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Holmes v. Colvin

United States District Court, E.D. Virginia, Richmond Division

December 8, 2014

ARTHUR H. HOLMES, IV, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


DAVID J. NOVAK, Magistrate Judge.

Arthur H. Holmes, IV ("Plaintiff) is forty-five years old and previously worked as an electrician, a stock clerk and a cashier. On January 18, 2011, Plaintiff applied for Social Security Disability Benefits ("DIB"). On January 19, 2011, Plaintiff applied for Supplemental Security Income ("SSI") under the Social Security Act ("Act"). Both claims stemmed from gout flares, with an alleged onset date of February 2, 2008. Plaintiff's claims were denied both initially and upon reconsideration. On October 15, 2012, Plaintiff, represented by counsel, appeared before an Administrative Law Judge ("ALJ"). At the hearing, Plaintiff amended his alleged onset date to May 1, 2011. The ALJ denied Plaintiff's claims in a written decision on November 21, 2012. On January 22, 2014, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner of Social Security.

Plaintiff now appeals the ALJ's decision in this Court pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred by failing to indicate the weight that she gave to the opinions of Plaintiff's treating physicians, as well as the state agency medical consultant. Plaintiff further contends that substantial evidence does not support the ALJ's determination that Plaintiff would likely miss only one day of work per month due to gout flares. Defendant responds that the record does not contain medical opinions from Plaintiff's treating physicians, that the ALJ sufficiently explained the weight that she afforded to the state agency physician's opinion and that even if she did not, the ALJ's failure to do so was harmless and that substantial evidence supported the ALJ's determination that Plaintiff would likely miss only one day of work per month. The parties have submitted cross-motions for summary judgment that are now ripe for review. Having reviewed the entire record in this case, the Court is now prepared to issue a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the Court recommends that Plaintiff's Motion for Summary Judgment (ECF No. 8) be GRANTED, that Defendant's Motion for Summary Judgment (ECF No. 10) be DENIED and that the final decision of the Commissioner be VACATED and the case REMANDED.


Because Plaintiff alleges that the ALJ erred in her analysis of the opinions of Plaintiff's treating physicians and the slate agency physician, and that substantial evidence failed to support the ALJ's determination that Plaintiff would only miss one day of work per month, Plaintiff's education and work history, medical records, function reports, hearing testimony and the state agency physician's opinion are summarized below.

A. Education and Work History

Plaintiff was forty-one years old when he applied for DIB and SSI and was forty-two years old on his amended alleged disability onset date. (R. at 16, 34-35.) Plaintiff completed school through the eighth grade, earned a General Equivalence Diploma ("GED") and received vocational training to be an electrician. (R. at 36-37.) Plaintiff previously worked as an electrician's helper, a grocery store stock clerk and a convenience store cashier. (R. at 37-39.)

B. Medical Records

1. Pre-2011 Medical Records[1]

In May 2008, Plaintiff sought emergency medical attention for pain and swelling in his left foot and ankle at CJW Medical Center. (R. at 252-57.) X-ray imaging of Plaintiff's left foot revealed "degenerative-type findings, " but no acute injury or bony abnormality. (R. at 257.) Blood work indicated high levels of uric acid, and Plaintiff was diagnosed with gout. (R. at 252-55.) Plaintiff was prescribed pain medication and discharged with instructions to return if his symptoms changed or worsened. (R. at 252.)

2. Kim Clements, M.D.

On April 12, 2011, Plaintiff sought treatment at Patient First following a work-related injury that he suffered while attempting to maintain his balance on a ladder the previous day. (R. at 273.) Plaintiff complained of pain in his left shoulder, lower back and left knee. (R. at 273.) Kim Clements, M.D. evaluated Plaintiff and observed that his left knee was mildly swollen and mildly tender to palpitation on the lateral portion. (R. at 273.) Dr. Clements noted that Plaintiff had limited range of motion in his left shoulder. (R. at 273.) Dr. Clements reported that Plaintiff was experiencing muscle spasms on the left side of his back and the right side was tender to palpitation, but there was no bony vertebral tenderness. (R. at 273.) Imaging of Plaintiff's knee, shoulder and back revealed no acute abnormalities, but showed mild disc space narrowing at the L4-L5 vertebra, as well as anterior marginal osteophytes in his lower back.[2] (R. at 273.) X-rays of Plaintiff's left knee showed mild osteoarthritis and trace joint effusion, but no fracture. (R. at 273.) Dr. Clements diagnosed Plaintiff with knee, lumbar and shoulder sprains, prescribed Vicodin and Lodine, and limited Plaintiff to light duty work for one week with no lifting, pushing or pulling greater than fifteen pounds with his left shoulder, no overhead work, no bending and careful use of his left knee. (R. at 273-74.)

