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Cook v. Berryhill

United States District Court, D. Delaware

March 21, 2019

VALERIE COOK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Valerie Cook - Pro Se Plaintiff

          Nora Koch, Regional Chief Counsel, Eda Giusti, Assistant Regional Counsel, Heather Benderson, Special Assistant United States Attorney Social Security Administration, Office of the General Counsel, Philadelphia, PA - attorneys for Defendant.




         Plaintiff Valerie Cook (“Ms. Cook” or “Plaintiff), a pro se litigant, [1] appeals the decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security (“the Commissioner” or “Defendant”), denying her claim for Social Security Disability Insurance benefits under Title II of the Social Security Act. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

         Pending before the Court are cross-motions for summary judgment filed by Ms. Cook[2] and the Commissioner. (D.I. 11, D.I. 12). Ms. Cook, in essence, asks the Court to direct an award of benefits in her favor or, alternatively, to remand for additional administrative proceedings. (D.I. 11). The Commissioner requests that the Court affirm the decision denying Plaintiffs claim for benefits. (D.I. 13 at 12). For the reasons stated below, the Court will deny Plaintiffs motion and grant Defendant's motion.


         A. Procedural History

         In December 2013, Plaintiff filed an application for Disability Insurance Benefits under Title II and for Supplemental Security Income Benefits under Part A of Title XVIII[3] of the Social Security Act, alleging disability beginning May 14, 2011.[4] (Tr. 312-13).[5] Plaintiff's claim was initially denied on February 7, 2014 (Tr. 33, 144-55) and denied again upon reconsideration on July 7, 2014 (Tr. 33, 201-06). Plaintiff then requested a hearing before the Administrative Law Judge (“ALJ”) on August 25, 2014. (Tr. 207-08). The hearing took place on September 15, 2016[6]during which both Ms. Cook and Vanessa Emmus (“Ms. Emmus”), an impartial vocational expert (“VE”) testified. (Tr. 79-122). After the hearing, on November 4, 2016, the ALJ issued a decision finding that Plaintiff “was not under a disability within the meaning of the Social Security Act from May 14, 2011, through the date last insured, ” December 31, 2012. (Tr. 34). Plaintiff requested review of the ALJ decision by the Appeals Council on December 27, 2016. (Tr. 20). On June 16, 2017, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 10-12).

         On October 25, 2017, Plaintiff filed suit in the District of Delaware seeking judicial review of the Commissioner's denial of benefits. (D.I. 2). The parties' completed briefing on the cross motions for summary judgment on May 18, 2018. (D.I. 11-13).

         B. Factual History

         Plaintiff applied for Disability Insurance Benefits in December of 2013 when she was 45 years old. (Tr. 312). In the current application, Plaintiff lists May 14, 2011 as her alleged onset date. (Tr. 351). She completed her education through the 7th grade, attended no special education classes, and received no specialized job training. (Tr. 356). According to Plaintiff's December 19, 2013 Disability Report, she has held jobs as a deboner, eviscerationist, machine operator, and quality control specialist[7] in the 15 years prior to becoming unable to work. (Tr. 357).

         1. Disability Report - December 19, 2013(Form SSA-3368)

         In her December 19, 2013 Disability Report (Form SSA-3368) (Tr. 254-64), Plaintiff asserted that she has the following physical or mental conditions that limit her ability to work (Tr. 355): Fibromyalgia;[8] Depression; Bi-Polar Disorder; Osteomyelitis/Septic Arthritis; Anxiety; Narcolepsy; Sleep Apnea; and Asthma. She indicated both that she stopped working because of her conditions, and that her conditions had not caused her to make changes to her work activity. (Tr. 356). She also listed the following medications: Ambien (sleep aid), Alprazolam XR (anxiety), Cymbalta (bi-polar disorder), Seroquel (depression), Topamax (appetite reduction), Trazodone (depression), and Vistaril (anxiety), all prescribed by nurse practitioner Ihuoma Chuks at Mind and Body Consortium, [9] Fentanyl (Fibromyalgia) and Percocet (Osteomyelitis/Septic Arthritis), prescribed by Dr. Senad Cemerlic of ABG Pain Management, and Tramadol (Osteomyelitis/Septic Arthritis) prescribed by Dr. Fanta Morgan of Delaware Podiatric Medicine. (Tr. 358). In addition to the aforementioned doctors, Plaintiff listed Dr. Richard DuShuttle of Capital Orthopaedic, Dr. Tutse Tonwe of Family Health of Delaware, and Kent General Hospital as providers/hospitals that may have medical records about her physical and mental conditions. (Tr. 359-63).

         2. Disability Reports - Appeal - April 7, 2014 & August 25, 2014 (Form SSA-3441)

         In her Disability Reports - Appeal dated April 7, 2014 and August 25, 2014 (Form SSA-3441) (Tr. 389-397, 402-07), Plaintiff indicated that she has no new physical or mental limitations and no new illnesses, injuries, or conditions. (Tr. 390-91, 402). She listed no new treating physicians who may have medical records about her physical and mental conditions and no new medications. (Tr. 391-93, 397, 403).

