United States District Court, D. Delaware
C. Linarducci, Linarducci & Butler, PA, New Castle, DE -
attorneys for Plaintiff
Koch, Regional Counsel, Paul K. Nitze, Special Assistant
United States Attorney Social Security Administration, Office
of the General Counsel, Philadelphia, PA - attorneys for
NOREIKA, U.S. DISTRICT JUDGE.
Angela Delphine Williams (“Ms. Williams” or
“Plaintiff) 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 Plaintiff s motion and Defendant's
cross-motion for summary judgment. (D.I. 14, 17). Plaintiff
requests “remand of this case for further development
and analysis under the fourth sentence of 42 U.S.C. §
405(g).” (D.I. 15 at 18). The Commissioner requests
that the Court affirm the decision denying Plaintiffs claim
for benefits. (D.I. 18 at 20). For the reasons stated below,
the Court will grant-in-part Plaintiffs motion and deny
Defendant's cross-motion for summary judgment. The case
will be remanded.
December 9, 2009, Ms. Williams filed an application for
Disability Insurance Benefits under Title II, alleging
disability beginning November 6, 2006. (Tr.
116-117). The protective filing date for
Plaintiff's December 9, 2009 application is May 27, 2009.
(Tr. 139). Plaintiff's claim was initially denied on
February 9, 2010 (Tr. 73-76) and again upon reconsideration
on May 6, 2010 (Tr. 78-83). Plaintiff then requested a
hearing before the Administrative Law Judge
(“ALJ”) on May 24, 2010. (Tr. 84-85). The hearing
took place on January 11, 2011 during which both Ms. Williams
and James Ryan, an impartial vocational expert
(“VE”) testified. (Tr. 24-48). After the hearing,
on February 9, 2011, the ALJ issued a decision finding that
Plaintiff “has not been under a disability within the
meaning of the Social Security Act from March 6, 2008,
through the date of this decision.” (Tr. 20). By letter
dated February 17, 2011, Plaintiff requested review of the
ALJ decision by the Appeals Council. (Tr. 110-115). On July
11, 2012, the Appeals Council denied Plaintiff's request
for review, making the ALJ's decision the final decision
of the Commissioner. (Tr. 1-5).
September 5, 2012, Plaintiff filed suit in the District of
Delaware (Williams v. Astrue, C.A. No. 12-1098
(GMS)) seeking judicial review of the Commissioner's
denial of benefits. (Tr. 514). The Court issued its
Memorandum and Order on February 26, 2016 remanding the
matter for further proceedings consistent with the
Memorandum. (Tr. 488-513). On June 7, 2016, the Appeals Counsel
issued an Order remanding the case to an ALJ. (Tr. 485).
hearing took place on April 28, 2017 during which both Plaintiff
and Mitchell Schmidt (“Mr. Schmidt”), an
impartial VE testified. (Tr. 463-482). After the hearing, on
June 7, 2017, the ALJ issued a decision finding once again
that Plaintiff “was not under a disability, as defined
in the Social Security Act, at any time from April 25, 2009,
through June 30, 2013,  the date last insured.” (Tr.
451). On August 30, 2017, Plaintiff again 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 14, 2018. (D.I. 14-15, 17-19).
protectively filed for Disability Insurance Benefits
(“DIB”) on May 27, 2009 and completed her
application for DIB on December 9, 2009. (Tr. 116-117, 139).
She was 42 years old at the time of the protective filing and
the application. Plaintiff became unable to work as of
November 6, 2006 at the age of 39, and was 46 years old,
which is a “younger individual” as defined by 20
C.F.R. §404.1563(d) on the date last insured. (Tr. 450).
She is a high school graduate and completed specialized CNA
job training. (Tr. 147). According to her Work History report
(Tr. 150-55), she had held a job as a certified nursing
assistant from 1991 to November 6, 2006, the date last
worked. (Tr. 150).
Disability Report - December 9, 2009 (Form SSA-3368)
Disability Report dated December 9, 2009 (Form SSA-3368) (Tr.
142-49), Plaintiff asserted that she has the following
physical or mental conditions that limit her ability to work
(Tr. 143): right shoulder impingement; rotator cuff tear;
bi-lateral carpal tunnel; minimum bulge discs in back; neck
pain; headaches due to pinched nerves in right shoulder; and
depression. She indicates that she stopped working because
her “condition[s] made it too difficult and painful to
work.” (Tr. 143). Plaintiff also notes that her doctor
told her she could not work because he found additional
damage in her right shoulder. (Tr. 143). Plaintiff lists the
following medications on her disability report: Cymbalta
(depression), Oxycontin (pain), and Xanax (anxiety) all of
which were prescribed by Arnold B. Glassman, D.O of Delaware
Back Pain & Sports Rehabilitation. (Tr. 147). In addition
to Dr. Glassman, Plaintiff lists three providers who may have
medical records about her physical and mental conditions:
John W. Dettwyler, Ph.D., Dr. Irene Fisher of Delaware Back
Pain & Sports Rehabilitation and Neil Kaye, M.D. (Tr.
145-46). On March 24, 2017, Plaintiff's counsel provided
an “updated list of all medical providers that [they
were] aware of who have treated the claimant during the
period or periods at issue.” (Tr. 723-24). This listed
added Jay Weisberg, PhD., Advancexing Pain & Rehab
Clinic, and Dr. Errol Ger. (Tr. 723-24).
