Robie v. Commissioner of Social Security Administration

          ORDER

          ERIC J. MARKOVICH UNITED STATES MAGISTRATE JUDGE

         Plaintiff Rhonda Robie 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) the Administrative Law Judge (“ALJ”) applied the “light” medical-vocational rules when the “sedentary” rules more properly applied, which would have resulted in a finding of disabled under Rule 201.10; 2) the ALJ failed to account for the limiting effects of Plaintiff's right hand impairment in the residual functional capacity (“RFC”) assessment; 3) the ALJ failed to provide clear and convincing reasons to discount Plaintiff's subjective symptom testimony; and 4) the ALJ failed to give reasons germane to the witness for discounting the opinion of examining chiropractor Noel Shaw. (Doc. 16).

         Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 16, 17, & 18). 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 July 1, 2015. (Administrative Record (“AR”) 212).^[1] Plaintiff alleged disability beginning on July 25, 2014 based on right ankle problems and back problems. Id.^[2] Plaintiff's application was denied upon initial review (AR 219) and on reconsideration (AR 243). A hearing was held on August 28, 2017 (AR 168), after which ALJ Peter Baum found, at Step Five, that Plaintiff was not disabled because she could perform other work existing in significant numbers in the national economy. (AR 136). On September 27, 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, 2019. (AR 230). Thus, to be eligible for benefits, Plaintiff must prove that she was disabled during the time period of her amended AOD of April 14, 2016 and her DLI of December 31, 2019.

         II. Factual History^[3]

         Plaintiff was born on April 15, 1966 making her 50 years old at the amended AOD of her disability. (AR 205). She stopped attending school in the 8th grade. (AR 382). In the past 15 years she has worked as a van driver, a house cleaner, and in retail. (AR 416).

         A. Treating Physicians

         Plaintiff was seen in 2011 for back pain (AR 486, 488, 498, 501, 510), right ankle pain (AR 520, 523, 524, 534, 539), and hand pain, swelling, tingling, and numbness (AR 493, 521, 522, 535). She continued to report right ankle pain and lower back pain in 2012. (AR 611).

         In 2014 Plaintiff reported continued pain in the right ankle; new x-rays did not demonstrate any new abnormalities. (AR 554).

         In 2015 Plaintiff reported chronic right foot and ankle pain and requested a referral to an orthopedist. (AR 579). X-rays on October 27, 2015 showed post moderate degenerative joint disease moderately severe in the ankle joint. (AR 618). On November 10, 2015 Plaintiff reported worsening ankle pain, grinding, and swelling, severity level 10, aggravated by walking, standing, and climbing stairs. (AR 630). She was referred to Dr. Steck for possible total ankle arthroplasty and recommended to have a rheumatology consult. (AR 633).

         An MRI of the lumbar spine on June 23, 2015 noted degenerative changes with narrowing at the L4-5 and L5-S1 disc spaces. (AR 585).

         On November 13, 2015 Plaintiff reported left hip and back pain and was prescribed Flexeril and Tramadol. (AR 653, 657).

         In 2015 Plaintiff was seen for right shoulder pain and weakness, duration 1 year, severity 9/10. (AR 564). She received an injection on May 12, 2015 (AR 568) and reported 50% improvement in pain after the injection but only for one week and stated Aleve helped (AR 559). An MRI on August 25, 2015 showed severe distal and insertional supraspinatus tendinosis with an 8 mm tear, mild anterior insertional infraspinatus tendinosis with a probable tear, mild subacromial-subdeltoid bursitis, and mild acromioclavicular joint osteoarthritis. (AR 571). The assessment was partial tear of right rotator cuff and Plaintiff received another injection on September 15, 2015. (AR 639). On November 24, 2015 she reported 20% improvement for 2 months after the last injection and rated her pain at 5/10. (AR 624). On exam right shoulder strength was decreased and left shoulder strength normal; Plaintiff received another injection and instructions to ice and do home exercises. (AR 627-28).

         Plaintiff was also seen for left shoulder pain. On July 7, 2015 she reported pain in her left shoulder for 4 weeks. (AR 582). X-rays of the left shoulder were normal and the impression was rotator cuff syndrome. (AR 579, 581). An MRI of the left shoulder on July 27, 2015 showed no rotator cuff tear, moderate supraspinatus and infraspinatus insertional tendinosis with interstitial fissuring, biceps tendon with mild proximal tendinosis, mild to moderate acromioclavicular joint osteoarthritis, and findings suggestive of mild subacromial/subdeltoid bursitis. (AR 577-78).

