Opinion
Civil Action No. 6:17-1752-TLW-KFM
08-29-2018
Debra Butler, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on May 28, 2013, alleging that she became unable to work on December 4, 2008. The application was denied initially and on reconsideration by the Social Security Administration. On June 25, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and William W. Stewart, an impartial vocational expert, appeared on June 10, 2016, considered the case de novo and, on August 2, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 17-26). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on May 31, 2017 (Tr. 1-3). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on March 31, 2014.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of December 4, 2008, through her date last insured of March 31, 2014 (20 C.F.R. § 404.1571 et seq).
(3) Through the date last insured, the claimant had the following severe impairment: degenerative disc disease (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) with restrictions of lifting, carrying, pushing, and pulling ten pounds occasionally and less than ten pounds frequently; sitting six hours and standing and walking up to two hours in an eight-hour workday. No climbing of ladders, ropes, or scaffolds; occasional climbing of ramps and stairs, kneeling, crouching, crawling, and stooping; frequent reaching with bilateral upper extremities in all directions, including overhead and handling. Furthermore, the claimant should not perform work-related activities in direct sunlight without proper eye protection, requiring more than occasional exposure to extreme temperatures or humidity, or work involving dangerous machinery or around unprotected heights.
(6) Through the date last insured, the claimant was capable of performing past relevant work as a claims technician. This work did not require the performance of work-related activities
precluded by the claimant's residual functional capacity (20 C.F.R. § 404.1565).
(7) The claimant was not under a disability, as defined in the Social Security Act, at any time from December 4, 2008, the alleged onset date, through March 31, 2014, the date last insured (20 C.F.R. § 404.1520(f)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 54 years old on her alleged disability onset date (December 4, 2008) and 60 years old on her date last insured (March 31, 2014). She has a high school education and past relevant work as a claims technician and a claims adjuster (Tr. 25).
On December 4, 2008, David K. Lee, M.D., evaluated the plaintiff at her workers' compensation carrier's request for complaints of left hand pain, numbness, and tingling. The plaintiff also complained of left shoulder pain and knee problems. Dr. Lee noted that the plaintiff had fallen at work and had landed on her hands and knees. Dr. Lee found the plaintiff to have point tenderness over the first dorsal compartment in her wrist and a positive Finkelstein's test. Her knees showed some pain anteriorly with range of motion. Her left shoulder showed some tenderness anteriorly with a positive impingement sign. Dr. Lee diagnosed bilateral de Quervain's tenosynovitis, bilateral knee contusions, and left shoulder tendinitis. Dr. Lee recommended splinting, anti-inflammatory medication, occupational therapy, and an MRI. Dr. Lee indicated that the plaintiff should be restricted to light duty with no lifting over five pounds, no pushing or pulling over five pounds, ground level work only, and no repeated bending, stooping, or squatting (Tr. 834-36).
On December 8, 2008, S. Wendell Holmes. Jr., M.D., evaluated the plaintiff for complaints of bilateral hand, knee, and shoulder pain from an incident where she slipped and fell at work. Associated complaints included pain that worsened with gripping, lifting, and general use of her hands. The plaintiff stated her anterior knee pain was getting better, but it was worsened by walking. She complained that her shoulder pain was becoming the biggest and most painful problem for her. On physical examination, she had pain over the first dorsal compartment of both hands but had full range of motion. She had minor pain on the anterior side of her knees and moderate tenderness over medial compartments. The plaintiff had full range of motion of her shoulders with mild impingement signs and mild pain with resisted abduction bilaterally. Dr. Holmes diagnosed bilateral de Quervain's tenosynovitis, resolving bilateral anterior knee contusions, and bilateral shoulder pain post fall. He administered steroid injections into her wrists and prescribed Feldene. Dr. Holmes wrote for the plaintiff to be restricted to light duties (Tr. 288-90).
On December 9, 2008, Charles M. Butler, M.D., evaluated the plaintiff for followup of infiltrating ductal right breast carcinoma. Dr. Butler continued her on Arimidex and Effexor, and he flushed her port (Tr. 373).
On March 19, 2009, Bhavesh R. Amin, M.D., evaluated the plaintiff for pain in her right lower extremity with associated numbness. She had a positive straight leg raise. Dr. Amin diagnosed low back pain with radiculopathy and abdominal pain and swelling. He ordered an MRI of the lumbosacral spine and gave the plaintiff a prescription for Naproxen (Tr. 352).
On March 27, 2009, the plaintiff had an MRI of her lumbosacral spine, which was unremarkable (Tr. 356).
On April 9, 2009, the plaintiff had a CT scan of her abdomen that showed a small hernia just to the right of midline above her umbilicus. It also showed a much larger right-sided abdominal wall hernia that extended into the right anterior pelvic quadrant as well as a gallstone (Tr. 354-55).
On April 14, 2009, Dr. Butler evaluated the plaintiff for followup of infiltrating ductal right breast carcinoma. Dr. Butler continued Arimidex and noted that the plaintiff wished to taper off of Effexor (Tr. 372).
On April 15, 2009, Dr. Lee evaluated the plaintiff for followup of bilateral knee, wrist, and shoulder pain. Dr. Lee diagnosed bilateral de Quervain's tenosynovitis, bilateral knee contusions, and bilateral shoulder contusions. The plaintiff reported receiving some injections by Dr. Holmes that had helped but were starting to wear off. She reported feeling some clicking and popping in both knees, and she continued to feel a sharp pain in both shoulders. Dr. Lee ordered occupational and physical therapy and started her on Lyrica (Tr. 839).
