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Ellis v. Colvin

United States District Court, Western District of Virginia, Harrisonburg Division

May 15, 2014

BRENDA F. ELLIS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

Joel C. Hoppe United States Magistrate Judge

Plaintiff Brenda F. Ellis brought this action for review of the Commissioner of Social Security’s (“Commissioner”) decision denying her claim for disability insurance benefits (DIB) under Title II of the Social Security Act (the “Act”). On appeal, Ellis argues that the Commissioner erred in evaluating her residual functional capacity (“RFC”) when he gave insufficient weight to the opinions of two of her treating physicians and also erred in relying on the testimony of the vocational expert.[1] After carefully reviewing the record, I find that the Commissioner’s decision is not supported by substantial evidence and RECOMMEND that the Commissioner’s decision be reversed and the case be remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g).

I. The Legal Framework

The Social Security Act authorizes this Court to review the Commissioner’s final determination that a person is not entitled to disability benefits. See 42 U.S.C. §§ 405(g) (DIB); see also Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court’s role, however, is limited—it may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether substantial evidence supports the ALJ’s factual findings and whether the ALJ applied the correct legal standards. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).

Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” of evidence, ” id., but not necessarily “a large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 487–89 (1951). Ultimately, this Court must affirm the ALJ’s factual findings if “‘conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.’” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal quotation marks omitted)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

A person is “disabled” if he or she is unable engage in “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act’s regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and if not (5) whether he or she can perform other work. See 20 C.F.R. § 404.1520(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460–462 (1983). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.

II. Procedural History

Ellis was born in 1964 (Administrative Record, hereinafter “R.” 837), and at the time of the ALJ’s decision was considered a “younger individual” under the Act. 20 C.F.R. § 404.1563(b), (c). She has an eleventh grade education and has worked as a sewing machine operator, poultry plant line worker, and housekeeper prior to her alleged onset date. (R. 173, 175.) She alleges a disability onset date of March 1, 2007, [2] due to several conditions, including pain, anemia, depression, suicidal ideation, endometriosis, iritis, and psoriatic arthritis. (R. 166, 174, 209.) The Commissioner rejected Ellis’s application initially, upon reconsideration, and in a decision by an Administrative Law Judge (“ALJ”) dated March 10, 2010. (R. 824.)

Ellis appealed the ALJ’s decision, which became final when the Appeals Council denied her request for review on December 22, 2010, to this Court. (R. 824.). See Ellis v. Astrue, No. 5:11-cv-00008-MFU-BWC (W.D. Va. 2012). In an Order issued March 29, 2012, the Court adopted the Report and Recommendation of United States Magistrate Judge B. Waugh Crigler and remanded the case to the agency for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Id., 2011 WL 5005305 (Oct. 20, 2011), report and recommendation adopted by 2012 WL 1069206 (Mar. 29, 2012). In remanding, the Court identified two errors in the ALJ’s decision. First, the ALJ failed to grant controlling weight to the medical opinions of Ellis’s rheumatologist, Dr. Donald Martin, without giving an adequate reason for doing so. 2011 WL 5005305, at *3. Second, the ALJ failed to call a vocational expert to determine whether Ellis could find a job despite extensive evidence of non-exertional limitations on her ability to work. Id.

On remand, the agency again convened an administrative hearing via video conference on October 11, 2012, this time before a different ALJ. (R. 824, 845–90.) On October 16, the ALJ issued his decision finding Ellis not disabled under the Act. (R. 824–838.) He determined that she met insured status through December 31, 2008. (R. 827.) The ALJ found that Ellis had severe impairments of fibromyalgia, an affective disorder (depression), and an anxiety disorder, but that these impairments neither met nor medically equaled the severity of those listed in 20 C.F.R. part 404, Subpart P, Appendix 1. The ALJ also found that Ellis retained the ability to perform a limited range of sedentary work.[3] (R. 830–31.) In reaching his assessment of Ellis’s RFC, the ALJ granted limited weight to the opinions of Dr. Martin and Dr. John Syptak. (R. 835–36.) Although Ellis’s impairments prevent her from performing her past relevant work, the ALJ found that there are significant numbers of jobs in the national economy that she could perform. (R. 838.) Thus, the ALJ found Ellis not to be disabled under the Act. (R. 838). The Appeals Council denied Ellis’s request for review and this appeal followed. (R. 806–09.)

III. Discussion

A. Residual Functional Capacity and Treating Physicians

Ellis first argues that the ALJ erred in finding that she had the RFC to perform sedentary work. (Pl. Br. 8–12.) Specifically, she contends that the ALJ should have given greater weight to the opinions of Dr. John Syptak, Ellis’s primary physician, and Dr. David Martin, Ellis’s treating rheumatologist. (Pl. Br. 8–12.)

