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Hebel v. Commissioner of Social Security Administration

United States District Court, D. Arizona

July 3, 2018

Melora Hebel, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          BRIDGET S. BADE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Melora Hebel seeks judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for benefits under the Social Security Act (“the Act”). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b), and have filed briefs in accordance with Local Rule of Civil Procedure 16.1. As set forth below, the Court reverses the Commissioner's decision and remands for further proceedings.

         I. Procedural Background

         On February 28, 2014, Plaintiff applied for a period of disability and disability insurance benefits under Title II the Act. (Tr. 55.)[1] Plaintiff alleged disability beginning August 8, 2013. (Tr. 15.) After the Social Security Administration (“SSA”) denied Plaintiff's initial application and her request for reconsideration, she requested a hearing before an administrative law judge (“ALJ”). After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 15-25.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council.) Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

         II. Administrative Record

         The record before the Court establishes the following history of diagnoses and treatment related to Plaintiff's alleged impairments. The record also includes medical opinions. The Court discusses the relevant evidence below.

         A. Medical Treatment Evidence

         1. Treatment for Back and Hip Pain

         Beginning in 2012, Plaintiff received treatment from Dr. Farhad Keikhosrow Mosallaie and other providers at the Sonoran Spine Center for back pain. (Tr. 255-64, 289-91, 327-38, 372-409, 479-86.) Plaintiff was also treated for hip pain. (Tr. 372-409, 493-513.) The Court discusses records for treatment after the August 8, 2013 alleged disability onset date. (See Tr. 15.)

         In August 2013, Plaintiff was in a car accident and fractured her ankle and injured her foot. (Tr. 259.) During a September 11, 2013 appointment with Dr. Mosallaie, Plaintiff reported that since the accident her back pain was 20% worse. (Id.) Due to recent surgery related to the car accident, Plaintiff had a cast on her right leg and used a walker. (Id.) Plaintiff reported that she spent most of her time lying down in bed with her foot elevated, which had exacerbated her back pain. (Id.) On examination, Dr. Mosallaie reported that Plaintiff had tenderness throughout the thoracic spine, lumbar spine, and paraspinals. (Id.) Dr. Mosallaie prescribed Percocet and Diazepam. (Id.)

         On February 18, 2014, Dr. Mosallaie noted that Plaintiff was past due for her three month appointment because of insurance issues, which had been resolved. (Tr. 257.) At this appointment, Plaintiff reported right foot pain, fatigue, memory loss, heartburn, anxiety, constipation, and insomnia. (Tr. 257.) On examination, Dr. Mosallaie noted a “non-antalgic gate with use of a cane, ” tenderness and spams at ¶ 5-S1. (Id.) The range of motion (ROM) in Plaintiff's lumbar spine was within normal limits (WNL). (Id.) On May 13, 2014, Plaintiff reported increased low back pain, mid thoracic pain, and cervical pain that increased with sitting, sleeping, bending, and walking. (Tr. 290.) Plaintiff was wearing a boot on each foot from foot surgeries in August 2013. (Id.) On examination, Plaintiff had an antalgic gate bilaterally, tenderness and spasm in the lumbar L4-S1 and in the right SI joint. (Id.) The range of motion in Plaintiff's lumbar spine was within normal limits. (Id.)

         On July 17, 2014, Plaintiff saw Physician Assistant (“PA”) Katherine Looby at the Sonoran Spine Center. (Tr. 330-32.) PA Looby reviewed a June 6, 2014 MRI of Plaintiff's lumbar spine and noted that it showed a small disc bulge at ¶ 5-S1, and mild central stenosis at ¶ 4-5 with mild right foraminal narrowing. (Tr. 331.) Plaintiff reported intense radiating lumbar pain. (Tr. 330.) Plaintiff stated that she had increased pain with sleeping, sitting, standing, bending, coughing, and sneezing. (Id.) On examination, PA Looby noted tenderness over the lumbar paraspinal musculature bilaterally, in the L3 region, and the right sacroiliac joint. (Tr. 331.) She also noted full and equal strength in Plaintiff's upper and lower extremities, normal muscle bulk and tone, a normal gait, and a negative straight leg raise test. (Id.)

