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Jones v. Berryhill

United States District Court, D. Delaware

February 6, 2019

SANDRA JONES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Sherry R. Fallon United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff 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).

         Currently 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.

         II. BACKGROUND

         A. Procedural History

         Jones filed an application for DIB on January 28, 2013, [1] and an application for SSI on January 31, 2013.[2] (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 work[3] 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)

         B. Medical History

         The ALJ 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)

         a. Physical Impairments

          i. Neck and Back Injuries

         Jones 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)

         ii. Knee Pain

          Jones 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.)

         At her 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.)

         On 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)

         At a 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. at 983)

         iii. GERD& Obesity

         Jones 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)

         iv. Raynaud's Syndrome & Rheumatoid Arthritis

         In May 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)

         b. Mental Impairments

         On 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. (Id.)

         After 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)

         Jones 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)

         Jones 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)

         Jones 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)

         A state 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)

         C. Hearing Before the ALJ

         a. Jones's Testimony

         Jones 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 57, 60)

         Jones 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.)

         b. Vocational Expert Testimony before the ALJ

         The ALJ posed the following hypothetical to the vocational expert ("VE"):

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 ...


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