United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. Krask United States Magistrate Judge
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.
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.
protectively filed applications for a period of disability
and DIB on August 16, 2010. R. 12. 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.
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,
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.
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. 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.
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. R. 35-37, 220-22, 228-31, 239-40.
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.
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.
Relevant Medical Records
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Medical Opinions and Residual Functional Capacity
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.
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.
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.
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.
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.
Tonya King's Testimony
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