On April 15, 2011, Plaintiff returned to Patient First for a follow-up visit. (R. at 274.) His shoulder felt better, but remained stiff and his left knee and back still caused him pain. (R. at 274.) Dr. Clements observed that Plaintiff moved his knee very stiffly and that the knee was still swollen and tender to palpitation on the lateral aspect. (R. at 274.) Dr. Clements referred Plaintiff to an orthopedic specialist. (R. at 274.)

3. Christopher Wise, M.D.

On December 27, 2011, Plaintiff saw Christopher Wise, M.D., a rheumatologist in the VCU Health System's Rheumatology Division, for an initial office visit regarding his gout. (R. at 303.) Plaintiff informed Dr. Wise that he had been diagnosed with gout ten to eleven years earlier after an attack of pain and swelling in his foot. (R. at 303.) The gout flares in Plaintiff's foot reoccurred every four to eight months for a few years, but within the past five years, the attacks increased in frequency and spread to his hands, elbows, ankles and knees. (R. at 303.) Plaintiff reported that he currently experienced gout attacks twice per month. (R. at 303.) Plaintiff told Dr. Wise that his right ankle remained swollen all the time. (R. at 303.)

Dr. Wise noted that Plaintiff lost three fingers[3] on his right hand in a lawnmower accident as a child and had been diagnosed with hypertension in 2011. (R. at 303.) Regarding his family history, Plaintiff told Dr. Wise that his mother had diabetes mellitus and his grandfather had gout. (R. at 303.) Plaintiff reported being unemployed since April due to his joint problems and that, on average, he smoked a half pack of cigarettes and drank two beers each day. (R. at 303.) He remembered taking Colchicine and Aleve in the past, and presently took Colcrys, which had been "helpful." (R. at 303.)

Upon examination, Dr. Wise opined that Plaintiff appeared healthy and not in distress. (R. at 303.) Plaintiff's hair, scalp, eyes, mouth, neck, heart, lungs, abdomen, skin and peripheral pulses appeared normal, as did his neurological function. (R. at 303-04.) Plaintiff had full range of motion without pain in his cervical and lumbar spine. (R. at 304.) Dr. Wise observed mild enlargement in Plaintiff's right second metacarpophalangeal ("MCP") joint and right ankle, but no soft tissue swelling, effusions, warmth or nodules of tophi. (R. at 304.) Dr. Wise assessed Plaintiff as having probable progressive gout, hypertension and chronic renal disease. (R. at 304.) Dr. Wise prescribed Allopurinol for Plaintiff's gout and recommended that Plaintiff take it continuously, regardless of whether he was having a gout attack. (R. at 304.) In addition, Dr. Wise recommended that Plaintiff moderate his alcohol intake and return for a follow-up in four months. (R. at 304.)

4. Andrew Eschenroeder, Medical Resident

On October 9, 2012, Plaintiff returned to VCU Health System for a follow-up appointment regarding his gout. (R. at 321.) Plaintiff saw Mr. Andrew Eschenroeder, a medical resident in the Rheumatology Department, complaining primarily of left knee pain. (R. at 321.) Plaintiff complained of continuing gout flares in his hands, elbows, knees and feet, and worsening left knee pain. (R. at 321.) Plaintiff rated his knee pain as eight out of ten. (R. at 321.) He described the pain as constant, but waxing and waning in severity. (R. at 321.) He explained that during an attack, his knee joint became hot and swollen for four to five days, with two to three days of relief before the next attack. (R. at 321.)

Plaintiff told Mr. Eschenroeder that he went to the emergency room a month earlier during a similar flare of symptoms and had fluid drained from his left knee. (R. at 321.) He was prescribed pain medication and did not seek follow-up care after he was discharged. (R. at 321.) Mr. Eschenroeder noted that Plaintiff was assessed for a possible meniscus tear the previous year by an orthopedist, but Plaintiff had not scheduled an MRI to confirm the diagnosis. (R. at 321.) Plaintiff informed Mr. Eschenroeder that he also experienced gout attacks every two weeks in his third right MCP, both elbows and his big toes on both feet. (R. at 321.) During attacks, he took two Colchicine with minimal relief. (R. at 321.) Plaintiff told Mr. Eschenroeder that although he initially took the Allupurinol only during a gout attack, he now took it every day. (R. at 321.) In addition, he takes Naproxen daily. (R. at 321.) Plaintiff reported that he could not work because of his pain. (R. at 321.) He admitted to drinking three to four beers per week, smoking one pack of cigarettes per day and eating red meat and seafood regularly. (R. at 321.)

