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Tiffiney W. v. Commissioner, Social Security Administration

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

March 31, 2019

COMMISSIONER, Social Security ADMINISTRATION, [1] Defendant.



         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”) denying her application for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”).[2] The parties consented to magistrate judge jurisdiction. (Dkt. Entry dated 01/29/18). For the reasons set forth below, the Commissioner's decision is AFFIRMED IN PART AND REVERSED AND REMANDED IN PART for further consideration of Plaintiff's claims consistent with this Order and Opinion.


         On December 2, 2011, Plaintiff filed her application for SSI and DIB alleging a disability onset date of April 1, 2011. [Record (hereinafter “R”) 484-85]. These claims were denied initially and upon reconsideration, [R485], but granted after a hearing before an Administrative Law Judge (“ALJ”). [R208-18]. However, on October 22, 2014, the Appeals Council (“AC”) initiated an own-motion review, vacated the ALJ's decision, and remanded the case because Plaintiff had engaged in substantial gainful employment after the alleged onset date. [R220-22].

         On remand, the ALJ was instructed to obtain further evidence regarding Plaintiff's work activities and further develop the record regarding her residual functional capacity (“RFC”). [R222-23]. Supplemental hearings were held at which Plaintiff was represented by an attorney and she amended her alleged onset date to June 20, 2012. [R62, 75, 92, 96]. A vocational expert (“VE”) also testified. [R62-133]. On May 19, 2017, the ALJ denied Plaintiff disability benefits. [R23]. Plaintiff then filed an appeal which the AC denied on August 17, 2017, making the ALJ's decision the final decision of the Commissioner. [R1-6].

         Plaintiff then filed this action on October 12, 2017, seeking review of the Commissioner's decision. [Doc. 1-3]. The answer and transcript were filed on February 8, 2018. [Docs. 8-9]. On April 18, 2018, Plaintiff filed a brief in support of her petition for review of the Commissioner's decision, [Doc. 14], and on May 21, 2018, the Commissioner filed a response in support of the decision, [Doc. 16], to which Plaintiff replied, [Doc. 17]. 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).


         Plaintiff claims that the ALJ made the following errors:

1. The ALJ failed to include work-related limitations in the RFC consistent with the opinions of Dr. Blaine and Dr. Khaleeli, which she accorded great weight, and the ALJ failed to provide any explanation for rejecting the opined limitations. Dr. Khaleeli's opinion of significant limitations was consistent with the opinion of Plaintiff's treating physician, Dr. Amin, which opinion the ALJ improperly discounted.
2. The RFC is unsupported by substantial evidence, because the ALJ failed to develop the record regarding Plaintiff's need to elevate her legs, and relied on her own lay assumption regarding the proper height and angle of elevation necessary to relieve edema.
3. The ALJ's step four and step five determinations are unsupported by substantial evidence because the ALJ relied upon an incomplete hypothetical question asked to the vocational expert.

         [Doc. 14 at 1].


         A. Background

         Plaintiff was born in 1971 and was 41 years old on the alleged onset date. [R484]. Plaintiff completed the eleventh grade and worked in the past as a caregiver. [R496]. She initially alleged disability due to due to depression, leg problems, fluid in legs, and high blood sugar, [R495], but, at the hearing, she alleged disability due to chronic lower extremity edema, neuropathy, hypertension, obesity, osteoarthritis in the knees, degenerative disc disease, fibromyalgia, major depressive disorder, varicose veins, post traumatic stress disorder (“PTSD”), and radial nerve injury of the upper left extremity. [R98-99].

         B. Lay Testimony

         On March 1, 2016, Plaintiff testified at the supplemental hearing. [R93]. She related that she experiences pain in both legs, lower back, knees, toes, and left arm and wrist. [R111-12]. When asked to rate her pain (with 10 being amputation, six being she needs to go to the emergency room and can drive herself, and five being medication takes the edge off), Plaintiff stated that her right leg pain was around a five, her constant lower back pain around five, her left arm and leg were a 10, her constant right knee pain was a five, and her constant pain right leg pain was between a five and 10 depending on whether she had walked or taken medication. [R112-14]. She explained that she can lift up to 40 pounds when her left hand is at its strongest, but that it also sometimes weakens and falls or slips due to an injury that healed improperly. [R117-18]. She explained that she felt that she can only safely lift 15 pounds. [R127]. She endorsed no problems sitting except that when she sits too long her legs stiffen, so she moves five or six times during every hour of sitting or puts her right leg up high for the majority of the day. [R119, 134]. She walks about two miles if she can. [R119].

