id. at 422) Dr. Lauren Foy ("Dr. Foy") treated Sammons, and this was her first time treating Sammons. (Id.) Dr. Foy recommended to Sammons that he should start taking Cymbalta again, and begin aquatic therapy. (Id. at 424) Sammons subsequently saw Dr. Foy on February 26, 2015, and Dr. Foy again recommended aquatic therapy and encouraged activity and stretching. (A* at 419-20)

         Sammons visited Dr. Foy on April 1, May 1, June 1, and July 1 of 2015, and during each visit, Dr. Foy recommended aquatic therapy, activity, and stretching. (Id. at 403-04, 406-08, 412-14, 416-17) Between those visits, Sammons visited Dr. Foy for an apparent flare up after "overdoing it." (Id. at 409-10) Dr. Foy once again recommended aquatic therapy, activity, and stretching. (Id.) In September 2015, Dr. Foy recommended Sammons see a psychologist due to stress related to his ex-wife moving his two children to New York. (Id. at 395-96) According to the record, Dr. Foy last saw Sammons on October 19, 2015, and Dr. Foy completed the questionnaire on December 2, 2015.[2] (Id. at 334-38, 389)

         On October 12, 2015, Sammons received a psychiatric diagnostic evaluation from Mid-Atlantic Behavioral Health. (Id. at 345-47) Sammons visited with staff at Mid-Atlantic Behavioral Health from October 26, 2015 through April 25, 2016. (Id. at 342, 348-57, 364-72, 385-87) During the period Sammons was treated at Mid-Atlantic Behavioral Health, Sammons was diagnosed with generalized anxiety disorder, panic disorder, and major depressive disorder. (Id. at 354-57, 364-66)

C. Vocational Expert Testimony Before ALJ Lash
ALJ Lash presented the following hypothetical to the vocational expert ("VE"):
Now I'd like you to assume a hypothetical individual of the same age, education, and work experience as the Claimant, assume this hypothetical individual can perform sedentary exertional work and can occasionally balance, stoop, kneel, crouch and - crouch, crawl, and climb ramps and stairs, never climb ladders, ropes or scaffolds, must avoid all exposure to hazards including moving machinery and unprotected heights, and again is limited to unskilled work with routine repetitive tasks, with no public interaction and occasional interaction with co-workers and supervisors, would there be any unskilled occupations available for such a hypothetical individual?

(Tr. at 61-62) The VE testified at the sedentary exertional level, the described individual could work as a final assembler, a dial marker, and a patcher. (Id. at 62) In a follow up hypothetical, ALJ Lash presented the VE the following:

Now I'd like you to assume a hypothetical individual of the same age, education, and work experience as the Claimant, assume this hypothetical individual has that same residual function capacity as the last hypothetical but that the individual would be more limited in that the routine repetitive tasks must be performed in a low stress environment. That's being defined as no frequent change in the work setting. Would there be any unskilled occupations available for such a hypothetical individual?

(Id. at 62-63) The VE testified that the three positions mentioned above for the previous hypothetical at the sedentary exertional level would be possible with the additional limitations of the second hypothetical. (Id. at 63)

         On cross-examination, Sammons' counsel asked the VE: "If you have an individual who can never or rarely be around perfumes, any sort of chemical irritants or aerosol irritants, would that limit an individual's ability to perform work at any exertional level?" (Id. at 63-64) The VE testified a limitation of not being able to be around certain types of scents "would be work preclusive because it would not be possible to control." (Id. at 64) Sammons' attorney further asked the VE:

You have a hypothetical individual the same age, education, vocational profile as the Claimant can sit for less than a hour in an eight hour day, stand, stand and/or walk for less than an hour, must get up every fifteen minutes for five to ten minutes and can lift occasionally up to twenty pounds and carry occasionally ten pounds, could that individual perform any full-time work?

(Id.) The VE responded that an individual with those limitations could not perform any full-time work. (Id.) Next, Sammons' attorney asked "[w]hat's the acceptable threshold for absences in a month?" (Id.) The VE responded that "[if] an individual has regular patterns of absences of even one day per month, if that's occurring for several months in a row, then it would be considered excessive by the employer and would be work preclusive." (Id.)

         Sammons' attorney questioned the amount of handling the listed jobs above required, and the VE testified that the handling for the final assembler and patcher would be frequent, and for the dial marker the handling would be constant. (Id. At 64-65) Sammons' attorney then followed up and asked the VE: "[s]o if the individual is limited to at most occasional bilateral hand usage or while using the hands for grasping, turning, twisting hands and fingers for fine manipulations and the arms for reaching, would that eliminate all of those jobs?" (Id. at 65) The VE confirmed that the presented limitation would eliminate all of the presented jobs. (Id.) Finally, Sammons' attorney asked the VE: "In general for sedentary unskilled jobs is bilateral ha[n]d usage typically at least frequent for those positions?" (Id.) To which the VE responded, "[t]ypically there are a small sampling of positions that would be at occasional but the majority are at frequent." (Id.)

         D. The ...


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