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Gregory v. Berryhill

United States District Court, D. Delaware

February 15, 2019

GAYLE ANNETTE GREGORY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff Gayle A. Gregory ("Gregory") filed this action on July 20, 2017 against the defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration (the "Commissioner"). Gregory seeks judicial review pursuant to 42 U.S.C. § 405(g) of the Commissioner's final decision denying Gregory's claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"), respectively. 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 cross-motions for summary judgment filed by Gregory and the Commissioner. (D.I. 25; D.I. 26) Gregory seeks review of the Commissioner's decision. (D.I. 25) The Commissioner requests the court affirm the decision of the administrative law judge ("ALJ"). (D.I. 27 at 2) For the reasons set forth below, the court recommends denying Gregory's motion for summary judgment (D.I. 25), and granting the Commissioner's cross-motion for summary judgment (D.I. 26).

         II. BACKGROUND

         A. Procedural History

         Gregory filed claims for DIB and SSI on September 18, 2013 and October 4, 2013, respectively, claiming a disability onset date of August 1, 2012. (D.I. 21-5 at 2-13) Her claims were initially denied on December 23, 2013, and denied again after reconsideration on February 21, 2014. (D.I. 21-4 at 4-7, 12-16) Gregory then filed a request for a hearing, which was held on March 23, 2016. (D.I. 21-4 at 18-19; D.I. 21-2 at 37-58) Prior to the hearing, Gregory amended her alleged disability onset date to August 7, 2013. (D.I. 21-5 at 29) On April 1, 2016, ALJ Jack Penca issued an unfavorable decision, finding that Gregory was not disabled under the Act. (D.I. 21-2 at 21-32) The Appeals Council subsequently denied Gregory's request for review on May 24, 2017, rendering the ALJ's decision the final decision of the Commissioner. (Id. at 2-4) On July 20, 2017, Gregory brought a civil action in this court challenging the ALJ's decision. (D.I. 2) On August 15, 2018, Gregory filed a motion for summary judgment, and on September 14, 2018, the Commissioner filed a cross-motion for summary judgment. (D.I. 25; D.I. 26)

         B. Medical History

         At the time of the ALJ's decision, Gregory was forty-nine years old. (D.I. 21-2 at 26) Gregory has a college education and previously worked as a caseworker and a teacher's aide. (Id.) The ALJ found Gregory has the following severe impairments: fibromyalgia, status post-right shoulder repair, obesity, and adjustment disorder. (Id. at 23) The amended onset date of Gregory's impairments is August 7, 2013. (Id. at 21)

         1. Mental impairments

         Gregory reported that she was first treated in 2009 for depression and anxiety brought on by her physical health conditions and loss of employment. (D.I. 21-9 at 45) Treatment notes from Lillian V. Kraman-Roach, M.D. from 2011 to 2012 indicate that Gregory suffered from poor sleep, depression, anxiety, and pain which interfered with her functioning. (Id. at 9-15) Gregory reported having outbursts and a low stress tolerance. (Id. at 13-14) According to Dr. Kraman-Roach, Gregory's medications included Paxil, Ambien, Sonata, Lunesta, Ativan, Percocet, Savella, Adderall, Lyrica, and Trazodone. (Id. at 11-14) Dr. Kraman-Roach indicated that Gregory said the medications made her drowsy, and she experienced forgetfulness and difficulty focusing. (Id.) Gregory discontinued several of her medications at various points and cancelled or missed some appointments. (Id. at 10-11, 15)

         On March 12, 2013, Dr. Kraman-Roach completed a disability questionnaire, explaining how Gregory's pain affected her emotionally. (Id. at 7) In describing Gregory's treatment history, Dr. Kraman-Roach noted Gregory's forgetfulness and inability to think clearly at times, and described how Gregory is anxious about the future and her functioning is limited. (Id.) At the time of the questionnaire, Dr. Kraman-Roach described Gregory's mood as worried and anxious, but identified her attention, focus, and memory as "good." (Id.)

