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McBride v. Berryhill

United States District Court, S.D. Alabama, Southern Division

January 24, 2018

CATHY M. McBRIDE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability and disability insurance benefits. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Docs. 21-22 (“In accordance with provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States magistrate judge conduct any and all proceedings in this case, . . . order the entry of a final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of the administrative record, Plaintiff's brief, the Commissioner's brief, and the arguments of counsel at the November 8, 2017 hearing before the Court, it is determined that the Commissioner's decision denying benefits should be reversed and remanded for further proceedings not inconsistent with this decision.[1]

         I. Procedural Background

         Plaintiff filed an application for a period of disability and disability insurance benefits on February 25, 2014, alleging disability beginning on June 15, 2013. (See Tr. 148-51.) Her claim was initially denied on May 13, 2014 (Tr. 104-10) and, following Plaintiff's July 10, 2014 request for a hearing before an Administrative Law Judge (see Tr. 111-13), a hearing was conducted before an ALJ on August 7, 2015 (Tr. 42-89). On November 3, 2015, the ALJ issued a decision finding that the claimant was not disabled and, therefore, not entitled to disability insurance benefits. (Tr. 27-37.) More specifically, the ALJ proceeded to the fifth step of the five-step sequential evaluation process and determined that McBride retains the residual functional capacity to perform those sedentary jobs identified by the vocational expert (“VE”) during the administrative hearing (compare Id. at 36 with Tr. 84-85). On December 4, 2015, the Plaintiff appealed the ALJ's unfavorable decision to the Appeals Council (Tr. 22); the Appeals Council denied McBride's request for review on December 22, 2016 (Tr. 1-3). Thus, the hearing decision became the final decision of the Commissioner of Social Security.

         Plaintiff alleges disability due to degenerative disc disease, degenerative joint disease, obesity, an affective disorder, and anxiety. In light of the issues raised by Plaintiff in her brief (see Doc. 14, at 2-7), the Court's principle focus is on the ALJ's residual functional capacity assessment.

