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Pinson v. Berryhill

United States District Court, D. South Carolina

March 24, 2017

Deloris Ann Pinson, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, Defendant.


          R. Bryan Harwell United States District Judge

         Plaintiff Deloris Ann Pinson ("Plaintiff) seeks judicial review, pursuant to 42');">2');">2');">2 U.S.C. § 405(g), of a final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying Plaintiffs claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title XVI of the Social Security Act (the "Act"). The matter is before the Court for review of the Report and Recommendation of United States Magistrate Judge Jacquelyn D. Austin, made in accordance with 2');">2');">2');">28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02');">2');">2');">2(B)(2');">2');">2');">2) for the District of South Carolina. The Magistrate Judge recommends the Court affirm the Commissioner's decision. [ECF #2');">2');">2');">21].

         Factual Findings and Procedural History

         The procedural timeline is adequately set forth by the Magistrate Judge in the Report and Recommendation. [ECF #2');">2');">2');">20, pp. 1-4]. With respect to Plaintiffs treatment history, briefly stated, Plaintiff was 38 years old as of the alleged onset date of May 6, 2');">2');">2');">2009. [ECF #12');">2');">2');">2-2');">2');">2');">2, p. 2');">2');">2');">29]. Plaintiff previously worked as a cafeteria cook, machine operator, parking and CNA. [ECF #16');">16');">16');">16');">16');">16');">16');">16, 4');">p. 4]. In early 2');">2');">2');">2006, Plaintiff underwent surgery of her right knee. [ECF #16');">16');">16');">16');">16');">16');">16');">16, p. 5]. Thereafter, Plaintiff was treated by Dr. Milner, an orthopaedic surgeon, whose treatment notes indicate he was concerned about the slow progression of Plaintiff s recovery. [ECF # 12');">2');">2');">2-8, Ex. 12');">2');">2');">2F]. Dr. Milner's notes also questioned Plaintiff s diligence in working on her recovery exercises. [ECF#12');">2');">2');">2-8, Ex. 12');">2');">2');">2F]. Plaintiff continued to lose more range of motion in her knee as 2');">2');">2');">2009 progressed, and Dr. Milner's treatment notes indicate Plaintiff walked with an antalgic gait. [ECF #12');">2');">2');">2-8, Ex. 12');">2');">2');">2F]. Toward the end of 2');">2');">2');">2009, Dr. Milner also treated Plaintiff for pain in her hip, and Dr. Milner's notes indicate that x-rays show a moderate amount of osteoarthritis. [ECF #12');">2');">2');">2-8, Ex. 12');">2');">2');">2F]. Plaintiff was also treated in 2');">2');">2');">2009 for persistent migraine headaches. [ECF #12');">2');">2');">2-7, Ex. 10F].

         In early 2');">2');">2');">2010, Plaintiff saw Dr. Sanchez, an orthopaedist, because she continued to have stiffness and swelling in her knee. At that time, Dr. Sanchez also diagnosed Plaintiff with anemia, sleep disorder, and headaches. [ECF #12');">2');">2');">2-8, Ex. 1 IF]. During 2');">2');">2');">2010, Plaintiff was evaluated by Dr. Milner for leg pain, numbness in her left foot, back pain, shoulder pain, and swelling hands. [ECF #16');">16');">16');">16');">16');">16');">16');">16, p. 8]. An MRI revealed mild facet arthroplasty bilaterally at ¶ 4-5 and L5-S1. In 2');">2');">2');">2010, a state agency medical consultant opined that Plaintiff had the residual functional capacity ("RFC") to perform light work with certain postural and environmental limitations. [ECF #12');">2');">2');">2-8, Ex. 13F]. Plaintiff was also treated by her primary care provider, Dr. William F. Childers, in 2');">2');">2');">2010 prior to a right total knee arthroplasty. At that time he noted her right knee was swollen with tenderness and decreased range of motion. [ECF #12');">2');">2');">2-8, Ex. 17F]. His notes from later in the year of 2');">2');">2');">2010 also indicate that Plaintiff complained of insomnia exacerbated by her knee pain. He ordered her to be on Elavil for insomnia and blood work for her anemia. [ECF #12');">2');">2');">2-8, Ex. 2');">2');">2');">20F]. Plaintiff continued treating with Dr. Sanchez, and his physician's assistant noted that in September of 2');">2');">2');">2010, Plaintiffwas progressing slowly in therapy after knee surgery, and that she should continue physical therapy and taking Percocet and Flexeril. [ECF #12');">2');">2');">2-9, Ex. 2');">2');">2');">22');">2');">2');">2F].

