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Tucker v. Commissioner of Social Security Administration

United States District Court, D. Arizona

September 13, 2018

Cynthia Tucker, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          ERIC J. MARKOVICH UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Cynthia Tucker (“Tucker”) brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Tucker raises three issues on appeal: 1) the Administrative Law Judge (“ALJ”) erred by failing to include limitations related to Tucker's Crohn's disease in the residual functional capacity (“RFC”) assessment; 2) the ALJ erred by failing to include any manipulative limitations in the RFC; and 3) the ALJ failed to provide clear and convincing reasons to discount Tucker's testimony. (Doc. 18).

         Before the Court are Tucker's Opening Brief, Defendant's Response, and Tucker's Reply. (Docs. 18, 22, & 23). The United States Magistrate Judge has received the written consent of both parties and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. For the reasons stated below, the Court finds that this matter should be reversed and remanded for further administrative proceedings.

         I. Procedural History

         Tucker filed an application for Social Security Disability Insurance and Supplemental Security Income on December 6, 2013. (Administrative Record (“AR”) 89). Tucker alleged disability beginning on November 3, 2010 based on osteoarthritis in the hands, arthritis in knees and back, tension headaches, degenerative disc disease, degenerative joint disease, torn meniscus right knee, possible kidney disease, depression, and bowel issues. (AR 89-90). Tucker's application was denied upon initial review (AR 98) and on reconsideration (AR 124). A hearing was held on March 3, 2016 (AR 69), after which ALJ Myriam C. Fernandez Rice found, at Step Four, that Tucker was not disabled because she could perform her PRW as a cashier. (AR 21). On July 10, 2017 the Appeals Council denied Tucker's request to review the ALJ's decision. (AR 1).

         Tucker's date last insured (“DLI”) for DIB purposes is June 30, 2015. (AR 111). Thus, in order to be eligible for benefits, Tucker must prove that she was disabled during the time period of her alleged onset date (“AOD”) of November 3, 2010 and her DLI of June 30, 2015.

         II. Factual History [1]

         Tucker was born on March 7, 1958, making her 52 at the AOD of her disability. (AR 111). She has past relevant work as a cashier, a patient care technician, and a stocker. (AR 83).

         A. Treating Physicians

         On November 6, 2008 Tucker saw Dr. Wintzer for right arm pain. (AR 667). She said it was in her elbow but on further questioning it was down into her hand with numbness and tingling, worse with repetitive motions or lifting. On exam Tucker had full ROM with somewhat decreased grip strength, right greater than left. (AR 668). Dr. Wintzer assessed ulnar nerve entrapment and carpal tunnel syndrome not really improving and referred Tucker for PT and opined that Tucker was cleared to return to work with a 5 pound lifting limitation. (AR 666, 668).

         On November 13, 2008 Tucker reported continued pain in both wrists with numbness and tingling. (AR 664). Dr. Wintzer noted she was not taking ibuprofen on a regular basis so she was not getting the anti-inflammatory affect. On exam she had full ROM in the upper extremities with positive Tinel's sign on the right. (AR 665). Dr. Wintzer assessed probable carpal tunnel syndrome and ulnar nerve entrapment and referred Tucker to an orthopedic hand specialist.

         A November 21, 2008 letter from Dr. Safdar notes that Tucker had an unremarkable EGD and colonoscopy but that she was found to have erosive esophagitis due to acid reflux. (AR 829). His impression was GERD well controlled with medication and suspected irritable bowel syndrome.

         On December 1, 2008 Tucker saw Dr. Goode for evaluation of hand pain and denied numbness or tingling. (AR 828). He noted there was a question of carpal tunnel but her symptoms did not seem consistent with that, that she had left greater than right thumb arthritis, and that her x-rays showed some early wear and sclerosis. (AR 827). Dr. Goode gave her a cortisone/lidocaine injection and Tucker was not interested in PT or a splint. (AR 828).

         On January 15, 2009 Tucker saw Dr. Goode for a follow up. He noted that the injection did not make her feel better long term, though it was unclear if it did initially, and that it was hard to get handle on how much it was really bothering her. (AR 328). Tucker denied tingling and reported the pain was all day every day. On exam her grip strength was moderate and CMC grind was positive, [2] and Dr. Goode recommended thumb splints.

         A December 15, 2009 ultrasound of the abdomen showed no acute disease and mild hepatomegaly.[3] (AR 964).

         On December 17, 2009 Tucker reported abdominal pain and Dr. Wintzer assessed probably GERD and gastritis. (AR 646-47).

         A March 9, 2010 letter from Dr. Safdar notes that Tucker had severe pain and discomfort in the abdomen and that an EGD and colonoscopy were unremarkable. (AR 812). The plan was to evaluate Tucker for gallbladder dysfunction.

         On March 27, 2010 Tucker went to the ER and was diagnosed with biliary colic.[4](AR 890). An ultrasound of the abdomen showed stable mild hepatomegaly. (AR 995).

         A March 30, 2010 ultrasound of the abdomen was normal. (AR 368-69).

         On March 31, 2010 Tucker reported abdominal pain with no diarrhea. (AR 639- 40). Dr. Wintzer noted change in HIDA[5] scan and referred her to surgery. (AR 641).

         An April 9, 2010 letter from Dr. Safdar notes that Tucker had a significant history of abdominal pain, likely related to underlying gallbladder disease. (AR 792).

