United States District Court, D. Delaware
Pinto Ross, Doroshow, Pasquale, Krawitz & Bhaya,
Wilmington, DE – attorneys for Plaintiff.
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.
NOREIKA, U.S. DISTRICT JUDGE:
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).
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.
April 28, 2014, Plaintiff filed an application for Disability
Insurance Benefits under Title XVI, alleging disability
beginning September 22, 2013. (Tr. 155). 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).
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.
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.
Disability Report – August 6, 2014 (Form
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).
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).
Disability Report – Appeal – August 5, 2014 (Form
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.
Medical History, Treatment, and Conditions
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).
Christiana Care – Emergency Department
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)).
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).
Rochelle Haas, MD
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).
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).
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.
Plaintiff’s July 24, 2014 appointment, Dr. Haas notes
that Plaintiff is “leaving July 29th to move to
Georgia” (Tr. 994).
below table summarizes Plaintiff’s additional
diagnostic studies performed at A.I.:
9/26/2013 (Tr. 817-18)
XR ABDOMEN OBSTRUCTION SERIES
1. Normal bowel gas pattern.
2 . Benign-appearing lucency in the right femoral
neck, nontraumatic, recommend further views
10/2852013 (Tr. 814-16)
NUC MED BONE SCAN, 3 PHASE, NUC MED BONE IMAGING
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)
MRI SHOULDER W/O CONTRAST
1. Small area of bone marrow edema involving the
proximal posterior metaphysis which could be a
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)
MRI KNEE W/O CONTRAST
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)
MRI BRAIN W/O CONTRAST INC STEM
Normal non-contrast brain MRI
12/20/2013 (Tr. 802-04)
MRI TEMPOROMANDIBULAR JOINTS
No apparent internal derangement of the
temporomandibular joints, particularly on the left.
1/6/2014 (Tr. 800-01)
XR LOWER EXT BILATERAL 1 VW
6/30/2014 (Tr. 876-84)
SLEEP STUDY (Dr. Raj Padman)
Sleep Medicine Diagnosis: Sleep Related Breathing
I'mpression: Snoring, elevated REM apnea
hypopnea index, elevated end tidal co2 readings,
Need to evaluate upper air way integrity
Refer to ENT service
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.” (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.”
Jennifer Grilli, DO
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).