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Tracy M. v. Commissioner of Social Security Administration

United States District Court, N.D. Georgia, Atlanta Division

March 29, 2019

TRACY M., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.[1]

          ORDER AND OPINION

          ALAN J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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”).[2] 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.

         I. PROCEDURAL HISTORY

         On 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 omitted).

         Plaintiff 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, [3] and it is accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. PLAINTIFF'S CONTENTIONS

         Plaintiff 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].

         III. STATEMENT OF FACTS

         A. Background

         Plaintiff 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, [4] cirrhosis, [5] thrombocytopenia, [6] anemia, hypothyroidism, [7] acute kidney injury, jaundice, and Graves' disease.[8] [R299].

         B. Lay Testimony

         At the 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].

         Plaintiff 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].

         Plaintiff 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].

         Plaintiff 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].

         Plaintiff 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[9] 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. [R69-70].

         Plaintiff recounted that she had “brain surgery” in 2014 due to an aneurysm.[10][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].

         Plaintiff 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. [R76].

         C. Medical Records

         1. Physical Impairments

         On July 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[11] in her foot. [R383]. She also had some chronic heel valgus problems[12] 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].

         On 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[13] with talonavicular capsule/spring ligament reefing, [14] right foot medial column flexor digitorum longus transfer, [15] right first, second, and third TMT joint fusion, and a right gastrocnemius recession.[16] [R360].

         Plaintiff 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].

         On 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[17] in the heel valgus. [R375].

         On 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, [18] he wanted to review her CT scan. [Id.].

         Chastain 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[19] 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, [20] and partial weight bearing with the use of crutches. [R386].

         Plaintiff 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[21] without evidence of cholecystitis, [22] and a nonobstructing right renal stone. [R1135-36, 1146].

         On 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.[23] [R428-29]. Another guided paracentesis was performed and revealed some ascites. [R446]. She was discharged on February 28, 2014. [Id.].

         She 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”)[24] 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, [25] hypothyroid, and an ICA aneurysm. [R555].

         Plaintiff 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[26] 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].

         Grady Hospital saw Plaintiff on May 7, 2014 for a diagnostic cerebral angiogram, [27] 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].

         Plaintiff 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].

         On May 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[28] osteophytes, [29] but no dislocation, no significant AC joint[30] 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[31] with good results. [Id.].

         On July 30, 2014, Grady noted an area of oozing that indicated a history of a gastric ulcer, [R1324], and a variceal screening[32] 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].

         On 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].

         2. Mental Impairments

         On May 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 depression. [R1856].

         3. Medical Opinions

         On June 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].

         D. Vocational-Expert Testimony

         The VE 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 semi-skilled. [R81-83].

         The VE 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, ...


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