ALAN J. BAVERMAN, Magistrate Judge.
Plaintiff brought this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying her application for Disability Insurance Benefits ("DIB").
On December 23, 2013, Plaintiff filed her application for DIB alleging a disability onset date of August 25, 2013. [Record (hereinafter "R") at 221]. Her application was denied initially on April 24, 2014, and upon reconsideration, August 25, 2014. [R156, R165]. Thereafter, Plaintiff filed a written request for hearing. [R168]. Plaintiff appeared and testified at a hearing before an Administrative Law Judge ("ALJ") on November 5, 2015, where she was represented by an attorney and a vocational expert ("VE") testified. [R112].
On June 3, 2016, the ALJ issued a decision denying Plaintiff's application for disability benefits. [R72-82]. Plaintiff then filed an appeal with the Appeals Council ("AC"), which denied review on November 15, 2016, making the ALJ's decision the final decision of the Commissioner. [R9].
Plaintiff subsequently filed this action on March 13, 2017, seeking review of the Commissioner's decision. [Docs. 3, 5]. The answer and transcript were filed on November 6, 2017. [Docs. 7, 8]. On August 29, 2017, Plaintiff filed a brief in support of her petition for review of the Commissioner's decision, [Doc. 11], and on September 28, 2017, the Commissioner filed a response in support of the decision, [Doc. 14], to which Plaintiff replied, [Doc. 13]. The matter is now before the Court upon the administrative record, and the parties' pleadings and briefs,
Plaintiff claims that the ALJ's decision is not supported by substantial evidence because she failed to properly evaluate Plaintiff's credibility and all of Plaintiff's impairments and, therefore, wrongly rejected her pain and limitations. [Doc. 11 at 5].
Plaintiff was born in 1956 and was 59 years old on the alleged onset date. [R221]. Plaintiff completed high school and has past relevant work as a secretary, receptionist, accounting assistant, and a caregiver. [R131-32]. She initially alleged disability due to deep vein thrombosis ("DVT") and inferior vena cava ("IVC") placed in her chest. [R271].
Plaintiff testified that, before she injured her back at work in June 2013, she worked as a caregiver through a company that sent her to patient's homes to assist with activities such as bathing, walking, moving in and out of wheelchairs, light housekeeping, and meal preparation. [R113-14]. She did not have any special training for this position but she did do some lifting of patients who were paraplegic. [R114]. She testified that she injured her back in June 2013 and went to the emergency room; was bedridden in July; went for follow-up care to doctors referred by her former employer (as it was considered a worker's compensation injury); and was hospitalized in August 2013. [R115].
Upon questioning from the ALJ, Plaintiff responded that she is unable to work because of her DVT, which causes swelling and pain in her left leg from the foot through the groin and the lower back, making if difficult to walk, sit, and, sometimes, lie down. [R116-17]. She also testified that she passes out from time to time, for unknown reasons, and thinks it may be due to her heart (as this has been an issue since childhood), which her medical providers referred to as syncope and which occurred most recently in March 2014. [R117]. She testified that she continues to have DVT and an IVC filter in her chest, and, in December 2014, clotting between her knee and groin was detected. [Id.]. She testified that without support hose, her leg, feet, and groin become terribly engorged, but, with the hose, she still experiences pain and spasms, which she attributes to DVT. [Id.]. She explained that she takes Baclofen for her DVT and Xarelto as an anticoagulant. [R118-19].
Plaintiff further testified that her low back pain comes and goes two or three times a week, lasting a few days. [R119]. She testified that it does not take a lot to trigger it, such as sitting with little or no support or trying to get out of a chair, which then causes tension and pain running down her leg. [R119-20]. She described that to relieve this pain, she lies down and takes pain medication, such as Oxycodone or Gabapentin, which make her sleepy, and therefore, she did not take medication the day of the hearing. [R120-21]. She also testified that she uses Lidocaine patches and had an epidural steroid injection planned for November, after her hearing. [R121].
Plaintiff also testified that she has been going to therapy for her shoulder and her doctors scheduled therapy for April 2016. [R118]. She testified that she was told by doctors that she had osteoarthritis in the rotator cuff and bursitis in her knee and possibly some in her back. [R129]. She further claimed that she has carpal tunnel in her right hand which causes numbness in her thumb and first two fingers and a feeling of the muscle pulling through the arm. [R122]. She testified that this causes gripping problems, especially with repetitive motions, such as preparing food and handwriting. [R123]. She also testified that she had neck problems between the hairline and shoulders, which also causes a headache. [Id.].