Disability Reports - Appeal (Form SSA-3441)
February 19, 2010 Appeal Disability Report (Tr. 170-77),
Plaintiff indicates that there have been no changes in her
illnesses, injuries, or conditions and she has no new
physical or mental limitations as a result of her illnesses,
injuries, or conditions (Tr. 171). The only medical provider
listed is Dr. Glassman and the listed medications are
Alprazolam (anxiety), Cymbalta (depression), and Oxycontin
(pain) (Tr. 174).
June 18, 2010 Appeal Disability Report (Tr. 172-87),
Plaintiff indicated changes in her illnesses, injuries, or
conditions as follows (Tr. 182):
Right shoulder pain radiates down arm, mood swings, panic
attacks, nerves, physical and mental health has remained the
same since ‘06. Increased pain level, medication needed
to rest 3-4 times a day. Anxiety, bilateral carpal tunnel,
headaches, neck, back pain.
listed new physical or mental limitations as (Tr. 182):
Severe carpal tunnel, concentration, memory, lack of
interest, low drive, neck popping and sharpness increase pain
level, mood swings.
listed new illnesses, injuries, or conditions as (Tr. 182):
Severe carpal tunnel, trouble sleeping at night.
Glassman was the only treating physician listed, and Zolpidem
(bedtime sleep) had been added to Plaintiff's
medications. (Tr. 183-85).
Medical History, Treatment, and Conditions
Court has reviewed all medical records submitted. For
purposes of this appeal, the relevant medical history begins
in April 2009 and continues through June 30, 2013. (D.I. 9,
10 - Exs. B1F - B8F, B11F, B14F, and B15F).
has alleged disability due to conditions including carpal
tunnel in both hands, a torn rotator cuff, post impingement
syndrome of shoulder, chronic cervico thoracic spine,
lumbosacral spine pain with somatic dysfunction, pinched
nerves in her shoulders, degenerative disc disease, bulging
discs, headaches, and obesity. (D.I. 15 at 3; Tr. 143, 466).
She has undergone numerous surgeries for her shoulder and
June of 2009, Plaintiff reported that she was “working
very hard” to manage her pain and depression secondary
to her pain. (Tr. 248). She noted that she forced herself to
participate in family activities. (Tr. 248). Plaintiff
reported to a different provider (Dr. Kaye) in October 2009
that her depression did not keep her from working:
“Even with her degree of sadness/depression, she feels
she could work from a psychiatric/emotional
perspective.” (Tr. 1985).
began treatment with Jay G. Weisberg, M.D., in January 2013.
(Tr. 955-989). He diagnosed her with “major
depression” that persisted through the date last
insured. (Tr. 980-989). Dr. Weisberg's exams revealed
normal thought processes, intact associations, no
suicidal/homicidal ideations, fair insight/judgment, good
memory, good fund of knowledge, and fair
concentration/attention. (Tr. 984-89).
Dr. Glassman, Delaware Back Pain &
Sports Rehabilitation Center.
Williams received treatment primarily from Arnold B.
Glassman, D.O., a specialist in physical medicine and
rehabilitation, from May 2001 through at least May 2016. (Tr.
191-387, 409-430, 433-434, 997-2113, 2114-2326). In July
2010, Dr. Glassman stated that Ms. Williams could never lift
and carry on the right and could occasionally lift and carry
up to ten pounds on the left. (Tr. 434). She could never
reach above the shoulder or below desk level with her right
arm and could only occasionally reach with her left arm. (Tr.
434). He opined that she could occasionally finger and bend
at the waist and could never kneel or crouch. (Tr. 434). In
January 2015, Dr. Glassman opined that Ms. Williams could not
perform even sedentary work (Tr. 1621). That opinion does not
seem to have changed.
Glassman noted that Plaintiff's spine was tender to
palpation and Plaintiff complained of pain as a
“limiting factor” during spine and right upper
extremity range of motion exams, but he consistently found
that Plaintiff had negative Spurling's tests and negative
straight leg raises (tests for cervical and lumbar nerve root
impingement). (See, e.g., Tr. 206-429, 1327-1506,
1538-61). Dr. Glassman also consistently found that Plaintiff
walked with a normal gait, or at the most a slow gait, but
not an abnormal one, nor did she need an assistive device.
(E.g., Tr. 206-429, 1327-1506, 1538-61). Dr.
Glassman noted positive Tinel's signs of her wrists, but
her fine motor coordination was normal. (E.g., Tr.
206-429, 1327-1506, 1538-61). Electrodiagnostic studies
during the relevant period showed moderate left wrist carpal
tunnel syndrome, but no evidence of cervical or peripheral
radiculopathy. (Tr. 416, 1441).
respect to treatment, Plaintiff routinely took Oxycodone
prescribed by Dr. Glassman, but indicated that she did not
want further treatment. (E.g., Tr. 206-429,
1327-1506, 1538-61). His notes indicate that Plaintiff stated
that her medication “allow[ed] her to better take care
of her kids, grandkids, and mother.” (Tr. 204). Dr.
Glassman documented that, as a result of her medication,
Plaintiff's daily living activities increased and
analgesia improved. (E.g., Tr. 194, 409, 420, 1327,
1343, 1500, 1543, 1552). Dr. Glassman consistently noted that
Plaintiff suffered no serious adverse effects from her
medication, except occasional constipation. (Tr. 205, 236,
275, 236, 351, 410, 1330, 1338, 1345). He noted that
Plaintiff reported that she did not drive if she was drowsy,