United States District Court, S.D. Indiana, Indianapolis Division
JENNIFER M. L., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.
ENTRY ON JUDICIAL REVIEW
WALTON PRATT, JUDGE
Jennifer M. L. (“Claimant”) requests judicial
review of the final decision of the Deputy Commissioner for
Operations of the Social Security Administration (the
“Deputy Commissioner”), denying her applications
for Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(“the Act”), and Supplemental Security Income
(“SSI”) under Title XVI of the Act. For the following
reasons, the Court REMANDS the decision of
the Deputy Commissioner for further consideration.
September 10, 2013, Claimant protectively filed her
application for DIB, and she protectively filed her
application for SSI on February 20, 2014. She alleged a
disability onset date of September 10, 2013, due to anxiety,
anemia, thyroid problems, stroke, impairments of the left
side of her body, and chronic obstructive pulmonary disease
(“COPD”). Claimant's applications were
initially denied on June 5, 2014, and again on
reconsideration on September 26, 2014. Claimant filed a
written request for a hearing on October 17, 2014. On March
3, 2016, a hearing was held before Administrative Law Judge
Jody Hilger Odell (the “ALJ”). Claimant was
present and represented by counsel, Charles D. Hankey. George
E. Parsons, a vocational expert also appeared and testified
at the hearing. On March 30, 2016, the ALJ denied
Claimant's applications for DIB and SSI. Following this
decision, on May 3, 2016, Claimant requested review by the
Appeals Council. On July 24, 2017, the Appeals Council denied
Claimant's request for review of the ALJ's decision,
thereby making the ALJ's decision the final decision of
the Deputy Commissioner for purposes of judicial review. On
September 21, 2017, Claimant filed this action for judicial
review of the ALJ's decision pursuant to 42 U.S.C. §
time of her alleged disability onset date, Claimant was
forty-four years old and she is now forty-nine years old.
Claimant received a formal education through the twelfth
grade, graduating from high school. She has an employment
history of working as a pizza store manager, housepainter,
medical records indicate that she was seeing George R. Small,
Jr., M.D. (“Dr. Small”), as early as November
2011. Dr. Small was Claimant's treating primary care
physician. As early as November 2011, Dr. Small noted that
Claimant had orthopedic problems in her back and knees. Dr.
Small also noted chronic bronchitis and chronic sinusitis and
he prescribed various medications to treat Claimant's
ailments. Claimant returned to Dr. Small for three-month
checkup appointments throughout 2012 (Filing No. 15-15 at
January 2013, Claimant presented to the emergency room with
complaints of slurred speech and left-sided numbness.
Treatment providers noted that it looked like Claimant had an
episode of altered level of consciousness and questionable
seizure. It also was noted that she had a pulmonary embolism
in March 2012, but the CT scan during this hospital visit
revealed no pulmonary embolism. Upon examination, Claimant
was anemic and had a low potassium level, but she had no
facial asymmetry and no speech problems. Claimant's lower
extremities were unremarkable with no motor neurologic
deficits. An MRI of her brain came back negative, and an
echocardiogram also came back negative (Filing No. 15-11
hospital treatment providers opined that her left arm and
left leg numbness could be from a transient ischemic attack
(“TIA”), as known as a mini-stroke. They
recommended a hyper-coagulation work-up, and it was noted
that Claimant appeared very non-compliant with her Coumadin
regimen. Upon discharge from the hospital, Claimant reported
feeling better with improved nausea and vomiting. She had no
left-sided weakness or numbness, no weakness or facial droop,
and no edema. She was in no acute distress and had clear
lungs with normal respiratory effort. Id.
returned to see Dr. Small in March 2013, a couple months
after her visit to the hospital. She complained of pain in
her right hip and guessed that the pain was the result of a
recent stroke. Dr. Small opined that her hip pain was the
result of osteoarthritis. She returned to Dr. Small in June
and October 2013, and during those visits, Dr. Small observed
Claimant's chronic bronchitis and continued to prescribe
medications to her (Filing No. 15-15 at 10-11). In
November 2013, Claimant had an x-ray and a CT scan taken of
her pelvis. The CT scan revealed osteoarthritis of both hips,
left greater than right, and L5-Sl degenerative disc changes
as well as chronic bony changes (Filing No. 15-20 at
January 2014, Claimant twice presented to the hospital
emergency room with complaints of chest pain, nausea, and
vomiting. She had low levels of potassium. Physical
examination revealed normal findings, including with her
musculoskeletal system. She was discharged from the hospital
in stable condition, with prescribed medications and with
instructions to follow-up with her primary care physician
(Filing No. 15-15 at 12-20). In February 2014,
Claimant visited Dr. Small for a hospital follow-up
appointment. Id. at 11.
