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Jennifer M. L. v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

November 16, 2018

JENNIFER M. L., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.



         Plaintiff 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.[1] For the following reasons, the Court REMANDS the decision of the Deputy Commissioner for further consideration.

         I. BACKGROUND

         A. Procedural History

         On 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. § 405(g).

         B. Factual Background

         At the 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, and babysitter.

         Claimant's 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 9-10).

         In 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 at 21-27).

         Claimant's 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.

         Claimant 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 17).

         In 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.

         In May 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. Id.

         In July 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).

         Approximately 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).

         In May 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).

         In 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.

         Claimant 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).

         Dr. 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.

         In 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 9-10.

         Two 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).

         On 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).

         Upon 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 ...

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