On April 16, 2009, Dr. Amin evaluated the plaintiff and reviewed her recent diagnostic tests. Dr. Amin diagnosed back pain and hernias. He referred her for a surgical consultation (Tr. 351).
On April 30, 2009, Dr. Holmes evaluated the plaintiff in followup for bilateral shoulder pain with the left worse than the right. Physical examination showed 160 degrees of elevation both sides, actively and passively. She had positive Hawkins and Neer impingement signs bilaterally. She had weak external rotation and scaption of left worse than right. She had bilateral trigger thumbs. Dr. Holmes diagnosed bilateral shoulder pain and weakness. He ordered an MRI of both shoulders to rule out rotator cuff injury (Tr. 287).
On May 6, 2009, Anil J. Kudchadkar, M.D., evaluated the plaintiff for recurrent incisional hernia and gallstone disease. She reported several weeks of right upper quadrant pain. Dr. Kudchadkar noted that the plaintiff was obese. He diagnosed gallstone disease and abdominal hernia with recurrent incisional hernia, and he ordered diagnostic testing (Tr. 350).
On May 14, 2009, the plaintiff had an abdominal ultrasound, which showed cholelithiasis with a single large calculus without evidence of cholecystitis and slight dilation of the common bile duct measuring approximately six millimeters (Tr. 353).
On May 21, 2009, Dr. Lee evaluated the plaintiff for followup of pain in her wrists, knees, and shoulders. Physical examination showed pain along the first dorsal compartment of her thumb and positive impingement signs of her shoulders. Dr. Lee diagnosed bilateral de Quervain's tenosynovitis, bilateral knee contusions, and bilateral shoulder impingement. Dr. Lee ordered formal hand therapy and an MRI of both shoulders (Tr. 840).
On June 3, 2009, the plaintiff had a mammogram, which showed benign heterogeneously dense fibroglandular tissue (Tr. 380-81).
On August 6, 2009, the plaintiff underwent a repair of recurrent incarcerated incisional hernia with Peridex mesh (Tr. 347-48).
On August 25, 2009, Dr. Butler evaluated the plaintiff for followup of infiltrating ductal right breast carcinoma. She complained of continued hot flashes and hair loss. Dr. Butler continued Arimidex and flushed the plaintiff's port (Tr. 371).
On August 27, 2009, Dr. Lee evaluated the plaintiff for followup of bilateral wrist and hand pain. Physical examination showed pain along the first dorsal compartment, a positive Finkelstein's test, and a nodule on the A1 pulley. Dr. Lee diagnosed bilateral de Quervain's tenosynovitis and left thumb trigger. Dr. Lee recommended surgery to which the plaintiff agreed (Tr. 841).
On September 18, 2009, the plaintiff underwent a right wrist de Quervain's tenosynovitis release (Tr. 326-27). On September 29, 2009, Dr. Lee evaluated the plaintiff for followup of the release surgery. The plaintiff indicated that she was doing better. Dr. Lee removed her sutures and placed her in a Velcro thumb spica splint. He ordered occupational therapy for her wrist and indicated that shoulder surgery might be required (Tr. 842). On October 27, 2009, the plaintiff had continued complaints of left wrist and trigger thumb discomfort. Dr. Lee diagnosed status-post right de Quervain's release, left trigger thumb, and left wrist de Quervain's tenosynovitis. Dr. Lee recommended a trigger release of triggering thumb (Tr. 843).
On December 11, 2009, the plaintiff underwent a left wrist de Quervain release and left thumb trigger release (Tr. 324-25). On December 24, 2009, Dr. Lee evaluated the plaintiff in followup for the release surgeries. He indicated that she was doing better with both, but he noted that she continued to have a lot of shoulder pain in both shoulders. Dr. Lee recommended that the plaintiff continue occupational therapy (Tr. 844).
On December 29, 2009, Dr. Butler evaluated the plaintiff for followup of infiltrating ductal right breast carcinoma. Dr. Butler continued Arimidex, and he ordered a mammogram to be done in June 2010 (Tr. 370).
On January 21, 2010, Dr. Lee evaluated the plaintiff for followup of her left wrist de Quervain's release. Dr. Lee recommended continuation of occupational therapy and ordered MRI studies of her shoulders (Tr. 845). On February 18, 2010, Dr. Lee evaluated the plaintiff and reviewed her MRI reports, which showed bilateral rotator cuff tears. Dr. Lee discussed surgery options with the plaintiff, and it was decided that they would proceed with left shoulder arthroscopy, decompression, and rotator cuff repair (Tr. 846).
On March 4, 2010, Dr. Amin evaluated the plaintiff for complaints of lightheadedness. Dr. Amin diagnosed vertigo and prescribed Antivert (Tr. 346).
On March 26, 2010, the plaintiff underwent a left shoulder diagnostic and operative arthroscopy, labral debridement, subacromial decompression, and rotator cuff repair. The pathology report showed synovial and cartilaginous fragments with reactive degenerative changes (Tr. 319-22).
