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Mellor-Milam v. Commissioner of Social Security

United States District Court, District of New Jersey

December 30, 2014


Richard Lowell Frankel, Esq. BROSS & FRANKEL, PA 102 Browning Lane, Bldg C-1 Cherry Hill, N.J. 08003 Attorney for Plaintiff

Lauren Elizabeth Myers Michelle Lynn Christ Special Assistant U.S. Attorneys Social Security Administration Office of the General Counsel Attorneys for Defendant Commissioner of Social Security Administration


JEROME B. SIMANDLE Chief U.S. District Judge


This matter comes before the Court on Plaintiff Lisa Mellor-Milam’s appeal of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her applications for Disabled Widows Insurance Benefits and Disability Insurance Benefits under Title II of the Social Security Act (“Act”), and for Supplemental Security Income payments under Title XVI of the Act. 42 U.S.C. §§ 405(g), 1383(c).

Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in assessing the weight of two medical evaluations and in in finding that she was not fully credible. Plaintiff also argues that the ALJ erred in finding that two of her impairments were not severe; in failing to perform a function-by-function analysis in determining Plaintiff’s Residual Functioning Capacity (RFC); and in relying on vocational expert testimony that was based on an inaccurate hypothetical which did not encompass all of Plaintiff’s impairments. For the reasons set forth below, the Court will remand the case to the Commissioner of Social Security to reconsider Plaintiff’s request for Disability Insurance Benefits.


A. Procedural history

Plaintiff Lisa Mellor-Milam filed an application for Disability Insurance Benefits (“DIB”) on February 22, 2011. On July 11, 2011, the Social Security Administration denied the claim, finding that she did not qualify for benefits because she did not have a qualifying disability. Plaintiff sought reconsideration but the application was again denied on October 3, 2011. Plaintiff then filed a Request for Hearing before an Administrative Law Judge (“ALJ”) on July 12, 2012. Shortly thereafter, on July 24, Plaintiff filed applications for Supplemental Security Income (“SSI”) and Disabled Widows’ Insurance Benefits (“DWIB”). Pursuant to 20 C.F.R. § 404.946(b), both claims were escalated to the hearing level. The issue to be decided at the hearing was whether Plaintiff was under a disability which qualified her for benefits under the three programs.

The ALJ held a hearing on September 28, 2012, at which Plaintiff appeared with counsel and testified. A certified vocational expert, Mitchell Schmidt, also gave testimony. The ALJ issued a written decision on December 14, 2012, finding that Plaintiff did not qualify for benefits because she was not disabled under the Social Security Act and its regulations. (R. at 23.) Plaintiff requested a review of the ALJ’s decision, which the Appeals Council denied on July 25, 2013. (R. at 1-6.) Plaintiff timely filed this action, which the Commissioner opposes. The Court has jurisdiction to review the Commissioner’s final decision pursuant to 42 U.S.C. § 405(g).

B. Plaintiff’s Statements

Plaintiff testified at her hearing that she was 52 years old. She was born on July 25, 1960. (R. at 49.) She graduated high school in 1978 and has an associate degree in applied technology. (R. at 52.) Plaintiff held previous jobs as a controller, accounting manager, and transportation manager. (R. at 57-61.) Her husband passed away on May 4, 2010. (R. at 186.) Shortly thereafter, in June 2010, she lost her job as a controller for a specialty lighting company, IceCap. (R. at 57.) Plaintiff testified that towards the end, she was struggling to keep up with her job and was missing deadlines. (R. at 57.) Shortly after she was let go, the company went out of business. (R. at 58.)

One month after that, on July 15, Plaintiff was evicted from her home. (R. at 76-77.) She collected unemployment from June 2010 benefits until April 2012 and tried unsuccessfully to find part-time work as a greeter at a drugstore or desk clerk at a hotel. (R. at 55.) She has been unemployed since then. She receives income from food stamps and some money from her sister to cover her cell phone and car insurance bills. (R. at 52-53.) She is homeless, and either lives in her car or stays with friends at their house. (R. at 76.)

Plaintiff testified that she experiences discomfort and pain if she sits for a long period of time. She gets sharp pain in her joints, such as her wrists, elbows, shoulders, lower back, and knees. (R. at 62.) In addition, Plaintiff experiences a “deep aching kind of pain” in her arms, legs, and back, which she experiences “all the time.” (R. at 62-63.) Cold weather, rain, and changes in temperature aggravate her pain. (R. at 63.) She testified that she experiences pain “[a]ll the time.” (R. at 62, 63.) Plaintiff takes 10 milligrams of Percocet three times a day, but the medication “doesn’t take [the pain] all away.” (R. at 63.) Plaintiff has a driver’s license and testified that she drives to the store once or twice a week. She drives to the doctor’s office at least once a month. (R. at 50.) She can only drive approximately 5 to 10 miles because she has some difficulty with her legs and back when sitting. If she needs to go longer distances, a friend will drive her. (R. at 50-51.) The ALJ asked Plaintiff about various functions. Plaintiff testified that she has difficulty sitting in a car for longer than 15 to 20 minutes. (R. at 51.) She can sit comfortably for 10 minutes and can stand for about 10 minutes (R. at 68.) She can walk about a block or so before getting tired and needing to sit down. (R. at 68.) She also testified that she had difficulty with her right arm and could only reach to shoulder height. (R. at 70.) She sometimes drops things when her hands and her fingers swell up in the morning. (R. at 71.) Plaintiff testified that she can bend over but cannot touch the floor. She is able to squat but cannot kneel. (R. at 70.)

