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Tomlinson v. Saul

United States District Court, D. Delaware

September 25, 2019

ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.[1]

          Angela Pinto Ross, Doroshow, Pasquale, Krawitz & Bhaya, Wilmington, DE – attorneys for Plaintiff.

          Eric P. Kressman, Regional Chief Counsel, Heather Benderson, Special Assistant United States Attorney Social Security Administration, Office of the General Counsel, Philadelphia, PA – attorneys for Defendant.




         Plaintiff Tyree Darnell Tomlinson, Jr. (“Mr. Tomlinson” or “Plaintiff) appeals the decision of Defendant Andrew M. Saul, Commissioner of Social Security (“the Commissioner” or “Defendant”), denying his claim for Social Security Disability Insurance benefits under Title XVI 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. 13, 15). Plaintiff seeks remand with instructions to “immediately award benefits as of the alleged onset date, or in the alternative, remand . . . [to] issue a new decision based on substantial evidence and proper legal standards.” (D.I. 14 at 20). The Commissioner requests that the Court affirm the decision denying Plaintiff s claim for benefits. (D.I. 16 at 20). For the reasons stated below, the Court will grant-in-part and deny-in-part Plaintiff s motion and deny Defendant’s cross-motion for summary judgment.


         A. Procedural History

         On April 28, 2014, Plaintiff filed an application for Disability Insurance Benefits under Title XVI, alleging disability beginning September 22, 2013. (Tr. 155).[2] Plaintiffs claim was denied initially on June 9, 2014 and again upon reconsideration on October 1, 2014. (Tr. 84-88, 94-98). Plaintiff then requested a hearing before the Administrative Law Judge (“ALJ”) on November 26, 2014. (Tr. 100-102). The hearing took place on February 10, 2017 during which both Plaintiff and Theresa Wolford (“Ms. Wolford”), an impartial vocational expert (“VE”), testified. (Tr. 30-52). After the hearing, on April 17, 2017, the ALJ issued a decision finding that Plaintiff “is not disabled under section 1614(a)(3)(A) of the Social Security Act.” (Tr. 24). Plaintiff requested review of the ALJ decision by the Appeals Council on June 14, 2017. (Tr. 152-53). On April 6, 2018, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the Commissioner. (Tr. 1-5).

         On June 7, 2018, 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 January 18, 2019. (D.I. 13-17).

         B. Factual History

         Plaintiff applied for supplemental security income on April 28, 2014 when he was 18 years old. (Tr. 22, 155). Plaintiff asserts that he became disabled as of September 22, 2013 prior to age 22, which is defined as a “younger individual” pursuant to 20 C.F.R. §416.963(c). (Tr. 22, 155). Plaintiff had completed 11th grade at Howard High School of Technology. (Tr. 187). According to his Work Background forms (Tr. 234, 247, 250), Plaintiff had worked only part-time for brief periods of time in 2015 and 2016.[3]

         1. Disability Report – August 6, 2014 (Form SSA-3368)

         In his Disability Report dated August 6, 2014 (Form SSA-3368) (Tr. 185-194), Plaintiff asserted that he has the following physical or mental conditions that limit his ability to work: brain damage, processing and cognitive, short term memory loss, depression, and PTSD (Tr. 186).

         In his disability report, Plaintiff indicates that he never worked. (Tr. 186). He also lists the following medications: Clonapin (sleep), Imitrex (head pain), a muscle relaxer (pain), Ritalin (brain damage), all of which were prescribed by A.I. duPont Hospital for Children (“A.I.”), and Flonase (allergies), loratadine (allergy), and prevental (asthma), which were prescribed by Jennifer Grilli D.O. of Christiana Care Family Medicine. (Tr. 188). Plaintiff lists Dr. Grilli, Christiana Hospital, and Dr. Haas of A.I. as providers who may have medical records about his physical and mental conditions. (Tr. 189-191).

         2. Disability Report – Appeal – August 5, 2014 (Form SSA-3441)

         In his Appeal Disability Report (Tr. 195-198), Plaintiff indicates that there have been no new illnesses, injuries, or conditions (and no changes) and that there are no new physical or mental limitations because of his illnesses, injuries, or conditions. (Tr. 195). Plaintiff indicates that he has not seen a doctor, hospital, or clinic for emotional or mental problems. (Tr. 196). His providers are Dr. Grilli and Dr. Haas and his medications are Flexeril and Ritalin. (Tr. 196-97).

         3. Medical History, Treatment, and Conditions

         The Court has reviewed all medical records submitted. The relevant medical history begins in September 2013 and continues through November 2, 2016. (D.I. 9-7 – 9-25, Exs. 1F – 15F).

         a. Christiana Care – Emergency Department

         Plaintiff has records from the Emergency Department of Christiana Hospital on five occasions: May 2, 2013 (upper lip wound infection (Tr. 286-92, 1060-67, 1208-12)), August 16, 2013 (acute hyperventilation (Tr. 273-85, 1049-59, 1193-1207)), September 22, 2013 (motor vehicle accident (Tr. 262-272, 1037-48, 1173-92)), September 1, 2015 (abdominal and jaw pain (Tr. 1028-36, 1117-72)), and January 10, 2016 (chest wall pain (Tr. 1023-27, 1062-1116)).