2. The claimant has not engaged in substantial gainful activity since June 15, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease, degenerative joint disease, obesity, affective disorder and anxiety (20 CFR 404.1520(c)).
. . .
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
. . .
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except that the claimant needs a sit/stand option at will. She can never climb ladders, ropes or scaffolds and can occasionally stoop, crouch, kneel or crawl. The claimant can only occasionally reach overhead with the right arm, and should be employed in a low stress job, defined as only occasional decision making required.
In making this finding, the undersigned has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The undersigned has also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant's symptoms, the undersigned must follow a two-step process in which it must first be determined whether there is an underlying medically determinable physical or mental impairment(s)-i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown, the undersigned must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functioning. For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the undersigned must make a finding on the credibility of the statements based on a consideration of the entire case record.
The claimant alleges that problem[s] with her knees and her depression limit[] her ability to work. The claimant testified she uses a cane all the time, prescribed by Dr. Fontana; and described back pain that radiates down [her] left leg. The claimant said she underwent surgery in July 2013 for doctors to “go in and clean the nerve” but that surgery did not help and she still has pain. She testified that both legs hurt, but [that she] has more pain in the left leg.
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision.
In terms of the claimant's alleged bilateral knee pain, orthopedic notes from Andre Fontana, M.D., show he initially began treating [the claimant] on July 8, 2013. His notes indicate the claimant was seen at Providence Hospital in February 2013 for “possible DVT, ” but that no evidence was found. The claimant endorsed knee and leg pain with popping and swelling. Dr. Fontana ordered a venous Doppler study, which concluded no evidence of DVT, but showed popliteal cyst on [the] left knee; and x-ray confirmed a lateral meniscus tear. On August 16, 2013, Dr. Fontana performed a left knee arthroscopy with partial lateral meniscectomy and partial synovectomy to repair the meniscus tear. On her three-week evaluation, the claimant expressed to Dr. Fontana that she still had severe pain at times, but was doing better overall[, ] yet endorsed right knee pain. X-rays of the right knee showed minimal arthritis, which yielded [a] diagnosis of arthritis of the knee. The claimant returned on October 10, 2013, complaining of increased right knee pain after sustaining a twist injury to the knee on September 30, 2013. A MRI on October 21, 2013 showed acute chronic strain of right knee, diagnosed as osteoarthritis involving meniscus tear. Dr. Fontana noted that the right knee was worse than the left. He initially treated the right knee with injections[] but ultimately performed arthroscopic surgery on November 20, 2013 to repair [a] tear in the right knee. The preoperative diagnoses revealed: medial meniscus tear and arthritis of [the] right knee; tear of anterior horn of medial meniscus; tear of middle portion of lateral meniscus; degenerative arthritis of patella grade 3-4; degenerative arthritis medial fermoral condyle grade 2-3; degenerative arthritis of lateral plateau grade 1 and lateral femoral condyle grafe (sic) and frayed plica; arthroscopic surgery with partial medial and lateral meniscectomies. On December 2, 2013, the claimant presented[ with] complain[ts] of right leg pain[] and underwent a venous Doppler study that showed no evidence of DVT. At follow-up on January 20, 2014, the claimant reported that her knee was doing okay, but was still painful. The examination concluded [with an] impression of arthritis in the knee. Dr. Fontana discussed options of living with pain[] and injections. The claimant elected to continue with medications, home exercises and Norco #10. Progress notes on March 7, 2014 indicated [continuing] problem[s] with the right knee[] and claimant stated she gets 40% relief taking Norco, but has significant pain when climbing stairs. The examination yielded [a] diagnosis of arthritis of the knee, crepitus with mild effusion and neurovascularly intact.
The objective evidence supports a history of lumbar pain, which was not alleged at the time of filing, but was presented during the hearing[] and is considered in the overall determination of disability. Records from Dr. Fontana on April 21, 2014, indicate the claimant presented with complaints of back pain after she admitted doing a lot of cooking[, ] and indicated the pain could have been aggravated by lifting, bending, stooping, and twisting. Physical exam showed forward flexion 20, extension 10, lateral flexion 15 left and right with spasm. Sensory and motor was intact. X-rays of [the] lumbar spine showed some degenerative disc changes. The claimant was diagnosed with lumbar strain. At a physical examination on May 6, 2014, review of upper extremity confirmed some difficulty with forward elevation with probable weakness, restricted range of motion and weakness in shoulder. There was evidence of persistent restricted range of motion of cervical spine. The diagnoses yielded cervical radiculopathy[, ] failed conservative treatment; probable/possible rotator cuff tear of shoulder or impingement of shoulder, right. The claimant also underwent a cervical MRI on August 6, 2014. Findings showed at C 2-3, C3-4, C4-5, C6-7 and C7-T1; there was no disk herniation, neurocompressive midline, lateral recess, or foraminal stenosis[, ] C 5-6; there was a shallow posterior disk bulge without neurocompression and mild foraminal encroachment secondary to facet joint arthropathy bilaterally. The impression revealed C5-6 spondylosis with discogenic endplate change anteriorly, shallow bulge, and facet joint arthropathy encroaching the neural foramina bilaterally. A lumbar MRI on November 21, 2014 revealed alignment, vertebral body heights, and marrow signal to the vertebral bodies of the lumbar spine were preserved. Disk height and hydration was within normal limits. The conus medullaris was posterior to the L1-2 interspace. The L1-2, L2-3, and L3-4 disks were also within normal limits. L4-5 area showed subtle left paracentral annular bulge with mild narrowing to the left exiting foramina and borderline narrowing to the right exiting foramina. L5-S1 disk was within normal limits, as well. The impression concluded mild left paracentral annular bulge at L 4-5 with mild narrowing to the origin of the left exiting foramina and borderline narrowing to the right exiting foramina at L 4-5.