         3. Medical History, Treatment, and Conditions

         The Court has reviewed all medical records submitted. The relevant medical history begins in May 14, 2011 and continues through December 31, 2012, the date last insured. (D.I. 8-9 - 8-18, Exs. B1F - B22F).

         a. Foot Problems

         Plaintiff has undergone several surgical procedures for foot impairments, including bilateral plantar fasciitis, foot hallux rigidus, 4 capsulitis, and degenerative joint disease of the great toe (Tr. 611-17, 640-708). These procedures included having warts excised from her right foot in September of 2001, and the excision of a plantar's wart from her left foot in December of 2011. (Tr. 704-05).[10] Additionally, Plaintiff had a bunionectomy on her left foot in December of 2008 and fusion of the first metatarsophalangeal joint in December of 2011. (Tr. 425). After the fusion surgery, she developed an infection and osteomyelitis[11] and had most of the hardware in her foot removed. (Tr. 464). She later (in February of 2012) had the remaining hardware removed. (Tr. 40, 464). She also had an irrigation and debridement procedure and partial osteotomy of the left foot in March 2012. (Tr. 40, 436, 454, 464, 475). After the debridement, Plaintiff denied any complaints from the procedure. (Tr. 427).

         Between July of 2011 and December of 2013, Plaintiff was seen for complaints of bilateral foot pain, swelling, and tenderness. (Tr. 611-17, 640-708). The records suggest that Plaintiff was not fully compliant with her doctors' recommendations. For example, in January of 2012, Plaintiff was weight-bearing against doctor's advice, in April of 2012, she declined to wear a boot as recommended, and she also failed to follow up with seeing a physician as recommended. (Tr. 664, 678, 680, 683, 686). Nevertheless, the records reflect that Plaintiff's conditions improved with treatment. For example, in March and April 2012, progress notes document improvement in the swelling of her left foot, and a July 2012 treatment note documents improvement of pain, decreased swelling and stiffness, and no numbness, weakness, or redness. (Tr. 431, 433, 689). An MRI of Plaintiff's left foot in May 2013 showed no gross abnormality. (Tr. 734).

         b. Asthma

         Plaintiff has had asthma for many years. (Tr. 98). She testified that she has used an inhaler for “as far as I can remember, ” and required a nebulizer during the time of her foot infection. (Tr. 98). Once the infection was resolved, however, she no longer needed to use the nebulizer (Tr. 98-99, 103).

         c. Mental Health Conditions

         Plaintiff was treated for mental health complaints beginning in October 2012, [12] at which time she was diagnosed with bipolar disorder, anxiety, and chronic insomnia. (Tr. 898). Repeated mental examination follow up indicated some issues with memory, irritability, and concentration, but no significant abnormalities. (See e.g., Tr. 823, 825, 858, 886). Treatment notes also reflect that Plaintiff did well on medication. (Tr. 886-895).

         d. Medical Source Opinions

         1. Ihuoma Chuks, of Mind and Body Consortium

         Ihuoma Chuks, is a nurse practitioner, at the Mind and Body Consortium who saw Plaintiff intermittently between January of 2009 and June of 2014. (Tr. 719-727, 879-95, 916-35). There do not appear to be any treatment notes from nurse practitioner Chuks dated between May 14, 2011 and December 31, 2012, but in September of 2013, nurse practitioner Chuks completed a psychiatric/psychologist impairment questionnaire check-off form that listed October 12, 2012 as the date of first treatment. (Tr. 898). In the form, nurse practitioner Chuks indicated that Plaintiff was incapable of tolerating even low stress at work due to her mental complaints. (Tr. 887, 898-905). When asked the earliest date that Plaintiff's limitations commenced, nurse practitioner Chuks responded “10/12/12?” (Tr. 905).

         2. Dr. Senad Cemerlic of ABG Pain Management

         Plaintiff saw Dr. Cemerlic between July of 2013 and January of 2014 for pain in her feet. (Tr. 618-639, 779-810). Treatment notes indicate the Plaintiff complained of constant pain in her feet, and had pain when sitting, standing, bending, walking, and lifting. (Tr. 618, 621-22, 624). She noted that medication and exercise helped her pain. (Tr. 618, 624). Plaintiff was prescribed fentanyl and Percocet for pain. (Tr. 623, 626-27).

         3. Delaware Podiatric Medicine

         Plaintiff was treated at Delaware Podiatric Medicine between July of 2011 and January of 2016. (Tr. 611-617, 936-51, 957-63, 972-980). Treatment notes for July of 2011 are unsigned by Harry S. Tam. Those notes indicate that her vascular status and neurological status were normal, but that her orthopedic exam was positive and evidenced pain in her foot upon movement and palpation. (Tr. 616-17). He noted that he would “prefer to manage her conservatively, but she is insistent on surgical management.” (Id.).

         Beginning in May of 2013, Plaintiff began seeing Dr. Morgan. (Tr. 611-615, 936-51). Treatment notes indicated pain on palpation, left 2nd hammer toe and right 2nd hammer toe but no other orthopedic problems. (Tr. 611-615, 936-51, 957-63, 972-1001). Dr. Morgan ordered an MRI of Plaintiff's left foot in May of 2013, which demonstrated no gross abnormality. (Tr. 734). On June 13, 2013 (after Plaintiff's insured status expired), Dr. Morgan ...

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