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Bauer v. Commissioner of Social Security

United States District Court, N.D. Ohio, Eastern Division

December 28, 2017

MARIA BAUER, Plaintiff,


          Kathleen B. Burke, United States Magistrate Judge

         Plaintiff Maria Bauer (“Plaintiff” or “Bauer”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”) denying her application for social security disability benefits. Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of the parties. Doc. 8. As explained more fully below, the ALJ's analysis of the opinion of Bauer's treating physician Dr. Keppler is insufficient to allow the Court to assess whether the decision is supported by substantial evidence. Accordingly, the Court REVERSES and REMANDS the Commissioner's decision for further proceedings consistent with this opinion.

         I. Procedural History

         On August 19, 2013, Bauer protectively filed an application for Disability Insurance Benefits (“DIB”).[1] Tr. 296, 342, 415-421. Bauer alleged a disability onset date of October 20, 2013. Tr. 296, 415, 448. She alleged disability due to kidney transplant, fibromyalgia, three prior shoulder surgeries, muscle inflammation, osteoporosis, joint pain, disease of circulatory system, ruptured rotator cuff, muscle weakness, hyperlipidemia, premenstrual system. Tr. 343, 371, 433. Bauer's application was denied initially (Tr. 371-374) and upon reconsideration by the state agency (Tr. 376-378). Thereafter, she requested an administrative hearing. Tr. 379-380. On October 7, 2015, Administrative Law Judge Jonathan Eliot (“ALJ”) conducted an administrative hearing. Tr. 308-339.

         In his October 28, 2015, decision (Tr. 293-307), the ALJ determined that Bauer had not been under a disability, as defined in the Social Security Act, from October 20, 2013, through the date of the decision (Tr. 296, 303). Bauer requested review of the ALJ's decision by the Appeals Council. Tr. 291-292. On November 22, 2016, the Appeals Council denied Bauer's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-7.

         II. Evidence

         A. Personal, vocational and educational evidence

         Bauer was born in 1963. Tr. 302, 312, 415. Bauer and her husband live in their house with their teenaged daughter. Tr. 312-313. Bauer graduated from high school and she attended some college classes but she did not receive a college degree. Tr. 314. She last worked in October of 2013 at a retail job.[2] Tr. 314. She stopped working at that time because she was no longer able to perform her job properly due to her pain. Tr. 314-315, 329. During the administrative hearing, Bauer explained that her pain was so severe at the time she stopped working that, when she got off of work, she would have to sit in her car for 25 minutes before she could start to drive. Tr. 329.

         B. Medical evidence[3]

         1.Treatment history

         On July 16, 2013, Bauer saw Dr. Peter J. Evans, MD, PhD, RFCSC, Director of Cleveland Clinic Upper Extremity Center, for follow up. Tr. 495. Dr. Evans noted that Bauer was returning to see him post left rotator cuff repair February 29, 2012, and he also noted that Bauer's right shoulder had been fixed with an interposition graft on January 13, 2010. Tr. 495; see also Tr. 598, 1018-1020. During her July 16, 2013, visit with Dr. Evans, Bauer complained of pain in both of her shoulders. Tr. 495. She indicated she was very active. Tr. 495. Dr. Evans's primary diagnosis was rotator cuff rupture. Tr. 495. He administered a subacromial injection on the left side and advised Bauer if her pain persisted that she should call to schedule an MRI prior to scheduling a follow-up visit. Tr. 495. Dr. Evans also advised Bauer to take analgesics/anti-inflammatories as needed. Tr. 495.

         On August 7, 2013, a left shoulder MRI was performed. Tr. 892-893. The impression from the MRI was (1) post-surgical changes of prior rotator cuff repair; (2) massive full-thickness tear involving the supraspinatus and infraspinatus tendons with retraction and muscle atrophy; (3) high-grade partial-thickness tear of the subscapulous tendon; and (4) moderate joint effusion and synovitis extending into the infraspinatus fossa and surrounding the infraspinatus muscle. Tr. 893. Bauer saw Dr. Evans on August 22, 2013, regarding her left shoulder MRI. Tr. 869. Dr. Evans indicated that the MRI showed “full thickness retracted rotator cuff tear.” Tr. 869. Dr. Evans's diagnosis was complete rupture of the rotator cuff and he discussed options with Bauer. Tr. 869. Following those discussions, Bauer indicated a desire to proceed with open rotator cuff surgery and graft interposition. Tr. 869. Dr. Evans noted that the interposition seemed to work well on Bauer's right shoulder. Tr. 869.