On April 8, 2010, Dr. Lee evaluated the plaintiff in followup for her left rotator cuff repair surgery. The surgical site looked like it was healing well. Dr. Lee ordered physical therapy (Tr. 847).
On May 6, 2010, the plaintiff had good passive range of motion. Dr. Lee recommended physical therapy for active motion and strengthening (Tr. 848).
On May 7, 2010, Chad Gunnlaugsson, M.D., evaluated the plaintiff for complaints of dizziness. The plaintiff reported that her problem started as a spinning motion, but had become more lightheadedness with nausea. Physical examination revealed positive Dix-Hallpike, and a tuning fork test showed positive weber and rinne with lateralization to left side. Dr. Gynnlaugsson discussed differential diagnoses such as vestibular neuritis or benign paroxysmal positional vertigo. He recommended diagnostic testing if her symptoms did not improve (Tr. 344).
On June 3, 2010, Dr. Lee evaluated the plaintiff for followup of her left rotator cuff surgery. She complained of some burning pain going into her left thumb. On physical examination, she had full passive range of motion. Dr. Lee diagnosed left rotator cuff surgery repair, right rotator cuff tear, and left thumb paresthesia. He ordered an MRI of her cervical spine to rule out stenosis and continued her in physical therapy (Tr. 849).
On June 15, 2010, the plaintiff had a mammogram, which showed benign heterogeneously dense fibroglandular tissue (Tr. 379).
On June 29, 2010, Dr. Butler evaluated the plaintiff for followup of infiltrating ductal right breast carcinoma. Dr. Butler indicated that the plaintiff 's last mammogram was negative and that her blood counts were relatively stable. Dr. Butler continued her on Arimidex, and he flushed her port (Tr. 369).
On July 1, 2010, Dr. Lee evaluated the plaintiff for followup of her left rotator cuff surgery. She had full active range of motion, and her strength had improved. Dr. Lee requested authorization for right rotator cuff repair surgery, and due to her persistent paresthesia in her hands, Dr. Lee requested an MRI of the cervical spine again (Tr. 850).
On August 20, 2010, the plaintiff had the MRI of her bilateral shoulders that showed mild to moderate left neural foraminal stenosis at C2-3 on the basis of facet overgrowth and mild multilevel cervical spondylosis from C3-4 through C7-T1 without stenosis at these levels (Tr. 291-92).
On August 27, 2010, the plaintiff underwent a right shoulder diagnostic and operative arthroscopy, subacromial decompression, debridement, and rotator cuff repair. The pathology report of the fragment of bony tissue showed prominent degenerative changes, reactive synovium, and small fragments of cartilage (Tr. 315-18).
On October 5, 2010, Dr. Lee evaluated the plaintiff in followup of her right rotator cuff repair surgery. On physical examination, she had good passive range of motion. Dr. Lee ordered physical therapy (Tr. 851). On November 2, 2010, the plaintiff complained of pain in her neck and right knee. On physical examination, her right shoulder had good passive range of motion and strength. Dr. Lee continued physical therapy and planned to address her right knee at her next appointment (Tr. 852). On November 30, 2010, the plaintiff complained of pain radiating into her hands. On physical examination, she had full range of motion of her right shoulder and 5/5 strength of bilateral rotator cuffs. Dr. Lee reviewed the MRI of her cervical spine, which showed multiple levels of spondylosis. Dr. Lee diagnosed right rotator cuff repair and cervical spondylosis. Dr. Lee continued physical therapy and advised that they start to treat her neck with cervical traction and modalities to her cervical spine (Tr. 853). On December 28, 2010, she reported continual improvement with some occasional discomfort. The plaintiff had complaints of pain in the medial aspect of her right knee. Dr. Lee ordered an MRI (Tr. 854).
On January 19, 2011, Dr. Butler evaluated the plaintiff for followup of infiltrating ductal right breast carcinoma. She complained of continued problems with hot flashes as well as significant left lower quadrant pain. Dr. Butler started her on Aromasin (Tr. 368).
On January 26, 2011, the plaintiff had a CT scan of her abdomen that showed a 1.5 centimeter non-specific mass on her anterior abdominal wall. Impression was that she had a post-operative abdomen without evidence of metastatic disease (Tr. 377-78).
On February 21, 2011, the plaintiff underwent a right knee diagnostic and operative arthroscopy and partial medial meniscectomy (Tr. 313).
On May 3, 2011, Dr. Lee evaluated the plaintiff in followup of her bilateral knee pains. She reported improvement with some discomfort in her left knee. On examination, she had right knee pain along the medial tibial plateau and the medial femoral epicondyle. Dr. Lee indicated that the plaintiff had reached maximum medical improvement ("MMI") with a 3% impairment to her right lower extremity, a 10% impairment to her right shoulder, a 10% impairment to her left shoulder, a 3% impairment to her left upper extremity, and a 2% impairment to her right upper extremity. He indicated that she should have future medical need for intermittent anti-inflammatories but would otherwise be released for full unrestricted activities. Dr. Lee planned to see her only on as needed basis (Tr. 855).
On June 16, 2011, the plaintiff had a mammogram, which showed benign heterogeneously dense fibroglandular tissue and no significant changes from her prior studies (Tr. 376).
On July 20, 2011, Dr. Butler evaluated the plaintiff for followup of infiltrating ductal right breast carcinoma. She was set to have updated blood work and a mammogram. Dr. Butler continued Aromasin (Tr. 367).
