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Turk v. Berryhill

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

March 29, 2017

ALICE M. HUFF TURK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.


          Joel C. Hoppe United States Magistrate Judge

         Plaintiff Alice M. Huff Turk (“Turk”) asks this Court to review the Commissioner of Social Security's (“Commissioner”) final decision denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The case is before me by the parties' consent under 28 U.S.C. § 636(c)(1). Having considered the administrative record, the parties' briefs, and the applicable law, I find that the Commissioner's decision is not supported by substantial evidence and that the case must be remanded for further administrative proceedings.

         I. Standard of Review

         The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); 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 the Administrative Law Judge (“ALJ”) applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. 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 Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). 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)). 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 to 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); 20 C.F.R. § 404.1505(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 Heckler v. Campbell, 461 U.S. 458, 460-62 (1983); 20 C.F.R. § 404.1520(a)(4). 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

         Turk protectively filed for DIB on December 29, 2011, alleging disability caused by a herniated disc with bone deterioration in her back and arthritis in her knees. Administrative Record (“R.”) 64, ECF No. 9. She alleged an onset date of April 12, 2010, at which time she was thirty-nine years old. Id. Disability Determination Services (“DDS”), the state agency, denied her claims at the initial, R. 64-73, and reconsideration stages, R. 75-87. On April 9, 2014, Turk appeared with counsel and testified at an administrative hearing before ALJ Brian P. Kilbane. R. 45-63. A vocational expert (“VE”) also testified at this hearing regarding the nature of Turk's past work and her ability to perform other jobs in the national and local economies. See R. 59- 62.

         ALJ Kilbane denied Turk's claim in a written decision issued on April 24, 2014. R. 21- 37. He found that Turk had severe impairments of degenerative joint disease of the bilateral knees, degenerative disc disease with disc herniation, and obesity. R. 23. Turk's other medically determinable impairments, including migraines, irritable bowel syndrome, affective disorder, and anxiety disorder, were deemed non-severe because they did not result in more than minimal work-related limitations. R. 24-25. Next, none of Turk's impairments, alone or in combination, met or medically equaled the severity of a listed impairment. R. 25-26. As to Turk's residual functional capacity (“RFC”), she could perform sedentary work[1] with some additional limitations. R. 26. Specifically, Turk could sit normally with normal breaks and stand for at least thirty to forty-five minutes at a time and walk at least twenty to thirty minutes at a time during an eight-hour workday; walk short distances without any assistive device, but would require a cane for long distances and uneven terrain; lift and carry twenty pounds occasionally; infrequently bend, stoop, crouch, and squat; and frequently reach, handle, feel, grasp, and finger. Id. As such, Turk could not return to her past relevant work, all of which was classified at the light exertional level or greater. R. 35-36. Turk could, however, perform sedentary jobs identified by the VE, such as assembler, inspector/grader, and machine operator, which existed in significant numbers in the national and local economies. R. 36-37. Therefore, ALJ Kilbane determined that Turk was not disabled. R. 37. The Appeals Council denied Turk's request for review, R. 1-4, and this appeal followed.

         III. Facts

         A. Relevant Medical Evidence

         On July 31, 2009, an X-ray of Turk's right knee showed some degenerative changes, specifically joint space loss involving the medial and patellofemoral compartments. R. 282. An MRI from the same day likewise showed degenerative changes of the medial and patellofemoral joints with high signal in the medial meniscus, as axial imaging showed a joint effusion, patellar cartilage thinning involving both the medial and lateral facet, and some anterior osteophytes. Id. Medial and lateral collateral ligamentous complexes, anterior and posterior cruciate ligaments, and quadriceps and patellar tendons were intact. Id.

         Turk began seeing Terry Pleskonko, D.C., in April 2010. R. 424. She treated regularly with Dr. Pleskonko for the entirety of the relevant period. R. 423-38, 495-96. Dr. Pleskonko's notes are entirely handwritten, difficult to read, and for the most part appear to be a recitation of Turk's subjective report from each visit. Id. That said, on April 21, 2010, Dr. Pleskonko did note a clinical impression of subluxation of L5 and left sciatica. R. 424. Additionally, an X-ray of the left side of Turk's pelvis showed mild left lumbar curve, significant decrease in lordosis, and a decrease in L5-S1 disc height, which he interpreted as severe spondylosis at ¶ 5-S1 and short left leg with resultant pelvic and lumbar compensation, R. 436. On February 15, 2012, Dr. Pleskonko noted a clinical impression of subluxation of L5 and the right sacroiliac (“SI”) joint with lumbalgia and left sciatica, and subluxation of C5 and T10 with cervicalgia and thoracic pain. R. 424.

