United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION/OPINION
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE
Vaye Kendle (“Plaintiff”) brought this action
pursuant to 42 U.S.C. § 405(g) for judicial review of
the final decision of the Defendant, Commissioner of the
Social Security Administration (“Defendant”),
denying Plaintiff's claim for disability insurance
benefits (“DIB”) under Title II of the Social
Security Act. The matter is awaiting decision on cross
motions for summary judgment and has been referred to the
undersigned United States Magistrate Judge for submission of
proposed findings of fact and recommended disposition. 28
U.S.C. §§ 636(b)(1)(B); Fed.R.Civ.P. 72(b); L.R.
Civ. P. 9.02.
filed an application for DIB on August 22, 2012, alleging
disability beginning on July 7, 2012. Plaintiff's
application was denied at the initial level on March 29,
2013, and at the reconsideration level on September 12, 2013.
Plaintiff thereafter requested a hearing, which
Administrative Law Judge (“ALJ”) John T. Molleur
held on November 8, 2013. Plaintiff was represented by H. K
Carpenter at the hearing (but is represented by attorney Jan
Dils, generally). Plaintiff and Patricia G. McFann,
Vocational Expert (“VE”), testified at the
hearing. The ALJ entered a decision on November 21, 2014
finding Plaintiff was not disabled. Plaintiff appealed this
decision to the Appeals Council. On January 11, 2016, the
Appeals Council denied Plaintiff's request for review,
making the ALJ's decision the final decision of the
testified as to her personal information at the
administrative hearing on November 4, 2014. She was born on
July 5, 1957, and was fifty-seven (57) years old at the time
of the hearing (R. 64). She was currently married, and lived
with her husband in Middlebourne, West Virginia. Id.
She graduated from high school, her highest level of
Relevant Medical History Summary
1. Carpal Tunnel and hand issues
was diagnosed with carpal tunnel as early as February 10,
2006 as per records from Plastic Surgery, Inc., noting on
that date that she has “mild intermittent carpal tunnel
symptoms still” (R. 443). She was searching for
employment that she would be able to do with her restrictions
from carpal tunnel, and was “hopeful to either get a
new job or vocational training.” Id. At her
next visit on October 10, 2006, notes indicate that she
“tried pizza making for a while but that was too hard
on her hands.” Id. She was currently working
in receiving at Cabela's and apparently conveyed that she
was hoping to get a housekeeping job. Id.
next visit to Plastic Surgery on February 15, 2008 found
Plaintiff employed “working with homebound mentally
challenged patients, ” that she “seem[ed] to like
that a lot” (R. 443). However, her carpal tunnel
symptoms were exacerbated at this visit despite having had
three injections, and an EMG showed slowing of the right
median nerve (R. 444). Dr. Kappell recommended decompression
surgery. Id. Plaintiff underwent decompression
surgery on her right arm on August 19, 2008, and on her left
arm on November 20, 2008 (R. 445).
16, 2009, Plaintiff sustained an impacted pilon fracture at
the base of her left “small” (presumably, pinky)
finger, with pain primarily in the PIP joint (R. 446-47).
Doctors inserted pins, and Plaintiff had a dynamic traction
splint applied (R. 448). Physical therapy for the finger was
also recommended, though Plaintiff did not ultimately attend
because she was doing well, and her finger was functional as
of October 1, 2009 (R. 452). As of December 3, 2009, Dr.
Ms. Kendle is . . . making beautiful progress with motion in
the small finger up to 203 degrees active motion and 218
passive . . . no limitations in function except occasionally
coins can slip through the ulnar side of her fist. I think we
can discharge her to follow up as needed at this point. She
is going to continue her exercises at home and if she has any
trouble she knows to call and we will be happy to see her
anytime. (R. 453).
Neurodiagnostics Report and Neurological issues
October 5, 2011, Dr. Srini Govindan reviewed Plaintiff's
polysomnograph and conducted a neurological examination, the
results of which both largely appeared normal (R. 297).