2014, Dr. Small refilled Claimant's prescription
medications. Claimant expressed her concern to Dr. Small
about the possibility of having another blood clot form. Dr.
Small talked with her about the concern and then recommended
she continue with her current medications and eliminate
aspirin from her regimen (Filing No. 15-21 at 39).
Claimant did not return again to Dr. Small until December
2014, when she complained of intractable cough and malaise.
2014, Claimant presented to the hospital emergency room,
complaining of chest pain and nausea. She was given
nitroglycerin, which provided only some relief, so she also
was given morphine, which provided good relief. Claimant
developed acute bronchospasms after a Lexiscan was performed.
She reported having a history of COPD, and her breathing
improved after treatment was provided. Physical examination
revealed that Claimant was anxious but alert and oriented.
She had very diminished breath sounds bilaterally but no
rhonchi or wheezes. The neurological examination was nonfocal
with minimal left lower extremity weakness. Claimant was
discharged from the hospital in stable condition, and she was
able to ambulate without difficulty (Filing No. 15-18 at
29, 31, 44).
a week later, Claimant again presented to the emergency room.
She complained of worsening left leg pain, back pain, and
neck pain as a result of a recent car accident. She stated
that she had left-sided pain secondary to a stroke but
complained that her pain had gotten worse since the car
accident. Her history of anxiety and COPD were noted. Upon
physical examination, Claimant was fully oriented, had normal
breath sounds with no wheezes or rales, and normal
musculoskeletal range of motion with no edema but with some
tenderness. An x-ray of Claimant's lumbar spine showed
anterolisthesis of L4 on L5, which was noted to be likely
chronic. An x-ray of Claimant's cervical spine showed
moderate degenerative disc disease with associated osteophyte
formation from C5-C7 and disc space loss (Filing No.
15-18 at 3-7).
2015, Claimant returned to Dr. Small. Dr. Small added
medication to Claimant's treatment regimen to try to
prevent seizures, which had become a problem for Claimant.
She complained about the osteoarthritis in her hip. Dr. Small
referred Claimant to another physician for a possible steroid
injection. He also opined that performing hip surgery was
unadvisable because of her blood dyscrasia, and they could
revisit in three months the possibility of doing surgery
(Filing No. 15-21 at 39).
August 2015, an x-ray of Claimant's hips revealed severe
left hip osteoarthritis with possible secondary avascular
necrosis and mild flattening. It also revealed mild right hip
joint space narrowing and severe left hip joint space
narrowing (Filing No. 15-20 at 12). An October 2015
x-ray of Claimant's pelvis showed severe arthritic
changes in the left hip, with marked joint space narrowing
and osteophyte formation. Id. at 15.
returned to Dr. Small in August 2015 to refill her
prescriptions. Dr. Small also filled out paperwork on behalf
of Claimant for a driver's handicap sticker and for her
DIB and SSI applications (Filing No. 15-21 at 40).
Dr. Small completed a physical residual functional capacity
questionnaire for Claimant's disability paperwork. He
opined that Claimant was not a malingerer, and her impairment
could be expected to last more than twelve months. He noted
her diagnoses included coagulopathy, pulmonary embolus,
stroke, and seizure disorder, with symptoms including
shortness of breath with moderate exertion and stroke
residuals. Dr. Small opined that Claimant frequently
experienced symptoms severe enough to interfere with
attention and concentration needed to perform even simple
work tasks. He opined that she was incapable of even low
stress jobs as she had a poor attention span. He further
opined she could walk a half a city block without rest or
pain, could sit for ten minutes at a time, and could stand
for five minutes at a time. Dr. Small concluded that Claimant
could sit, stand, or walk for less than two hours in an
eight-hour workday. She would require periods of walking
about every fifteen minutes for approximately six minutes at
a time and would need a job that permitted shifting positions
at will from sitting, standing, or walking (Filing No.
