United States District Court, E.D. Virginia, Newport News Division
Michelle King, Plaintiff, represented by Robert Wayne
Gillikin, II, Rutter Mills LLP & Karl Emmett Osterhout,
Osterhout Disability Law, LLC, pro hac vice.
Carolyn W. Colvin, Defendant, represented by Kent Pendleton
Porter, United States Attorney Office.
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. KRASK, Magistrate Judge.
Michelle King ("King"), brought this action
pursuant to 42 U.S.C. Â§ 405(g), seeking judicial review of a
decision of the Acting Commissioner
("Commissioner") of the Social Security
Administration ("SSA") denying King's claim for
a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act,
as well as her claim for Supplemental Security Income
("SSI") under Title XVI of the Social Security Act.
order of reference dated September 15, 2015, assigned this
matter to the undersigned. ECF No. 10. Pursuant to the
provisions of 28 U.S.C. Â§ 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 King's motion for
summary judgment (ECF No. 14) be GRANTED, the
Commissioner's motion for summary judgment (ECF No. 16)
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
filed applications for DIB and SSI on August 23, 2013, R.
164-78,  alleging she became disabled on April
30, 2010 due to costochondritis, upper and lower back pain,
migraines, and high blood pressure. R. 164, 171, 259. The
Commissioner denied King's applications on December 26,
2013 and, upon reconsideration, on June 5, 2014. R. 63-65,
81-84. At King's request, an Administrative Law Judge
("ALJ") in Atlanta heard the matter on October 15,
2014, and at that hearing received testimony from King (who
was represented by a non-attorney representative) and an
impartial vocational expert ("VE"). R, 37-59. On
January 20, 2015, the ALJ denied King's claims, finding
that she had no severe impairments and she was not disabled.
12, 2015, the Appeals Council denied King'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. Â§Â§ 405(g), 1383(c)(3) (2012); 20 C.F.R. Â§Â§ 404.981,
416.1481 (2016). Having exhausted all administrative
remedies, King filed a complaint with this Court on July 10,
2015. ECF No. 3. The Commissioner answered on September 11,
2015. ECF No. 8. In response to the Court's order, the
parties filed motions for summary judgment, with supporting
memoranda, on October 15 and November 16, 2015, respectively.
ECF Nos. 14-15, 16-17. As neither party has indicated special
circumstances requiring oral argument, the case is deemed
submitted for a decision.
RELEVANT FACTUAL BACKGROUND
King was born in 1969 and was 40 years old on April 30, 2010,
the onset date of her alleged disability. R. 164. King
completed high school and previously worked as a janitor and
housecleaner. R. 42-43. At the January 20, 2015 hearing
before the ALJ, King reported suffering from joint pain,
costochondritis (inflammation of the chest), numbness, and
high blood pressure. R. 45. King contends that the severity
of her condition precludes her from performing any work. R.
Relevant Medical Record from the Alleged Onset Date - April
28, 2010, three months after her alleged onset date, King was
examined by Aladee Delahoussaye, M.D., with Southeastern
Virginia Health System. R. 434-35. The primary reason for
King's visit was to have a pregnancy test, which was
negative. R. 434, 474. Notes from the visit indicate King was
doing well without complaints. R. 434.
record reflects that King was next seen by Dr. Delahoussaye
over one year later, on September 19, 2011. R. 432.
King's chief complaint was hypertension, and her blood
pressure was 120/74. Id. King's physical exam
was unremarkable, and Dr. Delahoussaye prescribed atenolol to
treat her hypertension. Id.
months later, on May 10, 2012, King reported to Nurse
Practitioner Laura Knee at Grady Hospital in Atlanta, Georgia
that she had experienced recurring chest pain for the past
eight years and two weeks of bilateral leg swelling that was
improving. R. 364. King reported she was currently unemployed
and in a job search program, and requested a work excuse due
to chest discomfort. R. 364-65. Juron Foreman, M.D., noted
that King's chest pain had started three to four weeks
prior when King started to look for work. R. 365. King's
physical exam was normal, with a normal range of motion and
no edema or tenderness, but some chest pain when palpated. R.