However, Dr. Govindan recommended a Titration PSG study in
regard to apneas; he also noted that Plaintiff's
condition had worsened since a prior polysomnograph in May
2008, and she still complained of memory problems and
tiredness (R. 297-8).
gain saw Dr. Govindan on November 7, 2013 because her
migraines were getting worse (R. 485). Neurological problems
included “gait balance disturbance, headache, [and]
migraine;” Plaintiff exhibited decreased sensation in
her left leg, and decreased reflexes generally (R. 488).
Depression and Anxiety
February 7, 2012, Plaintiff was seen by Gary Nichols, M.D.
reporting with a history of GERD, irritable bowel syndrome,
hypertension, deep vein thrombosis, low back pain, general
anxiety disorder, COPD, constipation, sleep apnea, and IgA
deficiency (R. 377). She complained of worsening depression
and anxiety symptoms, pursuant to increasing social stressors
at home and family problems. Id. She had been
experiencing crying episodes, irritability, trouble sleeping,
and low appetite over the past two months. Id. Dr.
Nichols observed her demeanor as “pleasant, ” but
also “tearful at times.” Id. She was
already taking the maximum dose of Cymbalta at that time, as
well as Klonopin three times a day. Id. She had
tried Zoloft in the past, but it had no effect; Dr.
Nichols' treatment plan was to wind down her Cymbalta
dosage and switch to Prozac. Id.
March 8, 2012, she was seen by Liz Harshberger at Crittenton
Services, Inc. pursuant to anxiety and depression:
[S]he has been depressed since her mother died about 3 years
ago. Additional stressors have been the death of her uncle,
marital problems (with some physical abuse), and conflicts
with her husband's family. She has the following
symptoms: depression, anxiety, poor appetite with weight loss
of 21 pounds, sleep difficulties, irritability, poor
concentration, low self esteem, decreased energy, withdrawal
from others, decreased interest in activities.
(R. 478). Assessments indicated that Plaintiff often cried
and felt anxious, depressed, irritable, withdrawn, hopeless
and short tempered (R. 469-70). She reported conflict
(arguments with her husband and his family), trouble
concentrating, and low self esteem. Id. She reported
suffering from insomnia and chronic back and leg pain (R.
470). “Somatic concerns and anxiety [were] moderately
severe, ” and that “depression, guilt, and
hostility are at moderate” (R. 476). Clinical
impressions included “Major Depressive Disorder,
recurrent, moderate, ” problems with primary support
group (Axis IV), and moderate symptoms or difficulty in
social impairment, occupational, or social functioning (Axis
V) (R. 474-75). Treatment strategies identified at that
assessment included participation in therapy twice monthly -
addressing grief issues, self esteem, ways to manage mood,
and marital problems - as well as cognitive behavioral
returned to Dr. Nichols on April 10, 2012 (R. 375). She
reported no side effects from switching to Prozac, but
although her mood is good in the morning (rated 8/10), it is
much worse in the evening (3/10), and she has a great deal of
irritability. Id. Dr. Nichols adjusted her Prozac
dosage with a follow-up in four months for depression and
anxiety. Id. Her follow-up on August 8, 2012 is
incomplete as only half the page has scanned in the medical
record, but from what is visible, it appears to provide no
new information (R. 373).
Left leg issues: pain, instability, and numbness.
January 19, 2012, Plaintiff had an x-ray on her left ankle
following a recent fall. Radiologist Phillip Strohl, M.D.
reviewed her images and observed:
The bones are slightly osteopenic. I believe there is a Mach
band overlying the medial aspect of the lateral malleolus
related to superimposed tibial structures. There is a small
bony density adjacent to the lateral aspect of the calcaneus.
This is concerning for a small avulsion fracture at the
origin of the extensor digitorum brevis muscle. Clinical
follow-up is suggested.
(R. 520). Plaintiff reported that she was working as a home
health aide when her knee “went out” as she was
going down her client's stairs, causing her ankle to
twist (R. 524). Her client caught her when she fell.