On September 13, 2011, Tracy Hill, PT, evaluated the plaintiff for active range of motion testing of both shoulders. The plaintiff had limited active range of motion in both shoulders with the right being greater than left (Tr. 298-300).
On September 15, 2011, Dr. Lee answered questions related to the plaintiff's workers' compensation claim (Tr. 856-59).
On January 18, 2012, Dr. Butler evaluated the plaintiff for followup of infiltrating ductal right breast carcinoma. She complained of continued problems with hot flashes. Dr. Butler indicated that the plaintiff's blood counts were relatively stable, and he continued Aromasin (Tr. 366).
On April 9, 2012, Dr. Amin evaluated the plaintiff for complaints of right hip pain and tingling/numbness in the lateral aspect of her right hip. Physical examination revealed painful internal rotation of the right hip and significant pain over her right trochanteric bursa. Dr. Amin diagnosed right hip pain possibly trochanteric bursitis and gave her a prescription for Duexis (Tr. 337).
On April 16, 2012, Dr. Lee evaluated the plaintiff for followup of left knee pain. She reported falling on February 28, 2012, which caused a laceration and a considerable amount of pain. Physical examination showed that her extremity swelling had improved, and a two centimeter laceration was noted near the anterior pole of the patella. Dr. Lee diagnosed left knee tendinitis and prescribed Arthrotec. He also referred her to physical therapy (Tr. 336).
On May 5, 2012, Peter J. Stahl, M.D., evaluated the plaintiff in followup of hip bursitis and history of knee tendinitis. The plaintiff was concerned about how much pain she thought she might experience while traveling on an airplane. Physical examination of both knees showed evidence of therapeutic taping, good range of motion, positive Patrick's test, and negative straight leg raise. Dr. Stahl diagnosed right hip bursitis, and he renewed Duexis and prescribed Flector patches (Tr. 335).
On May 10, 2012, Dr. Lee evaluated the plaintiff for followup of her left knee pain. She complained of increased right shoulder problems as well. Physical examination showed substantial tenderness over the acromioclavicular ("AC") joint with a positive cross-body adduction. Dr. Lee diagnosed right AC joint arthritis and left knee pain. He continued orders for physical therapy and the use of anti-inflammatories (Tr. 401).
On May 31, 2012, Dr. Lee evaluated the plaintiff for followup of her bilateral knees impairments. The plaintiff continued to complain of pain and crepitus in her right shoulder. Physical examination showed bilateral knee motion improvement and some swelling on the medial border of her left knee. Dr. Lee diagnosed bilateral knee contusion and pain and right shoulder AC joint arthritis. He continued the recommendation for physical therapy for the plaintiff's knees and indicated that surgery might be warranted if her right shoulder symptoms did not improve (Tr. 400).
On June 18, 2012, the plaintiff had a mammogram, which showed benign heterogeneously dense fibroglandular tissue (Tr. 375).
On July 4, 2012, Dr. Lee evaluated the plaintiff for followup of her bilateral knee problems and right shoulder pain. She complained of still having some pain while sleeping on her right shoulder, but otherwise she was doing well. Dr. Lee found exquisite tenderness over her AC joint and cross-body adduction. Dr. Lee diagnosed bilateral knee contusion and right shoulder AC joint arthritis. Dr. Lee indicated that he would request authorization for shoulder surgery (Tr. 399).
On July 17, 2012, Dr. Butler evaluated the plaintiff for followup of infiltrating ductal right breast carcinoma. She reported problems with hot flashes. Dr. Butler noted that the plaintiff had developed some minimal alopecia probably related to Aromasin, which he continued (Tr. 365).
On August 21, 2012, Dr. Amin evaluated the plaintiff for complaints of right lateral hip pain, which was worsened when she crossed her legs, tried to get out of her car, or laid on her lateral right hip. Physical examination was unremarkable except for significant tenderness over her right trochanteric bursa. Dr. Amin diagnosed right trochanteric bursitis. Dr. Amin performed a steroid injection in the plaintiff's right hip, prescribed Duexis, and instructed to use warm, moist heat to the affected area (Tr. 334).
On August 27, 2012, the plaintiff underwent a right shoulder open distal clavicle excision (Tr. 311-12).
On September 6, 2012, Dr. Lee evaluated the plaintiff in followup for her right shoulder. Physical examination showed some diffuse tenderness in her right shoulder. Dr. Lee removed her staples. He diagnosed right shoulder distal clavicle excision and started her on a physical therapy program (Tr. 398). On October 7, 2012, the plaintiff had considerable tenderness along her biceps tendon and tenderness over the deltoid attachment on the posterior lateral acromion. Dr. Lee diagnosed right shoulder distal clavicle excision, right shoulder bicep tendinitis, and left shoulder deltoid tendinitis. He continued Arthrotec and physical therapy recommendations (Tr. 397).
On November 8, 2012, Dr. Lee evaluated the plaintiff for followup of her shoulder problems. Physical examination showed full elevation of her right shoulder and point tenderness along the AC joint as well as a positive cross body adduction sign. Dr. Lee diagnosed right shoulder distal clavicle excision and left shoulder AC joint arthritis. Dr. Lee continued treatment for her right shoulder and indicated that he would request authorization for a left shoulder distal clavicle excision (Tr. 396).
