CHARLES F. EICK, Magistrate Judge.
Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied, and this matter is remanded for further administrative action consistent with this Opinion.
Plaintiff filed a complaint on September 20, 2018, seeking review of the Commissioner's denial of benefits. The parties consented to proceed before a United States Magistrate Judge on October 18, 2018. Plaintiff filed a motion for summary judgment on February 1, 2019. Defendant filed a motion for summary judgment on March 4, 2019.
Plaintiff, a former United States Navy Hospital Corpsman, asserts disability since December 18, 2014, based on,
The ALJ also found, however, that Plaintiff retains a residual functional capacity for light work, limited to: (1) standing and walking for two hours out of an eight-hour workday; (2) occasional climbing of ramps and stairs, balancing and stooping; (3) no climbing of ladders, ropes or scaffolds, and no kneeling, crouching or crawling; (4) no concentrated exposure to hazards, such as moving machinery or unprotected heights; and (5) simple, routine repetitive tasks.
The Appeals Council denied review (A.R. 1-5).
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards.
After consideration of the record as a whole, the Court reverses the Administration's decision in part and remands the matter for further administrative proceedings. As discussed below, the Administration materially erred in evaluating the evidence of record.
Plaintiff was discharged from the Navy on December 18, 2014, reportedly after being charged with driving under the influence of alcohol in August of 2013 (A.R. 81, 252-53, 563). Plaintiff asserts disability starting the next day (A.R. 77-78). The Department of Veterans Affairs ("VA") issued a letter certifying that Plaintiff was receiving 100 percent service-connected disability payments of a certain sum as of December 1, 2017 (A.R. 317). The letter does not indicate how Plaintiff's disability was determined, or if December 1, 2017 was the first date the VA deemed Plaintiff disabled (A.R. 317). The earliest VA medical record referencing Plaintiff's 100 percent disability rating is dated March 3, 2015, and lists the following rated disabilities: major depressive disorder (50%), paralysis of musculospiral nerve (30%), sinusitis (maxillary, chronic) (30%), limited extension of knee (30%), migraine headaches (30%), stricture of the urethra (20%), superficial scars (20%), lumbosacral or cervical strain (10%), tinnitis (10%), knee condition (10%), superficial scars (10%) and limited flexion of the knee (10%) (A.R. 971-72). The record, though lengthy, does not contain the VA ratings decision itself or the report(s) on which the decision may have been based.
The record does contain a later medical opinion from Dr. Candice Barnett who reviewed Plaintiff's VA medical records, examined Plaintiff and completed VA Disability Benefits Questionnaires dated April 15, 2015 (A.R. 997-1024). Dr. Barnett found: (1) no evidence of an ankle condition; (2) evidence that Plaintiff was treated for a back condition consistent with lumbar strain during his service; (3) a diagnosis of eczema from 2009 with no current lesions observed; and (4) a diagnosis of urinary retention in October of 2013, which causes urinary frequency every one to two hours in the daytime (A.R. 999-1000, 1014, 1016-17, 1018-19). On examination of Plaintiff's back, Plaintiff reportedly had normal range of motion, no evidence of pain on weight bearing, mild to moderate tenderness in the lumbar paraspinal muscles, muscle spasm, local tenderness and guarding not resulting in an abnormal gait or abnormal spinal contour, normal strength in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension, no muscle atrophy, normal reflex and sensory examination, negative straight leg raising testing, no signs or symptoms of radiculopathy, no ankylosis and no neurological abnormalities (A.R. 1001-04). On examination of Plaintiff's ankles, he reportedly had normal range of motion, no evidence of pain with weight bearing, tenderness, or crepitus, normal muscle strength and no atrophy or ankylosis (A.R. 1008-11). Imaging showed no arthritis or significant findings, and Plaintiff reportedly had no use of assistive devices "as a normal mode of locomotion" (A.R. 1004-05, 1011-12).
Dr. Barnett opined Plaintiff's back condition and ankles would have no functional impact on his ability to perform any occupational tasks (standing, walking, lifting, sitting, etc.) (A.R. 1006, 1012). Dr. Barnett recommended that Plaintiff file a claim for his "bilateral feet condition" (unspecified) (A.R. 1012). Dr. Barnett opined that Plaintiff's eczema would impact his ability to work, stating, "Currently in school for nurse anesthetist. Plan on graduating 2020. ¶ He states sometimes its [sic] been hard to sit in car seat/truck seat to go to school. Itching rate 5/10." (A.R. 1017). Dr. Barrett opined that Plaintiff's bladder condition would impact his ability to work in that he would have to get up every one to two hours to urinate (A.R. 1021).