15-18 at 58-62).
Small also opined that Claimant would not need to use a cane
or other assistive device while occasionally standing or
walking, and she would not need to elevate her legs during
prolonged periods of sitting. She could occasionally lift
less than ten pounds and frequently perform neck movements.
Dr. Small opined that Claimant could frequently twist,
occasionally stoop, crouch, and balance, and rarely climb
ladders or stairs. He limited her reaching, handling, and
fingering. She could frequently push or pull ten pounds,
rarely twenty pounds, and never fifty pounds. She could
tolerate less than moderate exposure to temperature extremes,
noise, dust, vibration, humidity, wetness, hazards, fumes,
odors, chemicals, and gases. Finally, Dr. Small opined that
Claimant likely would be absent from work more than four days
per month as a result of her impairments. Id.
August 2015, Claimant presented to Conan Chittick, M.D.
(“Dr. Chittick”). Claimant complained of left hip
pain and back pain after experiencing a stroke in 2014. She
also complained of gait abnormality and ongoing left-sided
abnormalities with pain from her left lower back down to her
foot. She reported going to physical therapy for one session
but said she was unable to tolerate it because of pain, so
she went to the emergency room. Upon examination, Claimant
was in no acute distress and was alert and oriented. She had
an antalgic gait with no hip or spine swelling, but she did
have tenderness to palpation and decreased hip range of
motion. She also demonstrated a positive FABER testing, pain
with axial load and Stork testing, decreased heel/toe walk on
the left, and 4/5 strength in the left lower extremity. Dr.
Chittick noted that x-rays showed arthritic changes of the
left hip joint with decreased joint space. He recommended
that Claimant receive a hip injection to help with her pain
(Filing No. 15-20 at 4-7). The following day,
Claimant presented to Benjamin Rase, M.D., to receive a left
hip injection. There were no complications during the
procedure, and Claimant reported experiencing significant
improvement in her pain after the injection. Id. at
months later, in October 2015, Claimant visited Brian Keyes,
D.O. (“Dr. Keyes”), complaining of left hip pain.
She told Dr. Keyes that her hip pain had increased in
intensity over the past three months, and the recent hip
injection had provided relief for only five to six hours.
After reviewing diagnostic imaging, Dr. Keyes noted that
Claimant had collapsed avascular necrosis of the left hip.
Dr. Keyes discussed with Claimant the various operative and
nonoperative treatment options for her hip, and Claimant
agreed to undergo a hip replacement surgery (Filing No.
15-20 at 2-3).
October 20, 2015, Claimant had a pre-operation evaluation
with Bhasker Reddy, M.D. (“Dr. Reddy”). Claimant
reported to Dr. Reddy that her left hip pain had increased in
recent months, she had developed a limp, and she was now
using a cane. Dr. Reddy considered that Claimant had been put
on chronic prednisone treatment earlier in the year for COPD.
Claimant reported improvement of her COPD symptoms, but she
also complained of a 25-pound weight gain in two or three
months, facial swelling, and increased tightness in her
abdomen. Claimant told Dr. Reddy that she had not experienced
nausea, vomiting, or abdominal pain recently. Claimant denied
seeing a pulmonologist in the recent past but reported using
a nebulizer two to three times per day. She also reported
having chronic lower back pain that was treated with Norco by
her primary care physician. She reported having quit smoking
about two months prior (Filing No. 15-21 at 45-47).
physical examination, Dr. Reddy observed that Claimant
breathed comfortably on room air, had some slight wheezing in
the right base, but was otherwise clear to auscultation. Dr.
Reddy observed Claimant was non-tender to palpation on her
back. He noted trace lower extremity edema. Dr. Reddy
recommended the hip replacement surgery be postponed due to
concerns over possible Cushing's syndrome, which would
increase her risk of poor wound healing and infection. He
recommended that Claimant talk with her primary care
physician about decreasing her corticosteroid use and also
expressed doubt about some of her past diagnoses. He noted
that if Claimant ...