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Williams v. Berryhill

United States District Court, D. Delaware

March 27, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Gary C. Linarducci, Linarducci & Butler, PA, New Castle, DE - attorneys for Plaintiff

          Nora Koch, Regional Counsel, Paul K. Nitze, Special Assistant United States Attorney Social Security Administration, Office of the General Counsel, Philadelphia, PA - attorneys for Defendant.




         Plaintiff 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).

         Pending 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.


         A. Procedural History[1]

         On December 9, 2009, Ms. Williams filed an application for Disability Insurance Benefits under Title II, alleging disability beginning November 6, 2006. (Tr.[2] 116-117).[3] 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).

         On 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).[4] On June 7, 2016, the Appeals Counsel issued an Order remanding the case to an ALJ. (Tr. 485).

         A hearing took place on April 28, 2017[5] 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, [6] 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).

         B. Factual History

         Plaintiff 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).

         1. Disability Report - December 9, 2009 (Form SSA-3368)

         In her 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).

         2. Disability Reports - Appeal (Form SSA-3441)

         In her 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).

         In her 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.

         She 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.

         And she listed new illnesses, injuries, or conditions as (Tr. 182):

Severe carpal tunnel, trouble sleeping at night.

         Dr. Glassman was the only treating physician listed, and Zolpidem (bedtime sleep) had been added to Plaintiff's medications. (Tr. 183-85).

         3. Medical History, Treatment, and Conditions

         The 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).[7]

         a. Physical Conditions

         Plaintiff 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 hand issues.

         b. Mental Conditions

          In 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).

         Plaintiff 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).

         c. Healthcare Providers

         1. Dr. Glassman, Delaware Back Pain & Sports Rehabilitation Center.

         Ms. 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.

         Dr. 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).

         With 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, but ...

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