365, 375. An electrocardiogram was performed with normal
results. R. 368. Jamlik-Omari Johnson, M.D., reviewed
King's chest x-ray results and found no evidence of an
acute cardiopulmonary process. R. 372. Dr. Foreman
recommended ibuprofen for costochondritis. R. 367. Chikha
Sharma, M.D., explained the hospital could not write a work
excuse for King, and advised King to take Motrin for her
pain. Id. Constantine Zacha Zaharis, M.D., also
explained to King that a work excuse would not be provided by
the emergency department and that she should follow up with
her primary care physician. R. 371. Notes from the encounter
indicate, "[t]his is a chronic problem and patient seems
to just want a work excuse.... Low to no suspicion for any
emergent causes of [chest pain]. Patient encouraged to use
Motrin o[r] Tylenol for pain control." R. 375.
October 16, 2012, King told David Lorenzo, M.D., with
Southeastern Virginia Health System, that she had elevated
blood pressure and costochondritis, and needed forms
completed for social security. R. 430. Dr. Lorenzo assessed
King with costochondritis, hypertension-benign, and diarrhea.
R. 431. He recommended that King continue taking ibuprofen
for pain due to costochondritis and start taking loperamide
hydrochloride for diarrhea. Id.
April 5, 2013, King went to see Dr. Lorenzo for a follow up
of her costochondritis symptoms and to refill her
prescriptions. R. 428. She explained that she had episodes of
chest pain when she overexerted herself, and that loperamide
stopped her diarrhea. Id. Dr. Lorenzo assessed
hypertension-benign, diarrhea, and costochondritis, and
instructed King to continue on her medications. R. 428-29.
9, 2013, Dr. Lorenzo examined King and his assessment was
hypertension-benign, urinary frequency, and incontinence. R.
421-22. King was instructed with regard to pelvic exercises
for incontinence, continued on ibuprofen for pain, and
continued on loperamide hydrochloride for diarrhea. R. 422.
Dr. Lorenzo ordered the following tests: a comprehensive
metabolic panel, urine dip, thyroid cascade panel, lipid
panel and cholesterol/HDL ratio. R. 446-52. In each instance,
King's results were normal. Id.
31, 2013, John D. Lasater, M.D., with Urology of Virginia,
examined King following a referral from Dr. Lorenzo. R.
482-83. Dr. Lasater noted King's report of an eight-year
history of lower urinary tract symptoms and leakage. R. 482.
Examination revealed a normal urethra and bladder, but
King's uterus was "down a bit." Id.
Dr. Lasater had King set up a bladder diary and start a trial
of Vesicare. Id.
followed up with Dr. Lasater on June 25, 2013. R. 482-83. The
bladder diary revealed extreme sensory urgency with volumes
ranging from drops to six ounces. R. 482. Dr. Lasater
assessed King with urinary urgency incontinence, urinary
frequency, nocturia, and a sense of incomplete emptying of
her bladder. R. 484. He prescribed Toviaz. Id.
1, 2013, Dr. Lasater wrote a letter "to whom it may
concern, " stating that King had reported that her
overactive bladder was preventing her from riding the bus to
her appointments. R. 417. Dr. Lasater noted that King was
taking prescription medication to help with the overactive
bladder, and that "the evaluation for this condition has
not been completed at this time." Id.
returned to Dr. Lorenzo on August 8, 2013. R. 419-20. King
reported joint pain for the previous three months that was
moderate to severe and aggravated by physical activity. R.
419. King indicated that she was performing a housekeeping
job 2&frac1&2 hours one day each week, and requested that Dr.
Lorenzo complete forms "for disability."
Id. With the exception of a tender lower spine,
King's examination was normal with negative straight leg
raising, no swelling or tenderness in her hands, knees,
shoulders, elbow, or ankles, and a good range of motion. R.
420. Dr. Lorenzo assessed joint pain in multiple joints, back
pain, costochondritis and benign hypertension. Id.
He prescribed ibuprofen for joint pain, methocarbamol for
back pain, and instructed King to continue taking her
hypertension medication. Id. He also ordered several
tests: a comprehensive metabolic panel that was normal, an
ANA (antinuclear antibodies) with reflex test that was
negative, and a rheumatoid arthritis factor test that was
negative. R. 444-47.