         Plaintiff testified that she was unable to work “because of my physical limitations at this moment . . . I'm not going to say that I'm like handicapped and I just can't go in and like hold a job . . . I can make myself do that, but it's very uncomfortable leaving work early, I'm uncomfortable . . . I'm dealing with stuff mental . . . I just can't get it together . . . .” [R122]. She explained that she has difficulty concentrating, has depression, and did not like being around people. [R134].

         Plaintiff testified that she was on the following medications: Triamtere for blood pressure and fluid; Gabapentin for her legs and cramps; Zoloft; and Ipramine without side effects. [R108-11]. She testified that she had not been in physical therapy since June 2012, had not received any injections in her back for pain, and was not using any assistive devices to ambulate or splints or braces. [R110-11]. She explained that she was unable to have bariatric surgery as her doctors ordered, in part, due to caring for her daughter after a car accident, and, in part, due to her lack of insurance. [R121, 129]. She also explained that she tried to order a cane and back brace but her insurance would not cover them. [R130].

         Plaintiff testified that she lives alone and subsists on Social Security. [R102]. Access to her apartment was by a total of eight stairs. [R104]. She testified that she owns a car and drives as needed-about four days a week-to grocery shop and go to medical appointments. [R103]. She also attended church and Bible study each once a week and sleeps eight hours through the night. [R115-16]. She testified that she can cook, wash, dress, shop, and clean normally and do crafts as a hobby. [R116-17]. She cared for her daughter after her daughter and infant granddaughter were in a car accident. [R120]. They stayed at her house and she cooked. [Id.]. She also occasionally helped her granddaughter to the bathroom and her daughter, who had broken legs and was in a wheelchair, dress and in and out of her wheelchair. [Id.]. Her other daughters helped with these tasks as well. [Id.].

         She testified that she had applied to jobs in customer service and as a cashier since June 20, 2012, but did not apply for unemployment. [R102-03]. Plaintiff explained that, while self-employed in 2009 through 2012, she was a caregiver for adults, assisting with errands, light housekeeping, paying bills, pet care, light lunches, and occasional turning or feeding them. [R105]. She testified that the heaviest amount she had to lift or carry was turning a 120-pound person. [Id.]. She also was a daycare worker setting food out for children, greeting them, and taking their coats. [R106]. These jobs were all part-time, no more than 20 hours a week, and she did not receive a salary, but her mother (who owned the establishments) handed her money sometimes or took it out of money that Plaintiff owed her. [Id.].

         On December 16, 2016, Plaintiff testified at another hearing on the issue of her past relevant work since her previous disability determination. [R62]. Upon questioning by the ALJ, Plaintiff confirmed that she had worked as a caregiver in 2012 at her mother's boarding house and daycare changing sheets and helping with errands, bills, and some personal hygiene for older boarders. [R66-67].

         C. Medical Records

         1. Physical Impairments

         On June 20, 2012, Plaintiff saw Dr. Carter at Cherokee Health for back and leg pain with some radiating pain in the thighs. [R712]. She felt significant swelling in the ankles, worse on the right, with varicose veins, somewhat helped by compression stockings; she reported that she was trying to keep her legs elevated and exercise more.

         [Id.]. Physical examination revealed tenderness in the back and neck, osteoarthritic changes and crepitus[4] in the knees, and bilateral edema[5] in the ankles with varicose veins in both legs. [R713-14]. Dr. Carter assessed depression, edema, and lumbago, [6]but noted that Plaintiff was unable to go for an MRI or nerve conduction testing due to lack of insurance. [R714]. He prescribed Gabapentin[7] for pain, and advised Plaintiff to wear compression stockings and to “keep legs elevated during the day and at night” for edema with venous insufficiency.[8] [Id.].

