Phinizy v. Commissioner of Social Security Administration

          ORDER

          Eric J. Markovich, United States Magistrate Judge.

         Plaintiff Ollie Marie Phinizy 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”). Plaintiff raises four issues on appeal: 1) does substantial evidence support the Administrative Law Judge's (“ALJ”) finding that one of Plaintiff's past jobs was performed at the sedentary level; 2) did the ALJ provide clear and convincing reasons for rejecting the opinions of treating physician Dr. Major about Plaintiff's abilities to handle and finger; 3) did the ALJ give clear and convincing reasons for rejecting Dr. Major's opinions that Plaintiff could stand 3 hours total and walk 3 hours total per workday; and 4) did the ALJ give clear and convincing reasons for rejecting Dr. Major's opinions that Plaintiff could not perform sustained full-time work. (Doc. 14).

         Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 14, 15, & 16). 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 remanded for further administrative proceedings.

         I. Procedural History

         Plaintiff filed an application for social security disability benefits on February 12, 2015. (Administrative Record (“AR”) 94). Plaintiff alleged disability beginning on February 1, 2011 based on exercise induced asthma, chronic obstructive bronchitis, allergic rhinitis, COPD with emphysema, osteoarthritis of spine, knees, and hands, lumbosacral neuritis, osteoporosis, lung densities on x-ray, and pain in back, knees, and hands. (AR 94).^[1] Plaintiff's application was denied upon initial review (AR 93) and on reconsideration (AR 106). A hearing was held on June 19, 2017 (AR 56), after which ALJ Yasmin Elias found, at Step Four, that Plaintiff was not disabled because she could perform her past relevant work as generally performed. (AR 24). On June 20, 2018 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 1).

         Plaintiff's date last insured (“DLI”) for DIB purposes is December 31, 2017. (AR 14). Thus, to be eligible for benefits, Plaintiff must prove that she was disabled during the time period of her amended AOD of October 12, 2013 and her DLI of December 31, 2017.

         II. Factual History^[2]

         Plaintiff was born on August 3, 1957, making her 56 years old at the amended AOD of her disability. (AR 94). She completed two years of college and is a licensed practical nurse. (AR 222). In the past 15 years she has worked as a transitional care coordinator, public relations director, senior provider contractor, claim auditor, and in sales at a home décor store. (AR 232).

         A. Treating Physicians

         i. Dr. Major

         Plaintiff's primary care physician is Dr. James Major.

         On May 24, 2013 Plaintiff was managing her lumbar neuritis without needing to use Tramadol since adding glucosamine, and had no recent exacerbations of radiculitis. (AR 412).

         On January 7, 2015 they discussed Plaintiff's chronic pain; her husband said it was much more severe than she was willing to treat because she did not like to take medication. (AR 364). Plaintiff did not have a lot of time for self-care due to caring for her husband, who was slowly improving after cancer. Plaintiff had progressive pain and limitation of activities with her bilateral thumbs, limiting her hobby of painting. (AR 366). Dr. Major noted she had become fairly severely disabled and could no longer perform her job because of chronic pain, and that counseling might be worthwhile regarding her resistance to medications.

         On April 2, 2015 Plaintiff had researched osteoporosis drugs but did not want to take any due to side effects; she then decided she wanted to get authorization for Forteo. (AR 359). Her pulmonary consult noted she was stable for 1 year, but she still had episodes where she was so out of breath, she felt like she was going to pass out. Her lumbar radiculopathy and discogenic low back pain were stable and she generally used one Tramadol a day, rarely two.

         On August 4, 2015 Plaintiff was seen after a tree fell on her back; x-rays showed a fracture at ¶ 4. (AR 354). Prior to this she was doing well with her chronic pain, using one or two Tramadol most days. Plaintiff had increased activity except for avoiding lifting, horseback riding, or similar activity that might cause further injury. Dr. Major also noted they attempted to get insurance authorization for two osteoporosis medications that were refused. On exam Plaintiff had normal range of motion and strength and no tenderness in the T4 area. (AR 355).

         On February 16, 2017 her active problems were asthma with COPD, benign hypertension, chronic knee pain, depression with anxiety, generalized osteoarthritis of multiple sites, hyperlipidemia, myofascial pain, osteopenia, and pulmonary emphysema. (AR 42-43). Her medications were ProAir HFA, Alprazolam, Lisinopril, Dulera, Tramadol, Bupropion, Methocarbamol, and Montelukast sodium. (AR 42). Plaintiff spent a lot of time living in the White Mountains, which made access for medical evaluation intermittent. (AR 43).