         On August 12, 2014, at an appointment with Dr. Mosallaie, Plaintiff stated that the physical therapy for her foot was increasing her foot pain. (Tr. 333.) Plaintiff also reported fatigue, heartburn, and insomnia. (Id.) On examination, Plaintiff had a limited lumbar range of motion that was within functional limits (WFL), and a non-antalgic gait without an assistive device. (Id.) Plaintiff also had tenderness and spasm in the thoracic mid scapular and lumbar L4-S1. Id. Dr. Mosallaie reduced the dosage of Percocet and continued Plaintiff on valium. (Id.)

         On August 26, 2014, Dr. Mosallaie gave Plaintiff an injection in the sacroiliac joint. (Tr. 335.) On September 3, 2014, Plaintiff saw Jason Datta, M.D., at Sonoran Spine Center. (Tr. 328.) Plaintiff had an earlier lumbar fusion at ¶ 3-4 and she reported that it had not relieved her back pain, and she continued to have severe pain when standing, sitting, and bending. (Id.) Plaintiff reported that she had a “serious fracture to her ankle” about a year ago and she had “just recovered enough to be able to walk consistently.” (Id.) On examination, Dr. Datta reported that Plaintiff had symmetric strength and sensation in the lower extremities, and “mild decreased range of motion in the back.” (Id.)

         On February 17, 2015, Plaintiff saw Dr. Mosallaie with complaints of pain in the lumbar and right lumbosacral region, pain, numbness and burning in the right leg, neck pain, right upper scapular pain, and numbness in both hands. (Tr. 372.) On examination, Plaintiff had tenderness and spasms in the cervical, thoracic, and lumbar spine. (Id.) Dr. Mosallaie found that Plaintiff had a non-antalgic gait without an assistive device, a limited lumbar range of motion within functional limits, and a cervical range of motion within normal limits. (Id.)

         On February 23, 2015, Plaintiff saw Grant Padley, D.O., and PA Mark Moyer at Orthopedic Clinic Association (“OCA”) with complaints of right hip pain. (Tr. 493.) On examination, PA Moyer found tenderness to palpation on the lateral aspect of the hip, positive external hip snapping with standing and with rotating the hip, and a limited range of motion in the right hip. (Id.)

         On March 16, 2015, Plaintiff saw Michael Fairfax, D.O., for joint pain. (Tr. 422.) Plaintiff reported diffuse musculoskeletal pain, multiple areas of joint swelling, nonrestorative sleep and fatigue. (Id.) On examination, Dr. Fairfax noted “scattered areas of tenderness with light palpation over major muscle and tendon groups, ” and lumbar spine tenderness. (Id.)

         On June 1, 2015, Plaintiff saw PA Moyer. (Tr. 503-05.) PA Moyer noted that a May 13, 2015 MRI of Plaintiff's right hip showed edema, right paralabral cysts, a mild strain of the right gluteus medius muscle at its trochanteric insertion, and bursitis. (Tr. 503-05, 434-35.) PA Moyer administered a steroid injection in Plaintiff's right hip. (Tr. 503.)

         B. Treatment for Ankle Injury and Pain

         As previously noted, Plaintiff was in a car accident on August 8, 2013 and sustained a right pilon fracture and a right distal fibula fracture in her right ankle. (Tr. 231, 244-45, 250.) On August 9, 2013, Plaintiff had surgery which involved a closed reduction of the right pilon fracture with a right distal fibula fracture and application of an external fixator on the right ankle and leg. (Tr. 235.) On August 27, 2013, Plaintiff had a second surgery that included removal of the external fixator and “plating of [the] tibia and fibula for a tibiofibular fracture.” (Tr. 271.)