On January 15, 2013, Dr. Butler evaluated the plaintiff for followup of infiltrating ductal right breast carcinoma. Dr. Butler found no evidence of recurrence, and he continued her on Aromasin (Tr. 363-64).
On February 8, 2013, the plaintiff underwent a left shoulder diagnostic and operative arthroscopy, labral debridement, subacromial decompression, rotator cuff repair, and open clavicle excision. The plaintiff's pathology report showed mild reactive synovial hyperplasia as well as osteoarthritic degenerative changes, paratrabecular subchondral fibrosis, and organizing granulation tissue with cystic generation (Tr. 305-08).
On February 19, 2013, Dr. Lee evaluated the plaintiff for post-operative symptoms. She complained of right hip and knee pain after another fall. Physical examination showed right hip point tenderness along the greater trochanter and a positive Ober sign. Her right shoulder demonstrated tenderness around the deltoid. Dr. Lee diagnosed greater trochanteric bursitis and deltoid tendinitis. Dr. Lee prescribed Diclofenac, increased her dose of Cataflam, and ordered physical therapy for her left shoulder (Tr. 395).
On March 19, 2013, the plaintiff's examination showed weakness of the right shoulder. Dr. Lee diagnosed rotator cuff sprain and continued her prescription and order for physical therapy (Tr. 394).
On April 3, 2013, Dr. Stahl evaluated the plaintiff for complaints of positional vertigo and right ear discomfort. Provocative maneuvers reproduced vertigo symptoms reliably. Physical examination was otherwise unremarkable. Dr. Stahl diagnosed vertigo and prescribed Meclizine (Tr. 333).
On April 16, 2013, Dr. Lee evaluated the plaintiff for followup of left shoulder pain that had improved. The plaintiff complained of left elbow and right wrist pain and indicated that she was still having problems with both of her hips. Dr. Lee diagnosed shoulder pain and continued her order for physical therapy (Tr. 393).
On April 26, 2013, Dr. Amin evaluated the plaintiff for complaints of vertigo and discoloration of her right great toenail. Physical examination showed discoloration of her toenail, but no onychomycosis or infection. The examination was otherwise unremarkable. Dr. Amin diagnosed discoloration of right great toenail with unclear etiology and vertigo possibly cupulolithiasis. Dr. Amin continued the plaintiff's Antivert and referred her to an ear, nose, and throat specialist (Tr. 332).
On May 14, 2013, Dr. Lee evaluated the plaintiff for followup complaints of multiple joint issues. The plaintiff complained of left elbow, left shoulder, and right hip pain. Physical examination showed left elbow and shoulder as well as right hip pain with palpation. Dr. Lee diagnosed knee pain, tendinitis of right shoulder, and greater trochanteric bursitis. Dr. Lee prescribed Voltaren gel and diclofenac. He recommended physical therapy (Tr. 392).
On June 19, 2013, the plaintiff had a mammogram, which showed benign heterogeneously dense fibroglandular tissue (Tr. 374). On July 15, 2013, Dr. Butler evaluated the plaintiff for infiltrating ductal right breast carcinoma. Physical examination showed right mastectomy but was otherwise unremarkable. Dr. Butler continued Aromasin and started Neurontin (Tr. 361-62).
On July 16, 2013, Dr. Lee evaluated the plaintiff in followup of left shoulder pain. The plaintiff reported that most of her pain had been controlled, but she still had problems when doing strenuous activities. She also reported significant bilateral knee problems. Physical examination revealed 160 degree active shoulder elevation bilaterally. Her left knee had full extension at 110 degrees. There was mild laxity to varus and valgus stresses and crepitus with motion. Dr. Lee diagnosed failed left knee replacement. Dr. Lee ordered an x-ray of her bilateral knees, which showed medial joint spacing narrowing of right knee, and the left knee demonstrated a failed tibial component. Dr. Lee recommended surgery (Tr. 391).
On December 17, 2013, Thomas J. Motycka, M.D., conducted a consultative examination of the plaintiff at the Commissioner's request related to her foraminal stenosis, arthritis, right hip bursitis, left elbow tendinitis, cataracts, sciatica, and obesity. Dr. Motycka indicated that the plaintiff described her pain as located in the right lateral iliac crest and traced it in a line along the iliotibial band to end at the area overlying the proximal tibia on its lateral aspect. She also pointed to her greater trochanter as an area of pain that was helped with injections. She reported that her arthritis pain was "everywhere" and caused her to be "really stiff." Dr. Motycka indicated that the plaintiff's reports were "classic osteoarthritis-like complaints." She reported right wrist pain and "bad numbness" in her right fingers. She indicated that she had a splint to wear on her right arm for carpal tunnel syndrome. She also reported left elbow pain, the start of cataracts, and obesity. Dr. Motycka indicated that the plaintiff's susceptibility to the power of suggestion might have come into play with her left elbow pain since her orthopedic surgeons indicated that she could develop tendinitis following her rotator cuff surgeries, and she was vague on the area where her pain was located. Dr. Motycka reviewed her current medications as well as a large list of surgical procedures (22 in total) that the plaintiff underwent between June 2005 and February 2013. Dr. Motycka indicated that the plaintiff weighed 255 pounds, making her body mass index ("BMI") 43. He indicated that the plaintiff was pleasant and cooperative. Dr. Motycka found the plaintiff to have some limited motion in her left knee (90 degrees). She also had reduced rotation to her left cervical spine. She had a trace limp secondary to her left knee. Dr. Motycka indicated that a right hip x-ray showed minor osteoarthritic changes in the superior aspect of the acetabulum. Her left shoulder x-rays showed that her AC joint was widened and confirmed a history of resection of the distal clavicle and a surgical anchor into the superior humeral head. The plaintiff's right knee showed some narrowing of the medial joint compartment space, and her left knee showed total knee replacement with good alignment and normal bony surround. Dr. Motycka indicated that he was combining the plaintiff's allegations of foraminal stenosis, sciatica, and right hip bursitis. He indicated that the diagnosis of foraminal stenosis was questionable in the absence of an MRI, her examination findings, and in consideration of how she described her pain. Dr. Motycka stated that the plaintiff might be having "variations of iliotibial band-related syndromes and perhaps there may be some meralgia paresthetica. As it stands today, I think the iliotibial band related problems are the source of these and not a radiculopathy." Dr. Motycka stated that the plaintiff agreed that she was obese and that she had indicated that she was going to limit her portions and begin walking soon. Dr. Motycka stated, "As of the presentation today, I see no reason why she could not continue being a claims adjuster" (Tr. 410-15, 418-19).
