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Pruitt v. Berryhill

United States District Court, S.D. West Virginia, Charleston Division

March 9, 2017

AMY J. PRUITT, Plaintiff,



         This is an action seeking review of the final decision of the Acting Commissioner of Social Security which partially denied the Plaintiff's application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. By Order entered June 27, 2016 (Document No. 4.), this case was referred to the undersigned United States Magistrate Judge to consider the pleadings and evidence, and to submit proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are the parties' cross-Motions for Judgment on the Pleadings. (Document Nos. 17 and 20.)

         Having fully considered the record and the arguments of the parties, the undersigned respectfully RECOMMENDS that the United States District Judge GRANT Plaintiff's request for judgment on the pleadings (Document No. 17.), DENY Defendant's request to affirm the decision of the Commissioner (Document No. 20.); REVERSE the final decision of the Commissioner and REMAND for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g); and DISMISS this action from the docket of the Court.

         Procedural History

         The Plaintiff, Amy J. Pruitt (hereinafter referred to as “Claimant”), protectively filed her application for Title II benefits on June 26, 2012, alleging disability since May 20, 2012 due to “upper tibial fracture reflex sympathetic dystrophy, knee injury to left leg, and RSD in left leg due to knee injury”.[2] (Tr. at 179.) Her claim was initially denied on August 20, 2012 (Tr. at 104-108.) and again upon reconsideration on December 10, 2012. (Tr. at 110-116.) Thereafter, Claimant filed a written request for hearing on January 15, 2013. (Tr. at 117-118.) An administrative hearing was held on June 19, 2014 before the Honorable Toby J. Buel, Sr. (Tr. at 37-74.) On October 2, 2014, the ALJ entered a partially favorable decision finding Claimant was entitled to a period of disability and disability insurance benefits ending on November 18, 2013. (Tr. at 16-36.) On November 28, 2014, Claimant sought review by the Appeals Council of the ALJ's decision. (Tr. at 14-15.) The ALJ's decision became the final decision of the Commissioner on February 5, 2016 when the Appeals Council denied Claimant's Request for Review. (Tr. at 1-6.) After having requested and being granted an extension of time to file a civil action (Tr. at 10-12, 7-9.), on June 27, 2016, Claimant timely brought the present action seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (Document No. 2.) The Commissioner filed an Answer and a Transcript of the Administrative Proceedings. (Document Nos. 10 and 11.) Subsequently, Claimant filed a Brief in Support of Motion for Judgment on the Pleadings (Document No. 17.), in response, the Commissioner filed a Memorandum in Support of Judgment on the Pleadings (Document No. 20.), to which Claimant filed a reply. (Document No. 21.) Consequently, this matter is fully briefed and ready for resolution.

         Claimant's Background

         Claimant was 42 years old on November 19, 2013, the date the ALJ determined her disability ended; she would be defined as a “younger person” by the Regulations on the date last insured (“DLI”). See 20 C.F.R. § 404.1563(c). (Tr. at 46.) Claimant has at least a high school education plus two years of college. (Tr. at 49.) Claimant primarily performed office work during the fifteen year relevant time-period, which included answering phones, scheduling appointments, or handling payroll and taxes for her employers. (Tr. at 51.) She stopped working when she broke her leg. (Tr. at 52.)


         Under 42 U.S.C. § 423(d)(5) and § 1382c(a)(3)(H)(i), a claimant for disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable impairment which can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A).