1. Relevant Facts

Dr. John Syptak has served as Ellis’s primary care provider since 2004. (R. 514, 832.) Since then, he has treated her for several medical conditions, including fibromyalgia, arthritis, anxiety, and depression. (R. 388–416, 667–76, 747–62, 784–91.) To treat these conditions, he prescribed several medications, including Percocet, Wellbutrin, Effexor, Flexeril, and Ativan. (Id.)

Large portions of the treatment notes from the relevant period and afterward are illegible. However, it appears that Ellis complained of pain in her hips and stomach in early 2007, prior to her successful colon resection surgery in 2007. (R. 243, 391, 392.) In August and November 2007, she reported she was doing well, although she suffered a bout of strep throat in October. (R. 388, 389, 674, 676.) In January 2008, she reported that she felt pretty good. (R. 672.) Between February and April 2008, Dr. Syptak noted complaints of sinus problems. (R. 667–71.) Dr. Syptak noted a psoriatic arthritis flare in June 2008 and complaints of lower back pain and problems with her colon in July, but Ellis reported she was doing better in August. (R. 723, 761– 62.) In September, October, and November 2008, Ellis complained of sinus pain. (R. 756–60.)

In January 2009, Dr. Syptak noted complaints of back and neck pain. (R. 752–54.) On her January 30 visit, Ellis reported chest pain, but refused admission to the hospital. (R. 752.) In February, Ellis’s condition had improved, and she was feeling more comfortable. (R. 751.) Likewise, in April, she reported that she was doing well and that Neurontin was helping her pain. (R. 749.) On May 5, Dr. Syptak indicated that Ellis looked good and felt good, and Ellis reported doing a little more work in the garden. (R. 748.) Treatment records indicate that Ellis suffered from an infection in June, but was feeling good in August and September. (R. 745, 787–89.)

Dr. Syptak also completed a RFC questionnaire dated February 15, 2008. (R. 514–18, 649–53.)[4] On the RFC questionnaire, Dr. Syptak indicated that Ellis carried diagnoses of fibromyalgia, depression, and arthritis and that she had a fair prognosis. (R. 514.) Dr. Syptak described Ellis’s symptoms as including fatigue and generalized achiness and pain in her shoulders, elbows, fingers, hips, buttocks, knees, and ankles. (R. 514.) He indicated that Ellis suffered from anxiety and depression and that these conditions contributed to Ellis’s limitations (R. 515.) He indicated that Ellis would be capable of low-stress jobs and that her pain or other symptoms would frequently interfere with attention and concentration needed to perform even simple work tasks. (R. 515.) In Dr. Syptak’s opinion, Ellis could walk half a city block, sit for 15 minutes, and stand for 30 minutes before needing to rest. (R. 515.) He indicated that Ellis would be able to sit for less than 2 hours per day and that she would also be able to stand for less than 2 hours per day. (R. 516). Dr. Syptak noted that Ellis would have to walk around every 20 minutes for 5 minutes during the work day; would have to be able to shift at will between sitting, standing, and walking; and would require unscheduled breaks roughly every 15 minutes during the work day. (R. 516.) He did not believe that Ellis would need to elevate her legs with prolonged sitting. (R. 516.) Dr. Syptak indicated that Ellis would be able to lift up to 10 lbs. occasionally and 20 lbs. rarely. (R. 516.) He identified no limitations regarding neck movement, but limited Ellis to never climbing ladders and only rarely performing postural activities. (R. 517.) He assigned significant manipulative limitations, limiting Ellis to grasping, twisting, and turning 15% of the work day with her right hand and 20% of the work day with her left hand; fingering 20% of the work day with her right hand and 30% of the work day with her left hand; and reaching overhead 30% of the work day. (R. 517.) Finally, Dr. Syptak indicated that Ellis would need to be absent from work more than four days per month as a result of her impairments or treatment. (R. 517.)

Dr. Donald Martin, a rheumatologist at RMH Rheumatology, began treating Ellis on referral from Dr. Syptak on March 19, 2008. (R. 544–47, 551–54, 561–63, 557–59, 729–32.) Ellis reported to Dr. Martin that she had been suffering from fibromyalgia for 10 years, and that her three sisters also suffered from fibromyalgia. (R. 551–52.) Her complaints included initial and terminal insomnia, morning pain and stiffness of up to 2 hours’ duration, swelling of her fingers, and a “cognitive fog.” (R. 551.) On physical examination, Dr. Martin noted pan positive trigger points and neck discomfort with posterior extension. (R. 552.) Dr. Martin indicated that Ellis’s “presentation is consistent with the fibromyalgia syndrome, given her disrupted and nonrestorative sleep, generalized and chronic pain, and pan-positive trigger points, as well as the unremarkable evaluation to date.” (R. 552.) He recommended that she attempt a trial of salt and fluid loading and reminded her of the benefits of regular, progressive, low-impact aerobic exercise. (R. 553.)