In late April of 2015, Plaintiff was referred to an orthopedic surgeon for a right knee meniscal tear, status post knee arthroscopy in 2004, 2005, 2007 and 2011 (A.R. 967). Plaintiff reported that his knee was locking and giving out (A.R. 967). He also reportedly had tried four steroid injections in the past two years, which had provided approximately six weeks of relief (A.R. 967). Plaintiff reportedly had undergone six months of physical therapy with minimal benefit (A.R. 967). Plaintiff was asked to bring his surgical records to his next appointment and was offered another steroid injection, which Plaintiff refused (A.R. 968).
On May 28, 2015, Plaintiff reported to his providers that morphine was "working perfect" for his pain (A.R. 1533). On June 2, 2015, Plaintiff was diagnosed with right knee arthritis and was fitted for a knee brace (A.R. 961). On June 13, 2015, Plaintiff presented to the emergency room because of a fall (A.R. 1524). On July 2, 2015, Plaintiff reportedly had no deficits in his functional status (
On July 6, 2015, Plaintiff had surgery for his right knee (
On July 27, 2015, Physician Assistant ("PA") Renee Wilterding reviewed the record and completed a Disability Benefits Questionnaire for Plaintiff's "knee and lower leg conditions" following his surgery (A.R. 1464-82). Reportedly, Plaintiff was still healing from his surgery and using a brace (A.R. 1470-71). The PA opined that Plaintiff would be limited to "sedentary employment" while recovering from knee surgery, and should avoid prolonged kneeling, squatting and climbing (A.R. 1472).
On September 30, 2015, Plaintiff had another right knee surgery (
On October 29, 2015, Plaintiff was admitted to the hospital and treated for an infection to the surgical incision, and it was noted he was still non-weight-bearing on the right lower extremity (A.R. 1270-72, 1291, 1600-02;
On December 15, 2015, Plaintiff started physical therapy following his tibial osteotomy (A.R. 335-39). Plaintiff reportedly had been wearing a brace and using crutches until approximately two weeks before the appointment,
A treatment note from December 28, 2015, states that Plaintiff reported right ankle pain not correlated with clinical and MRI findings, which should have healed or improved with immobilization post knee surgery (A.R. 552-54). In January of 2016, Plaintiff reportedly was ambulating with one forearm crutch, with 4/5 motor strength in the right lower extremity (A.R. 537). His right foot had mild pitting edema and bluish discoloration (A.R. 537). At another appointment that same month, Plaintiff reportedly was ambulating with a limp favoring the right lower extremity, had 3/5 motor strength in the right lower extremity but also had an "independent" gait without a device (A.R. 543).
In a veteran caregiver assessment form dated April 6, 2016, it was reported that Plaintiff needed assistance with ambulation and transfers, bathing, and dressing, and was using a forearm crutch, knee brace and a wheelchair for long distances (A.R. 470-71). Reportedly, Plaintiff was not yet able to bear full weight on his right leg, and his gait was unsteady (A.R. 471). Plaintiff reportedly had undergone six knee surgeries, and his surgeon was trying to prevent Plaintiff from requiring a knee replacement (A.R. 477).
Plaintiff reportedly was ambulating with a cane later in April of 2016, when he presented for group psychology classes and examinations (A.R. 459-60, 463, 468). Plaintiff reportedly had functional impairments in his lumbar spine, as well as in his lower extremity range of motion, strength and endurance (A.R. 464). He reportedly was at high risk for falls (A.R. 464). Plaintiff was given a TENS unit and home alpha stimulator unit (A.R. 469).
On June 2, 2016, Plaintiff reportedly had an antalgic gait "without device," was ambulating with a cane (A.R. 417-18, 422). Plaintiff reportedly had 4/5 right lower extremity strength with pain (A.R. 418). Plaintiff's doctor requested aquatic physical therapy exercises for six weeks (A.R. 420). Plaintiff was taking morphine, oxycodone, and mobic daily in addition to clonazepam, which his doctors wanted to wean to safer dosages (A.R. 421-22, 434-35, 480).
