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King v. Colvin

United States District Court, E.D. Virginia, Newport News Division

July 1, 2016

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

          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.


          ROBERT J. KRASK, Magistrate Judge.

         Plaintiff, Michelle King ("King"), 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 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.

         An 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. § 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 recommendation.


         King filed applications for DIB and SSI on August 23, 2013, R. 164-78, [1] 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. R. 19-36.

         On May 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. §§ 405(g), 1383(c)(3) (2012); 20 C.F.R. §§ 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.


          A. King's Background

         Michelle 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. 45-47.

          B. Relevant Medical Record from the Alleged Onset Date - April 30, 2010

         On July 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.

         The 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.

         Eight 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.

         On 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.

         On 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.

         On May 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.

         On May 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.

         King 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.

         On July 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.

         King 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.

         On 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.

          C. Medical Opinions and Residual Functional Capacity Assessments

         On 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.

         On 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.

         Dr. 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.

         On June 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.

          D. King's Statements

         King 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. 37-55.

          1. King's ...

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