Plaintiff indicated that the combination of her medications causes grogginess and that Tramadol, in particular, causes dizziness, so she only takes it at night. [R124]. When she experiences these side effects, she sleeps. [Id.]. She has been seeing the doctor, including rotator cuff therapy, an average of three of four times a month. [Id.]. She testified that she experiences pain six out of seven days in the week so she limits her activities, spending most of her time reclining and even using a potty to avoid moving to the bathroom. [R125]. She stated she reclines because, with the swelling, her heart doctor (Dr. Aber Mhed) advised her that she needs to have her leg over her heart. [R126]. She reported that she experiences swelling daily and, two or three times a week, the stocking does not fully compress it. [Id.]. She acknowledged that her primary care doctor had advised her to exercise three times a day to lose weight so, at one point, she walked 15 minutes a day. [R127].
Plaintiff also testified that she has ongoing renal issues and stool incontinence since August 2013. [R128]. She explained that she wears support to prevent soiling herself. [Id.]. She testified that she is seldom free of pain and her pain averages a six out of ten three times a week, but is more severe the other days. [R129]. She indicated that she takes her medication as prescribed. [R130].
In June 2013, Plaintiff presented to the emergency room complaining of low back pain over the previous two days that radiated into the left buttock and leg. [R383]. On examination, she had a full range of motion in the back and mild positive straight leg raise test
In March 2014, Plaintiff reported that she had developed constant right shoulder pain that radiated down to her right thumb, numbness in her hand, and muscle spasms. [R439]. Examination revealed tenderness in the right subacromial groove
An October 2014 x-ray showed minimal degenerative changes in the Plaintiff's AC joint and some calcification adjacent to the trochanter
A January 2015 MRI of Plaintiff's right shoulder revealed a rotator cuff tear and osteoarthritis in her right shoulder. [R532-33]. A February MRI of Plaintiff's lumbar spine
In late March 2015, Plaintiff reported pain on a scale of six out of ten and, on objective examination, had a limited range of motion in her mid back and right shoulder, and tested mildly positive for Speeds,
In July 2015, Plaintiff reported that, because her pain improved for several months, she stopped taking Oxycodone
In October 2015, Plaintiff continued to report back, joint, and neck pain and was diagnosed with degenerative disc disease, carpal tunnel syndrome, and right rotator cuff sprain. [R672]. Later, on examination, she had: painful forward flexion and abduction; positive Hawkin's and supraspinatus
After the ALJ's decision, Plaintiff submitted records to the AC. [R16-66]. These records reflect that, in August 2016, Plaintiff received medial branch blocks
Plaintiff was taken to the emergency room in August 2013 by her family after she displayed an altered mental status and generalized weakness which worsened over the previous three days. [R384]. She also complained of low back and leg pain, which caused problems moving her left lower extremity. [R355]. On examination, she was in mild to moderate distress; unable to raise her arms overhead due to weakness; and had pain in her left leg. [R384]. Laboratory data (including a blood work up and Doppler) showed DVT in her left leg. [Id.]. A CT scan
Plaintiff was diagnosed with acute renal failure with possible underlying kidney disease, and left leg swelling with DVT, hypercalcemia,
Plaintiff went to physical therapy in September 2013 for left lower extremity edema
In November 2013, after several weeks of therapy, she still had left leg edema but was able to wear a shoe on her left foot, was wearing compression stockings, had slight swelling and fibrosis and was encouraged to continue to bandage her leg at night and/or purchase a night-time garment. [R418-24, 434].
In March 2014, Plaintiff still had edema when she presented to the emergency room complaining of chest pain intensifying over the previous week. [R459]. Although her INR and creatinine
In October 2014, Plaintiff's lymphedema was improving. [R513]. However, by December 2014, she was hospitalized after going to the emergency room for chest pains and, on examination, had left lower extremity swelling with 1+ edema and a Doppler study showed a non-occlusive DVT. [R545-50]. Coumadin was continued. [R552].