         Plaintiff treated with Dr. Carter in November 2012, May 2013, August 2013, and April 2014 for persistent symptoms of fatigue, extremity weakness and numbness, back pain, neck pain, and edema in the ankles. [R700, 706-08, 726-29, 796]. In November 2012, Dr. Carter assessed hypertension, cervicalgia, [9] lumbago, polyneuropathy, [10] and depression, and prescribed an increased dose of Gabapentin, continued Sertraline, [11] and added Diclofenac[12] for pain. [R708-09]. In May 2013, Plaintiff complained of swelling and edema in the ankles, improved with raising legs, and Dr. Carter assessed chronic lumbago, hypertension, depression, obesity, polyneuropathy, malaise and fatigue, and prescribed medications. [R702-03]. In August 2013, physical examination revealed tenderness in the back, osteoarthritic changes in the knees, and bilateral ankle edema. [R728-29]. In April 2014, Plaintiff reported that Maxzide[13] daily only helped ankle swelling slightly, and edema was especially present when she was walking during the day. [R796]. Physical examination revealed osteoarthritic changes in the bilateral knees, bilateral edema of the lower extremities, and bilateral varicose veins. [R798].

         Plaintiff established primary care with Dr. Alicia Shelly on July 15, 2014 for hypertension, back pain with radiculopathy, [14] wrist pain, and muscle spasm. [R739-40]. Dr. Shelly ordered x-rays of the spine, which revealed degenerative disc disease in the mid-back with disc space narrowing and osteophyte[15] formation. [R897]. She referred Plaintiff for pain management, and in November 2014, Dr. Foster observed tenderness to palpation in the lumbar spine, pain with range of motion of the left wrist, and antalgic gait, [16] for which he prescribed Zanaflex, [17] Neurontin, hydrocodone-acetaminophen, and Mobic.[18] [R891-93]. Plaintiff maintained primary care with Dr. Shelly, with treatment encounters in January, April, and December 2015, and Dr. Shelly prescr ibed medications for hypertension, depression, and fibromyalgia.[19] [R950-59]. Dr. Shelly opined that due to her conditions Plaintiff needed to elevate her legs whenever she is sitting down. [R1025]. In April 2016, Dr. Shelly wrote a statement indicating that she treats Plaintiff for fibromyalgia, peripheral neuropathy, major depression, hyperlipidemia, [20] and hypertension, and Plaintiff experiences bilateral burning sensations down her legs with cramping, as well as bilateral swelling. [R992]. These symptoms interfered with her walking and have caused falls. [Id.]. Dr. Shelly's treatment notes from April 1, 2016 and May 27, 2016 document complaints of numbness in both feet with tingling in the fingers, and Dr. Shelly prescribed Gabapentin for neuropathy. [R994, 996].

         In May 2016, Plaintiff treated at Atlanta Heart Associates, P.C., and clinical findings included edema with chronic visible variscosities in the legs. [R1022]. She was referred for testing, which revealed significant venous reflux disease. [R1019]. Edema was again present in August 2016, and Dr. Menchion ordered a left lower extremity dialysis graft[21] assessment. [R1028-29].

         2. Mental Impairments

         Throughout the relevant period Plaintiff also treated for various mental impairments, including depression, anxiety, PTSD, and borderline personality disorder. In June 2012, Plaintiff treated with Jeffrey Bull, Ph.D., who noted objective findings including fair reasoning, judgment, insight, and impulse control, irritable attitude, fidgety and agitated motor activity, rapid speech, depressed and labile mood, and expansive affect. [R715-16]. Plaintiff's primary care physician, Dr. Carter, treated these conditions with Trazodone[22] and Sertraline. [R712-14]. In May 2013, Dr. Carter refilled Trazodone and prescribed Venlafaxine.[23] [R702-03].

         In August 2013, Plaintiff reestablished care with Dr. Bull for behavioral health due to increasing symptoms, with depressed mood, trouble sleeping, fatigue, tearfulness, trouble concentrating, and isolating, with self-harm (cutting) to relieve emotional symptoms, as well as of intrusive thoughts of past abuse, irritability, and reactivity. [R730]. Mental status examination revealed poor insight and judgment, irritable attitude, depressed/labile mood, rapid and loud speech, and agitated motor activity. [Id.].

         Plaintiff's condition persisted, and in October 2013, Dr. Bull recommended inpatient care with the Crisis Stabilization Unit (“CSU”), and Plaintiff was admitted for crisis care on October 21, 2013. [R718]. She was discharged on October 24, 2013 with a diagnosis of major depression PTSD, and a GAF of 40.[24] [Id.]. Upon discharge, she received assistance from case managers utilizing community resources to obtain food and clothing. [R808-10].