         The Social Security Regulations establish a “sequential evaluation” for the adjudication of disability claims. 20 C.F.R. § 404.1520. If an individual is found “not disabled” at any step, further inquiry is unnecessary. Id. § 404.1520(a). The first inquiry under the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. § 404.1520(b). If the claimant is not, the second inquiry is whether claimant suffers from a severe impairment. Id. § 404.1520(c). If a severe impairment is present, the third inquiry is whether such impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4. Id. § 404.1520(d). If it does, the claimant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether the claimant's impairments prevent the performance of past relevant work. Id. § 404.1520(f). By satisfying inquiry four, the claimant establishes a prima facie case of disability. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claimant is able to perform other forms of substantial gainful activity, considering claimant's remaining physical and mental capacities and claimant's age, education and prior work experience. Id. § 404.1520(g). The Commissioner must show two things: (1) that the claimant, considering claimant's age, education, work experience, skills and physical shortcomings, has the capacity to perform an alternative job, and (2) that this specific job exists in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         When a claimant alleges a mental impairment, the Social Security Administration (“SSA”) “must follow a special technique at every level in the administrative review process.” Id. § 404.1520a(a). First, the SSA evaluates the claimant's pertinent symptoms, signs and laboratory findings to determine whether the claimant has a medically determinable mental impairment and documents its findings if the claimant is determined to have such an impairment. Second, the SSA rates and documents the degree of functional limitation resulting from the impairment according to criteria as specified in 20 C.F.R. § 404.1520a(c). Those sections provide as follows:

(c) Rating the degree of functional limitation. (1) Assessment of functional limitations is a complex and highly individualized process that requires us to consider multiple issues and all relevant evidence to obtain a longitudinal picture of your overall degree of functional limitation. We will consider all relevant and available clinical signs and laboratory findings, the effects of your symptoms, and how your functioning may be affected by factors including, but not limited to, chronic mental disorders, structured settings, medication and other treatment.
(2) We will rate the degree of your functional limitation based on the extent to which your impairment(s) interferes with your ability to function independently, appropriately, effectively, and on a sustained basis. Thus, we will consider such factors as the quality and level of your overall functional performance, any episodic limitations, the amount of supervision or assistance you require, and the settings in which you are able to function. See 12.00C through 12.00H of the Listing of Impairments in appendix 1 to this subpart for more information about the factors we consider when we rate the degree of your functional limitation.
(3) We have identified four broad functional areas in which we will rate the degree of your functional limitation: Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. See 12.00C of the Listings of Impairments.
(4) When we rate the degree of limitation in the first three functional areas (activities of daily living, social functioning; and concentration, persistence, or pace), we will use the following five-point scale: None, mild, moderate, marked, and extreme. When we rate the degree of limitation in the fourth functional area (episodes of decompensation), we will use the following four-point scale: None, one or two, three, four or more. The last point on each scale represents a degree of limitation that is incompatible with the ability to do any gainful activity.

         Third, after rating the degree of functional limitation from the claimant's impairment(s), the SSA determines their severity. A rating of “none” or “mild” in the first three functional areas (activities of daily living; social functioning; and concentration, persistence, or pace) and “none” in the fourth (episodes of decompensation) will yield a finding that the impairment(s) is/are not severe unless evidence indicates more than minimal limitation in the claimant's ability to do basic work activities. Id. § 404.1520a(d)(1).[3] Fourth, if the claimant's impairment(s) is/are deemed severe, the SSA compares the medical findings about the severe impairment(s) and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment(s) meet or are equal to a listed mental disorder. Id. § 404.1520a(d)(2). Finally, if the SSA finds that the claimant has a severe mental impairment(s) which neither meets nor equals a listed mental disorder, the SSA assesses the claimant's residual functional capacity. Id. § 404.1520a(d)(3). The Regulations further specifies how the findings and conclusion reached in applying the technique must be documented at the ALJ and Appeals Council levels as follows:

At the administrative law judge hearing and the Appeals Council levels, the written decision must incorporate the pertinent findings and conclusions based on the technique. The decision must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section.

Id. § 404.1520a(e)(4).

         Summary of ALJ's Decision

         In this particular case, the ALJ determined that Claimant met the requirements for insured worker status through December 31, 2017. (Tr. at 23, Finding No. 1.) Moreover, the ALJ determined that Claimant satisfied the first inquiry because she had not engaged in substantial gainful activity since May 20, 2012, the date Claimant became disabled. (Id., Finding No. 2.) Under the second inquiry, the ALJ found that from May 20, 2012 through November 18, 2013, the period during which Claimant was disabled, she suffered from the following severe impairments: residuals of left tibial plateau fracture and reflex sympathetic dystrophy. (Tr. at 24, Finding No. 3.) At the third inquiry, the ALJ concluded that from May 20, 2012 through November 18, 2013, the severity of Claimant's impairments met the criteria of Section 1.03 of 20 C.F.R. Part 404, Subpart P, Appendix 1, that Claimant was under a disability during that time period, and that she had not developed any new impairment since November 19, 2013, and that her current severe impairments were the same as those present from May 20, 2013 through November 18, 2013. (Tr. at 24, 26, Finding Nos. 4, 5, 6.)

