United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. FALLON UNITED STATES MAGISTRATE JUDGE.
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).
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).
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)
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)
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)
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.)
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.
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)
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)
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.
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,  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)
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)
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)
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)
Hearing Before the ALJ 1. Gregory's testimony
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)
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)
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.)
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)
Vocational expert testimony before the ALJ
posed the following hypothetical to the vocational expert
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 ...