         On June 17, 2010, Turk began treatment with Kimberly Bird, M.D., who would become her primary care physician. R. 344-45. Turk presented with a chief complaint of “24/7” back pain in the lumbar area radiating down to her left leg, which she had suffered since moving from one house to another the previous November. R. 344. Turk noted that she had been seeing Dr. Pleskonko since April 2010 on a weekly basis and that she had not worked since that time on Dr. Pleskonko's recommendation. Id. Turk also relayed Dr. Pleskonko's finding, based on X-rays he took, that she was missing the L4 vertebra, which Dr. Pleskonko believed to have disintegrated. Id. On examination, Dr. Bird observed that Turk appeared uncomfortable, and her deep tendon reflexes at the knees and ankles were equal, motor strength was normal but painful, straight leg raise testing was exceedingly painful on the left, sensation to light touch was intact, and there was no spinous process tenderness in the back, but there was extreme tenderness and pain in the left SI area where swelling versus a muscle spasm was palpated. R. 344-45. Dr. Bird assessed back pain, started Turk on Naproxen, Flexeril, and Vicodin, and provided a trigger point injection in the tender left SI area. R. 345. Bird returned for a follow up on June 29 and reported no relief from the injections or chiropractic treatments. R. 346. Dr. Bird noted that Turk again appeared uncomfortable and that her back exam remained unchanged. Id. Dr. Bird prescribed Celebrex, Skelaxin, and Lidoderm patch and referred Turk to physical therapy. R. 347.

         Turk presented to Rhonda Lambert, MPT, on July 27 for an initial consultation. R. 339. MPT Lambert noted that Turk was presently taking only Tylenol PM as she had been taken off all other medications at the recommendation of George Damewood, M.D., who was concurrently treating Turk for Bell's Palsy. Id. Turk said she could do basic activities of daily living, but at times required help bathing, needed help with housework, and could drive. R. 340. MPT Lambert conducted a physical examination, which revealed Turk's active range of motion for her lumbar spine to be 25% of normal for both flexion and extension and bilateral pain in the posterior SI spine, but full range of motion bilaterally with sidebending and rotation; strength of the extensor hallucis longus was 4 on the right and 5/5 on the left, dorsiflexion was 5/5 bilaterally but with pain on the left, quadriceps were 5/5 on the right and 4 on the left with pain, hamstrings were 5/5 on the right and 4 on the left with pain, [2] seated hip flexion was 5/5 on the right and 4-/5 on the left with pain; sensation to light touch was intact in the bilateral lower extremities; and gait was antalgic, leaning to the left. R. Id.

         On July 29, Turk followed up with Dr. Bird, again stating she received no relief from the Celebrex, Skelaxin, or physical therapy. R. 337. Although Dr. Bird noted that Turk generally appeared pleasant and had no spinous process tenderness in her back, she continued to have tenderness of the SI area. Id. Dr. Bird assessed back pain, radicular syndrome of lower limbs, and joint pain in the pelvis, and she started Turk on Diazepam and Dilaudid. R. 338. Turk reported to Dr. Bird on September 13 that she had no relief from anti-inflammatories, Vicodin, Neurontin, lidocaine patches, Depo-Medrol injection, or Toradol, and that physical therapy had not helped either. R. 330. She appeared tearful and uncomfortable. Back examination revealed no spinous tenderness or palpable muscular spasm, and the remainder of the exam was unchanged. Id. Dr. Bird noted that Turk was unable to complete an MRI because she could not tolerate the claustrophobic environment. R. 331. She began looking into arranging an MRI with sedation. She increased Turk's neurontin, started a stronger narcotic, and provided a disabled car sticker. Id.

         On October 5, Turk was admitted to the Bath Community Hospital Emergency Department with a chief complaint of low back pain for the past year, which was noted to be obvious whenever she moved her left leg. R. 297. She said the pain worsened when she bent down to pick up a coat from the floor, then was unable to get up on her own. Id. A CT scan showed mild multilevel degenerative changes, greatest at ¶ 5-S1 where there was severe disc space narrowing and gas in the disc, with osteophytosis and disc space narrowing at ¶ 12-L1 and L5-S1. R. 295. A diffuse disc osteophytic bulge at ¶ 5-S1 also caused effacement of the thecal sac, but there was no significant neuroforaminal narrowing, and the visualized prevertebral and paraspinous soft tissues were unremarkable. Id. A physical exam also revealed mild edema, but Turk's pain significantly improved after taking Hydromorphone, Flexeril, Toradol, Ativan, and Solu-Medrol. R. 297. Although Turk was discharged the same day and could walk to her car, R. 298, she returned the following afternoon via EMS, R. 286. Turk reported pain in her hip that radiated through her left leg to her foot. R. 286, 290. She had 5/5 strength in the lower extremities and no edema, light touch and pain sensation were intact, deep tendon reflexes were 2 and equal in the knee and ankle jerk, and straight leg raise testing was positive on the left. R. 291. Noting Turk's positive straight leg raising tests and radicular pain, the treating physician assessed possible herniated disc. Id. Turk received Toradol, Aleve, and two doses of Dilaudid as well as Bactrim for urinary tract infection. Id.