         However, the ALJ found that beginning on November 19, 2013, Claimant's impairments did not meet or equal the level of severity of any listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 27, Finding No. 7.) Further, the ALJ found that Claimant's impairments were medically improved, thus ending her disability as of November 19, 2013; the ALJ also found that Claimant's medical improvement related to her ability to work because her impairments or combination thereof no longer met or equaled the severity of a listing. (Tr. at 28, Finding Nos. 8 and 9.) The ALJ then found that beginning November 19, 2013, Claimant had the residual functional capacity (“RFC”) to perform light work as defined in the Regulations

except she could stand only 4 hours at a time. She could never climb ladders, ropes, and scaffolds. She could occasionally climb ramps and stairs as well as balance, stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to heights, moving machinery, hazards, temperature extremes, and vibration. She would be afflicted with chronic pain noticeable to herself at all times but she could maintain attention and concentration in 2-hour increments. (Id., Finding No. 10.)

         At step four, the ALJ found that beginning November 19, 2013, Claimant was capable of performing her past relevant work as an office clerk and employment representative and that this work did not require the performance of work-related activities precluded by her current RFC. (Tr. at 30, Finding No. 11.) Finally, the ALJ determined Claimant's disability ended on November 19, 2013. (Tr. at 32, Finding No. 12.)

         Claimant's Challenges to the Commissioner's Decision[4]

         As an initial matter, Claimant argues that the ALJ did not properly consider her medically determinable impairment of RSD under Social Security Ruling 03-2p after November 18, 2013, because he would have been compelled to find her pain and limitations due to RSD precluded employment. (Document No. 17 at 9-11.) Next, the ALJ failed to provide “good reasons” for not giving Claimant's treating physician's opinion controlling weight by “cherry picking” parts of the medical evidence that supported his finding, and without providing persuasive contrary evidence as required under the Regulations. (Id. at 11-14.) In addition, Claimant contends that had the ALJ not ignored SSR 03-2p, he would have recognized that conflicting evidence in the medical record, including the physical therapy notes, is not unusual in cases of RSD, therefore, his discounting Dr. McCleary's opinion[5] is unsupported by substantial evidence. (Id. at 15.)

         Finally, Claimant argues that the ALJ performed an inadequate analysis of her credibility and allegations of pain as he only focused on the objective evidence of record that supported his decision, in contravention to the enumerated factors listed under SSR 97-7p and 20 C.F.R. § 404.1529. (Id. at 15-16.) Claimant asserts this error was more egregious because the ALJ neglected to adhere to the directives of SSR 03-2p which states: “a ‘degree of pain reported is out of proportion to the severity of the injury sustained by the individual.'” (Id. at 16-17.) Claimant asks that this matter be reversed and remanded for an award of benefits, or alternatively, be remanded so that the Commissioner can correct the errors made below. (Id. at 17.)

         In response, the Commissioner argues that the ALJ correctly determined that Claimant's disability ended after November 18, 2013 because the evidence showed that her condition had medically improved, and her RSD diagnosis neither met any Listings, nor was there any evidence of a functional loss due to her RSD. (Document No. 20 at 5-8.) Further, the Commissioner contends that the ALJ gave the appropriate weight to the opinion evidence. (Id. at 8.) The ALJ also gave good reasons for discounting Dr. McCleary's extreme opinion because his treatment notes as well as the physical therapy treatment notes indicated that Claimant's impairments improved from before and continued to improve after her disabling conditions no longer caused functional losses. (Id. at 9-10.) The Commissioner also contends that the ALJ properly found that Dr. McCleary's opinion was inconsistent with the overall evidence of record. (Id. at 10.) Moreover, the Commissioner asserts that the opinion evidence from Claimant's physical therapist, PTA Summers, is considered an “other source” under the Regulations, and cannot establish a medically determinable impairment or give a medical opinion. (Id.) Because the Regulations do not require an ALJ to assign weight to a physical therapist's opinion, and because PTA Summers's opinion was also inconsistent with his own progress notes, the ALJ appropriately gave it little weight. (Id. at 11-12.)

