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Boggs v. Berryhill

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

January 30, 2018

VERNA BOGGS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Robert S. Ballou, United States Magistrate Judge.

         Plaintiff Verna Boggs (“Boggs”) filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) determining that she was not disabled and therefore not eligible for supplemental security income (“SSI”), and disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433, 1381-1383f. Specifically, Boggs alleges that the ALJ erred by failing to give the opinion of her treating physician proper weight and failing to properly evaluate her credibility. I conclude that the ALJ failed to adequately explain the reasoning for the weights assigned to the physician opinions in the record. Consequently, I RECOMMEND GRANTING in part Boggs' Motion for Summary Judgment (Dkt. No. 12), DENYING the Commissioner's Motion for Summary Judgment (Dkt. No. 15), and REVERSING and REMANDING this matter for further administrative consideration consistent with this opinion.

         STANDARD OF REVIEW

         This court limits its review to a determination of whether substantial evidence supports the Commissioner's conclusion that Boggs failed to demonstrate that she was disabled under the Act.[1] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

         Remand is appropriate if the ALJ's analysis is so deficient that it “frustrate[s] meaningful review.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (noting that “remand is necessary” because the court is “left to guess [at] how the ALJ arrived at his conclusions”); see also Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (emphasizing that the ALJ must “build an accurate and logical bridge from the evidence to his conclusion” and holding that remand was appropriate when the ALJ failed to make “specific findings” about whether the claimant's limitations would cause him to experience his claimed symptoms during work and if so, how often) (citation omitted). In Mascio and Monroe, the court remanded because the ALJ failed to adequately explain how he arrived at conclusions regarding the claimant's RFC. Mascio, 780 F.3d at 636, Monroe, 826 F.3d. at 189. Similarly, I find that remand is appropriate here because the ALJ's opinion leaves the court to guess at how he reached his conclusions regarding the weight given to Boggs' treating physician.

         CLAIM HISTORY

         Boggs filed applications for SSI, DIB and disabled widow's benefits in October 2012, claiming that her disability began on November 22, 2009. R. 211-26. The Commissioner denied Boggs' applications at the initial and reconsideration levels of administrative review. R. 80, 114. ALJ Brian P. Kilbane held an administrative hearing on May 19, 2015, to consider Boggs' disability claim. R. 36-51. Boggs was represented by an attorney at the hearing, which included testimony from Boggs and vocational expert Arthur Brown. Id.

         On June 26, 2015, the ALJ entered his decision analyzing Boggs' claim under the familiar five-step process, [2] and denying Boggs' claim for disability. R. 12-30. The ALJ found that Boggs suffered from the severe impairments of fracture of the lower extremity, osteoarthrosis and allied disorders. R. 15. The ALJ determined that Boggs' severe impairments did not meet or medically equal a listed impairment, and that she retained the RFC to perform medium work, except occasional left lower extremity operation of foot controls and pushing/pulling; frequent balancing and occasional climbing of ladders, ropes and scaffolds. R. 16. The ALJ determined that Boggs is capable of performing her past relevant work as a cashier and painter, and thus is not disabled. R. 28. Boggs appealed the ALJ's decision and the Appeals Council denied her request for review on July 22, 2016. R. 1-4. This appeal followed.

         ANALYSIS

         Boggs asserts that the ALJ failed to properly evaluate and explain the weight given to the opinion of her treating orthopedic surgeon, Robert Adelaar, M.D. Boggs has a history of ankle injury and arthritis. Specifically, Boggs fractured her left ankle and underwent four surgeries between December 2009 and June 2012: an open reduction and internal fixation of unstable fracture (December 20, 2009, R. 325); ankle hardware removal (June 30, 2010, R. 334); surgical repair; (Spring 2011, R. 883); and subtalar fusion with proximal tibial bone grafting (June 26, 2012, R. 379.)

         In April 2011, after her third ankle surgery, Boggs visited M. Truitt Cooper, M.D., and complained of pain, weakness and swelling in her left ankle. R. 312. Boggs reported occasionally using an ASO brace, and that the pain was worse with activity and better with rest. Upon exam, Dr. Cooper noted that Boggs had a slight antalgic gait on the left, her incisions were well-healed, she had mild swelling, and she had tenderness and reduced range of motion. Her motor strength was intact and she had no instability. Dr. Cooper reviewed x-rays which revealed mild osteopenia, some minimal degenerative changes and anatomic alignment of the distal fibula. Dr. Cooper stated, “I had a long talk with Verna. She has been dealing with this since her surgery. She has had three surgeries on the ankle and I am not sure that there is much can be done to resolve her pain fully. I would recommend compression stocking as needed for swelling as well as continued exercise as much as possible, taking anti-inflammatories as needed.” Id. On April 22, 2011, Boggs returned to Dr. Cooper and reported severe constant pain around her left ankle and tingling at the end of her toes. R. 313. She also reported that she had not been wearing any type of boot or participating in exercises. Upon exam, Boggs had antalgic gait on the left, minimal swelling, well-healed incision, positive Tinel's over her peroneal nerve, intact sensation and pedal pulses. Boggs' ankle range of motion was 5 degrees of dorsiflexion and 35 degrees of plantar flexion. Dr. Cooper recommended compression stocking during the day and an ASO brace when active, and explained the importance of working on physical therapy exercises. He also injected her ankle joint. Id.

         Boggs continued to complain of left ankle pain, and an MRI taken on October 26, 2011, revealed the need for a fusion of her joint. R. 344-45, 383-84. Boggs initially visited Dr. Adelaar on November 14, 2011, with a swollen left ankle with no subtalar motion, tenderness “everywhere” and diminished sensation over the dorsum of her foot. R. 346-47. Dr. Adelaar diagnosed left ankle arthritis, possible subtalar coalition, and performed a subtalar injection. Id. Boggs returned to Dr. Adelaar in January, March, and May of 2012, with continued complaints of persistent left ankle pain and swelling. R. 348-49, 358-63. Upon examination, her ankle was tender with mild to moderate swelling, reduced range of motion, intact sensations and pulses and no discoloration. Id. Boggs reported that walking on unlevel ground tended to exacerbate her foot pain. She was given pain medication and injections to her subtalar joint. Id.

         On June 26, 2012, Dr. Adelaar performed a left subtalar fusion and tibial bone graft for Boggs' left subtalar arthritis. R. 375-380. On July 9, 2012, Boggs reported that her pain was well controlled with medication and she had been non-weight bearing on her left lower extremity post-surgery. R. 364-65. She was doing well post-operatively. Id.

         Boggs followed up with Dr. Adelaar in August 2012, and reported doing well without significant pain. She had mild swelling and was given a Cam boot to bear weight as tolerated. R. 366-69. In September 2012, Boggs complained of pain in her ankle joint and heel and reported wearing the Cam boot but still using crutches. R. 370-71. Upon exam, Boggs had intact sensation, ability to flex and extend, dorsiflex and plantar flex. She was prescribed Tramadol and referred to physical therapy. She was also advised to wear regular shoes and bear weight as tolerated. Id. Boggs returned in December 2012, and reported that “everything is going well with physical therapy.” R. 391. She noted achy pain from swelling if she stands or walks for long periods of time. The swelling goes down if she elevates her leg and compression socks help. X-rays showed midfoot osteoarthritis status post subtalar fusion and some posttraumatic deformity of the posterior and lateral malleolus. Upon exam, Boggs was able to flex and extend her toes and had good dorsiflexions and plantar flexion of the foot with good strength. Dr. Adelaar ...


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