United States District Court, N.D. Georgia, Atlanta Division
ORDER AND OPINION
J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE
brought this action pursuant to §§ 205(g) and
1631(c) of the Social Security Act (“the Act”),
42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain
judicial review of the final decision of the Commissioner of
the Social Security Administration (“the
Commissioner”) partially denying her application for
Supplemental Security Income (“SSI”) and
Disability Insurance Benefits
(“DIB”). The parties consented to magistrate judge
jurisdiction. (Dkt. Entry dated 5/25/18). For the reasons set
forth below, the Commissioner's decision is
REVERSED AND REMANDED.
January 30, 2014, Plaintiff filed her application for SSI and
DIB alleging a disability onset date of January 26, 2014.
[Record (hereinafter “R”)16]. These claims were
denied initially and upon reconsideration, [R169, 175], and
Plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”), [R173]. A hearing was held before
an ALJ on August 11, 2016, at which both Plaintiff, who was
represented by an attorney, and a vocational expert
(“VE”), testified. [R33-96]. On October 18, 2016,
the ALJ denied Plaintiff disability benefits prior to
December 11, 2015. [R15-27]. Plaintiff then filed for review
by the Appeals Council, [see R7], which review was
denied on September 19, 2017, making the ALJ's decision
the final decision of the Commissioner. [R1-6]. Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267
(11th Cir. 2015) (quotation marks and alteration
filed this action on November 11, 2017, seeking review of the
Commissioner's decision. [Doc. 3]. The answer and
transcript were filed on March 21, 2018. [Docs. 8-9]. On May
23, 2018, Plaintiff filed a brief in support of her claim
that the Commissioner committed reversible error, [Doc. 14],
and on June 22, 2018, the Commissioner filed a response in
support of the decision, [Doc. 15], to which Plaintiff
replied, [Doc. 16]. The matter is now before the Court upon
the administrative record, and the parties' pleadings and
briefs,  and it is accordingly ripe for review
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
claims that the ALJ erred by finding, without the advice of a
medical expert, that Plaintiff was disabled as of December
11, 2015, but not before that date. [Doc. 14 at 1].
STATEMENT OF FACTS
was born in January 1958 and was 56 years old on the alleged
onset date of January 31, 2014. [R260]. Plaintiff completed
high school and worked in the past in sales, but discontinued
work on December 31, 2009 due to “lack of work.”
[R300-01]. She completed a year of college and has a
certificate in interior design. [R38-39]. She initially
alleged disability due to ascites,  cirrhosis,  thrombocytopenia,
anemia, hypothyroidism,  acute kidney injury, jaundice, and
Graves' disease. [R299].
hearing before the ALJ, Plaintiff testified that she lives
alone in a two-story, single-family home, but lives
downstairs, sleeps on the sofa, and only goes upstairs to
shower. [R41]. She has a driver's license and can drive.
[R42]. Plaintiff testified that she spends most days watching
television from the sofa. [R76]. She can do laundry, but
cannot vacuum due to her hand. [R77]. She testified that she
has trouble going to the mailbox and fell badly in May 2016
trying to get groceries out of the car, but did not seek
medical attention. [R77].
stated that, since her alleged onset date, she briefly worked
answering phones at an office (as a temporary replacement
while her friend was on medical leave) from 10 a.m. until
four or five p.m., earning just over $3, 000 in three months.
[R42]. She related that the work was very hard, but they
understood her limits, it was not a busy office, and she
could get up and sit down as needed. [R78]. However, she did
not think that she could continue doing that work, even under
those conditions, because she is now in more pain with her
knees and has a harder time getting up and down. [R78-79].
testified that she “had major depression for a long
time” and if affects her “job performance and
anything I do.” [R50]. She stated that she does not
“want to go out of the house.” [Id.].
She testified that she takes prescription antidepressants,
which make her very tired and fall asleep. [R51].
also testified that she has cirrhosis of the liver as a
result of drinking everyday, but that she has not drank since
January 2014. [R52]. She reported that she went to Alcoholics
Anonymous for eight weeks and has had some wine since then.
