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Stuckey v. Colvin

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

January 11, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERT J. KRASK, Magistrate Judge.

Plaintiff, Anna Grace Stuckey ("plaintiff" or "Stuckey"), brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Acting Commissioner ("Commissioner") of the Social Security Administration ("SSA") denying Stuckey's claim for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act.

An order of reference dated March 4, 2015, assigned this matter to the undersigned. ECF No. 10. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, and Local Civil Rule 72, it is hereby recommended that Stuckey's motion for summary judgment (ECF No. 12) be GRANTED, the Commissioner's motion for summary judgment (ECF No. 14) be DENIED, the decision of the Commissioner be VACATED, and the case be REMANDED to the Social Security Administration for further proceedings consistent with this report and recommendation.


Plaintiff, Anna Grace Stuckey, protectively filed an application for DIB on February 6, 2013, R. 118-20[1], alleging she became disabled on November 28, 2009 due to chronic back and pelvis pain, leg pain, depression, and anxiety. R. 156.[2] The Commissioner denied Stuckey's application on December 18, 2013 and, upon reconsideration, on April 3, 2014. R. 50-60, 62-73. At Stuckey's request, an Administrative Law Judge ("ALJ") heard the matter on July 16, 2014, and at that hearing received testimony from Stuckey (who was represented by counsel) and an impartial vocational expert ("VE") (who appeared by telephone). R. 35-49. On August 1, 2014, the ALJ denied plaintiff's claims, finding that Stuckey was not disabled. R. 15-33.

On October 21, 2014, the Appeals Council denied Stuckey's request for review of the ALJ's decision. R. 1-6. Therefore, the ALJ's decision stands as the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481. Having exhausted all administrative remedies, Stuckey filed a complaint with this Court on December 31, 2014. ECF No. 3. The Commissioner answered on March 3, 2015. ECF No. 8. In response to the Court's order, the parties filed motions for summary judgment, with supporting memoranda, on April 6 and May 6, 2015, respectively. ECF Nos. 12-13, 14-15. As neither party has indicated special circumstances requiring oral argument, the case is deemed submitted for a decision.


A. Stuckey's Background

Anna Grace Stuckey was born in 1989 and was 20 years old on November 28, 2009, the onset date of her alleged disability. R. 118. Stuckey completed an associate's degree in culinary arts, and served in the United States military from May 2006 through May 2011. R. 118, 244. Stuckey was involved in a motor vehicle accident in November 2009, when she fractured her pelvis, her sacrum, several bones in her left leg, and her ribs. R. 281, 222-23. She underwent multiple operations, in-patient rehabilitation, and physical therapy. R. 218-21, 243. At the August 1, 2014 hearing before the ALJ, Stuckey reported she was working part-time as a cake decorator, and was training to be a culinary chef. R. 40-41. Stuckey described experiencing severe lower back pain, and sharp leg pain where a metal rod was placed between her ankle and knee. R. 42-43. She also testified that she suffered from anxiety and depression. R. 43-44.

B. Relevant Medical Record from November 29, 2009

On November 29, 2009, the day after her alleged onset date, Stuckey was the restrained driver in a single-car rollover accident[3] and was transported by airlift to the Riverside Regional Medical Center where attending physician John McGee, M.D., noted multiple injuries including a displaced unstable fracture of her pelvis and sacrum, closed fracture of her left tibia and fibula, closed fracture of her left midshaft humerus, closed fracture of her left medial malleolus, fractures of her right first and left first and second ribs, and fractures of right transverse processes L1, L2 and L3. R. 218, 222-23. Stuckey underwent surgery that day to stabilize her left tibia, left medial malleolus, and left humerus. R. 218-21. Due to the severity of the pelvic fractures, Stuckey was transferred to the Naval Medical Center in Portsmouth ("NMCP"). R. 220.

Upon admission to NMCP on December 1, 2009, Stuckey was alert and cooperative, and she complained of pain in the pelvis, spine, neck, left arm and left leg. R. 220, 301-303. The following procedures were performed at NMCP: (1) left tibia revision of intramedullary nailing and medial malleolus open reduction internal fixation (December 4, 2009), (2) pelvic ring open reduction internal fixation and external fixator placement (December 4, 2009), (3) inferior vena cava filter placement (as she would require long term nonweightbearing on the bilateral lower extremities) (December 4, 2009), (4) left lower extremity compartment fasciotomies and closure of fasciotomies (December 5 and 8, 2009), (5) irrigation and debridement of left lower extremity skin necrosis and wound vacuum assisted closure placement (December 31, 2009), (6) skin grafting of left lower extremity (January 5, 2010), and (7) open reduction internal fixation of the right Lisfranc (midfoot) injury (January 7, 2010). R. 243, 268. Stuckey consulted with a plastic surgeon regarding the management of the skin necrosis and skin grafting to her left lower extremity. R. 264.