         On November 8, 2013, Bauer saw Leighanne K. Hustak, CNP, for a pre-op consultation. Tr. 479-486. Bauer was exercising about 60 minutes per day. Tr. 483. She was living with her husband, teenaged daughter and father. Tr. 483. A physical examination showed normal cognition, motor skills and gait and no weakness or sensory deficit. Tr. 486. Also, there was no deformity, edema, tenderness, joint swelling or clubbing observed on physical examination of Bauer's extremities. Tr. 486.

         On December 4, 2013, Dr. Evans performed surgery on Bauer's left shoulder. Tr. 1011-1016. The surgical procedures performed were left shoulder arthroscopy; left shoulder arthroscopic extensive debridement of glenohumeral space, anterior, posterior, superior; left shoulder arthroscopic subacromial decompression; and left mini-open rotator cuff repair with Conexa dermal graft, interposition graft. Tr. 1015. During her hospital admission, Bauer complained of right wrist pain. Tr. 1012. An x-ray of Bauer's wrist was taken on December 5, 2013, which showed CPPD arthropathy (calcium pyrophosphate dehydrate crystal deposition disease or psuedogout). Tr. 993, 1012. Rheumatology was consulted and a steroid injection was administered with resolution of the symptoms. Tr. 1012. Bauer was discharged home in stable condition on December 6, 2013. Tr. 1011.

         Following surgery, Bauer started physical therapy. Tr. 904-927. During her fifth physical therapy session on January 7, 2014, Bauer reported that she was compliant with her restrictions and she was wearing her sling. Tr. 908. She denied left shoulder pain but was feeling stiff. Tr. 908. On January 9, 2014, Bauer drove herself to her physical therapy session. Tr. 912. She reported no left shoulder pain. Tr. 912. Bauer was compliant with her home exercise program and shoulder protocol and anxious to move on to the next phase. Tr. 913. The following weeks, during a physical therapy session, Bauer reported feeling popping in her left shoulder and down the arm when her husband was performing passive range of motion exercises. Tr. 920. Bauer indicated it was a little painful. Tr. 920. Bauer felt that, overall, her range of motion was improving. Tr. 920. She was taking a half a Tylenol for medication. Tr. 920. She felt stiff more than anything. Tr. 920. She was sleeping well in bed. Tr. 920.

         On May 26, 2014, Bauer sought treatment at the Southwest General emergency room complaining of painful swelling in the inner thigh of her right leg that started two weeks prior. Tr. 1194-1214. Bauer relayed that she had been working out more often but there was no known injury. Tr. 1194. Bauer was discharged the same day with diagnoses of groin strain and hematoma of the leg. Tr. 1202.

         Bauer was seen again at the Southwest General emergency room on October 30, 2014. Tr. 1247-1272. She complained of left ankle pain and swelling. Tr. 1247. A musculoskeletal physical examination showed normal range of motion, normal strength and no swelling. Tr. 1249. A physical examination of her back revealed normal range of motion, normal alignment and no tenderness. Tr. 1249. Bauer was diagnosed with arthritis of the ankle, left. Tr. 1249. While in the emergency room, she was seen by a podiatrist and the podiatrist administered a prednisone injection into Bauer's left ankle. Tr. 1249. Bauer was discharged home the same day. Tr. 1249.

         The next treatment relating to Bauer's shoulders occurred on March 19, 2015. Tr. 1128. She saw Dr. Louis Keppler, M.D., [4] with complaints of right shoulder pain and complaints of pain and weakness in her left shoulder. Tr. 1128. Bauer complained of constant pain, which she rated a 9 out of 10. Tr. 1128. Dr. Keppler's notes indicate that Bauer complained that she had been having the pain since November 14, 2015.[5] Tr. 1128. Bauer complained of some numbness and weakness radiating from her shoulder down into her hand and she complained that sitting, walking, standing, lying down, lifting, weather, and range of motion made her symptoms worse. Tr. 1128. Dr. Keppler recounted Bauer's surgical history. Tr. 1128. He noted Bauer was taking aspirin. Tr. 1128. Dr. Keppler also noted that x-rays brought to the visit by Bauer showed “high riding shoulder.”[6] Tr. 1128. Dr. Keppler reviewed films from Bauer's prior surgery, noting that an MRI report showed that Bauer had severe osteoarthritis of the shoulder and atrophy of the musculature in her shoulder.[7] Tr. 1128. On physical examination, Dr. Keppler observed that Bauer had a limited range of motion, approximately 80 degrees overhead elevation and she was extremely weak in both arms, more so on the left than on the right. Tr. 1128. Dr. Keppler wanted to review the MRI films and then discuss surgical options, including cup arthroplasty versus reverse shoulder. Tr. 1128. Bauer planned to bring her films in for Dr. Keppler's review. Tr. 1128.