Id. On January 31, 2012, Plaintiff had another x-ray
of her left ankle as suggested by Dr. Strohl to check for
fracture; Radiologist Terry Shank, M.D. observed that the
tibiotalar joint was intact with no evidence of fracture seen
(R. 527). However, the x-ray did note “mild
spurring” and degenerative changes at the
tarsal-metatarsal joints. Id.
was seen by Michael Shramowiat, M.D. at the Mountaineer Pain
Relief and Rehabilitation Centers beginning on February 2,
2012, for electrodiagnostic studies of the left lower
extremity (R. 313). The studies were ordered pursuant to a
recent left malleolar fracture and ongoing low back pain.
Id. Results of an electromyography
(“EMG”) showed left tibial and peroneal
neuropathy. Id. Dr. Shramowiat's treatment plan
included prescriptions for Norco and Flexeril, icing the
affected areas, and a TENS unit. Id.
March 6, 2012, a third x-ray of Plaintiff's left ankle
showed mild soft tissue swelling (R. 533). Dr. Strobl
recommended further evaluation of the persistent left ankle
pain through a nuclear medicine bone scan, a CT, or an MRI.
April 12, 2012, Plaintiff returned complaining of neck and
low back pain in the past month, as well as her ongoing
chronic left lower extremity pain (R. 312). A physical
On exam, the patient has painful cervical paravertebral
region. Muscle tightness of the upper trapezius
"'him have trigger points. There is some lower
lumbar paravertebral and paraspinal muscle tlghtn1iss and
tenderness. Upper extremity strength is 515.
Brachioradialis reflexes . Sensation is intact.
On exam, right lower extremity strength is 5/5 and left is
4/5. There is pain at extension of the left knee. Pain to
palpitation over the knee. She has slightly decreased flexion
and extension of the knee. The patient has swelling over the
medial and lateral aspect of the ankles on the lower foot.
Slightly decreased in range of motion of the foot. There is
tenderness [over the medial and lateral aspect of the ankle
with some decreased range of motion]. She has two areas on
the lateral and medial aspect of the lower extremity that has
rashes. They are maculopapular and pruritic. LS nerve root
distribution has paresthesias. Some laxity over the left knee
to palpation and range of motion.
1. Neck pain. 723.1
2. Low back pain. 724.2
3. Pain in limb. 729.5
4. Dermatitis, left lower extremity.
(R. 311-12). Dr. Shramowiat ordered a bilateral cervical
paravertebral injection of Methyprednisolone and Lidocaine,
and a spinal X-ray. Id. Plaintiff was also referred
to an orthopedic specialist for an additional opinion as to
her left knee and left lower tibia fracture. Id.
Plaintiff was to have a follow-up visit at Mountaineer Pain
Relief in two months. Id. A fourth x-ray on April
17, 2012 was again relatively normal, and an MRI was again
suggested (R. 537).
Plaintiff returned early on May 29, 2012, complaining of
continued neck pain radiating to both shoulders and lower
extremity pain (R. 309). Dr. Shramowiat noted that Plaitniff
was seeing Dr. Krivchenia for the fracture, instability, and
chronic pain. She had also reported “fall[ing]
frequently, usually once daily, ” and had a large
bruise on her chest from one such fall. Id. At this
visit, Plaintiff had:
[S]ome discomfort with range of motion of the cervical spine.
There is bilateral occipital nerve tenderness. Tenderness and
tightness of the upper trapezius muscles. Upper extremity
strength is 5/5. Brachioradialis reflexes , Sensation
grossly intact. Lower extremity strength is 5/5 on the right
and 4/5 on the left. Pain with extension over the left knee.
Palpable tenderness over the entire knee. No effusion. Pain
with range of motion of the left ankle including a slight
decrease in dorsiflexion and eversion. Palpable tenderness on
the medial and lateral aspect of the left ankle. Decreased
sensation 15 nerve root distribution on the left. Negative
straight leg raise. Paresthesias on the right foot.
The patient has a contusion on the right lateral lower rib
cage region which is slightly tender to palpation.
Id. Dr. Shramowiat's assessment included neck
pain, greater occipital neuralgia, limb pain, osteoarthritis
of the knee, and history of left tibial fracture.