Narrative summary notes dictated by Dr. Catherine M. Rapp with NMCP, on January 19, 2010, indicate Stuckey had significant difficulty gaining adequate pain control, requiring significant doses of narcotics including IV and long acting oral narcotics, which prolonged her hospital course. R. 265. However, she eventually began physical therapy for bilateral upper extremity weight-bearing and lower extremity non-weight-bearing, and was able to do transfers on her own. R. 265.

On January 20, 2010, Stuckey was transferred to the Acute Inpatient Rehabilitation Unit at Sentara Norfolk General Hospital for physical therapy, to be followed by Robert Walker, M.D. R. 241-43. Dr. Walker assessed Stuckey and noted she was pleasant, her affect was appropriate, and she denied any prior medical conditions including depression. R. 243, 245. She reported pain in her left groin and pelvic area due to overexertion, as well as occasional spasms and burning in her left lower extremity. R. 245. Stuckey reported that her nausea, vomiting, and constipation had improved with her current medications. R. 245.

Upon discharge from Sentara Norfolk General Hospital on February 3, 2010, Stuckey was instructed to walk each day (starting with five minutes and increasing to 15-20 minutes per day and resting when tired), as well as to swim, bike, and exercise her arms, feet, and legs while sitting. R. 228-29. She was given a phone number to call to assist her with quitting smoking. R. 229. Stuckey was instructed not to drive, and to attend physical therapy three times a week for two weeks. R. 229. Her prescriptions upon discharge were morphine, oxycodone, Valium, Lyrica, Lovenox, Feosol, and vitamin C. R. 230-31. Stuckey's discharge summary indicates she was stable, though not able to bear weight on the left lower extremity; her pain was well modulated with opioids and she was instructed to taper down medication as tolerated; and, her depressed mood had improved. R. 234-35.

The same day as her discharge, February 3, 2010, Dr. Robert Gaines and Dr. Jonathan Maher performed surgery at the NMCP to remove the external fixator from Stuckey's pelvis. R. 258.

On April 10, 2010, Stuckey reported to physician assistant ("PA") Cameron Baker with NMCP that she had recently switched from using a wheelchair to using crutches. R. 289. At her appointment, Stuckey was in a wheelchair and was wearing ortho boots on both lower extremities. R. 290. She was diagnosed with right ankle pain following overuse and weight bearing. R. 290.

During follow up at the NMCP, on April 19, 2010, Stuckey was experiencing pain with ambulation. R. 297. She was using a daily bone stimulator on her left leg, and her left thigh had mild swelling. R. 297. Due to a left tibial non-union, Stuckey agreed to proceed with a nonunion repair surgery, which Dr. Mamczak performed on April 22, 2010. R. 297, 281-882. At the same time, painful hardware was removed from her left ankle. R. 253-56, 281. Stuckey was placed in a short-leg splint, was instructed not to bear weight on her left lower extremity for two to three months, to continue using a bone stimulator on a daily basis, and to stop smoking. R. 256.

On August 9, 2010, Stuckey reported to James Ritchie, M.D., at NMCP that she had experienced nausea and vomiting for three to four months that was progressively worsening. R. 294-95. Stuckey was given intravenous fluids and Zofran. R. 295.

On October 1, 2010, Dr. Gaines performed surgery to remove hardware from Stuckey's left humerus, and to perform a left rotator cuff repair. R. 293.

On November 17, 2010, Stuckey was experiencing "baseline type pain" in her left shoulder and knee, described as 5 out of 10. R. 262. Her motor strength was 4/5 in her upper extremities and 5/5 in her lower extremities. R. 262

On November 18 and 19, 2010, Stuckey attended two group therapy sessions facilitated by two psychiatric technicians with NMCP. R. 285-87. Stuckey "actively and appropriately" participated, reporting that her mood was "ok, " but that she was "really sore." R. 285. She reported that she had been taking Oxycodone for almost one year, and stopped suddenly when she returned to work. R. 285. She further indicated that she did not want to take medication for her pain, "because I think that was part of the problem as to why I got here." R. 287.

On December 2, 2010, Robert J. Gaines, M.D., and Matthew Matiasek, M.D., with the NMCP, performed surgery on Stuckey to remove the humeral nail, and also to repair the rotator cuff supraspinatus tendon. R. 260-61.

On February 17, 2011, Michael A. Mitchell, PA-C, performed a left heel cord lengthening procedure, and Stuckey was discharged with crutches, a "cam boot, " and prescriptions for Percocet for pain and Surfak for constipation. R. 275.

On March 2, 2011, Stuckey reported to Dr. Gaines that she continued to experience moderate pain in her ankle (6 out of 10) that was not decreased by Percocet, and drainage from the ankle incision. R. 279. X-rays of the left ankle revealed the hardware was in place, and fractures were healed. R. 279. In a "Limited Duty Medical Board Report" filled out the same day, Stuckey's treatment plan included physical therapy for left ankle range of motion and strengthening, however, she was to avoid lifting and prolonged standing or walking. R. 278.