From September 2013 through November 2014, Plaintiff continued to have varying INR rates, requiring ongoing anticoagulant treatment, and her INR was low, requiring increased doses of anticoagulant medication. [R426-33, 441-42, 464, 488, 527-29]. It was still high in January 2015, [R655], when she also reported leg cramping, [R558], and was diagnosed with "some renal insufficiency, but not to the point that it should generate" the high potassium levels it did in her recent emergency room visit, [R560]. However, by February 2015, her INR level was high, [R653], and it was noted that she was largely sedentary because of knee osteoarthritis and morbid obesity, [R568]. By April 2015, her renal function was "back to normal range." [R592].
No consultative examinations of Plaintiff were ordered or performed. [R138, 149]. Instead, on April 19, 2014, Abraham Oyewo, M.D., a state agency medical consultant, reviewed Plaintiff's medical records up until that point. [R138-43]. Dr. Oyewo concluded that one or more of Plaintiff' medically determinable impairments could be reasonably expected to produce her pain or symptoms, but her statements about their intensity, persistence, and functionally limiting effect were not substantiated by the objective medical evidence (specifically, her treatment and medications). [R139]. Dr. Oyewo noted that there was no indication of medical or other opinion evidence in record. [Id.] Dr. Oyewo concluded that, based on her lymphedema, Plaintiff could occasionally lift or carry (including upward pulling) 20 pounds occasionally and 10 pounds frequently; stand, sit, or walk for a total of six hours in an eight-hour workday; had limited pushing and pulling in her left lower extremities; and no postural or manipulative limitations. [R140].
On August 25, 2014, Bato Amo, M.D., a state agency medical consultant, reviewed Plaintiff's medical records up until that point. [R149-52]. Dr. Amo's conclusions were identical to Dr. Oyewo's, except that he concluded Plaintiff would be limited to frequent right overhead reaching. [R150-51].
The VE described Plaintiff's past work as follows: accounting assistant and a receptionist, both sedentary, semi-skilled jobs; secretary, sedentary, skilled job; caregiver, medium, semi-skilled job, performed at the medium to heavy exertional level by Plaintiff; and personal caregiver, light, unskilled job. [R131-32]. The VE concluded that if limited to light work with frequent overhead reaching, Plaintiff could perform all her past work except that of a caregiver (which was medium or heavy). [R132]. There would be no jobs if Plaintiff needed to elevate one or both legs above heart level during the workday, [R132], nor could she perform her past work if her medications caused drowsiness sufficient to require her to lie down and take two 30 minute naps (in addition to an hour for lunch) or go to the doctor three of four times a month for a full day. [R133-34].
The ALJ made the following findings of fact:
[R74-81].
In her evaluation of Plaintiff's alleged impairments, the ALJ found that Plaintiff's obesity and right rotator cuff syndrome were "determined by medically acceptable evidence including signs, symptoms, and laboratory findings." [R74]. The ALJ noted that Plaintiff was diagnosed with DVT, on long term use of anticoagulants, resolved with medications, sciatica with lumbar stenosis and disc bulges with no stenosis, essential hypertension, and right carpal tunnel syndrome. [R75]. However, the ALJ found that Plaintiff's allegations of "chronic kidney disease with lymphedema . . . was not seen in the medical records and is therefore not a medically determinable impairment. As there is no showing that these impairments cause any more than a minimal effect on the ability to do basic physical work activities, they are found to be non-severe." [Id.].
In evaluating Plaintiff's residual functional capacity ("RFC"), the ALJ noted that, although Plaintiff alleged that her heart physician advised her that she needed to elevate her leg when it swells, "there are no medical records of evidence to justify the need to elevate the leg above the heart as claimant testified." [R76].
The ALJ summarized the records and concluded that Plaintiff's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however . . [her] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence of record for the reasons explained in this decisions." [R80]. The ALJ noted that
[R81 (internal citations omitted)].