         Finally, the Commissioner asserts that the ALJ analyzed Claimant's credibility and allegations of pain under the correct legal standards and found that her conservative treatment and the objective medical evidence did not support extreme limitations in her ability to function. (Id. at 12-13.) The ALJ accounted for Claimant's credibly established limitations and reduced her RFC to a range of light work, which the VE opined that she was capable of performing. (Id. at 13-14.) In sum, the Commissioner requests the Court affirm the ALJ's decision. (Id. at 14.)

         Claimant asserts in reply that the Commissioner ignores the applicability of SSR 03-2p, and like the ALJ, ignores the evidence relating to her RSD. (Document No. 21 at 1.) Moreover, Claimant had been participating in physical therapy beyond the date the ALJ determined she was no longer disabled, which would have caused her to be absent from work, and that after the conclusion of her twelve week course of physical therapy, Dr. McCleary found evidence of RSD. (Id. at 2.) Claimant contends that the evidence showed that she was not yet able to return to work as of November 19, 2013 on account of the physical therapy Dr. McCleary treatment notes, and that had the ALJ given SSR 03-2p the proper attention, he would have concluded that Claimant was disabled by RSD. (Id. at 2-3.) There was also no persuasive contrary evidence in this case, and Dr. McCleary's opinion was entitled to at least great weight. (Id. at 3.)

         Claimant's treatment consisted of physical therapy long after the ALJ found she was no longer disabled, and there is no surgical treatment for RSD, thus, his analysis of her treatment with respect to RSD is unclear. (Id. at 4.) The ALJ did not provide sufficiently specific explanations for why he found Claimant less than credible, and only focused on objective evidence he believed discredited her allegations without support for his conclusions. (Id. at 4-5.) Again, Claimant prays for reversal and remand for an award of benefits or for remand to correct these errors. (Id. at 5.)

         The Relevant Evidence of Record[6]

         The undersigned has considered all evidence of record, including the medical evidence, pertaining to Claimant's arguments and discusses it below.

         Treating Physician Records:

         Claimant fell and injured her knee on May 20, 2012. (Tr. at 341.) After x-rays revealed a left tibial plateau fracture, Robert McCleary, D.O., performed an open reduction and internal fixation two days later. (Id.) Records dated June 25, 2012 indicate that Claimant developed some hypersensitivity consistent with RSD in her left leg after her fracture, which resulted in pain, numbness, and a pins and needles sensation in her leg. (Tr. at 342.)

         By November 28, 2012, Claimant had fewer RSD symptoms. (Tr. at 399.) Dr. McCleary prescribed medications and recommended she start physical therapy. (Tr. at 403.) On February 27, 2013, Dr. McCleary noted that Claimant's leg was only mildly hypersensitive and that she had fewer symptoms of RSD. (Tr. at 397-398.) She had no joint swelling, 4/5 muscle strength, good pulses distally, and positive capillary refill. (Tr. at 400.) Dr. McCleary recommended RSD injections from a pain management specialist, but Claimant refused. (Tr. at 398, 559.)

         On September 24, 2013, Claimant underwent a left total knee replacement/arthroplasty, with removal of the tibial hardware. (Tr. at 415, 420-422.) During post-operative physical therapy, she reported doing much better; six weeks after her total knee replacement, Claimant was walking without a walker or crutches. (Tr. at 538.) She complained of some muscle spasms, and the RSD that was present before surgery “is resolving greatly”. (Id.)

         On May 12, 2014, eight months out from her knee replacement surgery, Dr. McCleary noted that Claimant was suffering again from RSD symptoms (Tr. at 532.) even though RSD had been resolving following surgery. (Tr. at 538.) While Dr. McCleary noted that Claimant was recovering nicely from her surgery with good range of motion and muscle strength, he noted that she was still having hypersensitivity in her lower leg, therefore, he ...

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