On May 17, 2011, Stuckey was released from military service. R. 148-49. Upon release, Stuckey received a 50% service connected disability rating for traumatic arthritis, hiatal hernia, limited flexion of thigh, lower leg condition, tendon inflammation, and lumbosacral or cervical strain, for which she receives $810 per month in VA benefits. R. 122, 314-15, 438.

Stuckey was incarcerated in the Virginia Peninsula Regional Jail, from January 31, 2012 through June 15, 2012, for underage drinking and possession of alcohol in connection with the motor vehicle accident. R. 367, 414-30. In response to booking observation questions, Stuckey indicated she had chronic pain in the leg and pelvic area and had acid reflux disease. R. 428-29. She reported trying to commit suicide seven months prior, and that she was being treated for depression. R. 428. Stuckey was denied tramadol while incarcerated, but was allowed to take other medications prescribed at the VA. R. 420.

On March 13, 2012, Stuckey was seen by the medical department in the jail for dizziness and feeling like she may have a syncopal episode. R. 423. The notes indicated Stuckey reported mild nausea, leg pain, a temporal headache, and chest pain, and that she exhibited a tearful affect. R. 423.

On October 22, 2012, Stuckey reported to John S. Williams, supervisory social worker at the Hampton VA, that she was only there because her probation officer wanted her evaluated, and she did not want any mental health treatment "because nothing is wrong with her." R. 368. She reported she was not taking any medications, and that she was earning $1, 600 per month from SJL Modeling Connection. R. 366

On January 26, 2012, Stuckey was seen by Brian L. Rubenstein, M.D., at the VA medical center emergency room for diarrhea, burning pain in the lower abdomen, and chronic left ankle pain that was not controlled with over the counter medication. R. 249, 360-61. The abdominal pain and diarrhea were believed to be from a virus. R. 363. She was prescribed Lomotil for diarrhea and Ultram (tramadol) for the ankle pain, and instructed to follow-up with her primary care physician. R. 249, 363.

On March 7, 2013, Stuckey reported to primary care physician Edwin C. Malixi at the Hampton VA that she was experiencing anxiety, chronic pain (5 out of 10), and GERD. R. 343. She reported having anxiety since she was thirteen years old, but indicated it had worsened in the last year, causing nausea and vomiting. R. 343. She reported chronic pain that was aggravated by standing, sitting, and cold weather, and was relieved by pain medication (tramadol) and rest. R. 343, 348-49. Stuckey's post traumatic stress disorder ("PTSD") and depression screening were both negative with a score of 0. R. 352-53. She indicated that she was taking courses in environmental engineering, and was working part-time as a spokesmodel. R. 343. Dr. Malixi diagnosed anxiety, chronic pain, GERD, insomnia, and tobacco use. R. 345. Stuckey received tobacco counseling, and was prescribed omeprazole, tramadol, and zolpidem. R. 345, 347.

On August 7, 2013, Stuckey reported to Dr. Malixi that she was "having nerve pains" in her lower extremities and lower back since her motor vehicle accident, and described the pain as "boring to her bones, sometimes sharp, " and a 6-8 out of 10. R. 323. She reported that in addition to modeling, she worked part-time baking cakes. R. 324. Dr. Malixi diagnosed neuropathy, tobacco use disorder, and chronic pain syndrome. R. 325. He continued Stuckey on benzonatate, ketotifen, omeprazole, and tramadol, and added prescriptions for diazepam and gabapentin. R. 326.

On November 7, 2013, Stuckey reported to Dr. Malixi that she was having neuropathy, insomnia, and chronic pain, which she described as a sharp, burning aching pain, 5 out of 10, that is aggravated with standing or walking for a long period of time and was unchanged since her last appointment. R. 405, 409-10. She reported that gabapentin helped a bit with her neuropathy, tramadol offered some relief from the chronic pain, and Ambien helped her to sleep. R. 405. She reported that following 2-3 days of work, she had to rest in bed for 2-3 days. R. 406. Dr. Malixi diagnosed insomnia, chronic pain syndrome, and tobacco use disorder. R. 407.

On November 22, 2013, imaging results from Sentara Virginia Beach General Radiology of Stuckey's left tibia fibula and left ankle showed "internal fixation tibia and fibula with very marked periosteal bone formation in the mid and distal tibial shaft, " hardware intact, and small proximal fibular exostosis (formation of new bone on the surface of a bone). R. 369-70.

On January 24, 2014, Stuckey was seen in the Hampton VA emergency room by Ronald C. Landry, M.D., for low back pain, which she described as an aching pain, 8 out of 10, that is aggravated by movement. R. 392, 397-98. Stuckey reported that she slipped one week prior and landed on her left knee causing pain in her left knee and ankle, that mild low back pain began the day prior, and that her back was not injured in the fall. R. 399. X-rays of her pelvis, knee, and ankle were unremarkable. R. 401. Examination revealed tender left pelvis, left knee, and left ankle with no abrasion or effusion. R. 401. Stuckey's strength was 5/5 and symmetric, and her sensation was intact. R. 401. Her medications were listed as benzonatate, cyanocobalamin, gabapentin, ketotifen, multivitamin, omeprazole, ...

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