United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. Fallon United States Magistrate Judge
Sandra Jones ("Jones") filed this action on July 5,
2017 against defendant Nancy A. Berryhill, the Acting
Commissioner of the Social Security Administration (the
"Commissioner"). Jones seeks judicial review
pursuant to 42 U.S.C. § 405(g) of the Commissioner's
May 15, 2014 final decision, denying Jones' claim for
disability insurance benefits ("DIB") and
supplemental security income ("SSI") under Titles
II and XVI 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).
before the court are Jones's and the Commissioner's
cross-motions for summary judgment. (D.I. 13; D.I. 17) Jones
asks the court to remand her case for further administrative
proceedings. (D.I. 14) The Commissioner requests the court
affirm the Administrative Law Judge's ("ALJ")
decision. (D.I. 18 at 16) For the reasons set forth below,
the court recommends granting-in-part and denying-in-part
Jones's motion for summary judgment (D.I. 13), and
granting-in-part and denying-in-part the Commissioner's
cross-motion for summary judgment (D.I. 17). Additionally, it
is recommended that the case be remanded for further
administrative proceedings as outlined infra.
filed an application for DIB on January 28, 2013,
an application for SSI on January 31, 2013. (Tr. at 201, 203)
In both applications, Jones claimed a disability onset date
of January 1, 2010. (Id.) Her claim was initially
denied on July 10, 2013, and denied again after
reconsideration on May 15, 2014. (Id. at 81, 94,
117, 137) Jones then filed a request for a hearing, which
occurred on July 12, 2016. (Id. at 179) On March 30,
2017, Administrative Law Judge William A. Kurlander issued an
unfavorable decision, finding that Jones was not disabled
under the Act because she retained the residual functional
capacity ("RFC") to perform light
including past relevant work as a phlebotomist. (Id.
at 19-37) The Appeals Council subsequently denied Jones's
request for review on May 9, 2017, rendering the ALJ's
decision the final decision of the Commissioner.
(Id. at 3-8) On July 5, 2017, Jones brought a civil
action in this court challenging the ALJ's decision.
(D.I. 2) On December 27, 2017, Jones filed a motion for
summary judgment, and on April 30, 2018, the Commissioner
filed a cross-motion for summary judgment. (D.I. 13; D.I. 17)
concluded that Jones has the following severe impairments:
Raynaud's syndrome, rheumatoid arthritis, obesity,
degenerative joint disease in her left knee with total knee
replacement, neck disorder, degenerative changes in her right
hand, pain disorder, and back disorder. (Id. at 23)
Jones was born on January 3, 1955, and was fifty-five years
old on her alleged onset date. (Id. at 20) Jones
graduated and completed a nursing degree in July 2010.
(Id. at 234) She has a prior work history as a
dietary aide, phlebotomist, library aide, office assistant,
and trainee. (Id. at 241) Due to financial strain,
Jones returned to work as a phlebotomist from June 30, 2013
to September 10, 2014, but has not worked since.
(Id. at 55, 268)
i. Neck and Back Injuries
was in a motor vehicle accident on November 28, 2007, and has
experienced neck and back pain since then. (Id. at
395) An MRI of Jones's spine dated November 17, 2009
noted multilevel moderate cervical spondylitic changes with
degenerative disk change. (Id. at 400) Dr. Bandera
noted moderate to severe cervical spondylosis and pain in
Jones's neck and back that increased with activity.
(Id. at 392-393) By May 2012, Dr. Bandera observed
the limited range of motion of her neck and back.
(Id. at 390) A radiology report dated September 12,
2016 highlighted "extensive multilevel degenerative
changes" with "disc space narrowing" and
"severe osteoarthritis throughout the cervical
spine." (Id. at 902)
also suffered from left sciatic pain and arthritic left knee
pain since April 2010. (Id. at 368) At a June 7,
2010 appointment, Dr. Burday noted there was a purple
discoloration and prominence of her left knee, in addition to
pain with palpation. (Id. at 363) Jones stated her
knee pain was "excruciating." (Id. at 388)
By February 2011, Jones made an appointment to see an
orthopedic doctor at St. Francis. (Id. at 601) She
told Dr. Burday that she fell and hit her forehead when her
left knee gave out. (Id.) On April 20, 2011, Dr.