         Dr. Sanchez completed a Functional Capacity Questionnaire in August of 2');">2');">2');">2010, wherein he noted that Plaintiff could not work presently, but in an 8 hour work day, she could sit for 4 hours in a typical work day, but not walk or stand for any length of time. She could lift up to 10 pounds, but never stoop or crouch. He also indicated that Plaintiff would experience severe enough pain that it would interfere with attention and concentration to perform even simple tasks. [ECF #12');">2');">2');">2-4, Ex. 9B]. Dr. Childers also completed a Functional Capacity Questionnaire in September of 2');">2');">2');">2010 and indicated Plaintiff would have chronic problems with her knee. [ECF #12');">2');">2');">2-4, Ex. 9B]. He further indicated that Plaintiff could sit and stand for zero to two hours during the eight hour work day, never lift and carry any amount of weight, never stoop and crouch, and that she would experience frequent pain significant enough to interfere with attention and concentration needed to perform simple work tasks. [ECF #12');">2');">2');">2-4, Ex. 9B]. In November of 2');">2');">2');">2010, another state agency consultant found that Plaintiff was capable of performing light work with postural limitations. [ECF #12');">2');">2');">2-8, Ex. 2');">2');">2');">21F]. In March of 2');">2');">2');">2011, Plaintiffs physical therapist, Jessica Benson, completed a Medical Source Statement noting that Plaintiff had participated in physical therapy in 2');">2');">2');">2010 and 2');">2');">2');">2011 for right knee pain. [ECF #13-1, Ex. 2');">2');">2');">23F]. Ms. Benson noted that Plaintiff was not a malingerer and further noted that her impairments were reasonably consistent with the symptoms and functional limitations described. She was also treated in the emergency room at this time for headaches and neck pain. [ECF #13-2');">2');">2');">2, Ex. 2');">2');">2');">24F]. During 2');">2');">2');">2011, Plaintiff was also evaluated as mildly obese, and suffered from fatigue, achyjoints, insomnia, and TMJ issues. [ECF #13-3, Ex. 2');">2');">2');">27F]. Plaintiff continued to be treated in 2');">2');">2');">2011 for issues related to her headaches, as well as lumbar and cervical strain. Dr. Sanchez noted in one record in August of 2');">2');">2');">2011 that he did not believe Plaintiff could return to work. [ECF #13-3, Ex. 2');">2');">2');">26F]. At the end of 2');">2');">2');">2011, Plaintiff underwent yet another knee surgery. [ECF #13-3, Ex. 2');">2');">2');">29F].

         In 2');">2');">2');">2012');">2');">2');">2, Plaintiff underwent another right total knee arthroplasty. [ECF # 13 -3, Ex. 2');">2');">2');">29F], as well as surgery to her left knee. [ECF#13-4, Ex. 37F]. Plaintiff continued to suffer from migraine headaches and shoulder pain. [ECF #13-4, Ex. 3 IF]. In June of 2');">2');">2');">2012');">2');">2');">2, Dr. Sanchez provided a statement regarding Plaintiffs condition, indicating he felt certain she would be limited to no more than sedentary work with that being defined as being able to stand or walk in combination no more than 2');">2');">2');">2 hours total out of an 8 hour work day and that her walking was "quite limited." [ECF #13-4, Ex. 33F]. As 2');">2');">2');">2012');">2');">2');">2, progressed, Dr. Sanchez noted that Plaintiffs condition was beginning to improve as far as motion in her knees were concerned; however, Dr. Sanchez later decided to schedule an additional surgery. [ECF #13-4, Ex. 36F]. Dr. Sanchez completed a questionnaire on July 2');">2');">2');">28, 2');">2');">2');">2012');">2');">2');">2 noting that Plaintiff would have to rest away from her work station if she were attempting to work an 8 hour day, 5 days a week for more than an hour and she would have problems with attention and concentration that would interrupt tasks during the work day. Dr. Sanchez also noted that based upon Plaintiff s history, physical examinations x-rays, she has been limited to this extent since May 2');">2');">2');">2009 and would persist in this manner for longer than a year. [ECF#13-4, Ex. 35F]. Dr. Sanchez performed surgery on Plaintiffs left knee on August 3, 2');">2');">2');">2012');">2');">2');">2. [ECF #13-4, Ex. 36F].

