United States District Court, D. Delaware
Valerie Cook - Pro Se Plaintiff
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.
NOREIKA, U.S. DISTRICT JUDGE
Valerie Cook (“Ms. Cook” or “Plaintiff),
a pro se litigant,  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).
before the Court are cross-motions for summary judgment filed
by Ms. Cook 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.
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 of the Social Security Act, alleging
disability beginning May 14, 2011. (Tr. 312-13). 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, 2016during 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).
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).
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 in the 15 years prior to becoming
unable to work. (Tr. 357).
Disability Report - December 19, 2013(Form SSA-3368)
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; 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,  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).
Disability Reports - Appeal - April 7, 2014 & August 25,
2014 (Form SSA-3441)
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).
Medical History, Treatment, and Conditions
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).
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). 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 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).
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).
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.
Mental Health Conditions
was treated for mental health complaints beginning in October
2012,  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).
Medical Source Opinions
Ihuoma Chuks, of Mind and Body Consortium
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).
Senad Cemerlic of ABG Pain Management
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.
Delaware Podiatric Medicine
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.).
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 ...