With respect to her mental health, Plaintiff stated that Dr. Dorfner, her family physician, was treating her for depression and anxiety. She had not seen psychologists or psychiatrists for her mental health problems because of insurance problems. (R. at 66-67.) Plaintiff noted that she will sometimes wake up crying or would start crying during the day. (R. at 62, 72.) She does not sleep very well, cannot remember things like she used to, and is unable to handle stress. (R. at 62, 65, 77.) Plaintiff also testified that she has difficulty with attention and concentration. (R. at 71.) She stated that she does not socialize much but will see her friend Marie on happier days. (R. at 72.) She speaks to her sister once or twice a month and writes letters to her son. (R. at 72.) When plaintiff is in a crowd of people, she will sometimes panic and get scared. (R. at 72-73.) Dr. Dorfner previously prescribed her Wellbutrin, Abilify, and Pristiq, but Plaintiff testified that she is now on Paxil. (R. at 63-64.)

With respect to daily activity, Plaintiff testified that she gets tired often and lays down about 10 times a day for “sometimes an hour, sometimes longer.” (R. at 68.) She does not shower every day and has trouble with buttons and shoelaces. (R. at 74-75.) She does not do many chores at home but she can microwave meals for herself. (R. at 75.) For activity, Plaintiff testified that she watches TV, colors in a coloring book, tries to walk a bit, and sometimes walks to the end of the block where she stays to feed some stray cats. When she comes back, she lies back down and either watches TV or stares at the ceiling. (R. at 73-74.) Plaintiff stated that she goes to the Columbus Food Market on Thursdays once or twice a month with her girlfriends, where they get pizza from a pizza parlor and sweets from a bakery. (R. at 69, 74.)

C. Medical History

Prior to applying for disability benefits, Plaintiff was being treated by Dr. Scott Dorfner at Dorfner Family Medicine.[1]On February 1, 2010, she was admitted to Lourdes Medical Center of Burlington County because she jammed her right toes against a wall. (R. at 298.) An X-ray showed a fracture to her fourth toe, but treatment notes indicated that her speech was clear, she was oriented, had normal affect, and responded appropriately to questions. (R. at 299.) She was seen by Dr. Dorfner two days later, on February 3, 2010. The treatment record reflected her fractured toe but did not indicate any other ailments.

A few weeks after the death of her husband, on May 28, 2010, Plaintiff was evaluated. The treatment notes from that visit indicate that Plaintiff had chronic pain, bronchitis, fibromyalgia, and severe acute respiratory (SAR) syndrome. Plaintiff was also assessed as having “anxiety/depression.” She was prescribed Cymbalta and Percocet. (R. at 284.) The record shows that Plaintiff was seen twice more in 2010, once on June 28 and once on August 24. She was assessed with chronic obstructive pulmonary disease (COPD), SAR, chronic pain, fibromyalgia, and anxiety/depression both times, and was prescribed Percocet and Neurotin. (R. at 282-83.) In 2011, Plaintiff went to Dorfner Family Medicine three times, on February 17, August 12, and September 15. Dr. Dorfner continued to assess her with COPD, SAR, chronic pain, fibromyalgia, and anxiety/depression. He prescribed Percocet in February, Percocet and Prestiq on the second visit in August, and Prestiq and Abilify in September. (R. at 281, 308, 314.) On January 13, 2012, Plaintiff went to Dorfner Family Medicine once more. She was again given the same diagnosis and was prescribed Abilify and Prestiq. (R. at 313.)

In the spring of 2011, Plaintiff was examined by multiple physicians in connection with her February 22, 2011 application for disability benefits. In one such evaluation, Dr. Francky Merlin noted that Plaintiff had told him that she had fibromyalgia and had been diagnosed with rheumatoid arthritis two years ago. She stated to Dr. Merlin that she had pain in her right shoulder, hands, and ankles and that she could walk a few blocks but that her friends did her household chores. (R. at 300.) Dr. Merlin noted that Plaintiff had diminished grasping strength in her right hand and that she could not walk on her heels. He further noted that there was “tenderness in the right shoulder” and the range of motion in her right shoulder was somewhat diminished. He scored the motor in her right hand at 4/5. (R. at 301.) Dr. Merlin observed that Plaintiff’s gait was normal and that she had “no difficulty getting up from a sitting position or getting on and off the examining table.” She was able to walk on her toes and flex her spine 90 degrees. He noted that she was “alert, conscious, and oriented” and “in no acute distress.” (R. at 300-01.)