Burday noted that Jones had a bony left knee that was
slightly increased in size as compared to her right knee.
(Id. at 591) Dr. Burday further recorded that the
orthopedic doctor at St. Francis advised that Jones pursue
total knee replacement surgery on her left knee, but Jones
wished to postpone this for several months. (Id.)
November 2012 appointment, Jones reported that she could not
have the necessary knee surgery due to expenses.
(Id. at 513, 511) She continued to report financial
problems precluding her surgery, but continued to suffer from
leg cramps daily, knee pain, and arthritic pain in her legs.
(Id. at 505, 676) In January 2014, Jones described
how she fell at work when her right leg gave out and once
more at her house. (Id. at 780) Dr. Burday noted
that Jones was walking with a prominent limp. (Id.
at 782) Jones complained of back pain, joint pain, and loss
of strength. (Id.)
September 11, 2014, Jones finally received her left total
knee replacement surgery. (Id. at 944-947). In the
months that followed, she reported stiffness and some pain.
(Id. at 986-988) By February 2015, Dr. Johnson noted
that Jones's condition was "markedly improved."
(Id. at 985) Jones reported no pain associated with
her left knee by September 2015. (Id. at 984)
follow-up appointment in October 2016, Jones claimed most of
her pain was in the right knee and she was attempting to lose
weight before having her right knee replaced. (Id.
had gastric band surgery in 2006. (Id. at 446) In
July 2012, Dr. Merriman started seeing Jones about her
persistent symptoms of chest pain and heartburn.
(Id. at 466, 606) Dr. Merriman described these
symptoms as moderate to severe, and noted significant reflux
esophagitis with some mild atypia and a significant hiatal
hernia. (Id. at 466) Despite her band being loosened
in September 2012, Jones experienced persisting GERD
symptoms. (Id. at 409, 623, 631, 637) A subsequent
endoscopy with Dr. Merriman revealed dilation of the lower
third of her esophagus and a medium hiatal hernia.
(Id. at 445) She had the gastric band removed in
January 2013 and experienced post-operative anemia which
required a blood transfusion, but otherwise recovered.
(Id. at 444, 446) Following removal of the gastric
band, Jones reported some abdominal pain, but her symptoms
were much improved. (Id. at 505, 607, 612)
Raynaud's Syndrome & Rheumatoid
2013, Jones complained that her hands were cold, numb,
tingling, and turning white. (Id. at 694) On January
10, 2014, Dr. Burday noted that there was a deformity
regarding Jones's right thumb extension, and that her
right hand was cyanotic with whiteness of several fingers.
(Id. at 782) In November 2014, Dr. Schwartz
diagnosed Jones with Raynaud's syndrome and rheumatoid
arthritis and oversaw her treatment for the next several
years. (Id. at 873-874, 876-877, 880, 884, 886)
March 19, 2011, Jones was seen by Dr. Waid, a consultative
examiner who diagnosed her with major depression with
suicidal ideation and psychotic features. (Id. at
403) He concluded that Jones' impairments of her
abilities to carry out instructions under ordinary
supervision, cope with pressures of ordinary work, and
perform routine, repetitive tasks under ordinary supervision
were "moderately severe." (Id. at 404) He
assessed her ability for sustained work performance and
attendance in a normal work setting was severely impaired.
meeting Dr. Waid, Jones was reportedly "somewhat
down" and "somewhat anxious," but there were
no subsequent mental health reports mirroring the symptoms
Dr. Waid observed. (Id. at 567-568, 570, 583) Aside
from these occasional mood disturbances, Jones did not
complain of any mental health issues until March 7, 2012,
when Dr. Burday noted a "depressed affect" with the
stress of taking care of her ALS patient. (Id. at
546, 548, 550-551, 554, 556, 578, 591)
met with Dr. Wallace on March 26, 2012 regarding her
depression. (Id. at 559) Jones stated she that
nearly every day, she: (1) had little interest or pleasure in
doing things; (2) felt down, depressed or hopeless; (3) had
trouble falling asleep, staying asleep, or sleeping too much;
(4) felt tired or had little energy; and (5) had poor
appetite or overeating. (Id.) Overall, she was given
a total score of 20, resulting in the conclusion that her
depression was severe. (Id.) While Dr. Wallace noted
that her depression was not as bad as it had been, Jones
still was very depressed. (Id. at 560) Additionally,
Dr. Wallace observed that Jones had no suicidal ideation or
desire to hurt others. (Id. at 561)
had a follow-up appointment with Dr. Wallace on April 11,
2012. (Id. at 531) She stated she felt
"relieved and less stressed," but presented a
"depressed affect and little eye contact."