[R53]. Most recently, she was told that her liver is
functioning at 87 percent. [Id.]. She takes
medication for her liver, which she claims prevents her from
working because it causes her to fall asleep. [Id.].
She also testified that she has hypothydroidism which makes
her hands shake such that she always drops things. [R54-55].
Plaintiff reported that her distance vision is blurry with
her glasses and she has not been able to go to an eye doctor
as she lacks health insurance. [R56-7, 41]. However, she can
read with her current glasses. [R59].
testified that she no longer has strength in her right hand
and cannot pull anything or hold anything heavy. [R59].
Plaintiff testified that she had Cortisone
shots in her shoulder, which still hurts,
because she could not move it at all. [R68]. She further
explained that her foot and ankle surgery caused her
equilibrium to be off, her toes do not bend, her knees
“are giving out[, ]” and it is very difficult to
even go up the two stairs to get into her home or get out of
the sofa. [R59-60]. Plaintiff admitted that the walker she
brought to the hearing was not prescribed and she got it at a
garage sale. [R60]. Plaintiff testified that Robin Carey, a
D.O. at Grady, recommended a walker. [R68-69]. She also
stated that, in 2015, another doctor at Grady told her the
only treatment for her foot would be another operation.
recounted that she had “brain surgery” in 2014
due to an aneurysm.[R71]. She later clarified that the
vessel did not explode, as it was caught and repaired in
time, but she was bleeding two weeks afterwards from the
operation. [R72]. She reported that she returned to the
emergency room and had low blood pressure and hemoglobin and
received a blood transfusion, but has since been okay. [R73].
testified that, after her foot surgery, she planned to return
to work, but her foot never got better. [R75]. She further
testified that she cannot stay seated long and must get up
every 20-30 minutes because she gets stiff. [R75]. She opined
that she cannot lift more than five pounds with her right arm
and 10 with her left. [R75-76]. She could stand for about 10
minutes before needing to sit, and can walk for 10 minutes.
15, 2012, Plaintiff was seen at Gwinnett Medical Center with
chest pain and was diagnosed with left chest wall pain and a
right foot injury due to a motor vehicle accident the
previous month. [R1841]. Chastain Resurgens Orthopaedics saw
her on September 13, 2012, and she was diagnosed as suffering
from a possible non-union of her TMT joints in her foot.
[R383]. She also had some chronic heel valgus
problems and a tight calf with pain primarily in
the midfoot and a collapsed flatfoot with a TMT fracture.
[Id.]. She was prescribed a scooter and crutches.
[Id.]. Plaintiff returned on October 4, 2012 for her
TMT fracture dislocation, midfoot degenerative joint disease,
hindfoot valgus and midfoot collapse, and she was determined
to be ready for reconstructive surgery. [R382].
October 12, 2012, Plaintiff was admitted to North Fulton
Hospital and diagnosed with was a collapsed right foot with
tight calf and TMT degenerative joint disease. [R355]. The
secondary diagnosis was depression, asthma, hypertension,
thyroid disorder, Graves' disease, prior surgery to the
left ankle, and prior surgery to the right shoulder.
[Id.]. Her discharge instructions were touchdown
weightbearing plus elevation and use of a walker.
[Id.]. The operative report indicated a right
posterior tibial tendon with talonavicular capsule/spring
ligament reefing,  right foot medial column flexor
digitorum longus transfer,  right first, second, and third
TMT joint fusion, and a right gastrocnemius
returned to Chastain Resurgens Orthopaedics on October 24,
2012 for extensive foot realignment and fusion of first,
second, and third TMT joint. [R381]. She was stable, had
steri-strips installed, and received a short leg cast with
arch and toe plate which was placed in neutral.
[Id.]. Plaintiff followed-up on November 7, 2012 for
her post foot alignment and fusion and was stable, cleaned,
redressed, and recasted. [R380]. Plaintiff continued her
treatment on November 26, 2012 for her TMT degenerative joint
disease and was stable and recasted in a short leg cast with
an arch and toe plate. [R379].