On January 3, 2014, a medical consultant on contract to the Administration completed a physical residual functional capacity ("RFC") assessment indicating that the plaintiff was capable of performing light work with postural, manipulative, and environmental limitations (Tr. 97-100).
On January 20, 2014, Dr. Butler evaluated the plaintiff for followup of breast cancer. The plaintiff complained of right-sided lymph edema of her upper extremity that limited the use of her right arm. Dr. Butler noted that the plaintiff complained of some weakness in her right arm, which had been present since her surgery. He continued Aromasin and advised continued use of a Jobst sleeve (Tr. 464-65).
On January 3, 2014, Ms. Hill indicated that active range of motion testing of both shoulders showed limited active range of motion (Tr. 442-47).
On February 27, 2014, Dr. Lee conducted a reevaluation of bilateral shoulders for the plaintiff's workers' compensation carrier. She complained of pain in her shoulders. Dr. Lee found the plaintiff to have discomfort in both shoulders along the posterior aspect of the acromion bilaterally, limited cervical spine range of motion, and positive Spurling's and Lhermitte's signs. Her left knee showed some laxity with minor instability to valgus stressing. Dr. Lee recommended a revision of her total left knee arthroplasty. He also indicated that her bilateral shoulder pain might be related to her cervical foraminal stenosis, and he recommended further evaluation by a spine surgeon (Tr. 430).
On March 21, 2014, Ms. Hill indicated that the plaintiff's active range of motion testing of both shoulders via inclinometry showed limited active range of motion (Tr. 438-41).
On March 31, 2014, Donald R. Johnson, II, M.D., conducted an independent medical examination of the plaintiff for complaints of left shoulder and shoulder blade pain at her attorney's request. Dr. Johnson indicated that the plaintiff was status post work injury (October 3, 2008), which resulted in multiple surgeries to her shoulders, knees, and left thumb. Dr. Johnson reviewed the plaintiff's MRI. The plaintiff reported that since the spring of 2012 her pain had worsened. She reported that she developed neck pain along with the increasing shoulder symptoms. She rated her pain at seven out of ten and indicated that her pain was improved by prescription cream, a neck pillow, and lying on her back. Her pain was worsened by working on her computer. Dr. Johnson reviewed the plaintiff's histories. He found the plaintiff to have tenderness along the medial border of her left scapula and tenderness in the area of the left trapezius and rhomboid. She had pain with extension and lateral bending. She also had pain with range of motion of her shoulder. Dr. Johnson noted that Dr. Lee had indicated that the plaintiff needed a revision left total knee replacement. Dr. Johnson's impression was status post multiple shoulder surgeries and rule out cervical radiculopathy with multilevel spondylosis. Dr. Johnson indicated that the plaintiff needed an updated cervical MRI, and he agreed with Dr. Lee's evaluation of her spine problems (Tr. 450-51).
On May 20, 2014, a medical consultant on contract to the Administration completed a physical RFC assessment indicating that the plaintiff was capable of performing light work with postural, manipulative, and environmental limitations (Tr. 113-17).
Following the plaintiff's date last insured of March 31, 2014, she continued to treat with multiple providers including Dr. Lee, Dr. Amin, and Dr. Butler for her chronic conditions including undergoing a left knee arthroscopy on July 31, 2014, for a failed left knee replacement (Tr. 531-33). Also, on September 25, 2014, a CT scan of her right ankle showed marked distal Achilles tendon thickening with evidence of chronic enthesopathy, retrocalcaneal bursitis, chronic erosions or cyst formation in the calcaneal tuberosity, chronic plantar fasciitis, and prior medial and lateral ankle ligament injuries (Tr. 630-31).