Meanwhile, Plaintiff began complaining of a history of right ankle pain in April and May of 2016 (A.R. 430, 445-46, 457-58, 461-62). Plaintiff was treated with acupuncture in April and May of 2016 (A.R. 331-33, 341-42).
On June 9, 2016, Plaintiff was seen at Cactus Foot and Ankle for possible surgery for pain in his right ankle, which Plaintiff claimed had been present for more than one year (A.R. 326). On examination, Plaintiff reportedly had muscle strength of 5/5 in all ranges of motion, pain on palpation to the medial right ankle, pain in the flexor tendons of the medial ankle with significant crepitation, visible discoloration from the "chronic" injury, and pain on palpation to the tarsal tunnel region of the medial right foot and ankle (A.R. 326). An ultrasound reportedly showed hypoechoic signal to the flexor tendons of the right medial ankle consistent with synovitis and chronic tendon pathology (A.R. 326-27). Plaintiff was diagnosed with right ankle tendonitis, synovitis, limb pain, difficulty walking and tarsal tunnel syndrome, and surgical options were discussed (A.R. 327;
On June 15, 2016, Plaintiff reportedly could walk over two blocks (A.R. 408). On June 30, 2016, Plaintiff notedly was ambulating with a single point cane and had an antalgic gait (A.R. 401).
Plaintiff underwent right ankle tendon and tarsal tunnel surgery on July 8, 2016 (A.R. 352-57). Plaintiff was fitted with crutches and given gait training in July of 2016 following his surgery (A.R. 398). On July 11, 2016, Plaintiff reported great improvement compared to his preoperative pain (A.R. 349).
On August 20, 2016, Plaintiff went to the emergency room for a wound to his ankle that was not healing after his ankle surgery, at which time he "ambulate[d] without difficulty" (A.R. 881-83, 1108, 1215). Plaintiff followed up in September and October for additional wound cleaning, and his gait reportedly was unassisted and steady (A.R. 1030-32).
On September 15, 2016, Plaintiff apparently was ambulatory with 5/5 muscle strength (A.R. 1054). However, Plaintiff reported that his right knee was worse than it had been before the high tibial osteotomy surgery (A.R. 1055). Plaintiff's doctor recommended hardware removal from the right tibia with diagnostic arthroscopy (A.R. 1055).
On November 28, 2016, Plaintiff apparently was ambulatory without assistance (A.R. 2105). On December 22, 2016, Plaintiff reportedly was able to walk 30 minutes a day, five days a week (A.R. 2084).
On January 12, 2017, Plaintiff presented for treatment for leg and back pain, stating that he had tried bowling and had been having severe right knee pain for the past eight days (A.R. 1621). On examination, he had mild swelling and reduced range of motion in full flexion of the right knee (A.R. 1623). He was diagnosed with osteoarthritis of the right knee and low back pain (A.R. 1623). On January 19, 2017, Plaintiff was given lumbar facet injections for back pain (A.R. 1873-74).
On January 26, 2017, Plaintiff reportedly had a normal gait, normal muscle strength, and no edema or tenderness (A.R. 1643). On February 6, 2017, Plaintiff reportedly had normal range of motion in his right knee with no swelling, some tenderness and a normal gait (A.R. 1682). On February 9, 2017, Plaintiff discussed his treatment options with his provider and expressed interest in a knee replacement (A.R. 1696). Plaintiff said he had pain associated with walking, but could ambulate a few blocks with a cane (A.R. 1693).
On March 1, 2017, Plaintiff complained of right ankle pain and was diagnosed with right tarsal tunnel syndrome (A.R. 1707-09).
On March 28, 2017, Plaintiff presented for follow up and indicated that he was going to have his hardware from the osteotomy taken out in June (A.R. 1751). Apparently, Plaintiff then was taking six oxycodone a day for his pain (A.R. 1751). On examination, Plaintiff had an antalgic gait with a cane (A.R. 1754, 1860). Plaintiff reportedly lived with his wife and children and had been "disabled since 2014 due to back pain symptoms" (A.R. 1751).
On April 4, 2017, Plaintiff reportedly had 5/5 muscle strength in his lower extremities and a normal gait (A.R. 1767). On April 6, 2017, Plaintiff's doctor recommended giving Plaintiff stem cell injections in his right knee (A.R. 1902-03). On April 24, 2017, Plaintiff reportedly was independent with ambulation and activities of daily living, with a normal gait and 5/5 muscle strength (A.R. 3025).
