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”) denying her application for Supplemental
Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”). 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
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.
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.
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,  and it is accordingly ripe for review
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
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
14 at 1].
STATEMENT OF FACTS
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].
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].
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].
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].
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.].
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.].
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].
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.
Physical examination revealed tenderness in the back and
neck, osteoarthritic changes and crepitus in the knees, and
bilateral edema in the ankles with varicose veins in both
legs. [R713-14]. Dr. Carter assessed depression, edema, and
lumbago, but noted that Plaintiff was unable to go
for an MRI or nerve conduction testing due to lack of
insurance. [R714]. He prescribed Gabapentin 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. [Id.].
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,
lumbago, polyneuropathy,  and depression, and prescribed
an increased dose of Gabapentin, continued Sertraline,
and added Diclofenac 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 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.
established primary care with Dr. Alicia Shelly on July 15,
2014 for hypertension, back pain with radiculopathy,
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 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,  for which he prescribed Zanaflex,
Neurontin, hydrocodone-acetaminophen, and
Mobic. [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. [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,  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].
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 assessment. [R1028-29].
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 and Sertraline. [R712-14]. In May 2013,
Dr. Carter refilled Trazodone and prescribed
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.].
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. [Id.]. Upon discharge, she
received assistance from case managers utilizing community
resources to obtain food and clothing. [R808-10].
November 2013 and March 2014, Plaintiff treated with Dr.
Perry at Cherokee Health for anxiety, depression, and
self-harm, and Dr. Perry prescribed Imipramineand
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].
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,
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].
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.
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
ALJ'S FINDINGS OF FACT
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