January 16, 2014, King asked Dr. Lorenzo if she could be
tested for fibromyalgia. R. 488. King reported headaches for
the previous four years with intermittent throbbing and
tightness that was moderate to severe and aggravated by light
and noise. Id. She also reported paresthesias and
numbness that was intermittent in both hands and feet, which
began after taking the antibiotic Cipro. Id.
Examination results were normal with the exception of
tenderness in the lower spine. R. 489. Dr. Lorenzo assessed
hypertension-benign, back pain, joint pain in multiple
joints, headache, and paresthesias/numbness. Id. He
instructed King to continue atenolol, and to start taking
Neurontin and methocarbamol for back pain, meloxicam for
joint pain, Phrenilin for headache, and vitamin D3.
Id. Dr. Lorenzo provided King with a letter asking
that King be excused from volunteer work. Id.
Medical Opinions and Residual Functional Capacity
August 8, 2013, in conjunction with his examination of King,
Dr. Lorenzo completed a physical capacities evaluation
indicating a diagnosis of multiple joint pain, hypertension
and back pain. R. 491. King's symptoms were described as
joint pain in the back, hands, wrists, shoulders, elbows,
knees and ankles. Id. Dr. Lorenzo indicated that
these symptoms would frequently interfere with the attention
and concentration needed to perform simple work-related
tasks. Id. He opined that in an eight-hour work day,
King could sit for two hours, stand for one hour, and walk
for one hour, and would need to alternate between these
positions every hour. Id. He further indicated King
would need to take unscheduled breaks every two hours for 15
minutes. R. 493. King could frequently lift and carry up to
ten pounds, and could occasionally lift and carry up to 20
pounds. R. 492. She could occasionally bend, squat, crawl,
climb, and reach above shoulder level, and had moderate
environmental restrictions. R. 493. Dr. Lorenzo further
indicated King would be limited when doing repetitive
reaching, handling, or fingering, and, in an eight-hour day
could use her hands for simple grasping 50% of the time, for
pushing and pulling 20% of the time, and for fine
manipulation 50% of the time. R. 492.
December 23, 2013, a non-examining state agency physician,
Navjeet Singh, M.D., reviewed King's medical record as
well as King's statements regarding her condition, and
opined that King had no severe impairment. R. 63-64. Dr.
Singh discussed the medical record, and the diagnoses of
benign hypertension and a history of costochondritis treated
with ibuprofen. R. 63. Dr. Singh noted King's report that
atenolol was making her forgetful, which King explained
required her to write things down. Id. Dr. Singh
opined that there was no medically determinable impairment to
substantiate King's claims of pain all over, and
King's impairments were non-severe. R. 63-64.
Lorenzo completed an "Opinion re: Ability To Do
Work-Related Activities (Physical)" on November 4, 2014.
R. 524-25. There are no notes indicating an examination took
place that day. Dr. Lorenzo indicated that King could stand
and walk less than two hours and sit less than two hours
during an eight-hour day. R. 524. She would need to shift
between standing and sitting at will, and would need to lie
down every hour. Id. King could occasionally lift
ten pounds, frequently lift less than ten pounds, and
occasionally twist, stoop, crouch and climb. R. 524-25. Her
joint pain would be worsened by reaching, fingering, pushing,
pulling, handling, and feeling. R. 525. King's symptoms
would constantly interfere with the attention and
concentration needed to perform simple work-related tasks,
and would cause her to be absent from work more than four
days per month. Id. Dr. Lorenzo indicated that the
medical findings supporting these limitations were multiple
joint pain, back pain, headache, and numbness and burning
sensation in King's hands and feet. Id. Dr.
Lorenzo further stated that King needed an assistive device
(cane) for ambulation and that her symptoms and limitations
began in 2012. Id.
5, 2014, a second, state agency, non-examining physician,
Maxwell Eidex, M.D., reviewed King's record during the
reconsideration of her applications. R. 81-82. Dr. Eidex
reviewed the entire record, including the new medical
evidence and statements made by King after Dr. Singh's
review. Id. Dr. Eidex concurred with, and found no
evidence to alter, Dr. Singh's assessment that King had
no severe impairments. R. 81.
completed two written function reports, in October 2013 (R.
267-74) and May 2014 (R. 295-302) discussing how her
impairments limit her activities. She also wrote a letter in
September 2014 discussing her condition (R. 498-514), and
testified in October 2014 at her hearing before the ALJ. R.