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Ginley v. Berryhill

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

January 31, 2018

CHARMAINE GINLEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          BENITA Y. PEARSON JUDGE.

          REPORT AND RECOMMENDATION

          Jonathan D. Greenberg United States Magistrate Judge.

         Plaintiff, Charmaine Ginley, (“Plaintiff” or “Ginley”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying her applications for a Period of Disability (“POD”) and Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423, et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends the Commissioner's final decision be VACATED and the case REMANDED for further proceedings consistent with this decision.

         I. PROCEDURAL HISTORY

         In October 2013, Ginley filed an application for POD and DIB alleging a disability onset date of June 1, 2012, and claiming she was disabled due to mixed connective tissue disease, loss of consciousness, syncope, joint pain, anxiety, lower back issues, and depression. (Transcript (“Tr.”) 142, 187.) The applications were denied initially and upon reconsideration, and Ginley requested a hearing before an administrative law judge (“ALJ”). (Tr. 102, 107, 110.)

         On October 9, 2015, an ALJ held a hearing, during which Ginley, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 27-69.) On November 10, 2015, the ALJ issued a written decision finding Ginley was not disabled from her alleged onset date of June 1, 2012 to March 23, 2015, but was disabled from March 24, 2015 through the date of the decision. (Tr. 12-22.) The ALJ's decision became final on February 17, 2017, when the Appeals Council declined further review. (Tr. 1.)

         On April 19, 2017, Ginley filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 13, 15.) Ginley asserts the following assignment of error:

(1) The Administrative Law Judge (“ALJ”) erred in finding the plaintiff not disabled at step five of the sequential evaluation.

(Doc. No. 13 at 1.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Ginley was born in March 1960 and was 52 years-old at the time of her alleged disability onset date, making her an individual closely approaching advanced age under social security regulations. At the time of her administrative hearing, she was 55 years-old, making her an individual of advanced age under social security regulations. (Tr. 20, 142.) See 20 C.F.R. §§ 404.1563(d), (e). She has a high school education and is able to communicate in English. (Tr. 20.) She has past relevant work as a state-tested nursing assistant. (Id.)

         B. Medical Evidence[2]

         On January 12, 2011, Ginley visited her primary care doctor, Mary Klein, M.D., reporting fatigue and chest palpitations. (Tr. 520.) She requested a thyroid evaluation. (Id.) Ginley underwent a lumbar MRI[3] in 2011, which revealed mild degenerative disc disease, a small left paracentral disc protrusion at ¶ 2-3 and L5-S1, and displacement of the left S1 nerve root. (Tr. 539.)

         On February 8, 2012, Ginley had a chest x-ray, which revealed healing left rib fractures. (Tr. 505.) She saw Dr. Klein the next day, indicating improved rib pain. (Tr. 336.)

         On February 27, 2012, Ginley first saw cardiologist David Martin, M.D. (Tr. 253.) She reported repeated falls and dizzy spells several times a week. (Id.) Dr. Martin noted Ginley had sinus bradycardia, but determined her symptoms were not entirely consistent with syncope. (Tr. 255.) He ordered a 30-day heart event recorder to determine the etiology of her symptoms. (Id.) This event monitor revealed her heart rate ranged from 39 to 119 beats per minute. (Tr. 339.)

         Ginley visited Dr. Klein on March 14, 2012, indicating she had fractured and dislocated one of her toes. (Id.) She also reported that while she was feeling better after starting a thyroid medication, she was still “twitching” and unable to sit for extended periods. (Tr. 339, 340.)

         On October 9, 2012, Ginley first treated with rheumatologist Qingping Yao, M.D. (Tr. 260.) She reported fatigue, soreness in her joints, and multiple falls. (Id.) On examination, she had normal gait, normal spinal range of motion, and no swelling or warmth in her joints. (Tr. 261.) Dr. Yao ordered labwork, and encouraged Kinsley to follow up with her cardiologist. (Tr. 264.)

         Ginley returned to Dr. Klein on October 12, 2012, complaining of fatigue and recurrent falls. (Tr. 342.) Dr. Klein refilled Ginley's antidepressant and administered a vitamin B12 injection. (Tr. 343.) On October 23, 2012, Ginley underwent a bone density scan, which confirmed osteopenia. (Tr. 268.)