         Bauer returned to see Dr. Keppler on April 9, 2015. Tr. 1127. Bauer complained that one of her anchors was pulled out and she was quite sore. Tr. 1127. Dr. Keppler noted that they discussed various options, including cuff tear arthropathy resurfacing versus a reverse. Tr. 1127. Dr. Keppler indicated he had strong reservations about a reverse, noting that he believed that she had compromised bone and he would be concerned about the glenosphere loosening in her scapula. Tr. 1127. Bauer indicated she was going to think about things and noted that she did not want to compromise her summer so she would follow up at the end of the summer. Tr. 1127. Bauer sought treatment at the Southwest General emergency room on April 30, 2015, for abdominal pain. Tr. 1313-1337. A physical examination showed normal range of motion and normal strength. Tr. 1316. Bauer refused pain and nausea medication. Tr. 1319. She was diagnosed with non-specific abdominal pain and bloating and discharged the same day. Tr. 1329-1331.

         2.Opinion evidence

         a. Treating

         On May 1, 2015, Dr. Keppler completed a check-box style form entitled “Medical Source Statement Regarding Shoulders.” Tr. 1130-1131. Dr. Keppler opined that Bauer had problems in both shoulders. Tr. 1130. With respect to Bauer's left shoulder, Dr. Keppler found the following problems - limitation of motion, weakness, pain, muscle atrophy, bursitis, tendinitis, tendon erosion, impingement syndrome, rotator cuff tear, AC joint arthritis (prior to surgery), glenohumeral joint arthritis, and shoulder instability. Tr. 1130. With respect to Bauer's right shoulder, Dr. Keppler found the following problems - tendon erosion, impingement syndrome, rotator cuff tear, AC joint arthritis (prior to surgery), glenohumeral joint arthritis, and shoulder instability. Tr. 1130. Dr. Keppler opined that Bauer could work no hours per day; she could stand at one time for 60 minutes; she could sit at one time for 30 minutes; she could stand for 4 hours in a workday; she could sit for 4 hours in a workday; she could lift 10 pounds occasionally; she could lift 5 pounds frequently; she could use her left arm below shoulder level occasionally; she could use her right arm below shoulder level frequently; she could never raise her left arm over shoulder level; and she could occasionally raise her right arm over shoulder level. Tr. 1130- 1131. Dr. Keppler opined that Bauer suffered from “marked” pain, meaning a “[s]erious limitation, severely limits ability to function (i.e. on task 48%-82% in an 8 hr work day.” Tr. 1131.

         b. Reviewing

         On February 3, 2014, state agency reviewing physician Dr. Michael Delphia, M.D., completed a physical RFC assessment. Tr. 352-354. Dr. Delphia opined that Bauer could occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk about 6 hours in an 8-hour workday; sit about 6 hours in an 8-hour workday; and push and/or pull unlimitedly, except as indicated for lift and/or carry. Tr. 352-353. Dr. Delphia opined that Bauer had the following postural limitations: frequently climb ramps/stairs, stoop, kneel, and crouch; occasionally crawl; and never climb ladders/ropes/scaffolds. Tr. 353. Dr. Delphia opined that Bauer was limited to frequent overhead reaching bilaterally. Tr. 354. Dr. Delphia also opined that Bauer would need to avoid all exposure to hazards (unprotected heights, operating heavy machinery or commercial driving). Tr. 354.

         Upon reconsideration, on June 12, 2014, state agency reviewing physician Dr. Gerald Klyop, M.D., affirmed Dr. Delphia's physical RFC assessment. Tr. 365-368.

         C. Testimonial evidence

         1. Plaintiff's testimony

         Bauer was represented at and testified at the hearing. Tr. 312-333. Bauer indicated that she was diagnosed with a left rotator cuff tear in August 2013 and had surgery in December 2013. Tr. 317. Thereafter, she attended physical therapy in January 2014. Tr. 317. Per Bauer, physical therapy did not help her shoulder condition. Tr. 317-318. Bauer indicated that her pain does not go away. Tr. 318. She does not take pain medication because she cannot tolerate it - it makes her throw up. Tr. 319. She estimated taking a half a Tylenol about once a month. Tr. 319. Bauer discussed her left and right shoulder surgeries, noting continuing problems with both and that her right and left shoulders were equally bad. Tr. 318-322, 330.

         She saw Dr. Keppler in March 2015 for a second opinion regarding her shoulder condition. Tr. 319-320. Dr. Keppler recommended further surgery on her left shoulder. Tr. 320. He recommended a surgery that involved “a cap in the shoulder for the rotator cuff[.]” Tr. 321. The surgery required a four to six week recovery period. Tr. 321. Her other physician, Dr. Evans, did not want to try other options because of her prior kidney transplant. Tr. 320. Bauer was supposed to have the surgery that Dr. Keppler recommended the month before her administrative hearing but some family issues occurred which caused her not to have the additional surgery. Tr. 320, 330. Since January 2014, Bauer had ...

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