         Plaintiff arrived at the Emergency Department via ambulance on September 22, 2013 following his motor vehicle accident. Plaintiff’s chief complaints at the time were abdominal pain and right knee pain. (Tr. 263). He denied loss of consciousness. (Tr. 264). Plaintiff was discharged with a diagnosis of “chest wall pain; MVC (motor vehicle collision).” (Tr. 265). Plaintiff’s “symptoms were evaluated with physical exam, medical interview, and xrays of [Plaintiff’s] chest and knee – which were both normal without signs of fracture or traumatic injury.” (Tr. 265).

         b. Rochelle Haas, MD

         The transcript indicates that Plaintiff’s mother took him to A.I. DuPont Hospital for Children (“A.I.”) following the visit to Christiana Hospital after the motor vehicle accident. (See, e.g., Tr. 666, 1245). While there do not appear to be any A.I. Emergency Department records in the transcript dated September 22, 2013 (the date of the accident), the Court notes that there are several x-ray reports on Plaintiff’s chest, elbow and breastbone and an ECG report from A.I. dated September 22, 2013. (Tr. 819-23, 826).

         As noted above, Dr. Haas is a doctor at A.I who examined Plaintiff after his motor vehicle accident. Plaintiff was diagnosed with a concussion and reported pain in his knee, arm, and neck after the accident. (Tr. 921, 922). Plaintiff had thirteen office visits with Dr. Haas between October 18, 2013 and October 6, 2015. (Tr. 916-1018). Most, if not all, of these appointments were for concussion follow-up after the accident. At Plaintiff’s initial visit with Dr. Haas, the records indicate that Plaintiff is “struggling. Mood, balance, thinking and opticokinetic exam all affected.” (Tr. 925). During subsequent visits, the records indicate: “Improving in symptom report and function” (Tr. 936); “Concussion Screen: normal”; “anxiety and depression complicating concussion recovery, likely responsible for increase in symptoms as well” (Tr. 944); “significant auditory processing concerns”; “mood is a big issue” (Tr. 952); “concussion screen: further testing recommended with neuropsychology” (Tr. 961); “started Ritalin. Mind seems clearer. Not taking it consistently on a daily basis as prescribed”; “appears less fatigued, improved mood” (Tr. 977-978); “feels better overall – facing the fact of his injury” (Tr. 985); “continues to make slow progress. Mood still a factor in slowed recovery” (Tr. 987); “continues to make improvements. Transition information provided” (Tr. 996).

         In a January 2014 letter, Dr. Haas and Jennette Firlein, a nurse practitioner, noted that Plaintiff suffered a concussion with various symptoms. (Tr. 839). They recommended school accommodations including a 504 plan, only attending school half a day, and receiving homebound instruction for any missed work. (Tr. 839). They also recommended 15-20 minute breaks, reduction in work load and limitations on tests. (Tr. 840-41).

         At Plaintiff’s July 24, 2014 appointment, Dr. Haas notes that Plaintiff is “leaving July 29th to move to Georgia” (Tr. 994).

         The below table summarizes Plaintiff’s additional diagnostic studies performed at A.I.:




9/26/2013 (Tr. 817-18)


1. Normal bowel gas pattern.

2 . Benign-appearing lucency in the right femoral neck, nontraumatic, recommend further views

10/2852013 (Tr. 814-16)


1 . Focal increased activity at the right lateral tibial condyle at all 3 phases of bone scan as described above. Differential diagnoses include occult fracture, stress fracture. Somewhat focal activity at the anterolateral tibial plateau reason to question of meniscal injury.

2. Focal increased activity at the right supero-lateral aspect of the manubrium sternum inferolateral to the articular surface, which could represent an occult fracture.

3. Physeal activity of the right proximal humerus is relatively increased compared to the left on the SPECT, which may be due to reactive hyperemia, however chronic injury can’t be excluded.

10/25/2013 (Tr. 809-10)


1. Small area of bone marrow edema involving the proximal posterior metaphysis which could be a stress-related injury.

2. Heterogeneous signal of the posterior inferior labrum, a tear is not excluded. MR arthrogram is recommended for further evaluation.

10/25/2013 (Tr. 807-08)


1. Nonspecific slight bone marrow edema present at the anterolateral aspect of proximal tibia.

2 . Mild soft tissue edema along the lateral posterior aspect of the distal quadriceps tendon and proximal patellar tendon as discussed above .

3. Mild focal irregularity present a long the cartilage in lateral aspect of the proximal tibia.

11/7/2013 (Tr. 805-06)


Normal non-contrast brain MRI

12/20/2013 (Tr. 802-04)[4]


No apparent internal derangement of the temporomandibular joints, particularly on the left.

1/6/2014 (Tr. 800-01)


Genu valgum

6/30/2014 (Tr. 876-84)

SLEEP STUDY (Dr. Raj Padman)

Sleep Medicine Diagnosis: Sleep Related Breathing Disorders

I'mpression: Snoring, elevated REM apnea hypopnea index, elevated end tidal co2 readings, increased arousals

Need to evaluate upper air way integrity

Refer to ENT service

         On July 2, 2015, Plaintiff again saw Dr. Haas. The records indicate that once Plaintiff moved to Georgia, he “didn’t have a way to get medicines. Struggled.” (Tr. 1003). “In Georgia saw 1 doctor – one visit” “never saw a pcp.”[5] (Tr. 1003). The last visit with Dr. Haas memorialized in the records is October 6, 2015. During this visit, Dr. Haas notes that Plaintiff is living back in Delaware, “mood – up and down. Not in any counseling – was supposed to work with a psychiatrist.” (Tr. 1012). “Mood and anxieties largely contributing to symptom report at this time.” (Tr. 1013).

         c. Jennifer Grilli, DO

         The transcript includes records for three visits with Dr. Grilli: April 16, 2014 – blood pressure and sinus issues (Tr. 827-30, 12-13-16); June 6, 2014 – left knee pain, inner thigh, right hand (Tr. 1217-23); and January 14, 2016 – follow-up from hospital, chest pain (Tr. 1224-27).

         d. ...

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