         In 2');">2');">2');">2013, Dr. Childers treated Plaintiff for left hand weakness and abnormal grip, and he referred her to Palmetto Bone and Joint. [ECF #13-7, Ex. 52');">2');">2');">2F]. In April of 2');">2');">2');">2013, Dr. Sanchez again treated Plaintiff for pain and soreness in her left knee. Later in that year Dr. Childers treated Plaintiff for left hand pain and numbness and left-sided neck pain. He diagnosed her with chronic pain associated with significant psychosocial dysfunction. [ECF #13-7, Ex. 52');">2');">2');">2F]. In October of 2');">2');">2');">2013, Dr. Childers treated Plaintiff for anxiety and left hip pain. [ECF #13-7, Ex. 55F], and in November of 2');">2');">2');">2013, she came to his office for treatment related to left knee pain. [ECF #13-7, Ex. 55F].

         Plaintiff initially applied for disability benefits on January 12');">2');">2');">2, 2');">2');">2');">2010. [ECF #16');">16');">16');">16');">16');">16');">16');">16, 4');">p.4]. Following an administrative hearing, Plaintiffs application was denied in an order dated March 3, 2');">2');">2');">2012');">2');">2');">2. [ECF #16');">16');">16');">16');">16');">16');">16');">16, 4');">p. 4]. Upon review of this order, the Appeals Council ordered this case be remanded with instructions to: (1) update the evidence on Plaintiff s medical condition consistent with the requirements of 2');">2');">2');">20 C.F.R. §§ 404.1512');">2');">2');">2-13 and 416');">16');">16');">16');">16');">16');">16');">16.912');">2');">2');">2-13; (2');">2');">2');">2) consider indications of excessive body weight at step two of the sequential evaluation process; (3) give further consideration to Plaintiff s maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations; and (4) obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiffs occupational base, with further instructions to include in the hypothetical questions the specific capacity/limitations established by the record as a whole and to ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy. [ECF #12');">2');">2');">2-2');">2');">2');">2, p. 17');">p. 17]. A second Administrative Law Judge ("ALJ") conducted a hearing on January 13, 2');">2');">2');">2014. [ECF #12');">2');">2');">2-2');">2');">2');">2, p. 17');">p. 17]. On February 2');">2');">2');">25, 2');">2');">2');">2014. the ALJ issued an unfavorable decision to Plaintiff. The ALJ's findings were as follows:

(1) The claimant meets the insured status requirements of the Social Security Act through June 30, 2');">2');">2');">2012');">2');">2');">2.
(2');">2');">2');">2) The claimant has not engaged in substantial gainful activity since May 6, 2');">2');">2');">2009, the alleged onset date. (2');">2');">2');">20 C.F.R. 404.1571 et seq. and 416');">16');">16');">16');">16');">16');">16');">16.971 et seq.).
(3) The claimant has the following severe impairments: degenerative joint disease involving left and right knee, status-post total right knee replacement and revision and left knee arthroscopic surgery, history of carpal tunnel with residual nerve damage with left hand weakness, bursitis in hips, osteoarthritis and obesity (2');">2');">2');">20 C.F.R. 404.152');">2');">2');">20(c) and 416');">16');">16');">16');">16');">16');">16');">16.92');">2');">2');">20(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 2');">2');">2');">20 C.F.R. Part 404, Subpart P, Appendix 1 (2');">2');">2');">20 C.F.R. 404.152');">2');">2');">20(d), 404.152');">2');">2');">25, 404.152');">2');">2');">26, 416');">16');">16');">16');">16');">16');">16');">16.92');">2');">2');">20(d), 416');">16');">16');">16');">16');">16');">16');">16.92');">2');">2');">25 and 416');">16');">16');">16');">16');">16');">16');">16.92');">2');">2');">26).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 2');">2');">2');">20 C.F.R. 404.1567(a) and 416');">16');">16');">16');">16');">16');">16');">16. 967(a) except never climb ladders/ropes/scaffolds and occasionally climb steps/ramps, balance, stoop, kneel, crouch and crawl. She requires a sit/stand option and must be allowed to change positions up to every 30-minutes whereby she could remain at the work station and stand and sit back down. She is limited to frequent fine ...

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