At the hearing on June 10, 2016, the vocational expert testified that there was no "claims technician" job per say in the Dictionary of Occupational Titles ("DOT") and that the closest thing that would fit the plaintiff's claims technician job was a "claims clerk," which was a sedentary job with an specific vocational preparation ("SVP") of 4; DOT number 241.362-010 (Tr. 79-80). The vocational expert indicated that the plaintiff's job as a "claims adjuster" was a light job with an SVP of 6; DOT number 241.217-010 (Tr. 81). The vocational expert testified that the plaintiff had transferable skills from these jobs including:
under office policies and procedures, there would be documentation and maintenance of records, including, I might point out to the Court, a skill relating to confidentiality of those records and security of those records. There also would be skills related to using office machinery and equipment. For examples, computers, fax machines, copiers, probably adding machines, things, things of that nature. There also would be of course insurance claims adjusting skills and policies and procedures relating to that. And in this particular case, there also would be skills relating to worker's compensation policies and procedures, so that is someone's foundation or, or, or basis for being able to perform that work at a skill level, not just at a technician level or a clerk level. And then there would, there would be in my opinion also communication skills associated with this work(Tr. 82-83).
The ALJ asked the vocational expert the following hypothetical:
Sir, I'm going to ask you to assume an individual of the same age, education and work background as Ms. Butler, who is capable of lifting and carrying 20 pounds occasionally, 20 pounds occasionally, ten pounds frequently, can stand and walk six out of eight hours, can sit six out of eight hours, has a push/pull capacity limited only by the lift/carry. Can climb ramps and stairs occasionally, ladders, ropes and scaffolds never, can balance occasionally, can kneel, crouch, croup and - oh, croup, kneel, crouch, crawl and stoop occasionally, can reach and handle - or reach in all plains bilaterally, can, can handle bilaterally frequently, can do no work requiring exposure to or
the use of hazardous or dangerous equipment or unprotected heights or other workplace setting dangers.(Tr. 83-84). The vocational expert indicated that both jobs would be available as performed and as normally performed (Tr. 84).
Next the ALJ asked about a hypothetical individual who could:
lift and carry 20 pounds occasionally, ten pounds frequently, stand and walk four out of eight hours, sit six out of eight hours, is able to push/pull frequently with both upper and lower extremities, but limited by weigh to the lift/ carry. Can climb ramps and stairs occasionally, ladders, ropes and scaffolds never, can balance occasionally, can kneel, crouch, crawl and stoop occasionally, can reach on the left side both front, lateral and overhead on a frequent basis, can reach right front, lateral and overhead frequently, can handle bilaterally frequently. Requires no work involving work in the direct sunlight without personal protective equipment for cataracts, can do no work requiring more than occasional exposure to extreme cold, extreme heat or humidity, can do no work involving use of more than occasional equipment or settings that would expose her to hazards such as machinery or unprotected heights. Could this individual do Ms. Butler's past relevant work as actually performed or generally performed in the national economy?(Tr. 84-85). The vocational expert responded affirmatively (Tr. 85).
Next, the ALJ asked the vocational expert if the plaintiff's past work as actually or generally performed would be available if the person could:
Can lift and carry ten pounds frequently, less than ten pounds occasionally, can stand, walk two out of eight hours, can sit six out of eight hours and otherwise has the same restrictions as I identified in hypothetical two, which would be the pull/pull frequent. The -- with both upper and lower extremities limited to the lift carry, ramps, stairs occasionally, ladders, ropes and scaffolds never, balancing occasionally, kneel, crouch, crawl and stoop occasionally, reaching on the left laterally, front and overhead frequently, reaching right, front, lateral and overhead frequently, handling bilateral frequently. No work requiring work in direct sunlight without personal protective - equipment, including for cataracts. No work requiring more than occasional exposure to extreme cold, heat or humidity and no work involving use of more than occasional exposure to hazards such as dangerous machinery or unprotected heights.(Tr. 86-87). The vocational expert responded that both jobs would be available.
The ALJ's next hypothetical added that the person could only "concentrate for periods of up to two hours without special supervision, would be absent from work due to her conditions one to two days per month." The vocational expert responded that an absence of up to two days a month would be "excessive," and this would preclude her past work and all other jobs (Tr. 87).
The plaintiff's attorney asked about the person being "off task because of pain and concentration issues for at least 15 percent of the workday," and the vocational expert responded that no job would match someone being off task for that amount of time. The attorney asked about the addition of a "restriction of no lifting over five pounds or pushing or pulling over five pounds." The vocational expert responded that this would not allow the plaintiff's past work because her jobs required lifting up to ten pounds (Tr. 88-89).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) failing to properly consider all of her impairments at all steps of the sequential evaluation process; (2) failing to properly evaluate opinion evidence; and (3) failing to properly evaluate her past relevant work (doc. 12 at 22-28).
Severe Impairments
Step two of the sequential evaluation requires the ALJ to "consider the medical severity of [a claimant's] impairment(s)." 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." Id. § 404.1520(c). Basic work activities include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting. Id. § 404.1522(b). Pursuant to Social Security Ruling ("SSR") 96-3p, "[A]n impairment(s) that is 'not severe' must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities." 1996 WL 374181, at *1 (citation omitted).
Here, the ALJ found that the plaintiff's only severe impairment was degenerative disc disease (Tr. 19). The plaintiff argues that the ALJ erred in failing to find that her obesity and concentration problems caused by post-breast cancer treatment were also severe impairments and further erred in failing to consider these conditions and her non-severe impairments, including depression, in the RFC assessment (doc. 12 at 25-27). The undersigned agrees.