Id. He ordered bilateral occipital nerve blocks
containing Methylprednisolone and Lidocaine. At
Plaintiff's next visit, on June 7, 2012, Dr. Shramowiat
noted she had done well with the nerve blocks, but still
experienced left leg and low back pain (R. 308).
12, 2012, Plaintiff was seen by Dr. Edward McDonough at the
WVU Department of Orthopaedics (R. 301). Dr. McDonough
related the following history:
[O]n October 12, 2010, she fell while at work with her knee
flexed underneath her. She had no problems with her knee or
ankle prior to this injury. According to the patient, she was
diagnosed with a tibial plateau fracture, which went on to
heal; however, she continued to have complaints of pain and,
therefore, was provided with a corticosteroid injection,
which did not provide any relief in her pain, not even
temporarily. She was sent to physical therapy, was not really
making any progress in that and then in approximately January
of this year, she was walking when her knee buckled and she
sustained an ankle fracture. She apparently has been in a Cam
boot since then, as well as ambulating with a postoperative
knee brace. She continues to complain of buckling of her knee
even with straight ahead walking as well as chronic pain in
the knee, primarily around the anterior aspect of her knee.
She utilizes a cane for ambulation. She has noticed some
swelling. She reports her pain is constant. She also notices
some numbness down her whole leg from her thigh down to her
toes and this includes the anterior, medial, lateral, and
posterior aspects of her leg. She takes hydrocodone 10/325
mg, Flexeril and Relafen for her leg with continued
complaints. A lot of the pain in her ankle is located around
the medial side of her ankle.
Id. A radiograph on her knee was essentially
negative. Id. An MRI from Wetzel County Hospital
dated November 8, 2010 reported findings consistent with a
medial tibial plateau fracture. (R. 301-2). It further showed
a subacute anterior cruciate ligament (“ACL”)
tear involving the proximal and substance fibers, and mild
strain of the medial and lateral collateral ligaments (R.
302). Plaintiff also had a small Baker cyst “with
rupture noted with joint effusion and chondromalacia of the
medial compartment of the knee.” Id. Dr.
McDonough's assessment was left chronic ankle and knee
pain. Id. His treatment plan recommended
conservative treatment, noting Plaintiff's pain and
numbness, and opined that he did not think surgery was an
option for her. Id. Dr. McDonough recommended
physical therapy and a different knee brace. Id.
Medical History after July 7, 2012
August 2, 2012, Plaintiff was seen again at Mountaineer Pain
Relief with continued complaints of left leg pain and
occasional swelling in that limb (R. 307). Dr. Shramowiat
performed another physical examination:
Left lower extremity 415. Right lower extremity
strength is 5/5.
She has moderate effusion at the left knee. Pain at the end
range of extension at the left knee. Joint line tenderness
medially and laterally. Mild edema in the right lower
extremity. Pain with palpation in the calf and ankle but
Homan's negative. The patient has moderate muscle
tightness in the lumbar paravertebral region.
1. Osteoarthritis of the knee. 715.36
2. Low back pain. 724.2
3. Pain in limb. 729.5
Id. On September 4, 2012, she returned to
Mountaineer Pain Relief reporting “constant left lower
extremity pain, worst just above left knee and diffuse pain
throughout entire left ankle, ” and that her
“medication regimen decreases pain to an acceptable
level.” (R. 305). Her gait was antalgic, even with the
knee ankle foot orthosis (KAFO) ambulatory aide in place, and
there was “notable atrophy throughout left lower
extremity.” Id. Dr. Shramowiat referred
Plaintiff for physical therapy three times per week, for four
weeks. Id. Plaintiff was also to have two MRIs, one
on her lumbar spine and one on her left knee, as well as an
EMG on her left knee, which was covered by Worker's
Compensation (R. 306).
September 13, 2012, results of the EMG showed “slowed
left tibial and motor conduction velocity” and “a
left tibial neuropathy, ” relevant to ongoing pain and
numbness in her left leg and foot (R. 304, R. 318-21).