December 26, 2012, Plaintiff was again assessed at Chastain
Resurgens and determined to be stable, with her midfoot much
more stable and pain-free. [R378]. Her foot was again
recasted. [Id.]. She returned on January 16, 2013
and was assessed with continued/recurrent collapsed foot at
the talonavicular joint, with heel valgus, mildly improved
with prior surgery but not completely realigned. [R377]. On
February 1, 2013, Plaintiff returned again and was assessed
with a questionable union at the first, second, and third TMT
joint fusion site and a continued collapsed foot with the
uncovering of the talar head in the heel valgus. [R375].
February 7, 2013, Plaintiff was admitted to North Fulton
Hospital for a CT scan of her foot that determined that the
previous fracture was in anatomic alignment and was fully
united. The joint space was markedly reduced with near
complete fusion of the three joints. [R351]. Plaintiff
returned to Chastain Resurgens on February 14, 2013 for
“severe flatfoot.” [R374]. Although the treating
doctor thought she would probably be best served by a triple
arthrodesis,  he wanted to review her CT scan.
Resurgens Orthopaedics saw Plaintiff on February 21, 2013 and
assessed her with possible non-union of the first, second,
and third TMT joints heel valgus and uncovered talar head.
[R373]. Appropriate footwear was discussed and orthotics were
glued to her shoe liners. [Id.]. Plaintiff returned
on August 23, 2013 and reported a head-on motor vehicle
accident on August 26, 2012. [R385]. She was assessed with an
acute-on-chronic wear, instability, and the valgus of TMT
joints in the middle of the right foot. [Id.]. She
was advised to use a boot, rest, elevate, take Tramadol,
and partial weight bearing with the use of crutches. [R386].
was seen at Grady Hospital on January 26, 2014 for her
cirrhotic liver with ascites. She was assessed with cirrhotic
liver with ascites, no focal liver lesion,
cholelithiasis without evidence of cholecystitis,
and a nonobstructing right renal stone. [R1135-36, 1146].
February 21, 2014, Plaintiff was admitted to Grady Hospital
with abdominal pain, swelling, and dyspnea. [R428]. She was
diagnosed with ascites, liver failure, Graves s/p ablation
which was now hypothyroid, bloating and shortness of breath
at rest and it was noted that she had previously been
admitted on January 20, 2014, diagnosed with cirhossis and
received a interventional radiology (“IR”) guided
paracentesis. [R428-29]. Another guided paracentesis
was performed and revealed some ascites. [R446]. She was
discharged on February 28, 2014. [Id.].
returned on March 26, 2014 complaining of headaches that
radiated around her head with some frontal eye pain and
feelings of deteriorated vision that caused her to feel
clumsy and an internal carotid artery
(“ICA”) aneurysm was found on CT scan.
[R553-54]. Plaintiff was diagnosed with an active problem
list of jaundice, ascites, Graves' disease, end-stage
liver disease, abdominal pain, esophageal varices in
cirrhosis,  hypothyroid, and an ICA aneurysm.
was admitted to Grady hospital on April 24, 2014 with
complaints of generalized weakness, pain in her chest,
shortness of breath, bilateral arm pain, and stated that she
was “holding fluid.” [R565]. Pitting
edema was noted bilaterally in her legs and
she was placed on continuous cardiac monitor. [Id.].
Hypotension, shortness of breath, and liver disease were
noted and she was discharged on April 26, 2014 and diagnosed
with ascites, upper extremity and chest pain, as well as
borderline hypotension. [R565-70].
Hospital saw Plaintiff on May 7, 2014 for a diagnostic
cerebral angiogram,  following an aneurysm and neurosurgery
evaluation. [R1261]. She was discharged the next day as it
went well without complications. [Id.]. She returned
on May 13, 2014 complaining of a headache. [R1302].
returned to Grady on May 16, 2014 to have the results of her
foot surgery reevaluated since she had not gotten the results
that she would have liked. [R1436]. An x-ray of her right
foot and cervical spine on May 19, 2014 revealed that her
right foot had screws from her previous surgery that suggest
mobility at one area and that she had mild osteoarthritis of
the cervical spine. [R1462].