Consultative examiner Dr. Rashin D'Angelo interviewed Plaintiff and prepared a "Mental Evaluation by Psychologist" dated April 18, 2017 (A.R. 1896-1900). Plaintiff was observed to walk with an unsteady gait with a cane (A.R. 1896). Dr. D'Angelo diagnosed post traumatic stress disorder (chronic) and bipolar disorder, and opined that Plaintiff would have no limitations performing simple and repetitive tasks, mild limitations in performing work on a consistent basis without special or additional supervision, mild limitations in accepting instructions from supervisors and interacting with coworkers and the public, moderate limitations in completing a normal workday or workweek due to his mental condition, and moderate limitations in handling the usual stresses, changes, and demands of work (A.R. 1899-1900). Dr. D'Angelo indicated that Plaintiff was adhering and responding well to treatment, and predicted that Plaintiff' condition would significantly improve with treatment (A.R. 1900).
On May 17, 2017, Plaintiff underwent a diagnostic athroscopy and removal of the hardware in his right knee (A.R. 1845, 2018-21, 3506-12). Prior to surgery, Plaintiff reportedly had no deficits in his functional status (
On June 19, 2017, Plaintiff reportedly had a normal gait and normal range of motion to the right knee and no swelling, but some tenderness (A.R. 1776). On August 29, 2017, Plaintiff indicated that he was completely off of all narcotic pain medications, he had pain with climbing stairs and his condition was worsening (A.R. 2203).
On January 31, 2018, Plaintiff underwent a right knee open osteochondral allograft, tibial plateau with allograft, and high tibial osteotomy revision (A.R. 3491-3506). Plaintiff was ordered to remain non-weight-bearing with no range of motion for the first week after surgery, and he could start 20 percent weight-bearing in extension at four weeks after surgery if x-rays showed stability (A.R. 3494). Plaintiff could start full weight-bearing as tolerated at eight weeks post-surgery, if x-rays showed stability and appropriate healing (A.R. 3495).
State agency physicians reviewed the record in December of 2016 and May and August of 2017 and found,
The record does not contain any opinion from a consultative examiner regarding Plaintiff's physical condition. At the administrative hearing, Plaintiff's counsel requested that a medical expert render an opinion regarding Plaintiff's knee impairment (A.R. 73-74, 127-28). The ALJ denied the request (A.R. 11).
On the present record, the ALJ's assessment of Plaintiff's residual functional capacity is not supported by substantial evidence. No medical opinion concurs with the ALJ's assessment. As summarized above, the state agency physicians found greater limitations that the ALJ found to exist, the only consultative examiner evaluated Plaintiff's mental condition and found greater limitations than the ALJ found to exist, and the VA concluded that Plaintiff was 100 percent disabled.
An ALJ cannot properly rely on the ALJ's own lay knowledge to make medical interpretations of examination results or to determine the severity of medically determinable impairments.
Additionally, even if the ALJ had wished to adopt in whole the opinions of the non-examining state agency physicians regarding Plaintiff's physical limitations, the ALJ could not properly have done so in the absence of other corroborating medical evidence.
To aid in assessing Plaintiff's physical limitations, the ALJ should have ordered an examination and evaluation of Plaintiff by a consultative specialist.
The ALJ's failure to develop the record fully and fairly is especially apparent here, where the VA found Plaintiff 100 percent disabled but the record does not contain the VA's underlying analysis. An ALJ must always consider a VA rating of disability and must ordinarily accord "great weight" to such a rating.
Here, the ALJ acknowledged that Plaintiff was receiving service-connected disability compensation as of December 1, 2017, based on a 100 percent disability rating (A.R. 20 (citing A.R. 317)). However, the ALJ discounted the rating, stating only that "the VA uses different regulations and standards in analyzing disability that are not entirely consistent with the evaluation of disability under Social Security Administration regulations" (A.R. 20-21). The ALJ's statement does not constitute the required "persuasive, specific, valid reason" for discounting a VA rating of disability.
The Court is unable to conclude that the ALJ's errors were harmless.
Remand is appropriate because the circumstances of this case suggest that further development of the record and further administrative review could remedy the ALJ's errors.
For all of the foregoing reasons,
LET JUDGMENT BE ENTERED ACCORDINGLY.