September 18, 2012, Plaintiff had the two MRIs conducted at
Sistersville General Hospital (R. 314). The report of the
spinal MRI, signed by radiologist Terry Shank, M.D.,
identified mild thinning of the intervertebral disc spaces
throughout the lumbar spine and mild facet hypertrophy at
¶ 4-5 and L5-S1. The report of the left knee MRI, signed
by radiologist Bernard Garrett, D.O., observed that
ligaments, cartilage, and tendons appeared intact (R. 315).
No altered signal was seen in the bone barrow, but some
altered signal was observed in the subchondral and posterior
aspect of the femoral condyle. Id. Radiologist
Garrett opined this was most likely due to degenerative
change or possibly old injury. Id. A small amount of
fluid was observed in the suprapatellar bursa and joint
September 27, 2012, Dr. Shramowiat reviewed an MRI of
Plaintiff's left knee dated September 18, 2012 (R. 303).
A physical examination revealed “severe joint pain
medially and laterally at the left knee, pain at the end
range of extension, moderate effusion at the left knee, [and
. . .] mild atrophy in the left calf from disuse.”
Id. At this visit, Dr. Shramowiat injected
Plaintiff's left knee joint again with Methylprednisolone
and Lidocaine. Id.
November 1, 2012, Plaintiff returned for a follow-up,
reporting neck pain and tightness (R. 440). She reported that
the injections she has received and the medications she takes
decrease the severity. Id. A physical examination
was normal, with the exception of mild restrictions on the
cervical range of motion. Id. Dr. Shramowiat's
assessment was neck pain pursuant to trapezius muscle spasms.
Id. She was again given another Methylprednisolone
and Lidocaine injection. Id. At this same visit, Dr.
Shramowiat also addressed her ongoing constant left lower
extremity pain, with Plaintiff reporting “constant pain
at the knee with shooting type pain as pointed to throughout
tibialis anterior region as well as diffuse pain throughout
entire left ankle” (R. 439). She also reported
instability of her left lower leg and related falls that
happen when she does not wear her brace. Id. At her
next appointment on January 2, 2013, nothing had changed (R.
February 27, 2013, Plaintiff reported her left leg pain was
increasing in frequency and severity, and medications that
used to work reasonably well now only
“intermittently” decreased pain to an acceptable
level (R. 437). She inquired about surgery, but the most
recent assessment a year ago indicated she was not a
candidate for surgery. Id. Her gait was antalgic;
Dr. Shramowiat observed decreased left knee strength, diffuse
tenderness of the left knee, and mild restrictions with knee
flexion an extension. Id. Dr. Shramowiat referred
Plaintiff to an orthopedic surgeon; she was awaiting
authorization for physical therapy at that time. Id.
next appointment on April 25, 2013, her leg pain and
instability remained unchanged; she again reported daily pain
that worsened with weight-bearing activities, and worsened at
night (R. 436). The referrals and authorizations Dr.
Shramowiat requested were denied by Workers' Compensation
on April 2, 2013, because Plaintiff was “at maximum
medical improvement with no need for further
treatment.” Id. Upon physical examination, her
gait was still antalgic, she still had tenderness throughout
left knee down to her left ankle, and her left leg strength
was decreased still at her hip and knee. Id. Dr.
Shramowiat noted Plaintiff was continuing to work with an
attorney to get her injuries and treatment addressed.
25, 2013, Plaintiff returned to Mountaineer Pain Relief still
complaining of chronic neck pain that radiated between her
shoulders and was worse on the left; she also reported
stiffness and crepitus in her spine (R. 428). A physical
examination revealed decreased cervical range of motion,
cervical paravertebral tenderness, and moderate bilateral
trapezius muscle tightness and tenderness. Id.
Methylprenisolone and Lidocaine injections were again
returned again on October 22, 2013 after her knee gave out on
her, causing her to fall and hit her head on the linoleum
floor, resulting in headaches, increased neck pain, and
increased upper left arm pain (R. 425). Plaintiff reported
headaches in the back of her head that radiate to the frontal
region bilaterally, as well as dizziness and changes in
vision (R. 423). Zomig, which used to alleviate her
headaches, was not helping the headaches she had since her
fall (R. 425). A physical examination revealed mild
restrictions in cervical range of motion and moderate
tenderness over the greater occipital nerves, as well as
moderate tightness and tenderness of the trapezius muscle.