28, 2014, Plaintiff was admitted to Grady Hospital for her
aneurysm and required further hospitalization due to oozing
from her groin. [R701]. She received a blood transfusion on
May 30, 2014 due to her blood loss. [R711]. On that same
date, she complained of a left shoulder pain and x-rays were
taken that showed inferior humeral head osteophytes,
but no dislocation, no significant AC joint
osteoarthritis, and no soft tissue abnormality. [R726]. She
was discharged on June 1, 2014 but returned on June 5, 2014
due to her oozing groin hematoma. [R852]. Pressure dressing
was placed on her left groin wound and Tramadol was given
without success and then switched to Percocet with good
30, 2014, Grady noted an area of oozing that indicated a
history of a gastric ulcer, [R1324], and a variceal
screening was conducted with an upper endoscopy,
[R1731]. However, a year later, on July 29, 2015, Plaintiff
was seen at Gwinnett Medical Center for vomiting blood and
diagnosed for upper GI and variceal bleed, alcoholic
cirrhosis, thrombocytopenic, anemia of acute blood loss, and
mildly elevated levels of urea nitrogen and serum creatine in
her blood. [R1774-75].
September 9, 2015, Plaintiff was seen at Grady for her
thyroid problem and given medication, [R1848], with a
follow-up on September 13, 2015, [R1852]. On March 8, 2016,
Plaintiff was seen at Grady to follow-up on her Graves'
disease ophthalmic complication, hyperthyroidism, history of
alcohol dependence, cirrhosis with decline in brain function,
varices, ascites, and painful tongue ulcer. [R1857-59].
Plaintiff returned on March 21, 2016, for abduction deformity
of her foot, a mass on her left breast, acute bronchitis, and
feeling tired. [R1872]. She also still had the tongue ulcer,
was severely depressed, had chronic pain, including in her
right arm intermittently and all over her body. [R1880]. She
returned on April 13, 2016 with arm and toe pain after a
mugging five days prior in which she was thrown to the ground
and got large hematomas on her left elbow and arm and
bruising on her foot and toes. [R1884].
21, 2014, View Point Health saw Plaintiff for symptoms of
depression, anxiety, tearfulness, and insomnia and was
diagnosed with alcohol abuse, severe depression, cirrhosis of
the liver, and social support problems. [R1225-26]. On June
9, 2014, Plaintiff returned with the same symptoms and
received the same diagnosis. [R1236-37]. Plaintiff returned
the next day and her symptoms and diagnosis were again the
same. [R1229]. On March 8, 2015 Plaintiff went to Grady for
routine care and referrals for mental health treatment due to
16, 2014, Plaintiff presented for a consultative examination
with Sarah E. Howell, Psy.D., who conducted a psychological
evaluation via a clinical interview and concluded that
Plaintiff met the criteria for Major Depressive Disorder,
Recurrent, Moderate; Adjustment Disorder with Anxiety; and
Alcohol Use Disorder, moderate, sustained partial remission,
and was assessed with minimal or mild limitations in all four
functional domains. [R1240-43].
testified that Plaintiff's past work as an order clerk
was semi-skilled and sedentary, as a recruiter was skilled
and sedentary, as a trainer was skilled and light, as a
software sales representative was medium/light and skilled,
as a telecommunications sales representative was light
skilled, and as a telephone operator was sedentary and
testified that a person of plaintiff's age, education,
and work experience, who can perform light work, as described
in the DOT, never climb ladders, ropes or scaffolds, but can
occasionally climb ramps or stairs, stoop, kneel, crouch and
crawl, and limited to simple, routine work, could not perform
Plaintiff's past work. [R83]. The VE also testified that
the same person without the simple, routine work limitation
could not perform software sales representative jobs at the
medium level, but could do the recruiting, filling orders,
telephone operator, and the AT&T sales representative
jobs. [R83-84]. The VE testified that a person of
plaintiff's age, ...