Dr. Martin saw Ellis again on April 10. (R. 549–50, 555, 725–28.) He noted that Ellis was “little changed clinically” and that the salt and fluid loading trial had a minimal effect. (R. 725.) He reviewed a current laboratory profile and a pelvic radiographic report from 2005. (Id.) Dr. Martin again diagnosed fibromyalgia and increased Ellis’s prescriptions of trazodone from 50 mg to 100 mg at bedtime, and also prescribed gabapentin (Neurontin) at 300 mg three times per day. (R. 726.)

Ellis missed her follow-up appointment four weeks later, rescheduled for August 18, and subsequently missed that appointment as well. (R. 722, 724.) As a result, Ellis did not see Dr. Martin again until September 16, 2008. (R. 717–21.) At this visit, Ellis complained that her fibromyalgia symptoms had worsened considerably after she ran out of gabapentin, and she also complained of right shoulder discomfort. (R. 717.) Physical examination again revealed pan-positive trigger points. (R. 717.) Dr. Martin also noted limited abduction and diminished internal rotation due to pain in Ellis’s right shoulder. (R. 717.) Ellis’s shoulder pain was exacerbated by resisted abduction. (R. 717.) Dr. Martin also noted tenderness to palpitation over the subacrominal notch. (R. 717.) He diagnosed “[f]ibromyalgia, manifested by disrupted and nonrestorative sleep, generalized and chronic pain, and pan-positive trigger points, ” and noted that “[f]atigue, though remaining an issue, does not seem to be a priority on her part today.” (R. 718.) He attributed Ellis’s shoulder pain to either rotator cuff tendinitis or subacrominal bursitis, and requested a right-shoulder radiograph. (R. 718.) He instructed Ellis to try to increase her gabapentin dosage to 600 mg three times per day. (R. 718.)

Ellis followed up with Dr. Martin on February 9, 2009, complaining of “excruciating pain” in her spine. (R. 712.) She reported that she could only increase her gabapentin dosage to 600 mg two times per day due to side effects. (R. 712.) Physical examination again revealed pan-positive trigger points. (R. 713.) Dr. Martin diagnosed fibromyalgia and encouraged Ellis to start an exercise program. (R. 713.) He also asked her to try to increase her bedtime dosage of trazodone from 50 mg to 100 mg. (R. 713.)

After missing an appointment scheduled for May 26, 2009, Ellis followed up with Dr. Martin on July 31. (R. 778–80, 801–05.) Ellis complained of bilateral hand numbness and paresthesias and “deep” left lateral thigh pain. (R. 801.) She explained that she was unable to increase her dosage of trazodone because “she wishes to get up with her husband to help him prepare for work.” (R. 801.) On physical examination, Dr. Martin noted tenderness over the left greater trochanter, pan-positive trigger points, and positive bilateral Tinel and Phalen signs. (R. 802.) He diagnosed fibromyalgia, carpal tunnel syndrome, and left-sided trochanteric bursitis. (R. 802.) For Ellis’s carpal tunnel syndrome, Dr. Martin prescribed bilateral wrist splints. (R. 802.) For her bursitis, he asked her to increase her daily dosage of naproxen (Aleve) for two weeks. (R. 802.) He also asked Ellis to try to increase her bedtime dosage of trazodone to 75 mg on days when she does not need to wake up with her husband. (R. 802.)

Dr. Martin did not see Ellis again until February 5, 2010. (R. 796–800.) On this visit, Ellis complained of left hip pain as well as right thumb pain. (R. 797.) She indicated that she was able to sleep through the night only two or three days per week and that increasing her bedtime dosage of trazodone had little effect on this. (R. 797.) Ellis had limited her gabapentin intake to only 300 mg twice daily because she couldn’t afford to take more. (R. 798.) She also explained that she had been unable to exercise beyond walking to and from the mailbox once daily. (R. 797.) Ellis also told Dr. Martin that she had a disability hearing scheduled for February 24. (R. 797.) On physical examination, Dr. Martin identified tenderness in Ellis’s right thumb, tenderness over the greater trochanter on both sides but especially on the left, pan-positive tender points, and positive Tinel sign bilaterally. (R. 798.) Dr. Martin diagnosed osteoarthritis, trochanteric bursitis, carpal tunnel syndrome, and fibromyalgia. (R. 798.) He administered a steroid injection in her left hip for her trochanteric bursitis and instructed Ellis to ice her hip. (R. 799.)

Ellis returned for a follow-up on February 19, 2010. (R. 792–95.) She presented Dr. Martin with a “fibromyalgia residual functional capacity questionnaire, ” which Dr. Martin completed. (R. 792.) Ellis rated her pain as a 9 on a scale of 1 to 10. ...


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