An individual is considered disabled for purposes of disability benefits if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The impairment or impairments must result from anatomical, psychological, or physiological abnormalities which are demonstrable by medically accepted clinical or laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do previous work but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The burden of proof in a Social Security disability case is divided between the claimant and the Commissioner. The claimant bears the primary burden of establishing the existence of a "disability" and therefore entitlement to disability benefits. See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step sequential process to determine whether the claimant has met the burden of proving disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11
If at any step in the sequence a claimant can be found disabled or not disabled, the sequential evaluation ceases and further inquiry ends. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step five, the overall burden rests on the claimant to prove that he is unable to engage in any substantial gainful activity that exists in the national economy. Doughty, 245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11
A limited scope of judicial review applies to a denial of Social Security benefits by the Commissioner. Judicial review of the administrative decision addresses three questions: (1) whether the proper legal standards were applied; (2) whether there was substantial evidence to support the findings of fact; and (3) whether the findings of fact resolved the crucial issues. Washington v. Astrue, 558 F.Supp.2d 1287, 1296 (N.D. Ga. 2008); Fields v. Harris, 498 F.Supp. 478, 488 (N.D. Ga. 1980). This Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11
"Substantial evidence" means "more than a scintilla, but less than a preponderance." Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and it must be enough to justify a refusal to direct a verdict were the case before a jury. Richardson v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, [the Court] must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11
Also, a "court must consider evidence not submitted to the [ALJ] but considered by the Appeals Council when that court reviews the Commissioner's final decision." Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1258 (11
Plaintiff's over-arching claim is that the ALJ's decision lacks substantial evidence because she failed to properly evaluate all of Plaintiff's impairments and, consequently, rejected Plaintiff's claims about her pain and limitations. [Doc. 11 at 1, 4]. Plaintiff addresses this argument by more specifically referring to those impairments and the manner in which the ALJ failed to properly evaluate them, so the Court will consider them in the order in which Plaintiff addressed them in her brief.
Plaintiff contends that the ALJ rejected her "pain and limitations based on her erroneous assessment of [her] impairments — severe and nonsevere — and on impairments she found to be not medically determinable impairments, so her rationale for rejecting [her] statements of her limitations is not supported by substantial evidence." [Doc. 11 at 5]. However, the only part of the decision Plaintiff points to is the ALJ's determination, at step two, that Plaintiff alleged chronic kidney disease with lymphedema which was not in the record. [Id.].
The Commissioner responds that this is merely a semantic issue, as the ALJ properly stated there was no "chronic kidney disease" in the record and no actual diagnosis of kidney disease, merely a suggestion of it. [Doc 12 at 11]. Plaintiff replies that the Commissioner is splitting hairs, as the record reflects that she was discharged with "acute renal failure" and "possible chronic kidney disease." [Doc. 13 at 4 (citing [R349])].
The Commissioner also contends that the ALJ found Plaintiff's DVT, which "caused swelling in Plaintiff's leg (lymphedema), was a medically determinable impairment[.]" [Doc. 12 at 12 (citing the Mayo Clinic's online definition of Lymphedema as "swelling that generally occurs in one of your arms or legs.")]. Notably, neither the Commissioner nor the ALJ drew from any part of Plaintiff's medical records showing that her DVT, in fact, caused her lymphedema. Plaintiff replies that the reasons given by the ALJ for rejecting this impairment as medically determinable are that it is not in the record and, to the extent that the ALJ incorrectly linked them as the same disease, her reasons for rejecting Plaintiff's separate impairments of kidney disease and lymphedema are factually incorrect. [Doc. 13 at 5]. Moreover, Plaintiff argues, it is inaccurate to equate DVT and lymphedema. [Id. at 5-6].
The Court agrees that, as it presently reads, it is unclear whether the ALJ assessed Plaintiff's lymphedema and chronic kidney disease as a single impairment or two, discrete ones, and whether that confusion caused her to conclude that they were not in the record or medically determinable impairments. The issue is not merely that the ALJ considered Plaintiff's alleged impairments and concluded they were not severe. Rather, she determined that they are not medically determinable impairments at all without any citation whatsoever to a record that is replete with discrete diagnoses of the same.
At step two, the ALJ must determine if the claimant has any severe impairment. "This step acts as a filter; if no severe impairment is shown the claim is denied, but the finding of any severe impairment, whether or not it qualifies as a disability and whether or not it results from a single severe impairment or a combination of impairments that together qualify as severe, is enough to satisfy the requirement of step two." Jamison v. Bowen, 814 F.2d 585, 588 (11
Here, the ALJ determined Plaintiff had severe impairments, albeit not "chronic kidney disease with lymphedema[,]" and proceeded to step three, to determine if any of Plaintiff's impairments or combination thereof, severe or not, constituted a disability. [R74]. However, whether the ALJ understood and analyzed "chronic kidney disease with lymphedema" as a single impairment or two separate impairments is crucial because, in evaluating lymphedema and whether it meets or medically equals a listing, the Commissioner
