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King v. Berryhill

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

December 19, 2017

TONYA KING, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Robert J. Krask United States Magistrate Judge

         Plaintiff, Tonya 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. 42 U.S.C. §§ 401-34.

         An order of reference assigned this matter to the undersigned on December 28, 2016. ECF No. 9. 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, the Court recommends that King's motion for summary judgment be DENIED, and the Commissioner's motion for summary judgment be GRANTED.

         I. PROCEDURAL BACKGROUND

         King protectively filed applications for a period of disability and DIB on August 16, 2010. R. 12.[1] On August 31, 2010, King protectively filed a Title XVI application for Supplemental Security Income ("SSI"). R. 12. These claims were denied initially on November 9, 2010, upon reconsideration on June 8, 2011, and by Administrative Law Judge ("ALJ") O. Price Dodson in a decision dated March 19, 2012. R. 12, 94-112.

         On May 20, 2013, King filed applications for a period of disability and DIB that began on March 20, 2012; however, she later amended the alleged onset date of disability to February 7, 2013. R. 12, 295-96. King alleged disability based on the impairments of rheumatoid arthritis, thyroid disorder, hypertension, obesity, and sleep disturbance. R. 238. The Commissioner denied King's applications on September 4, 2013, and upon reconsideration on December 11, 2013. R. 12, 156-66, 168-74.

         At King's request, ALJ Stewart Goldstein heard the matter on August 3, 2015. R. 28-63. The ALJ received testimony from King (who was represented by counsel), and impartial vocational expert ("VE"), Linda Oggins. R. 12, 28-63. In a decision dated August 25, 2015, the ALJ denied King's claims, and found that she was not disabled from February 7, 2013 through December 31, 2014, the date last insured. R. 9-23.

         On August 18, 2016, 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)-(h), 1383(c)(3); 20 C.F.R. § 404.981. Having exhausted all administrative remedies, King filed a complaint with this Court on October 19, 2016.[2] ECF No. 3. The Commissioner answered on December 22, 2016. ECF No. 7. In response to the Court's order, the parties filed motions for summary judgment, with supporting memoranda, on February 2, 2017 and March 6, 2017, respectively. ECF Nos. 11-12, 15-16. As neither party has indicated special circumstances requiring oral argument, the case is deemed submitted for a decision.

         II. FACTUAL BACKGROUND

         A. King's Background

         Tonya King was born in 1964 and was 50 years old, which is defined as an individual closely approaching advanced age, on December 31, 2014, the date last insured. R. 22; 20 C.F.R. § 404.1563. King has a tenth grade education. R. 34. She previously worked as a convenience store clerk, grocery store cashier, and retail cashier at the substantial gainful activity level.[3] R. 35-37, 220-22, 228-31, 239-40.

         On July 24, 2013, King completed an adult function questionnaire. R. 245-53. First, she noted personal care limitations. R. 246. Although King reported that she is able to feed herself, she wrote that she must sit down to dress, and that she has difficulty with bathing, toileting needs, and hair care. R. 246. King then described her limitations in meal preparation. She reported preparing her own meals every day, but noted that doing so took her "about an hour" and merely involved heating food in the oven with "not to[o] much looking after it." R. 247. Next, King noted difficulty with house work. R. 247. She noted that she could iron and clean laundry, but only if she sat down and even then, such work would take "a couple of hours." R. 247. Accordingly, she wrote that she does not do these tasks often and needs help to accomplish these chores. R. 247. She noted that she does not do yard work because she "live[s] in [a] midrise." R. 248. Additionally, King noted that she only shops for food once a month. R. 248. She wrote that doing so takes her approximately three hours, and that her daughter picks her up to get around because King does not have a driver's license. R. 248. Next, King noted that her only hobbies are reading and watching television, and she explained that her "eyes ha[ve] gotten a little bad." R. 249. King then wrote that she engages in social activities to include talking with others daily, going to Kingdom Hall church twice a week, and going to her daughter's house four times a week, but she noted that someone must accompany her when she visits these places. R. 249. In reference to changes in social activities since her ailments began, King noted that she "[c]an't do to[o] much standing or walking or taking care of [her]self." R. 250.

         King also stated that she is unable to squat, bend, stand, walk, kneel, or climb stairs due to functional limitations in her knees. R. 250. King also attributed difficulty in performing these activities to swelling in her legs, weakness, and "reaching pain in elbow and hands." R. 250. Moreover, King noted that her condition affected her ability to lift, reach, sit, use her hands, complete tasks, and that her memory was also affected. R. 250. She noted that she is able to walk "maybe a block" before needing to stop and rest for a period of at least 15 minutes. R. 250. Notably, King indicated on the questionnaire that she needed to use a cane "everyday" and that the cane was prescribed by a doctor. R. 251.