         In November 2013 and March 2014, Plaintiff treated with Dr. Perry at Cherokee Health for anxiety, depression, and self-harm, and Dr. Perry prescribed Imipramine[25]and Gabapentin. [R800-03].

         Plaintiff treated with Eboni Winford, Ph.D., on September 3, 2014 for major depression, PTSD, and personality disorder, and she was referred for therapy. [R795]. On November 10, 2014, Plaintiff presented to Clayton Center to establish care for depression and self-harm and symptoms associated with past sexual trauma, as she was raped at age 14. [R869]. Reported symptoms included lack of appetite, weight gain, irritability, sleep disturbance, flashbacks, and daytime fatigue. [R864]. Her mood was depressed and she endorsed visual and auditory hallucinations, where she would see shadows, smell her abuser, and hear the sounds of the playground where she was abused. [R866]. Witni Jackson, LCSW, assessed major depressive disorder and PTSD. [R867].

         Plaintiff maintained care at Clayton Center throughout 2015 and 2016 for ongoing symptoms, with an exacerbation of depressive symptoms in December 2015, when she complained of severe depression following the death of her sister. [R913-48, 969-90].

         3. Medical Opinions

         On April 30, 2012, Dr. Khaleeli completed a mental residual functional capacity assessment that detailed Plaintiff's ability to perform a variety of mental work activities. [R674-75]. Dr. Khaleeli opined that Plaintiff was markedly limited in ability to interact with the general public, and moderately limited in ability to work with and in proximity to coworkers and to accept instructions and criticism from supervisors. [R675]. Dr. Khaleeli explained in a narrative statement that Plaintiff “cannot interact appropriately with the public, but can interact appropriately with coworkers and supervisors occasionally during a workday” in an appropriate work environment. [R675-76].

         Plaintiff presented for a consultative examination with Dr. Blaine on May 8, 2012, and complained of consistent leg swelling, not relieved by medications. [R679]. She reported that this condition this causes difficulty walking, and compression stockings did not help. [Id.]. Examination revealed decreased range of motion in the spine, shoulders, hips, and knees, with pitting edema in both legs from the knees down. [R680-81]. She had a wide stance due to obesity, and her gait was antalgic, favoring the right leg. [R681]. She was unable to tandem walk, but could stand independently on either foot for several seconds. [Id.]. Dr. Blaine diagnosed right leg pain due to edema, and opined Plaintiff could stand or walk for two hours total in an eight-hour workday. [Id.]. He opined that Plaintiff could lift and carry up to about 20 pounds “infrequently, ” and she could sit for eight-hours with reasonable rest breaks. [Id.].

         D. Vocational-Expert Testimony

         The VE testified that a person of plaintiff's age, education, and work experience could perform Plaintiff's past work as a home caregiver in the light duty category, with a reduced number of jobs available, with an RFC as follows: able to lift and carry up to 20 pounds occasionally, 10 pounds frequently; able to stand and/or walk five hours per eight-hour day, and sit six hours per eight-hour day with normal breaks; able to climb ramps and stairs, occasionally, but never climb ladders, ropes and scaffolds; able to balance frequently, stoop and crouch occasionally, but never kneel or crawl; able to perform occasional operational foot controls bilaterally; and must avoid concentrated exposure to extreme heat, extreme cold, and hazards such as dangerous moving machinery, and unprotected heights. [R82-84]. Alternatively, the VE testified that the same hypothetical person with the additional limitations of being able to understand, remember, and carry out simple, and detailed instructions; able to make simple, work related decisions, adapt to occasional changes in the work process and environment; able to maintain concentration for two hours at a time in an eight-hour workday; and able to engage in no more than frequent interaction with the public, coworkers, and supervisors, could perform the home healthcare giver, stock clerk, order filler, or industrial hand packer. [R84-85]. However, the VE testified that if Plaintiff needed to elevate her legs to waist level when seated, competitive employment would be precluded. [R85].


         The ALJ made the following findings of fact:

1. Claimant meets the insured status requirements of the Social Security Act through December 31, 2017.
2. Claimant has not engaged in substantial gainful activity since June 20, 2012, the amended alleged onset date (20 CFR ...

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