The plaintiff was diagnosed with breast cancer in her right breast in April 2005. A lumpectomy specimen had positive margins, and a mastectomy was done. Four lymph nodes were involved (Tr. 371).
The plaintiff testified that her post-cancer treatment medication, Aromasin, caused her to have "a lot of issues with concentration" and that this had been continuous since she started the medication (Tr. 63-64). The plaintiff began taking Aromasin in January 2011 (Tr. 368). The ALJ made no mention of the plaintiff's post-cancer treatment or her attested problems brought on by the medication used in her treatment.
The ALJ did note that the plaintiff did not indicate any concentration problems in a function report completed in August 2013 (Tr. 25; see Tr. 248). She did not mention the plaintiff's testimony at the hearing that Aromasin caused concentration problems (see Tr. 63-64). --------
In addition, there was evidence that the plaintiff had depression that was treated with Effexor. She testified that this medication "does good controlling the depression" (Tr. 65). However, again, the ALJ's decision is silent about any mental impairment, severe or non-severe. At the hearing, the ALJ acknowledged that the plaintiff's pre-hearing brief listed "14 severe impairments, 7 non-severe and then a mental impairment of major depressive disorder" and that the plaintiff alleged these all arose prior to her date last insured of March 31, 2014 (Tr. 38-39).
The plaintiff argues that had the ALJ considered her concentration problems and depression, she would have likely been limited to unskilled work, and a limitation to unskilled work would prelude both of her past relevant jobs, which the vocational expert testified were semi-skilled and skilled jobs (Tr. 80-82). The vocational expert testified that there would be no work for an individual who would be "off task because of pain and concentration issues for at least 15 percent of the workday" (Tr. 88-89). The plaintiff argues that since the ALJ offered no alternative jobs that she could perform (see Tr. 25-26), consideration of impairments that, alone or in combination, could preclude her ability to return to her past relevant work is critical to the outcome of this case and requires careful consideration.
The plaintiff also testified that she needed to lose weight, but had trouble exercising due to her trouble with her knees and that, even after starting, she could only do 20 minutes at most on a treadmill (Tr. 65-66). Dr. Amin, who treated the plaintiff for back pain and hernias, noted that the plaintiff was aware that her weight "may not be helpful" (Tr. 351). Dr. Motycka indicated that the plaintiff was 5' 3½" tall and weighed 255 pounds (Tr. 412). He stated that the plaintiff was aware that she was obese and that she was going to begin walking (Tr. 411). The ALJ cited the plaintiff's testimony as to her current weight and a treatment note indicating the plaintiff's weight, as well as Dr. Motycka's diagnosis of obesity (Tr. 23-24). However, as argued by the plaintiff, the ALJ's decision is completely silent as to the consideration of any resulting limitations from the plaintiff's obesity.
Social Security Ruling 02-1p recognizes that obesity can cause limitations of function in sitting, standing, walking, lifting, carrying, pushing, pulling, climbing, balancing, stooping, crouching, manipulating, as well as the ability to tolerate extreme heat, humidity, or hazards. SSR 02-1p, 2002 WL 34686281, at *6. The Ruling states that "individuals with obesity may have problems with the ability to sustain a function over time" and that "[i]n cases involving obesity, fatigue may affect the individual's physical and mental ability to sustain work activity." Id. The Ruling also states:
The combined effects of obesity with other impairments may be greater than might be expected without obesity. For example, someone with obesity and arthritis affecting a weight-bearing
joint may have more pain and limitation than might be expected from the arthritis alone.Id. Further, "[a]s with any other impairment, we will explain how we reached our conclusions on whether obesity caused any physical or mental limitations." Id. at *7.
The Commissioner argues that "any failure . . . . to identify other conditions as being severe does not compromise the integrity of the analysis," because the ALJ proceeded to step three of the sequential evaluation process (doc. 13 at 7). It is true that an ALJ's error at step two may be rendered harmless if "the ALJ considers all impairments, whether severe or not, at later steps." Robinson v. Colvin, C.A. No. 4:13-cv-823-DCN, 2014 WL 4954709, at *14 (D.S.C. Sept. 29, 2014) (citing Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)). See also Washington v. Astrue, 698 F. Supp. 2d 562, 580 (D.S.C. 2010) (holding that there is "no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps"). However, here, it does not appear that the ALJ considered the plaintiff's post-cancer treatment, obesity, or depression in the RFC assessment. An ALJ must consider all of a claimant's medically determinable impairments, even those that are not severe, in the RFC assessment. 20 C.F.R. § 404.1545(a)(2). Accordingly, without some explanation by the ALJ showing her consideration of the plaintiff's severe and non severe impairments, the undersigned cannot determine that the decision is supported by substantial evidence, and remand is warranted.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not address the plaintiff's remaining issues, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir.2003) (remanding on other grounds and declining to address claimant's additional arguments); Hancock v. Barnhart, 206 F. Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). However, if needed, as part of the overall reconsideration of the claim upon remand, the ALJ should also address the following additional allegations of error raised by the plaintiff: (1) the ALJ erred in the analysis of the opinion evidence from the state agency medical consultants; and (2) the ALJ erred in failing to properly evaluate her past relevant work and whether she met the mental requirements of such work (doc. 12 at 28-31).
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge August 29, 2018
Greenville, South Carolina