         B. Relevant Medical Records

         On March 22, 2012, King treated with Randall C. Fedro, M.D., and complained of arthritis in her knees and feet. R. 342. She exhibited no musculoskeletal edema or tenderness upon examination. R. 343. She followed up with Dr. Fedro on April 19, 2012, where she exhibited swelling in her fingers, hands, and knees. R. 341. She had continued pain in her legs, and especially in her knees. R. 341. Dr. Fedro assessed arthralgia, bruising, and bilateral knee pain. R. 342. Her next meeting with Dr. Fedro was on May 10, 2012, where she once again exhibited swelling in her hands and feet, and arthritis in her hands. R. 340. She was positive for myalgias, back pain, and joint pain. R. 340. Dr. Fedro assessed arthritis, finger swelling, and elevated antinuclear antibody level. R. 341.

         On July 18, 2012, King met with William W. Reed, M.D. R. 318-20. Dr. Reed noted that King's lumbar spine was tender, with reduced abduction and radiation of symptoms to the lateral thigh. R. 320. Otherwise, her spine was unremarkable on inspection, with normal range of motion, stability, and strength. R. 320. Her right knee was tender, but her gait was normal. R. 320. He stated that King "functions poorly most of the time in many activities of daily living." R. 319. He assessed that King's discomforts were characteristic of lumbar spondylosis with possible posterior ramus impingement. R. 320. He also assessed that myofascial strain may be present, appendicular osteoarthropathy was present, and that morbid obesity may contribute to these ailments. R. 320.

         On July 19, 2012, King met with Dr. Fedro again to follow-up, and stated that she was about the same from her last visit. R. 339. She had myalgias, back pain, and joint pain, but her knees appeared to be less swollen. R. 339.

         On August 6, 2012, DePaul Medical Center performed an MRI of King's spine that revealed the presence of several herniated discs, degenerative disc disease, and lumbar spondylosis with "nerve roots locally but likely impinging on descending left L4 nerve root near the root sleeve." R. 304-06.

         King met with Dr. Fedro again on September 13, 2012, where she reported aches and pains throughout her body. R. 338. She had myalgias, back pain, and joint pain. R. 338. She had tender cervical muscles and a tender right knee. R. 338. Her calves were not tender and she was negative for Homans sign. R. 338. Dr. Fedro assessed hypertension, hyperthyroidism, and arthritis. R. 339. At a follow-up appointment on October 25, 2012, Dr. Fedro assessed hypertension and hyperthyroidism. R. 337. On February 7, 2013, King reported that her aches and pains were getting worse. R. 336. She was once again positive for myalgias, back pain, and joint pain. R. 336. Dr. Fedro noted that she walks with a cane and that her finger joints exhibited swelling. R. 336. Dr. Fedro assessed arthritis, myalgia, insomnia, and hyperthyroidism. R. 336. Dr. Fedro wrote a "to whom it may concern" letter that day stating that King was unable to work. R. 377.

         On September 5, 2013, King reported to Dr. Fedro with severe bilateral knee pain, lower back pain, hip pain, hand pain, and wrist pain. R. 363. Her hands would spasm and "lock up" on her frequently. R. 363. She stated that she would like to see Dr. Reed for more tests, but that she could not afford to do so. R. 363. She walked slowly and needed a cane. R. 364. Both wrists were swollen and tender, with a decreased range of motion. R. 364. Her knees were also tender. R. 364. Dr. Fedro assessed arthritis, hyperthyroidism, and hypertension. R. 364. That day, Dr. Fedro filled out a medical source statement reflecting King's limitations. R. 360.

         On December 3, 2013, Sentara performed x-rays on King's knees, which revealed minimal marginal osteophytosis "consistent with early osteoarthritis" in her left knee. R. 376. No significant abnormalities were found with respect to her right knee. R. 376. Sentara also performed bilateral x-rays on her hands, which revealed "no significant bony or soft tissue abnormalities" with respect to either hand. R. 561.

         On May 25, 2014, King presented to the emergency room at DePaul Medical Center with bilateral knee pain and swelling. R. 382. The knee pain was noted to be a new problem that began two days before. R. 382. The pain was moderate, and included stiffness, but no numbness, no tingling, and no itching. R. 382. King had full range of motion. R. 382. Palpation to the bilateral knees did not cause pain. R. 384. King denied a decline in her gait or her activities of daily living. R. 399-400.

         On July 31, 2014, Dr. Fedro noted that King's knee "still gives her a fit, " but that Tramadol was helping. R. 405-06. He noted that her knee was swelling, but non-tender. R. 406. He assessed her with arthritis in her knee. R. 407.

         On February 12, 2015, after King's date last insured, Dr. Fedro noted that King was moving much better than the last time he saw her, but also indicated a positive result for numbness. R. 462. On March 26, 2015, King returned to Dr. Fedro, who noted that she walked slowly with the aid of a cane. R. 451. Her lower back muscles were tender, as was her hip, especially with movement. R. 451. However, she was able to move it fully. R. 451.