         Gregory was referred to Joseph Keyes, Ph.D. for a consultative psychological exam on December 13, 2013. (D.I. 21-9 at 44-50) Dr. Keyes observed that Gregory's appearance was appropriate and described her personal hygiene and grooming as excellent. (Id. at 45) She did not exhibit unusual, bizarre, or inappropriate behavior during the evaluation, and her speech was clear and easy to understand. (Id.) Dr. Keyes did not detect delusional thought processes or hallucinations. (Id.) He described Gregory's thinking as clear, organized, and relevant to the situational context, and indicated that her abstract thinking skills were average. (Id.) Dr. Keyes indicated that Gregory's remote and intermediate memory were intact, and her immediate or working memory was in the low-average range. (Id.) Gregory exhibited adequate attention and concentration during the evaluation. (Id.)

         Dr. Keyes reported that Gregory's orientation and mental alertness were normal, but he observed that her social and interpersonal skills were somewhat limited, describing her as socially withdrawn. (Id. at 45-46) According to Dr. Keyes, Gregory exhibited moderate clinical symptoms of depression and anxiety. Dr. Keyes diagnosed Gregory with an adjustment disorder. (Id. at 46)

         2. Physical impairments

         Prior to her amended onset date, Gregory's primary care physician, Dr. Eva Dickinson, completed a pain questionnaire on October 4, 2011. (D.L 21-7 at 5-6) Dr. Dickinson opined that Gregory suffered from a moderately severe impairment which constantly limited her ability to maintain attention and concentration to sufficiently complete tasks in a timely manner. (Id. at 5) According to Dr. Dickinson, Gregory's complaints of pain were consistent with her objective findings, and Gregory's impairment would result in absences of more than two days per month. (Id.) Dr. Dickinson indicated that Gregory would be limited to sedentary work, lifting a maximum often pounds. (Id. at 6) Dr. Dickinson's treatment records consist of lab work reports showing that Gregory was often noncompliant with her medications. (See, e.g., D.I. 21-7 at 43)

         Gregory also treated for right carpal tunnel syndrome prior to her amended onset date of August 7, 2013. (D.I. 21-7 at 26) In January 2012, Gregory was prescribed a wrist splint to ease the pain in her right hand. (Id.) In October 2014, Gregory went to her primary care physician for clearance prior to her scheduled carpal tunnel surgery. (D.I. 21-9 at 73) However, nothing in Gregory's medical records confirms that the surgery went forward, and there is no evidence in the medical records of objective testing to confirm the diagnosis of carpal tunnel syndrome.

         On August 7, 2013, Gregory began treating with rheumatologist Maged I. Hosny, M.D. (D.I. 21-9 at 26-30) Dr. Hosny indicated that Gregory's symptoms of dull aching widespread pain were consistent with chronic fibromyalgia. (Id. at 28) Gregory experienced generalized body stiffness, widespread arthralgia and myalgia, as well as insomnia, fatigue, and lack of concentration. (Id.) Gregory's gait was normal, and she had a full range of motion and tenderness, but no visible swelling or effusion, in the joints of her bilateral upper and lower extremities. (Id. at 29) Her lab results revealed abnormal levels of ESR and CRP, [1] but she lacked clinical features of autoimmune or inflammatory conditions. (Id. at 30) Gregory was prescribed an increased dosage of Gabapentin, but remained symptomatic. (Id. at 25-26) Gregory exhibited normal muscle tone, strength, and range of motion in treatment notes through January 2016, and she continued to manage her pain with Gabapentin. (Id. at 82-98)