         On April 13, 2010 Tucker presented to the ER with severe abdominal pain; she was scheduled to have her gallbladder out in May. (AR 788). She was admitted for pain control secondary to probable biliary colic. (AR 789-90).

         On November 3, 2010 Tucker was seen for a right wrist injury that occurred one week prior at work. (AR 361). Tucker reported aching pain, 4/10, and had tried nothing to relieve her symptoms. On exam she had tenderness of the right wrist, good flexion, extension, abduction, and adduction, excellent approximation of thumb and fifth finger, and decreased grasp strength. (AR 363). X-rays were normal and Tucker was placed in a splint. (AR 364, 410).

         On November 9, 2010 Tucker was seen for increased wrist pain after picking up a gallon of milk; she had not seen her PCP yet and requested a referral to a hand specialist. (AR 411). Tucker was instructed to continue RICE and keep the splint on until she was evaluated by her PCP or specialist. (AR 414).

         On November 10, 2010 Tucker saw Dr. Wintzer for her wrist sprain. (AR 419). On exam she had tenderness, no swelling, full ROM, good pulses, reflexes 2/4 and symmetric, and strength 5/5 and symmetric. (AR 420). Dr. Wintzer recommended wrist exercises, continue splint, naproxen for pain, and referred Tucker to a specialist.

         On November 16, 2010 Tucker reported she had an orthopedist appointment the following week but that she needed a work excuse because she worked at Walgreens and there was no light duty. (AR 422). On exam she had mild swelling and tenderness with normal ROM. (AR 423).

         A November 22, 2010 note from Dr. Wintzer states that Tucker should avoid lifting more than 5 pounds with her right arm and avoid repetitive lifting or twisting motions with her right wrist. (AR 426).

         On November 23, 2010 Tucker saw Dr. Arnold for evaluation of her wrist injury. (AR 427). On exam she had moderate tenderness, normal ROM, normal strength and tone, intact sensation, negative Tinel's sign and Phalen sign, and normal x-rays. (AR 428). The assessment was tenosynovitis with a recommendation to use a splint and ice three times a day.

         On December 14, 2010 Tucker saw Dr. Arnold and reported she was only using the splint part time. (AR 430). On exam she had moderate tenderness, normal strength and tone, and intact sensation and pulses. (AR 431). Dr. Arnold recommended ice and wearing the splint full time.

         On December 28, 2010 Tucker saw Dr. Arnold and was no better. (AR 432). On exam she had marked tenderness to palpation, normal ROM, normal strength and tone, and intact sensation and pulses. (AR 433). Dr. Arnold recommended a splint, ice, and a MRI. The MRI on January 7, 2011 was normal. (AR 437).

         On January 13, 2011 Tucker saw Dr. Arnold. (AR 438). On exam she had a volar radial 2 cm mass 2 inches proximal to wrist joint, tenderness, normal ROM, normal strength and tone, and intact sensation and pulses. (AR 439). Dr. Arnold assessed a new mass on the forearm and referred her to Dr. Medlen.

         On March 29, 2011 Tucker saw Dr. Hayden for an IME for her workplace injury. (AR 443). Tucker reported constant wrist pain, 7-8/10 without the splint and 3-4/10 with the splint, and said she wore the splint 6-8 hours a day. (AR 444). Tucker also reported some pain in the forearm radiating into the wrist when lifting a heavy object without her splint. She had a history of arthritis in both thumbs, intermittent pins and needles sensation in the forearm, and felt her right wrist ROM was less than the left. (AR 445). The impression was:

Clinically, there were no objective findings and no evidence of a right wrist/forearm mass or tenosynovitis. Her right wrist splint was nearly pristine in appearance despite the fact that the patient stated she wore the splints 7-8 hours per day for the past several months. Ms. Tucker's clinical examination findings were diffuse and non-localizing. . . . Although Ms. Tucker's MRI scans did show some degenerative ulnar wrist changes, these are chronic and preexisted her industrial injury claim and would not have been caused or aggravated by the injury she described. Her symptoms, moreover, are not consistent with the MRI findings. Ms. Tucker was able to freely gesture during conversation with her right upper extremity despite her subjective complaint of 8/10 pain. She had no loss of range of motion. She had no weakness of the wrist . . . and did not complain of any pain when testing.

(AR 466). X-rays of the wrists showed arthritis in the thumbs, more severe on the left, and no acute abnormalities, (AR 491), and an EMG nerve conduction study was normal. (AR 492). The overall impression was that Tucker's subjective complaints were not causally related to her industrial injury claim, and Dr. Hayden opined that she had reached maximum medical improvement and could return to her job as a cashier at Walgreens without restrictions. (AR 466-67).

         On April 7, 2011 a MRI of the right forearm and wrist showed degenerative joint disease and a 2-3 mm cyst. (AR 736).

         On May 12, 2011 Tucker saw Dr. Wintzer for a follow up for her wrist. (AR 501). On exam she had some pain but no swelling, good ROM, strength 5/5 symmetric, and reflexes 2/4 symmetric. (AR 502). Dr. Wintzer referred her to orthopedics, recommended she get a job where she wasn't doing repetitive motions with her wrists and repetitive lifting, and recommended she use the wrist splint when doing repetitive motions or lifting.

         On April 30, 2012 Tucker presented to the ER with abdominal pain; she was discharged home with a ...


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