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Nurse v. Berryhill

United States District Court, D. Delaware

February 12, 2019

ANGELA NURSE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Angela Nurse, Bear, Delaware; Pro Se Plaintiff.

          Eric P. Kressman, Regional Counsel, Region III, and Annie Kernicky, Assistant Deputy Regional Counsel, Office of the Regional Chief, Social Security Administration, Philadelphia, Pennsylvania; David C. Weiss, United States Attorney for the District of Delaware, Wilmington, Delaware; Heather Benderson, Special Assistant United States Attorney, Office of the General Counsel, Philadelphia, Pennsylvania, Attorneys for Defendant.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE

         Plaintiff, Angela Nurse, who appears pro se, appeals the decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. Jurisdiction exists pursuant to 42 U.S.C. § 405(g). Pending before the Court are cross motions for summary judgment filed by Nurse and the Commissioner. (D.I. 12, 13). Briefing is complete.

         I. BACKGROUND

         A. Procedural History

         Nurse protectively filed for disability insurance benefits on December 12, 2013, alleging disability as of June 1, 2010 due to Graves' disease, depression, and leg problems. (D.I. 9-6 at 1-14). She amended her alleged disability onset date to February 25, 2013. (D.I. 9-3 at 4). After her application was denied on April 14, 2014, Nurse requested a hearing before an administrative law judge. (D.I. 9-4 at 2-24; D.I. 9-5 at 13). The administrative hearing was held on January 7, 2016, and Nurse appeared, represented by counsel. (D.I. 9-3 at 2-34). Testimony was provided by Nurse and vocational expert Antonia Chula. The ALJ issued an amended decision on March 28, 2016, finding that Nurse was not disabled because she was able to return to her past relevant work. (D.I. 9-2 at 24-33). Nurse sought review by the Appeals Council, submitted additional evidence, and her request was denied on June 22, 2017, making the ALJ's decision the final decision of the Commissioner. (D.I. 9-2 at 2-5; D.I. 9-7 at 67). Nurse filed suit on August 9, 2017 seeking review of the final decision. (D.I. 1).

         B. Nurse's Testimony

         Nurse, who was 57 years old on the date of the ALJ's decision, has a ninth grade education and can read and write. (D.I. 9-3 at 23). She lives with family members. (Id. at 8). She has a driver's license but does not have a car. (Id.) She does not prepare dinner but does some household chores such as vacuuming. (Id. at 12). She likes to use her computer. (Id. at 13-14).

         Prior to 2013, Nurse worked in a warehouse as a receiving clerk where she stood on her feet ten to twelve hours a day. (Id. 14-15). She has also done some assembly work. (Id. at 15). Nurse testified she began working part time on June 17, 2015 stocking shelves in the toy department at Walmart, working between 28 to 32 hours per week, up to eight hours per shift.[1] (Id. at 10). She is primarily on her feet and is given a fifteen minute break every two hours in addition to a lunch break. (Id. at 11).

         Nurse believes she is disabled because she is not the same person she was before she contracted Graves' disease. (Id. at 16). She was diagnosed with the condition in 2009. (Id.). Nurse testified that because of the Graves' disease she tires easily and is easily fatigued. (Id.). Nurse testified that sometimes she is just tired and "just don't really want to go to work." (Id. at 24). She estimated that four to five times a month she is so tired that she really cannot leave the house. (Id.). She was on medication for the Graves' disease but was taken off because her blood levels were dropping too low. (Id. at 18). At the time of the hearing she was "kind of maintaining." (Id.).

         Nurse has headaches every two to three weeks that last four to five days. (Id. at 16-17). With headaches she takes pain medication and lies down. (Id. at 17). If a headache happens at work she tries to bear it until she gets off work. (Id.) The medication she takes for headaches is the same medication she takes for her arthritis. (Id.).

         In her function report Nurse complained of body pain. (D.I. 9-7 at 33). She described back pain that goes into her shoulders, as well as leg pain. (Id. at 41). Nurse testified she has arthritis in her legs and sometimes they "act up." (D.I. 9-3 at 17). Sometimes her legs get very stiff, which makes it difficult for her to walk up and down stairs. (Id. at 18). She takes a prescription form of Tylenol for arthritis. (Id.). The medication causes side effects including sweating. (Id. at 19). It appears the medication causes light sensitivity, because Nurse testified sunlight affects her ability to see. (Id.). She also has shortness of breath. (Id. at 25).

         Nurse testified she weighs 197 pounds and has been diagnosed with diabetes. (Id. at 19). The diabetes is being monitored and she is not taking medication for the condition. (Id. at 20). Nurse has also been diagnosed with chronic kidney disease. (Id.). When asked if she was having problems with it, Nurse replied that it was all right now, but it was supposed to be a lot better than it was. (Id.).

         Nurse sees both a psychologist and a psychiatrist. (Id.). She takes medication for depression. (Id. at 21). The medication makes her sweat. (Id.). Nurse testified that she has problems with memory and concentration. (Id. at 22). When asked if she had problems at work, Nurse replied, "not so much." (Id.). Nurse testified that she got along with her coworkers and her supervisors. (Id. at 23).

         C. Nurse' Medical and Mental Health History, Condition, and Treatment

         Chiropractor Dr. David Cohen provided Nurse regular chiropractic treatment from December 3, 2013 through February 10, 2014 for complaints of headache and neck and back pain. (D.I. 9-8 at 15-24). On December 12, 2013, Dr. Cohen stated that Nurse was unable to work, and at the next visit his notes indicate that treatment had decreased the pain level and improved function. (Id. at 16-17). On February 10, 2014, Nurse complained of increased neck, right shoulder, mid back, and low back pain, exacerbated by increased lifting, movement, twisting, pain, spasm, and stiffness proportional to activity, barometric changes, and mental stress. (Id. at 21-22). On the same date, Dr. Cohen stated that Nurse was "unable to perform certain activities of daily living." (Id.).

         On March 10, 2014, Nurse was examined by Daniel Lebowitz, M.D., for a consultative physical examination. (D.I. 9-9 at 2-5). Nurse reported that she lived with a friend and was able to cook, clean, wash laundry, shop, shower, bathe, and dress herself. (Id. at 3). She liked to watch television, listen to the radio, read, socialize with friends, go shopping, and use the computer. (Id.). Dr. Lebowitz observed that Nurse's gait was tentative, with no limp or use of assistive devices. (Id.). She was able to walk on her heels and toes without difficulty, squat fully, and get on and off the examination table and rise from a chair without difficulty. (Id.). Nurse's joints were stable and nontender with no evident deformity; her strength was 5/5 in her upper and lower extremities; she had no sensory deficits; her hand and finger dexterity was intact; and her grip strength was 5/5 bilaterally. (Id.). ...


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