(Id. at 531-532) Dr. Wallace noted not much change
in Jones's depression and reported that Jones denied
suicidal ideation. (Id. at 533) Dr. Wallace
increased the dosage of Zoloft. (Id.) At her next
appointment on May 25, 2012, Jones stated "she does not
feel sad anymore." (Id. at 540)
later met with Dr. Burday on July 11, 2012, where she stated
she was depressed and anxious after failing her nursing
boards. (Id. at 522, 524) Following this meeting,
she did not complain of any mental health issues for several
months and records note that she was "alert and
cooperative, [had] normal mood and effect [with] normal
attention span and concentration." (Id. at 513,
518, 528, 702, 716, 722) Upon meeting Dr. Burday on February
6, 2013, she complained of depression with "funky"
periods and Dr. Burday documented her occasional depression.
(Id. at 505, 507) The remainder of her medical
records through January 10, 2014 indicate no mental health
complaints. (Id. at 671, 678, 696, 782)
agency psychological review by Dr. Folkers in May 2013,
recounts that "psych[ological] observations have been
unremarkable and [claimant] reported only occasional
depression at last [observation] on [February 6, 2013]."
(Id. at 75) Dr. Folkers, therefore, deemed
Jones's mental health impairment "non-severe."
(Id.) His opinion was affirmed by Dr. King in May of
2014. (Id. at 128)
Hearing Before the ALJ
acknowledged that she worked in 2013 and 2014 because she was
in foreclosure. (Id. at 60) She testified that she
stopped working as a phlebotomist in 2014 because she could
not stand or walk. (Id. at 55) Despite having a
total knee replacement of her left knee, she said her
"knees hurt so bad [she] could barely even walk to [her]
car." (Id.) She has not pursued total knee
replacement on her right knee because she said "it [was]
the most awful operation [she] ever had in [her] life"
and "the thought of going through that again depresses
[her]." (Id. at 63- 64) Jones testified that
she sometimes uses an ankle brace that resembles an ACE
bandage on her right "polio leg." (Id. at
58) She stated that she had polio when she was approximately
four years old and consequently received ankle surgery at a
young age. (Id. at 59) Jones testified that she
falls unpredictably. (Id. at 63-64) Jones also
testified that all of her fingers were numb, and attributed
this sensation to Raynaud's syndrome. (Id. at
56-57) Because of this numbness in her fingers, she required
a heat pack to do her work. (Id. at 57) Jones
testified that she loved phlebotomy, but cautioned that she
was a danger to herself and her patients. (Id. at
testified that she sometimes drives a car, if needed.
(Id. at 59) Jones is 5' 1" and 170 lbs.
(Id. at 64) She stated that she was attempting to
eat better, but was not able to exercise much, apart from
"chair exercises." (Id.)
Vocational Expert Testimony before the ALJ
posed the following hypothetical to the vocational expert
Please assume a hypothetical individual of the claimant's
age and education, and with the past work that you described.
Further, please assume that the hypothetical individual is
capable of performing work at the light exertional level,
with the following additional limitations. There's no
more than occasional postural activity, but there's no
climbing of ladders, ropes, and scaffolds; no kneeling and no
crawling. There's no more than occasional use of ramps
and stairs. There's no pushing or pulling with the
bilateral lower extremities, and there's no more than
frequent fingering with the dominant upper extremity. That
would be with the right hand. Is the past work available?
(Id. at 66-67) The VE testified that because the
past work of phlebotomist would require "constant
fingering," the past work would not be available to the
hypothetical individual. (Id. at 67) The VE further
explained that upon eliminating the fingering requirement,
the past work would then become available. (Id.) The
ALJ inquired whether adding a "sit/stand" option
would make the previous relevant work available.
(Id. at 68) The VE replied that such an option would
still not make past work available. (Id.) In
addition, the VE testified that "based upon [her]
experience as a vocational counselor and actually seeing the
job [of a phlebotomist] performed," her opinion was