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Sherman v. Colvin

United States District Court, W.D. Virginia, Danville Division

July 8, 2014

THURSTIE SHERMAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

JOEL C. HOPPE, Magistrate Judge.

Plaintiff Thurstie Sherman brought this action for review of the Commissioner of Social Security's (the "Commissioner") decision denying her claim for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-433, 1381-1383f. Both parties have moved for summary judgment and filed briefs in support. (ECF Nos. 16, 17, 19, 20). On appeal, Sherman argues that the Commissioner erred in assessing her residual functional capacity ("RFC"), specifically by failing to consider (and give controlling weight to) the opinion of her treating oncologist, failing to account for her fatigue and exhaustion, and placing too much emphasis on part-time work she performed during and after her chemotherapy. The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), and this case is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). After carefully reviewing the record, I find that remand is necessary to allow the Commissioner to explain how she interpreted the treating oncologist's opinion and what weight she gave to it. Accordingly, I recommend that Sherman's motion be granted, the Commissioner's motion be denied, and the case be remanded for further administrative proceedings pursuant to section four of 42 U.S.C. § 405(g).

I. Standard of Review 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), 1383(c)(3); 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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(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), 416.920(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

Sherman was born in 1970 (Administrative Record, hereinafter "R." 28, 177), 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), 416.963(b), (c). She has completed a year of college as well as paramedic training and has worked as a hospital registrar, paramedic, and most recently as the owner and operator of a bridal boutique. (R. 181-82, 187-90.) She alleges that she has been disabled since February 25, 2011, primarily due to breast cancer. (R. 177, 181, 203.) After rejecting Sherman's application initially and on reconsideration (R. 47-86), the Commissioner convened a hearing before an Administrative Law Judge ("ALJ") at Sherman's request on August 8, 2012. (R. 34-46.)

On August 30, 2012, the ALJ issued his decision finding Sherman not disabled and denying her benefits. (R. 17-33.) The ALJ found that Sherman has the severe impairment of "stage 2 breast cancer status post lumpectomy, " but that this impairment did not meet or medically equal the severity of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 22-24.) He found Sherman's medically determinable mental impairments nonsevere. (R. 22.) Adopting the findings of the state agency consulting physicians, the ALJ found that Sherman retained the capacity to perform light work with only occasional climbing, balancing, stooping, kneeling, crouching, and crawling. (R. 24-28.) He found that Sherman retained the capacity to perform her past relevant work as a retail/boutique store owner and hospital registrar. (R. 28.) Alternatively, he found, based on the testimony of a vocational expert, that Sherman could perform other work existing in significant numbers in the national economy. (R. 28-29.) Accordingly, he found Sherman not disabled under the act. (R. 29.) The Appeals Council denied Sherman's request for review (R. 1-7), and this appeal followed.

III. Facts

A. Medical Records

In mid-January 2011, Sherman noticed a lump in her left breast. (R. 249-50.) A mammogram revealed suspicious findings, and an ultrasound-guided biopsy confirmed the presence of breast cancer. (R. 268-70.) On February 25, Sherman underwent surgery to have the lump removed. (R. 257-61, 263-64.) A biopsy showed that the cancer was a stage II poorly differentiated infiltrating ductal carcinoma, with perineural invasion but without lymphovascular invasion, which was positive for HER2/neu, a gene that is associated with certain aggressive cancers. (R. 231-33, 259-61, 63-64.) A CT scan taken after the surgery showed no definite evidence of metastatic disease. (R. 236.)

Because Sherman's cancer posed a risk of recurring, Sherman's oncologist, Dr. Neil Schacht, recommended following up the surgery with chemotherapy. (R. 231-33.) Between April 12 and June 14, 2011, Dr. Schacht and Dr. Devinderpal Randhawa (another onocologist at Dr. Schacht's practice) treated Sherman with four cycles of Adriamycin (doxorubicin) and cyclophosphamide.

At her April 12 visit, Sherman reported insomnia and requested something to help her sleep; Dr. Schacht prescribed Trazodone. (R. 231-33.) On May 24, 2011, Dr. Randhawa reported that Sherman was tolerating chemotherapy well, but was depressed and tearful due to social issues and financial problems. (R. 220-21.) Sherman reported that she was trying to continue working during her chemotherapy. ( Id. ) At a physical exam with Dr. Lovetta Pugh on June 7, she complained of problems sleeping, fatigue, and nausea due to chemotherapy, but reported having a normal appetite. (R. 240-43.) On June 14, Dr. Schacht noted that Sherman was tolerating chemotherapy well except for increasing fatigue. (R. 302-03.) And on July 5, Dr. Randhawa noted that Sherman tolerated chemotherapy well and continued to go to her job despite some chemotherapy-induced fatigue. (R. 292-94, 405-07.) Sherman also complained of pain in her left arm, which she attributed to using her arm more than usual while measuring people for tuxedo fittings; Dr. Randhawa prescribed Motrin, which reduced the pain. (R. 283-84, 292-94, 399-401, 405-07.)