Evidence documenting and establishing an impairment of the right shoulder[] indicate a MRI on August 6, 2014, showed impression of mild internal impingement secondary to AC joint arthropathy, but showed no appreciable evidence of lateral tear or rotator cuff tear. Dr. Fontana encouraged the claimant to continue her shoulder strengthening exercises. A follow-up exam on August 11, 2014 yielded impression of shoulder impingement. Dr. Fontana recommended arthroscopic surgery for [the] right shoulder, which was performed in October 2014. At three-week follow-up, Dr. Fontana noted that the surgical site looked great. The claimant indicated that she did not want to attend therapy. On physical examination, the claimant demonstrated good range of motion with only minimal swelling in mid-biceps. Sensory and motor were intact neurovascularly. Dr. Fontana recommended an ultrasound and noninvasive venous flow study to the right arm[] and prescribed Norco #10 for pain management.
. . .
As for the claimant's subjective allegation that she is disabled due to arthritis associated with bilateral knee pain, the allegation is not fully credible. The[] facts in the record do not dispute that the claimant may have pain from arthritis that affects the knees, [but] what the evidence suggests is that the claimant's symptoms may not exist at the level of severity assumed by the claimant's testimony at [the] hearing or which may have negative impact on the claimant's ability to engage in work activity. The above residual functional capacity, as determined by the undersigned, gives adequate weight to the facts as determined credible. The claimant has longstanding treatment for arthritis that affects the knees, bilateral[ly, ] and is status-post surgery times two to repair meniscus tears. The records from Dr. Fontana, a longtime treating physician, indicate[, ] however, that the claimant presented on April 21, 2014 with reported back discomfort[] but acknowledged that she had recently done a lot of cooking, and indicated her pain could have been aggravated by lifting, bending, stooping, and twisting. Thus, the claimant has described daily activities[] which are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations from bilateral knee pain. Noteworthy, the claimant's presentation to Dr. Fontana was inside the 12-month duration period of the alleged onset date (June 15, 2013). The claimant underwent venous Doppler studies that ruled out deep vein thrombosis (DVT)[, ] and[, ] on January 20, 2014, indicated to Dr. Fontana that her knee was doing okay, but was still painful. Dr. Fontana discussed options of living with pain[] and injections. The claimant elected to continue with medications, home exercises and Norco #10.
Additionally, there is objective evidence that reflects diagnoses of lumbar radiculopathy and shoulder impingement that have been considered in the overall determination of disability. However, even when combined with the arthritis of the knees, the additional impairments do not support a finding of disability. On August 6, 2014, the claimant was diagnosed with mild internal impingement secondary to AC joint arthropathy. Dr. Fontana subsequently recommended arthroscopic surgery for [the] right shoulder, which was performed in October 2014. At three-week follow-up, Dr. Fontana noted that the surgical site looked great. The claimant indicated that she did not want to attend physical therapy and[, ] on physical examination, [she] demonstrated good range of motion with only minimal swelling in mid-biceps. Sensory and motor were intact neurovascularly. Dr. Fontana recommended an ultrasound and noninvasive venous flow study to the right arm[] and prescribed Norco #10 for pain management. Similarly, despite the diagnosis of lumbar radiculopathy, a lumbar MRI on November 21, 2014 secondary to reported back pain yielded impression of mild left paracentral annular bulge at L 4-5 with mild narrowing to the origin of the left exiting foramina and borderline narrowing to the right exiting foramina at L 4-5. Although the evidence show[s] the claimant underwent a left L4-5 hemilaminectomy on July 13, 2015 to address her lumbar disorders, progress notes on August 3, 2015 indicate that while the claimant still has some restricted range of motion, [she] is intact neurovascularly[] and[, ] per her treating physician, may be improved some. Prior to surgery, progress notes on June 26, 2015 reflect normal range of motion, normal muscle strength, with no atrophy, gait was smooth, and claimant was able to stand without difficulty. Post-laminectomy progress notes shows normal gait, although post-op pain was present, but wound was healing well. The physician indicates he will continue with activity modification and medication, and see claimant in one month for follow-up. Thus, while the fact that the claimant underwent surgeries for her impairments certainly suggests that the symptoms were genuine, and would normally weigh in the claimant's favor, it is offset by the fact that it is too early to know the results of this surgery. The claimant testified that she does not take medications, as she does not want to be a zombie; however, the evidentiary record does not support where any side effects from medication have been of such extreme degree. Consequently, the decision to avoid taking medications deemed medically necessary by treating sources[] suggest that perhaps the claimant's symptoms may not have been as limiting as alleged. Furthermore, in the present case, even the use of prescribed medications would not suggest the presence of an impairment that is more limiting than found in this decision. Moreover, the claimant said she could only sit for 5 to 10 minutes, but sat longer than that in the hearing. The claimant also stated that she passes her time reading the Bible or watching television[, ] which are both sedentary activities. Concerning the claimant's obesity, the undersigned fully accommodated its potential impact on her other severe impairments in formulating the residual functional capacity finding, pursuant to SSR 02-1p. In any event, giving the claimant the benefit of the doubt, the undersigned[, ] in formulating the residual functional capacity finding, precludes the claimant from climbing ladders, ropes or scaffolds[] and acknowledges that the claimant's pain may cause a reduction in her ability to concentrate and[, ] accordingly, finds the claimant employable in a low stress job involving only occasional decision making.
As for the claimant's credibility in general, the inconsistencies suggest that the information provided by the claimant generally may not be entirely ...

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