20 C.F.R. pt. 404, subpart P, app. 1 §§ 4.00G, 4.04B.
While it is not necessarily error for the ALJ to find that Plaintiff's lymphedema was not medically determinable or find it non-severe, it was error for her to make these findings without sufficient specificity to show the Court that she understood what impairments Plaintiff was alleging and correctly analyzed all Plaintiff's impairments at step three. "While an ALJ is not required to discuss every piece of evidence on the record, [s]he must nonetheless `develop a full and fair record,' which, at least, means that h[er] opinion must describe h[er] analysis with enough detail to satisfy a reviewing court that [s]he gave all relevant evidence before h[er] its due regard." Day v. Berryhill, No. 1:17-CV-252-WSD, 2018 WL 564480, at *3 (N.D. Ga. Jan. 26, 2018) (Duffey, J., adopting Salinas, M.J.) (quoting Reed v. Astrue, No. 09-0149-KD-N, 2009 WL 3571699, at *2 (S.D. Ala. Oct. 26, 2009)) (quotation marks altered); see also Bagley v. Astrue, No. 3:08-cv-591-J-JRK, 2009 WL 3232646, at *8 (M.D. Fla. Sept. 30, 2009) ("Although there is no rigid requirement that the ALJ specifically refer in his or her decision to every piece of evidence, the ALJ's decision cannot broadly reject evidence in a way that prevents meaningful judicial review.") (citing Dyer, 395 F.3d at 1211). As a result, there is confusion concerning how and whether the ALJ interpreted Plaintiff's lymphedema as a discrete condition at step two, and, on the basis of this incorrect interpretation, subsequently improperly analyzed Plaintiff's impairments at steps three
The Commissioner attempts to explain the ALJ's conclusions by asserting, without any citation to the record whatsoever, that the ALJ's confusion was harmless error because Plaintiff's lymphedema is merely a symptom of her DVT, rather than a discrete condition. [Doc. 12 at 12]. First, this is an impermissible post hoc rationalization. See Owens v. Heckler, 748 F.2d 1511, 1516 (11
In addition, the Court observes that the ALJ relied exclusively on the opinions of non-examining, state agency physicians, in reaching the RFC determination. [R81]. While the ALJ may confer greater weight to the opinions of non-examining sources, those opinions, by themselves cannot constitute substantial evidence. Edwards v. Sullivan, 937 F.2d 580, 584 (11
Here, the Commissioner argues that this is harmless error because the ALJ concluded that Plaintiff's conditions were synonymous. [Doc. 12 at 12]. However, the ALJ did not articulate this conclusion, nor did the ALJ cite to any medical sources that did. Assuming the ALJ implicitly found that Plaintiff's lymphedema and DVT are the same, that is a medical determination reached without any supporting citation and without the support of any examining medical source. "In carrying out h[er] duty to conduct a full and fair inquiry, the ALJ is required to order a consultative examination when the record establishes that such an examination is necessary to render an informed decision. . . Additional medical evidence may be required in order to obtain more detailed medical findings about the claimant's impairment(s), to obtain technical or specialized medical information, or to resolve conflicts or differences in the medical findings already available. If the claimant's treating physician could not provide an opinion as to the claimant's functional limitations, then the ALJ should have ordered a consultative examination rather than rely on the opinions of non examining physicians." Rease v. Barnhart, 422 F.Supp.2d 1334, 1374 (N.D. Ga. 2006) (internal citations omitted); Fontanez ex rel. Fontanez v. Barnhart, 195 F.Supp.2d 1333, 1355 (S.D. Fla. 2002) (ALJ erred in not obtaining a medical source statement from any of the consultants who actually examined the claimant); Hernandez v. Barnhart, 203 F.Supp.2d 1341, 1355 (S.D. Fla. 2002) ("the ALJ erred in not obtaining a medical source statement from the consultants who actually examined Plaintiff. . . Therefore, it appears, as Plaintiff suggests, that the ALJ may have improperly "played the role of medical expert, interpreted the raw psychological and medical data, and drew her own conclusions as to the claimant's RFC."); see also Marbury v. Sullivan, 957 F.2d 837, 840-41 (11
Here, because (1) it is unclear if the ALJ's decision considered all of Plaintiff's impairments, and (2) the ALJ relied on non-examining medical opinions, the Court cannot say that her decision was supported by substantial evidence. Accordingly, the Court
In conclusion, the final decision of the Commissioner is
The Clerk is