Id. Dr. Shramowiat diagnosed cephalgia, status post
fall; greater occipital neuralgia, neck pain, and left
cervical radiculopathy, for which Plaintiff was given double
her usual dose of injections. Id. Her problems with
her left leg continued unabated from the last visit (R. 423).
On November 5, 2013, results of a urine screen on October 22,
2013 - apparently done periodically for Plaintiff because she
was prescribed strong narcotic pain relievers - showed that
she was taking her Hydrocodone but had not taken the
Hydromorphone (R. 432). A note indicating that office
personnel had notified Plaintiff to take her medications as
prescribed was handwritten on this screen. Id.
Subsequent screens showed that Plaintiff was consistently
taking prescription-strength pain medications.
appointment on December 18, 2013, Plaintiff reported that her
headaches had subsided, but her left knee pain and
instability continued unabated (R. 422). A physical
examination was essentially the same, with Plaintiff
reporting discomfort throughout the range of motion testing.
Id. On March 6, 2014, Plaintiff continued to
complain of daily neck pain of varying intensity with
intermittent pain radiating to her shoulders, moreso in her
left shoulder (R. 420). Chronic left knee pain and
instability continued unabated. Id. On May 5, 2014,
Dr. Shramowiat observed that she had difficulty walking and
could only walk short distances (R. 419). Moderate to severe
muscle tightness in the thoracic paravertebral region and
crepitus at the left knee were also present. Id. No
changes were noted at her next visit on July 3, 2014 (R.
August 26, 2014, Dr. Shramowiat again noted constant and
chronic low back and neck pain, osteoarthritis and pain in
her left knee, and numbness in her left leg. (R 417) She
requested a referral to a surgeon for a consult. Id.
An x-ray of Plaintiff's sacrum and coccyx, pursuant to
“two falls recently with tailbone pain, ” showed
no fractures but calcified pelvic phleboliths (R. 616). An
x-ray dated September 14, 2012 of Plaintiff's right foot
showed “abnormal appearance of the distal
interphalangeal joint of the second digit;” showing a
dislocated distal phalanx but no fracture (R. 618).
October 14, 2014, Plaintiff was seen by Heidi Rusk, PA-C who
reviewed x-rays of both knees and diagnosed osteoarthritis of
the left knee, for which she received another injection (R.
637). Physical therapy for knee strengthening and
conditioning was also recommended; the provider told
Plaintiff that “many of the symptoms going down the
leg, and likely the leg weakness, is coming from her low back
and not her knee.” Id. Plaintiff's most
recent documented visit to Dr. Shramowiat at Mountaineer Pain
Relief was consistent with prior visits; Plaintiff continued
to have constant and chronic low back pain, neck pain, and
left knee pain (R. 639). Doctor Shramowiat also noted that
Plaintiff saw Dr. Herriott the day prior; he gave her an
injection in her knee, and was “going to try to hold on
surgery on the left knee at this time” (presumably,
“hold off on”). Id.
November 14, 2012, results of a Ventilatory Function test
showed a normal FEV1 but reduced FEV1/FVC ratio, leading to a
diagnosis of “minimal obstructive airways disease -
peripheral airway” (R. 324).
February 20, 2013, Frank Bettoli, Ph.D. of Parkersburg
Psychological Services conducted a consultative evaluation of
the Plaintiff (R. 328). Dr. Bettolli noted that she walked
with the assistance of her cane and wore a brace on her knee
(R. 330). Plaintiff's appearance, attitude/behavior,
demeanor, and mood were appropriate. Id.
Plaintiff's thought process was “somewhat expansive
and tangential, ” while her thought content was
“generally relevant, though as times irrelevant and
with excessive detail.” Id. She has had
suicidal thoughts in the past, though denied having them at
present. Id. Immediate memory and recent memory was
“mildly deficient, ” while remote memory was
“fair” (R. 331). Although her persistence and
pace were within normal limits, her concentration was poor.
Id. Social ...