         On January 4, 2016 Plaintiff was seen for a rheumatology consult and reported joint pain for many years and pain in the ankles, low back, neck, and shoulders. (AR 698). She was using ibuprofen for pain which did not help much and did not tolerate codeine or Tramadol in the past. The assessment was primary generalized osteoarthritis and dorsalgia, unspecified. (AR 700). The doctor noted “not much evidence of active inflammatory arthritis in the joints” and a “minimally positive rheumatoid factor” and recommended x-rays and referral to a pain specialist if imaging showed significant osteoarthritis. X-rays of the cervical spine showed mild C5-C6 degenerative disc disease and incidental longus colli calcific tendinosis. (AR 704). X-rays of the right foot showed severe right ankle joint osteoarthritis with disuse osteopenia and no evidence of inflammatory arthritis. (AR 705). X-rays of hands showed mild DIP joint osteoarthritis of the index and long fingers bilaterally and no evidence of inflammatory arthritis. (AR 706). X-rays of the lumbosacral spine showed moderate lower lumbar spine degenerative disc disease and normal sacroiliac and hip joints. (AR 707).

         On October 12, 2016 Plaintiff reported right calf pain and muscle cramps for 5 years. (AR 745). She was referred to her orthopedist for follow-up and prescribed cyclobenzaprine for muscle spasms. (AR 748).

         In 2017 Plaintiff was treated for low back pain at Southwest Sports and Spine. On February 1, 2017 she reported low back pain for many years, worsening over the past few months, pain radiating to thighs and knees, worse on the left. Plaintiff rated her pain 8- 9/10, constant and sharp, stated ibuprofen and physical therapy did not help, and pain was worse with standing, prolonged sitting, and extension-based activities. The assessment was lumbago; spinal enthesopathy, lumbar region; spondylosis without myelopathy or radiculopathy, lumbar region; and radiculopathy, lumbar region. (AR 710). Plaintiff was referred for an MRI and prescribed Norco. The MRI showed L3-4 right lateral disc protrusion presses on the right L4 nerve root, no stenosis; L4-5 degenerative disc disease bulge with prominent epidural fat contributing to mild central stenosis, neural foramina are patent; and L5-S1 central disc protrusion with a left paracentral component, no stenosis. (AR 712-13). Plaintiff received an injection on February 27, 2017. (AR 714-17). On March 14, 2017 she reported 20-30% relief. (AR 720). Plaintiff received another injection on April 6, 2017. (AR 721- 24).

         B. Examining Physicians

         Plaintiff saw Dr. Jerome Rothbaum on March 7, 2012 for a consultative examination. (AR 546). She reported problems with her right foot following a car accident in 2006 and a 7-year history of back pain. (AR 546-47). Dr. Rothbaum's impression was right ankle fracture 2006, Achilles tendinitis in the right leg, and low back pain (appears to be primarily myofascial). (AR 548). He opined that Plaintiff could lift/carry 20 pounds occasionally and 10 pounds frequently due to her ankle and low back pain; could stand and walk a total of 3-4 hours per day, 1 hour at a time, with a 5 minute break due to her ankle fracture and tendinitis; had no restrictions on sitting; and had no limitations on reaching, handling, fingering, or feeling. (AR 549-50).

         Plaintiff saw chiropractor Noel Shaw on August 7, 2017 for an evaluation. (AR 773). Her presenting symptoms were low back pain, hip and leg pain, right ankle pain and weakness, neck pain radiating into shoulders, restriction of movement of cervical spine, shoulder pain radiating into arm and wrists, numbness and tingling in right hand, right elbow and wrist pain, mid back pain, fatigue, anxiety, and depression. Plaintiff stated she felt worse after any activity, that she could not do activities requiring torso flexion such as dishes, vacuuming, or mopping, or extended sitting, walking, standing, traveling, or bending. She reported minor temporary relief from ibuprofen but her pain is always present. Shaw completed a physical residual functional capacity assessment and opined that Plaintiff had the following restrictions: stand 2 hours or less, sit 15-30 minutes without needing to change positions, walk less than 1 block without needing to rest, lift and carry 10 pounds occasionally, never lift and carry 20 pounds, occasionally reach, never perform fine manipulation, grasp occasionally, never kneel, stoop, or crouch, alternate sitting/standing every hour, and would be unable to work more than 5 days/month due to physical conditions. (AR 776).

         C. State Agency Physicians

         At the initial disability determination level, Dr. Martha Goodrich opined that Plaintiff could occasionally lift 20 pounds, frequently lift 10 pounds, stand/walk 6 hours in an 8-hour workday, sit more than 6 hours, and do unlimited pushing/pulling. (AR 217). She also limited Plaintiff to occasional overhead reaching with no handling/fingering restrictions. (AR 218-19).

         On reconsideration, Dr. Carol Hutchinson limited Plaintiff to standing/walking 4 hours per day due to Plaintiff's complaints, ankle exams, ...