         On March 20, 2017 Plaintiff complained of chronic pain in both knees, usually only lasts a few seconds then resolves, and limits the degree of exercise at times but not enough that Plaintiff would consider x-rays, PT evaluation, or sports orthopedic referral. (AR 470). No medication or further treatment was indicated. (AR 471). Plaintiff's cough had improved and she felt she was doing well overall.

         On May 19, 2017 Dr. Major completed a Medical Work Tolerance Recommendations form. (AR 473). He opined that Plaintiff could do part-time sedentary work, up to 6 hours a day; could stand for 60 minutes at a time, 3 hours total; could sit for 3 hours at a time, 6 hours total; walk for 90 minutes at a time, 3 hours total; would need to change positions frequently from sitting to standing or walking; could not use her feet for frequent movements because of exacerbation of back pain; could climb 6 flights of stairs but not ladders; and would be expected to miss 4 or more days of work per month due to disability and appointments. (AR 473). Dr. Major further opined that Plaintiff could never kneel; occasionally bend, crouch, squat, and work with her arms extended in front of her; and frequently sit in a clerical position and reach above shoulder. (AR 474). She should avoid power gripping, pushing, and pulling, and pinching with the thumb and index finger; could occasionally do fine movements like typing and small assembly; and occasionally to frequently feel and touch where sensation is required. She should avoid environmental hazards such as temperature extremes, fumes, smoke, unprotected heights, and moving machinery. Dr. Major opined that Plaintiff could work 6 hours per day, 4 days per week with these restrictions, but only for limited function due to lower back pain and degenerative disc disease, emphysema, arthritis in her hands, and knee problems. He indicated her limitations would last at least one year but were likely permanent.

         On June 15, 2017 Dr. Major wrote a letter addendum. (AR 479). He stated that:

The patient has chronic discogenic low back pain with radiculitis, which has been disabling since 2013. Furthermore, she suffered a thoracic spine compression fracture in August 2015 which has compromised her ability to function or to receive significant relief from the use of medications. As I noted 1/07/2015, tramadol was really not sufficient to control pain and allow ADLs beyond caregiving for her husband.

Her COPD/emphysema is further complicated by chronic pulmonary emphysema and chronic interstitial disease (scarring plus pulmonary nodules); the patient also has a component of exercise-induced bronchospasm which is not prevented by preexercise use of albuterol; ability to exercise was limited to at most one flight of stairs.

NOTE: The patient continues to have episodes where she becomes progressively out of breath where she feels that “I'm trying so hard to breathe that I feel like I'm going to pass out.” These may to some extent reflect hyperventilation associated with stress, but stress management also is difficult. . . .

Her limitation due to bilateral severe thumb MCP destructive arthritis, limits activities even at a low threshold because of pain and weakness from “overuse”. This has progressed further since comments made in January 2015.

Stress and chronic depression, along with chronic pain, had made it difficult for the patient to focus and complete tasks; despite medication, this has not improved significantly to perform a job/employment that would require close attention or focus on job duties. This focus would be further interfered with due to the patient's chronic pain and necessity to get up and move around, limitation of stay in one place or sitting/walking for an extended period.

The patient also has very severe osteoporosis which increases her risk for significant fractures . . .

She has continued to have chronic pain, requires opiate management, has limited ability to tolerate most activities as described above, and has limitation in cognition resulting from her medications and from chronic depression and stress.

(AR 479-480).

         ii. Dr. Chacko

         Plaintiff was treated by Dr. Jacob Chacko at the Catalina Chest Clinic. On February 3, 2012 Plaintiff had a 20-year history of emphysema and shortness of breath, progressively getting worse, occasional wheezing, environmental allergies, and shortness of breath with moderate activity. (AR 436). Plaintiff did not think she could climb a flight of stairs but had no problems with ADL. The assessment was asthmatic bronchitis and the plan was to continue current medications and add Singulair. (AR 438). On April 3, 2012 her symptoms were stable. (AR 440).

         On February 24, 2015 Dr. Chacko noted he had not seen Plaintiff in 2 ½ years because she was caring for her husband with cancer. (AR 432). Plaintiff had worsening asthma over the past 6 months, mainly exercise-induced, with more wheezing and shortness of breath. (AR 432). On April 3, 2015 she had a follow-up and was doing better; the assessment was asthma. (AR 427-430). On August 5, ...