         On May 15, 2015, King presented to the emergency room with a cough, where she was negative for back pain. R. 477, 479. On examination, her muscle tone was normal and she had no edema or tenderness. R. 479. On June 11, 2015, King went back to the emergency room with right leg pain with tingling and numbness, and shortness of breath. R. 526-27. She walked to the bathroom with a cane, but was ambulatory and showed normal range of motion. R. 526, 529.

         Although the record shows that King did not receive any surgery, injections, or physical therapy, the record establishes that King and her physicians frequently noted her lack of medical insurance or Medicaid, or otherwise remarked that she was unable to afford care or medication. R. 338, 340-341, 363, 406, 451, 459, 462, 468, 526.

         C. Medical Opinions and Residual Functional Capacity Assessments

         On September 4, 2013, state agency physician Lewis Singer, M.D., completed a residual functional capacity assessment for King in conjunction with her disability claim. R. 122-25. Dr. Singer opined that King could perform light work. R. 124. He opined that because King's "cane was not prescribed or recommended by a doctor, " her statements about her symptoms were not entirely credible. R. 122. He further stated that "[w]hile [King] may feel more secure using a cane, evidence does not support the need for an assistive device." R. 125. Dr. Singer opined that King could stand and/or walk about six hours in an eight-hour workday, and sit for about six hours in an eight-hour workday. R. 122. Based on his evaluation, Dr. Singer opined that King was not disabled. R. 125.

         On October 24, 2013, at the reconsideration level, another state agency physician, Richard Surrusco, M.D., conducted a residual functional capacity assessment. R. 134-36. Dr. Surrusco noted that King is able to ambulate independently with a cane. R. 135. Dr. Surrusco noted that King could cook, clean, bathe, and dress independently. R. 135. He opined that she could stand and/or walk for two hours in an eight-hour workday and sit for about six hours in an eight-hour workday. R. 134.

         On November 6, 2013, state agency medical reviewer Myron Watkins, M.D., from the Dallas disability quality branch, sent a request for corrective action to the Virginia Beach Quality Assurance Unit. R. 282. The request indicated that Dr. Watkins found "no imaging studies to substantiate severe [medically determinable impairments]" with respect to King's hands and knees, and directed laboratory or imaging studies of her hands and knees. R. 282-83. The request directed the state agency to re-evaluate King's claim for benefits in light of these imaging studies. R. 283.

         On December 3, 2013, Sentara Healthcare performed radiographic imaging on King's knees that revealed no abnormalities in King's right knee and "minimal marginal osteophytosis . . . consistent with early osteoarthritis" in her left knee. R. 376. On December 10, 2013, Dr. Surrusco revised his RFC assessment based on the study of King's knees. R. 147-52. Most notably, Dr. Surrusco now opined that King could stand and/or walk for four hours in an eight-hour workday. R. 148. Dr. Surrusco noted that, although the imaging showed early osteoarthritis in one knee, the change was "minimal, " King's hands were "normal, " and she was able to hold her cane. R. 148. He opined that she could stand and/or walk for about four hours in an eight-hour workday and could sit for about six hours in an eight-hour workday. R. 148. He further wrote that King is "able to stand, walk, and move about independently and . . . retains good use of [her] arms and hands." R. 151. Dr. Surrusco opined that King was not disabled. R. 151.

         King's treating physician, Dr. Fedro, rendered two medical source statements in this case. R. 360, 377. The first is a letter addressed "to whom it may concern" and states that King was under his care from January 3, 2012 to February 7, 2013, the date of the letter. R. 377. The letter goes on to state that King "is unable to work in any capacity at this time. She has been referred to a specialist for her severe arthritis and muscle pains." R. 377. In Dr. Fedro's second medical source statement, dated September 5, 2013, he opines that King suffers from polyarthralgias, osteoarthritis in the knees and hands, and Graves' disease. R. 360. Through a series of check marks, Dr. Fedro then indicated that it is "medically necessary (or advisable) for [King] to stand and walk with a cane, " that she could occasionally lift less than ten pounds, rarely lift ten pounds, and never lift more than ten pounds, that she could stand/walk for less than two hours in a typical workday, could sit for six hours in a typical workday, and would be absent from work for more than four days a month due to pain. R. 360.

         D. Tonya King's Testimony

         At the hearing before ALJ Stewart Goldstein on August 3, 2015, King testified to being in pain "all the time, " specifically in her legs and back. R. 37-39. King testified that the pain radiates from the middle of her back all the way down her leg to her foot, and that this causes occasional numbness in her leg, foot, and toes. R. 38-39. She testified that she experiences this pain on a daily basis, and that she has lived with it for the past two to three years. R. 39. King stated that lying flat on her stomach provides "a little bit" of relief, but that otherwise she experiences this pain "all the time." R. 39. She then testified to only being able to stand for 10 to 15 minutes due to the pain, and that the pain does not improve with using medication. R. 40. King testified that her pain increases when she tries "to do too much and if [she] sit[s] too long." R. 41. She estimated that she would be ...


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