         On November 20, 2013, Gregory saw Patricia Chavarry, D.O., for a consultative examination regarding Gregory's fibromyalgia, major depression, anxiety disorder, right carpal tunnel syndrome, cervical radiculopathy, lumbar radiculopathy, status post shoulder repair, obesity, hypertension, and insomnia. (D.I. 21-9 at 34-43) A physical examination revealed that Gregory walked with a normal gait and did not require the use of an assistive device. (Id. at 36) Gregory had pain extending through her cervical and thoracic regions and focal tenderness in both shoulders but no focal edema. (Id. at 37) She had full muscle strength in her upper and lower extremities and her muscle tone was intact. (Id.) Dr. Chavarry detected no gross cognitive impairment, and she described Gregory's mood and affect as normal. (Id.) Dr. Chavarry opined that Gregory did not have any physical restrictions that would prevent her from performing light duty work. (Id. at 38)

         From July 2013 through September 25, 2015, Gregory treated with primary care physician Vineet Puri, M.D. (D.I. 21-9 at 51-80) Dr. Puri's records consistently reflect that Gregory exhibited a normal gait, normal range of motion, and full strength in all extremities. (Id. at 52, 55, 58, 61, 64, 67, 69) During her visit on December 13, 2013, Gregory indicated that she wished to discontinue her pain management, claiming it was not effective. (Id. at 51)

         On November 26, 2013, Vinod K. Kataria, M.D., a State Agency medical consultant, opined that Gregory is capable of light work with a limitation of four hours of standing and walking, occasional postural limitations, and environmental limitations. (D.I. 21-3 at 31-32) Dr. Kataria opined that Gregory's statements about the severity of her symptoms were not supported by the objective medical evidence. (Id.) On February 21, 2014, Karen Sarpolis, M.D., a State Agency medical consultant, also opined that Gregory is capable of light work, and can stand or walk for four hours and sit for about six hours of an eight-hour workday. (Id. at 59-61)

         C. Hearing Before the ALJ 1. Gregory's testimony

         Gregory testified that she lives with her husband and adult daughter. (D.I. 21-2 at 42) She has a driver's license and is able to drive locally. (Id.) Gregory stated that she has a bachelor's degree in behavioral science and previously worked as a teacher's aide, and also as a treatment coordinator and case manager for foster children. (Id. at 43-44)

         Gregory testified that she is unable to work primarily due to insomnia caused by chronic pain from her fibromyalgia. (Id. at 44-45) According to Gregory, she experiences pain in her lower back, legs, neck, arms, and hands. (Id. at 45) Gregory explained that her medications make her drowsy. (Id.) Gregory does not participate in any type of physical therapy or exercise program. (Id. at 50) She reported that she sometimes uses a crutch to assist her with walking around the house, but she does not use it outside the home. (Id. at 46) Gregory indicated that she is able to walk for about ten to fifteen minutes while grocery shopping before taking a break, she is able to stand for about the same length of time, and she can sit for about fifteen to twenty minutes at a time. (Id. at 46-48)

         Gregory explained that on her bad days, she cannot get out of bed. (Id. at 47) On her good days, however, she is able to do light housekeeping and prepare food for herself. (Id.) Gregory testified that she is not able to sweep, mop, or vacuum, but she does laundry. (Id. at 49) Gregory indicated that she is occasionally able to do some gardening, such as pulling weeds. (Id. at 50) She estimated that she has approximately three to five bad days per month. (Id. at 47) Gregory reported that the arthritis in her hands makes it difficult for her to do paperwork or type on a keyboard, and she needs assistance when opening jars. (Id. at 48) Gregory estimated that she could lift and carry about three to five pounds without injuring herself. (Id.)

         Gregory stated that she goes to church and visits with her parents, but she does not visit friends. (Id. at 49-50) She does not participate in recreational activities like going to movies, restaurants, or parks. (Id. at 50)

         2. Vocational expert testimony before the ALJ

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

I'd like you to assume an individual the claimant's age, education, and work history; who could perform work at the light exertional level; who can occasionally climb ramps, stairs, ladders, ropes, and scaffolds; who can occasionally balance, stoop, kneel, crouch, and crawl; who can have occasional exposure to extreme cold, extreme heat, humidity, vibration, and hazards; and who could perform work that requires no fast pace or strict production ...

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