On July 5, 2011, Sherman began a regimen of twelve weekly injections of the chemotherapy drug Taxol (paclitaxel) and Herceptin (trastuzumab), a biopharmaceutical that slows the growth of HER2-positive cancers by binding to the HER2 protein. (R. 292-94.) The record before the ALJ contained notes from the first five cycles, from July 5, 2011, through August 2, 2011. (R. 274-75, 278-81, 283-84, 290-94.) Treatment notes from these visits indicate that Sherman was handling chemotherapy "well" or "fairly well, " and that her principal complaint was fatigue. ( Id. ) At one visit, Sherman told the ALJ that she was "working daily." (R. 290-91.) Sherman complained of hot flashes in early July, which were treated with Neurontin (gabapentin). (R. 290-91.) She was diagnosed with mild anemia as well as vitamin B12 deficiency, which was treated with monthly B12 injections. (R. 276-84.) The record before the ALJ also contained notes from an August 22, 2011, consultation with Dr. Peter J. Leider, which indicate that Sherman had an adequate appetite and had even gained 16 lbs since her diagnosis, but had no energy. (R. 322-27.) She also complained of hot flashes, numbness, generalized muscle weakness, "some depression and anxiety issues, " and incontinence. ( Id. ) Dr. Leider informed Sherman that tiredness is a common side effect of chemotherapy. (R. 326.)

Notes from the remaining seven Taxol/Herceptin cycles, which continued until September 27, 2011, were submitted to the Appeals Council after the ALJ's decision. (R. 6, 364-92, 396-407.) These notes also indicate that Sherman tolerated her chemotherapy well but frequently complained of fatigue. (R. 364-80, 383-89.) At her August 16 visit, she reported that her fatigue was interfering with her job, but noted that she worked a wedding the previous Saturday. (R. 385-87.) Complaints of neuropathy in late August caused Dr. Randhawa to delay one dose of Taxol for a week, but an increased dose of Neurontin (gabapentin) provided relief. (R. 373-74, 378-80, 382-84.) On September 20, when Sherman received her last cycle of Herceptin and second to last cycle of Taxol, she reported that she was able to continue to work at her job and that she suffered from a little swelling in her right ankle after participating the previous weekend in the Walk for Hope, where she walked one lap. (R. 367-72.) When Sherman received her last cycle of Taxol the following week, she indicated that she was feeling well, but was happy that chemotherapy was ending. (R. 364-66.) At an office visit on October 17, 2011, Dr. Schacht noted that Sherman was doing well clinically. (R. 361-63.)

Following her Taxol/Herceptin regimen, Sherman began a regimen of radiation therapy in October 2011. (R. 316-21.)[1] At her first visit, she told Dr. Leider that she was having difficulty sleeping but did not want to try any pills because they either did not work or caused her to feel hung over. (R. 321.) She reported that she had worked a weekend and visited her son the previous weekend after he graduated from Marine boot camp, but exerted herself through walking and other activities such that she had to use a wheelchair. ( Id. ) She was in reasonably good spirits, but Dr. Leider suspected that Sherman was struggling with side effects of her treatments and may have overlying depression as well. ( Id. ) Sherman tolerated radiation therapy fairly well, suffering from only mild radiation dermatitis. (R. 316-319.) She did complain of weakness, breast soreness, and fatigue. (R. 316, 317, 319.) At one visit, she broke down crying due to struggling with the psychological aspects of her diagnosis. (R. 318.)

On January 23, 2012, Sherman began the final phase of her treatment: a 40-week course of Herceptin injections. (R. 309-10.) Before her first injection, she reported to Dr. Randhawa that she was still suffering from chemotherapy fatigue. (R. 309-10.) Treatment records indicate that Sherman tolerated Herceptin well, with her principal complaint being fatigue. (R. 313-15, 332-34, 340-49, 435-46.) In February, she complained of insomnia, although Xanax provided some relief, and reported she was working a lot. (R. 313-15.) She suffered from leg pain and radiculopathy in April, but these symptoms resolved without treatment. (R. 328-37.) In May, she reported achy joints after a busy weekend working a double wedding. (R. 340-42.) At a June follow-up, she complained of fatigue, memory loss (although Dr. Schacht noted that Sherman "seem[ed] extremely lucid and sharp"), headaches, occasional foot swelling, and nausea and vomiting, especially the week after her injections. (R. 346-49.) Dr. Schacht suspected that her headaches were probably stress-related, but her other side effects were due to the large Herceptin doses she ...


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