Mackey v. Berryhill

          MEMORANDUM OF DECISION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         Plaintiff Lisa Mackey (“Plaintiff”) brings this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act (the “Act”). Plaintiff seeks review of the decision by the Commissioner of the Social Security Administration (“Commissioner”) denying her claim for disability insurance benefits (“DIB”). (R. 17). See also 42 U.S.C. §§ 405(g). Based on the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

         I. Proceedings Below

         This action arises from Plaintiff's application for DIB dated March 10, 2014. (R. 136-37). The Social Security Administration (“SSA”) initially denied Plaintiff's application on August 15, 2014. (R. 76-81). Plaintiff subsequently requested and received a hearing before Administrative Law Judge Ronald Reeves (“ALJ”). (R. 44, 82). The hearing was held on March 1, 2016 in Gadsden, Alabama where Plaintiff appeared and was represented by an attorney. (R. 44). In his decision dated May 6, 2016, the ALJ determined Plaintiff not disabled under section 216(i) and 223(d) of the Act. (R. 40). Plaintiff requested review of the ALJ's decision on May 23, 2016. (R. 24). The Appeals Council denied Plaintiff's request on April 18, 2017, thereby making the ALJ's determination the final decision of the Commissioner, and a proper subject of this court's appellate review. (R. 1).

         II. Facts

         At the time of the hearing, Plaintiff was fifty-one years old. (R. 64). She completed two years of college and was self-employed as a cosmetologist from 1990 to February 4, 2014. (R. 47, 74, 157, 203). Plaintiff alleges disability beginning on February 4, 2014 due to injuries she received in a motor vehicle accident: bilateral femur fracture, right heel fracture, right knee ligament injury, sternal injury, intestinal lining tears, severe concussion, and right great toe displacement. (R. 8, 64, 81).

         In her application for disability benefits, Plaintiff noted that her daily activities include sitting in a recliner and watching TV. (R. 162). She states that because she experiences pain when she lays flat, she must sleep in a recliner. (Id.). She reports she is unable to prepare or heat up meals because she cannot stand to reach the microwave. (R. 164). She states she is unable to do any household chores or yard work but is able to go outside once a week and ride in a car. (R. 164-65). She indicates she is also unable to retrieve bills from the mailbox and is afraid to pay bills while on medication. (Id.). Her hobbies before the accident included going to her daughter's sporting events and riding jet skis; however, since the accident, she cannot participate in those activities. (R. 166).

         Plaintiff told the ALJ that she is unable to walk or stand for long periods of time due to pain in her heel, and that she must sit down and prop her legs up to relieve the pain. (R. 51). She has been prescribed a cane and home therapy exercises. (R. 50, 52).

         The record contains Plaintiff's medical history from the alleged onset date of February 4, 2014. (R. 239). She was involved in a significant vehicle accident. Plaintiff was initially taken to Redmond Regional Medical Center after the accident where she was diagnosed with fracture of the manubrium, right transverse processes of L1 through L5 fractured with minimal displacement, calcaneal fracture, closed head injury, contusion of abdominal wall, dislocated toe, right femur fracture, lumbar transverse process fracture, pulmonary contusion, and lacerations. (R. 249, 254). Plaintiff was transferred from Redmond to Erlanger Health System on February 4, 2014. (R. 250).

         On February 5, 2014, Dr. Peter Nowotarski preformed multiple procedures on Plaintiff, including intramedullary nailing of the right and left femurs; right and left proximal tibial tractions pins; open reduction internal fixation; right tibial plateau; right knee exam under anesthesia; closed treatment of right calcaneus with manipulation, incision and drainage; and closure of right thigh laceration. (R. 287, 344). After the procedures, Plaintiff was told to be non-weight bearing on her right lower extremity while using the left lower extremity for transfer and pivoting. (R. 290, 348). Plaintiff was transferred to HealthSouth Rehabilitation Hospital of Gadsden on February 11, 2014, where she stayed and completed physical therapy until February 20, 2014. (R. 442-56). Plaintiff missed some scheduled physical therapy sessions. (Id.).

         Plaintiff returned to Dr. Nowotarski on February 20, 2014. He noted that she had good control of her left leg, straight leg raise, and no pain with axial loading with pushing off her left leg. (R. 326). She was able to extend and flex her hip and left knee near fully. (Id.). The right knee was able to flex up to about 70-80 degrees. (Id.). Dr. Nowotarski stated that there was reduction and fixation of Plaintiff's bilateral femoral shaft fractures. (R. 327).

         On February 21, 2014, Plaintiff underwent another procedure on her fractured calcaneus and was told to be non-weight-bearing for three months on her right lower extremity and to elevate her leg. (R. 328-32). Plaintiff was transferred back to HealthSouth Rehabilitation on February 24, 2014 and was released on March 7, 2014. (R. 415-29). On March 6, 2014, Dr. Nowotarski instructed Plaintiff to weight bear as tolerable on left lower extremity for short distances with a walker and to remain non-weight bearing on her right side. (R. 279).

         On March 21, 2014, Plaintiff visited Dr. Brian Perry. Dr. Perry noted that Plaintiff appeared to be recovering steadily. (R. 313). During an April 10, 2014 examination by Dr. Nowotarski, he noted that Plaintiff's right knee had about 90-95 degrees of knee flexion and her calcaneal wound had perfectly healed with reduction in the right calcaneus fracture. (R. 409). Dr. Nowotarski also noted that Plaintiff was giving poor rehab effort and prescribed her more vigorous physical therapy. (Id.). Dr. Nowotarski cleared Plaintiff for full weight bearing gait training on her left femur as well as twenty-five-pound toe touch on the right side. (Id.).

         During a follow up visit to Dr. Nowotarski on May 15, 2014, Plaintiff reported ambulating around the house with a walker on her left leg without problems. (R. 491). He also noted that Plaintiff had no tenderness in left femoral shaft fracture, full knee extension and flexion, and no pain through weight bearing on the left foot. (Id.). Dr. Nowotarski progressed Plaintiff to full weight bearing as tolerated on her right foot, moved her from a walker to a cane, and prescribed six to eight more weeks of physical therapy. (Id.).

         On July 10, 2014, Dr. Nowotarski noted that over the preceding two months Plaintiff had progressed to full weight bearing rather easily. (R. 523). He noted that Plaintiff could move around well with the cane. (Id.). An x-ray taken of Plaintiff's calcaneus showed a healed fracture with excellent alignment. (Id.). On a follow-up visit on September 18, 2014, Dr. Nowotarski noted that Plaintiff was able to walk without a limp for short distances with no cane or complaints. (R. 574). During another follow-up exam on February 12, 2015, Dr. Nowotarski noted that Plaintiff was walking without significant pain and without an assistive device and that she did not require pain medication. (R. 569-70). Dr. Nowotarski instructed Plaintiff that she should continue normal activities without restrictions. (R. 569).

         On April 16, 2015, Plaintiff had a follow up visit with Dr. Nowotarski where he noted that she complained of only a little pain in her knee but was much improved and happy with her progress. (R. 567). Dr. Nowotarski told Plaintiff that she had no restrictions and would require no further follow up visits. (R. 568).

         Plaintiff returned to Dr. Nowotarski on October 12, 2015, complaining of pain in left femur. (R. 565). On March 10, 2016, Dr. Nowotarski noted that Plaintiff was worse with weight bearing on the left leg. (R. 563). Dr. Nowotarski noted prominent hardware in ...