         Turk visited Dr. Bird three more times in 2010, complaining of back pain and persistent left foot swelling. R. 321-26. On October 11, Turk appeared comfortable despite reporting pain of 9/10. R. 323. She was tearful, but Dr. Bird noted she was alert considering the amount of pain medications she was taking. Id. Dr. Bird added diazepam, a muscle relaxer, to Turk's prescriptions. R. 324. During the other visits, Dr. Bird noted few findings on examination, most of which were generally normal, and no edema in the extremities on November 1, R. 321, and trace edema in the extremities on November 15, R. 325.

         Turk then visited Matthew Pollard, M.D., for a comprehensive orthopedic exam on December 7. R. 305-06. She complained of constant back pain with associated paresthesia, which was made worse with activity and movement and radiated through the left lower extremity to her foot. R. 305. Dr. Pollard noted that Turk stood with an erect posture and ambulated normally without difficulty. Id. Findings for the extremities were unremarkable, with normal passive range of motion, no crepitation, 5/5 strength, no abnormal tone or rigidity, and no pain with rotation. Id. Normal thoracic kyphosis was noted, and range of motion in the lumbar spine was normal and painless, although tenderness was noted in the lower lumbar segments, and straight leg raise testing was positive on the left. R. 306. Dr. Pollard assessed herniated lumbar disc with severe nerve compression resulting in chronic (1 year) severely symptomatic left lumbar radiculopathy. Id. He discussed treatment options, including surgery in the form of a microdiscectomy, and noted that Turk would return in two weeks. Id. During the follow-up on December 30, Turk reported that she still experienced severe pain. R. 307. Dr. Pollard reviewed her imaging showing a large herniated nucleus pulposus (“HNP”) and disc space collapse at ¶ 5- S1. Id. Dr. Pollard again conveyed the different treatment options available, including continued medical care, epidural steroid injections (“ESI”), or surgery (L5-S1 discectomy or discectomy and fusion), but noted that Turk was hesitant because she lacked insurance. Id. Dr. Pollard also offered to refer her to the pain center for an ESI or to the University of Virginia (“UVA”) to see if either could help. Id.

         Turk saw Dr. Bird five times during the ensuing year and a half regarding her back and knee issues. On March 14, 2011, she complained of getting no pain relief from her medications, experiencing increasingly sore knees, and losing balance and falling. R. 384. During examination, Turk appeared uncomfortable and tearful, and she displayed tenderness proximal and distal to the right kneecap, but no effusion, and tenderness in the left anserine bursa and lateral joint line area. Id. Dr. Bird noted that Turk was taking three, rather than the prescribed four, Dilaudid because of cost concerns. She also opined that an MRI of Turk's right knee taken a year before showed extensive degenerative disease. Dr. Bird added amitriptyline to her medications. R. 384-85. On May 10, during a visit for a possible urinary tract infection, Turk reported that the anti-inflammatory medication helped her knees, even though Dr. Bird noted that it also caused edema; Dr. Bird decided to keep her on the medication, however, as it was the only one that had provided relief thus far. R. 380. Turk expressed her frustration at not qualifying for financial assistance to get back surgery. On September 12, Turk expressed discontentment with continuing to take so many medications without any relief and reported that she stopped taking Lasix and potassium. R. 376. Turk was frustrated by poor results from physical therapy, transcutaneous electrical nerve stimulation, and anti-inflammatory medications, and she depended on high-dose narcotics which only dulled her discomfort. Id. She also reported being denied financial assistance at four hospitals even though she qualified for a sliding financial scale with Dr. Bird's office. A physical examination revealed tenderness in the low lumbar/sacral area, positive straight leg raising test left greater than right, and dysesthesia in the lateral side of the left leg from the buttock to the little toe. R. 377. On January 27, 2012, Dr. Bird noted that Turk had not come in recently because of a lack of finances and that she could not afford her antibiotics. R. 374. On June 19, Turk followed up for her back pain and reported similar frustrations about the ineffectiveness of her pain medications and her inability to qualify for assistance at any of the area hospitals. R. 408.

         Imaging of Turk's lumbosacral spine from June 21 showed changes of degenerative disc disease at ¶ 5-S1 because of moderate to severe narrowing of the L5-S1 disc space with a vacuum phenomenon, but all other disc spaces maintained normal heights, vertebral alignment was normal, and there were no acute bony abnormalities. R. 394.

         On September 21, Turk returned to Dr. Bird, who noted that she appeared tearful and discouraged. R. 444. Dr. Bird switched her from Diazepam to Skelaxin because it worked better. Id. On February 1, 2013, Turk told Dr. Bird that back and leg pain had gotten worse and limited her to standing for no more than thirty minutes. R. 471. She was in no acute distress and had no clubbing or edema in her extremities. Id. Dr. Bird instructed Turk to reapply for a discount program at Augusta Health and to check with Dr. Pollard regarding what it would cost for him to see her. R. 472. On May 10, Turk said Dr. Pollard's office had not approved her for financial assistance, and she complained about a bill for lab work being sent to collections. R. 479. Turk reported falling, hitting her head, and losing consciousness, but Dr. Bird ...

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