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Kendle v. Colvin

United States District Court, N.D. West Virginia

November 30, 2016




         Crucita 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.


         Plaintiff 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 Commissioner.

         II. FACTS

         A. Personal History

         Plaintiff 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 education. Id.

         B. Relevant Medical History Summary[1]

1. Carpal Tunnel and hand issues

         Plaintiff 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.

         The 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).

         On July 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. Mueller noted:

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).

         2. Neurodiagnostics Report and Neurological issues

         On 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).

         Plaintiff 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).

         3. Depression and Anxiety

         On 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.

         On 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 therapy. Id.

         Plaintiff 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).

         4. Left leg issues: pain, instability, and numbness.

         On 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.

         Plaintiff 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.

         On 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. Id.

         On 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 examination revealed:

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).

         However, 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).

         On June 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.

         5. Medical History after July 7, 2012

         On 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).

         On 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).

         On 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 capsule. Id.

         On 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.

         On 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. 438).

         By 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.

         At her 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. Id.

         On June 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 administered. Id.

         Plaintiff 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.

         At next 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. 418).

         On 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).

         On 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.

         6. Medical Reports/Opinion

         On 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).

         On 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 ...

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