         On November 22, 2013 Plaintiff saw Vu Nguyen, D.P.M., for a post-operative appointment. [2] (Tr. 309.) Plaintiff complained of pain in the right side of her calf and the inner side of her right ankle. (Tr. 309.) Plaintiff reported that she had been on her feet a lot and had increased pain. (Id.) Plaintiff stated that her foot hurt when she did not elevate it. (Id.) On examination, Dr. Nguyen found moderate right ankle pain with palpation and with range of motion. (Id.)

         On December 13, 2013, Dr. Nguyen examined Plaintiff and noted that she had been full weight bearing with a boot. (Tr. 307.) Plaintiff reported pain on the medial right ankle and pain over the “screw prominence over the lateral ankle.” (Id.) Plaintiff reported that physical therapy had helped. (Id.) On examination, Dr. Nguyen found that Plaintiff had mild right ankle pain with palpation and range of motion, but “a lot less than [at her] last visit.” (Id.) Additionally, the range of motion in Plaintiff's right ankle had improved since her last appointment. (Id.)

         On January 31, 2014, Plaintiff reported limited mobility in her right ankle and a popping sound when tried to rotate it. (Tr. 303.) Plaintiff stated that she stopped going to physical therapy after her therapist left the practice, but she had continued her exercises at home, used an ankle sleeve, and started using a bone stimulator. (Id.) Dr. Nguyen noted that Plaintiff had been full weight-bearing in regular shoes since her last visit. (Id.) She had been using an ankle sleeve regularly and going to physical therapy. (Id.) On examination, Plaintiff had mild pain with palpation and pain with range of motion, but “a lot less than before.” (Id.) Plaintiff also had an improved range of motion in her ankle. (Id.) Dr. Nguyen directed Plaintiff to use the ankle sleeve and the bone stimulator, wear tennis shoes, continue physical therapy, and avoid carrying heavy objects. (Tr. 304.)

         On March 14, 2014, Plaintiff saw Dr. Nguyen for a “delay union of the proximal [right] distal tibia fracture.” (Tr. 301.) Plaintiff stated that she used her old CAM (controlled ankle motion) boot for a day and had no pain at the “non-union site.” (Id.) Plaintiff wanted a new boot so she could walk more. (Id.) Plaintiff reported that she had been using the ankle sleeve with tennis shoes, but the non-union site was painful. (Id.) Plaintiff was still going to physical therapy. (Id.) Plaintiff complained of popping and pain on the medial and lateral sides of the ankle. (Id.) An x-ray of the right ankle showed “increased in bone callus formation at the distal tibia fracture site [and] fracture gapping.” (Id.) The x-ray also showed mild degenerative joint disease of the right ankle. (Id.) On examination Plaintiff had “great ROM of the [right] ankle without pain, ” mild pain over the distal tibia with palpation, no “valgus or varus of the [right] ankle and the [right] leg [was] still straight.” (Id.) Dr. Nguyen gave Plaintiff a new CAM boot to allow ambulation and to provide support to the “delay union site.” (Tr. 302.)

         On April 11, 2014, Plaintiff complained of severe pain in her right ankle and the bottom of her hallux toe. (Tr. 299.) Plaintiff reported pain after she increased her walking and carried her grandson. (Id.) Plaintiff also complained of increased pain in her left bunion. (Id.) On examination, Dr. Nguyen noted pain to palpation over the medial and lateral ankle gutters, and left bunion with pain to palpation. (Id.) Dr. Nguyen administered a cortisone injection in Plaintiff's right ankle for pain, and discussed surgery for Plaintiff's left bunion, surgery to remove Plaintiff's right ankle hardware, and arthroscopy for pain. (Tr. 300.)

