United States District Court, W.D. Virginia, Harrisonburg Division
ALICE M. HUFF TURK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
C. Hoppe United States Magistrate Judge
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
Standard of Review
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).
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).
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.
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.
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 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
Relevant Medical Evidence
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.
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.
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.
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,  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.
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.
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.
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.
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.
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.
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.
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 ...