Mr. Eschenroeder examined Plaintiff and remarked that Plaintiff's left knee pain disrupted his gait. (R. at 322.) He noted swelling in the third MCP joint on the right hand, but no tenderness, full range of motion in both arms and swelling near the elbow on the right side. (R. at 322.) Upon examination. Plaintiff's left knee was warm, swollen, tender to palpitation, and pain limited his range of motion. (R. at 322.) His right knee was not tender and had full range of motion. (R. at 322.) Plaintiff's left big toe was tender to palpitation, and both ankles exhibited full range of motion without pain. (R. at 322.) Mr. Eschenroeder rated Plaintiff's left leg strength on knee extension and flexion as a four out of five, and rated his right leg five out of five. (R. at 322.)

Mr. Eschenroeder opined that Plaintiff had poorly controlled gout, as exhibited by his biweekly flares in his hands, elbows and feet, and his persistent left knee pain with weekly superimposed flares. (R. at 322.) Mr. Eschenroeder prescribed Prednisone to be taken daily, doubled Plaintiff's daily dose of Naproxen and advised Plaintiff to quit drinking alcohol and limit his intake of red meat and seafood. (R. at 322.) Mr. Eschenroeder also assessed Plaintiff as having a renal insufficiency and a possible left meniscal tear and ordered blood work that day and follow-up testing one week later. (R. at 322-23.)

5. Other Medical Sources

a. Judith Falzoi, F.N.P.

On July 14, 2011, Plaintiff sought treatment at Appomattox Area Health & Wellness Center for his gout and unresolved left knee and back injuries resulting from his April 2011 ladder accident. (R. at 283-85.) Judith Falzoi, F.N.P., M.S. saw Plaintiff and noted that his active problems included hypertension and frequent episodes of gout. (R. at 284-85.) Nurse Falzoi also indicated that Plaintiff previously had two fingers on his right hand amputated and a right thumb tendon injury in 2007. (R. at 284.) On examination. Nurse Falzoi observed that Plaintiff was groomed, smiling, pleasant and obese. (R. at 286.) He had palpable pulses and no edema in his extremities. (R. at 286.) Plaintiff had pain in his lower back, left knee and left shoulder. (R. at 286.) He exhibited full range of motion in his back and shoulders, and crepitus in his left knee. (R. at 286.) Nurse Falzoi recommended that Plaintiff decrease his beer and tobacco consumption, and prescribed him medication for pain and hypertension. (R. at 285.)

On August 15, 2011, Plaintiff saw Nurse Falzoi for a follow-up visit. (R. at 287.) During that appointment. Plaintiff reported that he had gone to the emergency room two weeks earlier for a swollen right elbow but did not stay for evaluation, because his pain went away. (R. at his left knee, and four out of five on bilateral manual muscle testing. (R. at 295.) Both his light 287.) At the time of his appointment, some elbow swelling remained, but Plaintiff was not in pain. (R. at 287.) He told Nurse Falzoi that he had appointments scheduled at VCU Health System for his knee pain and lower back pain. (R. at 287.) Plaintiff informed Nurse Falzoi of his 2007 right thumb tendon injury and complained of limited movement in his right thumb. (R. at 287.) Nurse Falzoi observed decreased strength, but no obvious thumb deformities. (R. at 288.) She referred him to the VCU Health System Hand Clinic. (R. at 287.)

b. Mary Weber, P.T.

In October 2011, Plaintiff went to VCU Health System for two physical therapy appointments at the referral of Anne Tapscott, N.P. (R. at 294.) Mary Weber, P.T. saw Plaintiff, who complained primarily of lower back pain. (R. at 294.) At Plaintiff's initial visit, Weber observed that Plaintiff had antalgic gait with decreased weight bearing on his left leg due to gout, as well as decreased cadence and step length. (R. at 294.) Plaintiff exhibited poor sequencing when he walked, namely, no heel strike and no push-off. (R. at 294.) Ms. Weber noted that Plaintiff was unable to push off of his left foot due to pain from his gout and fitted Plaintiff with a straight cane. (R. at 294.) Plaintiff exhibited active range of motion with minor limitation in touch sensation and deep tendon reflexes were intact. (R. at 296.) Ms. Weber observed lumbar spine dysfunction. (R. at 296.) Ms. Weber assessed Plaintiff as having poor posture, pain, decreased flexibility and weakness in his bilateral upper and lower extremities ...

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