         On May 1, 2014, Plaintiff had right ankle surgery, which included an arthroscopy with partial synovectomy, removal of the internal fixation device, right distal fibular exostectomy and a left bunionectomy. (Tr. 276.) Plaintiff's postoperative diagnosis was right ankle anterior impingement syndrome with synovitis, painful internal fixation device in the right ankle, and painful left bunion. (Id.) Dr. Nguyen found severe fibrotic chronic synovitis in the anterior, medial, and lateral ankle gutters with arthritic changes noted in the medial and lateral talar dome. (Id.) He also noted that the distal fibular fracture was healing well. (Tr. 277.) Dr. Nguyen advised Plaintiff to perform weight bearing activity as tolerated with the CAM boot, and to “ice[] and elevat[e] both feet when not mobile.” (Id.)

         On May 19, 2014, Plaintiff reported that she was doing well but still had pain, right ankle weakness, and left foot soreness. (Tr. 293.) An x-ray of Plaintiff's right ankle showed mild degenerative joint disease. (Id.) On examination, Plaintiff had mild pain to palpation over the left bunionectomy, mild to moderate pain with palpation over the lateral right ankle gutter, mild pain with right ankle range of motion, and limited right ankle range of motion. (Tr. 293.)

         On November 16, 2014, Plaintiff reported to urgent care after trying to lift a fan and injuring her left ankle. (Tr. 404.) Plaintiff stated that her left ankle buckled, twisted, and was moderately swollen with limited mobility. (Id.) Plaintiff was diagnosed with a sprained ankle. (Tr. 406.)

         Plaintiff saw Dr. Nguyen on February 9, 2016. (Tr. 515.) He noted that he last saw Plaintiff in April 2015. (Id.) Plaintiff reported bilateral ankle pain that was greater on the right. (Id.) She stated that on some days her right ankle would lock and she had to force it to move. (Id.) Plaintiff reported that she also had pain in her back and hip, which required Percocet. (Id.) Plaintiff stated that she could not walk long distances because of the pain. (Id.) She said that cortisone injections in the past had helped reduce her pain for two to three months. (Id.) On examination, Plaintiff had pain with palpation over the medial, anterior, and lateral bilateral ankle joints, with more pain in the right ankle. (Tr. 516.) Plaintiff had pain on range of motion of her ankles, but had an adequate range of motion. (Id.) An x-ray of Plaintiff's right ankle revealed that the arthritis in Plaintiff's left ankle had gotten worse with narrowing joint space. (Id.) Dr. Nguyen told Plaintiff that she might need fusion of the right ankle in the future. (Id.) Dr. Nguyen gave Plaintiff a cortisone injection in her right ankle. (Id.) He “[r]ecommended icing, taking ibuprofen, [and] wearing ankle braces for both of her ankles now.” (Id.) He also advised Plaintiff to wear tennis shoes and not to wear flip flops or go barefoot. (Id.) Plaintiff was directed to avoid high-impact activities and to return for a follow up in four weeks. (Id.)

         C. Opinion Evidence

         On March 3, 2016, Dr. Nguyen wrote a letter “to whom it may concern, ” in which he stated that due to “post traumatic arthritis” and pain in her right ankle, Plaintiff could not perform her “normal work duty.” (Tr. 514.) He opined that Plaintiff could not walk or stand more than four hours in an eight-hour work day, and that she could not push or pull more than twenty pounds. (Id.)

         On March 15, 2016, Dr. Nguyen wrote another letter “to whom it may concern.” (Tr. 588.) He assessed the same walking, standing, pushing and pulling limitations. (Id.) He added that Plaintiff “need[ed] to elevate her feet regularly for swelling reduction.” (Id.) He also stated that Plaintiff needed to “ic[e] regularly since it help[ed] with ankle pain.” (Id.) Dr. Nguyen added that “this has been recommended as a regular treatment since [Plaintiff's] accident in 2013.” (Id.) He again opined that Plaintiff had limited use of her right ankle and that she could not perform her “normal work duty that she was able to do in the past” due to her pain. (Id.)

         III. The Administrative Hearing

         Plaintiff was in her early forties at her disability onset date. (Tr. 110.) She had the equivalent of a high school education and had completed some veterinary technician school. (Tr. 48.) Plaintiff had past relevant work as ...


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