An X-ray of Plaintiff’s left ankle and right shoulder was also conducted in the spring. The report, dated May 23, 2011 by Dr. Stephen Toder, indicated that Plaintiff had an intact left ankle with no fracture or dislocation. (R. at 302.) The report also noted that her right shoulder was intact, had a normal range of motion and had very minimal spurring of the acromioclavicular joint. (R. at 302.)

Plaintiff was also examined by a psychologist, Anna Marie Resnikoff. (R. at 303-04.) In a report dated April 25, 2011, Dr. Resnikoff noted that Plaintiff had told her that she had rheumatoid arthritis, fibromyalgia, and panic attacks. Plaintiff additionally told Dr. Resnikoff that she had attempted suicide once in the past year, but had no current ideations or plans to commit suicide. (R. at 303-04.) Plaintiff also told Dr. Resnikoff that she had trouble sleeping. She reported taking Oxycodone and Xanax. (R. at 303.) Dr. Resnikoff noted that Plaintiff walked around carrying a stuffed animal that contained her husband’s ashes and clutched the stuffed animal during the examination (R. at 303-04.) Plaintiff told Dr. Resnikoff that she was homeless and moved around from one friend’s home to another. (R. at 303.)

Dr. Resnikoff observed that Plaintiff was adequately groomed, “pleasant and cooperative.” (R. at 304.) Plaintiff maintained inconsistent eye contact, but Dr. Resnikoff noted that Plaintiff had unevenly paced but clear speech which was easy to understand. (R. at 304.) Dr. Resnikoff further noted that Plaintiff “was appropriately oriented to time, place, and person, ” had “[i]ntact reality ties, ” and showed no evidence of a thought disorder, hallucinations, delusions, obsessions, or compulsions. (R. at 304.) Plaintiff was able to respond to numerical calculations, could identify five common objects in the room and had delayed recall of those objects, and could recall up to six digits forwards and backwards. She had no difficulty responding to questions assessing her social planning ability and capacity to formulate practical judgment. (R. at 304.) Dr. Resnikoff noted that Plaintiff had a depressed mood and maintained limited interpersonal relationships and had a limited list of daily activities. (R. at 304.) Her diagnostic impression of the Plaintiff was “[m]ajor depressive disorder single episode, ” panic disorder without agoraphobia, and generalized anxiety disorder. (R. at 304.) She gave Plaintiff a Global Assessment of Functioning (GAF) rating of 35.

On August 30, 2012, approximately one month before Plaintiff’s hearing before the ALJ, Plaintiff went to the emergency room and was hospitalized for several days at Robert Wood Johnson (RWJ) Hospital. According to hospital records, she had an upper respiratory infection which had progressed to shortness of breath/wheezing/dyspnea, and chest wall pain when coughing. (R. at 537.) On August 30, the day she was admitted, Plaintiff described the pain she was experiencing as sharp. She also described having a dull aching pain and constant shooting pain in her bilateral legs, shoulders, and elbows. She rated her pain level at a 5. (R. at 571.) The location and severity of Plaintiff’s pain varied at different times during her hospitalization. At times, she reported having chest pain and pain in her bottom ribs. (See, e.g., R. at 429 (pain at bottom ribs and rated at 7), 434, 438, 491, 495 (chest wall and head pain at 5 and reported as being constant).) Other times, she reported having some generalized pain, arthritic pain, knee and shoulder pain, leg pain, and back pain. (See, e.g., R. at 416 (aching pain at legs and shoulders rated at 7), 424 (arthritic pain rated at 6), 426, 451, 454 (same), 457 (generalized back and joint pain rated at 6), 463, 465 (lower back pain rated at 5), 468 (same), 471, 480 (back pain rated at 9), 482, 497 (generalized pain), 506 (knee and shoulder pain rated at 5), 507, 522 (leg pain).) Other times during her stay, she denied having pain or discomfort or reported her pain at a 0. (See, e.g., R. at 418, 422, 436, 437, 439, 452-53, 455-56, 459, 464, 470, 473, 478, 483, 486, 492, 493, 494, 496, 504, 516, 523, 529.) One treatment record from September 3, 2012, the day before Plaintiff was released, stated that Plaintiff had chronic asymptomatic Brady episodes, exacerbation of asthma, and tracheobronchitis. (R. at 529.) Plaintiff was discharged from the hospital on September 4. At the time of discharge, her current pain level was a 2. (R. at 532.)

On October 1, 2012, a few days after Plaintiff’s hearing before the ALJ, she went back to the emergency room at RWJ Hospital for pain in the left posterior auricular region of her head. (R. at 315.) After a CT scan, Plaintiff was diagnosed with trigeminal neuralgia. She was prescribed Percocet and Carbamazepine. (R. at 316.)


This Court reviews the Commissioner’s decision pursuant to 42 U.S.C. § 405(g) to determine whether substantial evidence supports the decision to deny Social Security benefits. Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008). The substantial evidence standard is a “deferential standard of review, ” and means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (internal quotations and citations omitted). It is less than a preponderance of the evidence but “more than a mere scintilla.” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). If the ALJ’s findings of fact are ...

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