         On April 1, 2013, Ginley followed up with Dr. Yao, reporting “burning” in her limbs, and morning stiffness in her joints. (Tr. 271.) Dr. Yao noted she was “able to perform normal basic [activities of daily living] without any limitations. (Id.) Dr. Yao prescribed Lyrica and referred Ginley to neurology for evaluation of her “twitching.” (Tr. 275.)

         Ginley then saw neurologist Thomas Gretter, M.D., on April 9, 2013. She reported “irregular jerking movements, ” along with fainting and a burning sensation throughout her body. (Tr. 280.) She indicated the jerking would last anywhere from a few seconds to a few hours, and worsened with stress and sitting on her right side. (Id.) She relayed she also had 2-3 episodes of syncope a week, and had to quit her job due to these episodes. (Id.) On examination, Ginley had “periodic tic-like jerking forward at the hip, ” a normal gait, normal reflexes, and intact sensation. (Tr. 281.) Dr. Gretter ordered an EEG and brain MRI in order to evaluate for a possible seizure disorder. (Id.) The April 29, 2013 brain MRI was stable and unremarkable. (Tr. 286.) The May 1, 2013 EEG indicated evidence of “left fronto-temporal epilepsy, ” but no EEG seizures were recorded. (Tr. 313.)

         On June 7, 2013, Ginley saw Dr. Klein and reported she had recently been in the emergency room for gallstones. (Tr. 345.) She relayed her heart rate kept dropping while receiving treatment in the emergency room. (Id.)

         On July 1, 2013, Ginley consulted with neurologist Norman So, M.D. She reported jerks and spasms for the past 2-3 years. (Tr. 287.) She indicated Lyrica had improved the intensity of these symptoms. (Id.) Ginley also described “near blackouts” 2-3 times a week, and “blackouts” once a week. (Tr. 288.) Dr. So noted Ginley had worn a heart rate monitor in the past, and while it revealed bradycardia, it did not indicate loss of consciousness. (Id.) He also reviewed her EEG, and concluded the wave forms were non-specific. (Tr. 290.) On examination, she jerked while sitting, but this resolved when she stood up. (Id.) Dr. So concluded Ginley did not have a seizure disorder, as her “muscle jerks are not likely of cerebral origin.” (Id.)

         Ginley returned to Dr. Martin, her cardiologist, on July 18, 2013. She indicated she was still falling and losing consciousness for a “couple minutes, ” at a rate of four episodes a week. (Tr. 294.) Dr. Martin ordered an echocardiogram, a heart monitor, and a tilt table test. (Tr. 296.) Ginley underwent a tilt table test on August 8, 2013, and it was positive for “mixed vasovagal response.” (Tr. 301.) She followed up with Dr. Martin on August 12, 2013. He prescribed Midodrine, and encouraged Ginley to increase her salt intake and wear compression stockings. (Id.)

         Ginley saw Dr. Martin again on September 26, 2013, and reported four syncopal episodes since her last visit. (Tr. 303.) Dr. Martin concluded these episodes were vasovagal in origin, “with a predominant vasodepressor response.” (Tr. 305.) Ginley reported she had increased her salt intake, but was only taking a half dose of Midodrine, due to side effects. (Id.)

         On October 29, 2013, Ginley visited Dr. Klein and reported worsening depression and increased stress. (Tr. 348.) Dr. Klein increased her antidepressant dosage and administered a vitamin B12 injection. (Tr. 349.)

         On December 3, 2013, Ginley saw Dr. Yao, reporting improvement in her dizziness and heart rate on Midodrin. (Tr. 402.) However, she still had jerking movements and continued burning pain in her limbs. (Tr. 402, 405.) On examination, Ginley had normal spinal range of motion. (Tr. 403.) She had no swelling or warmth in her hands or feet. (Id.) Dr. Yao injected Ginley's right hip with depomedrol and lidocaine and prescribed Lyrica. (Tr. 405.)

         Ginley then consulted with spine specialist Eric A.K. Mayer, M.D., on December 27, 2013. (Tr. 408.) She reported right-sided lower back pain, which was radiating down her right side. (Id.) She also described burning in her right hip and a jerking sensation in her right leg. (Id.) Dr. Mayer determined Ginley's sacroiliac pain was likely related to her mixed connective tissue disease. (Id.) On examination, Ginley's ability to single leg sit or stand was impaired and she had tenderness over her right sacroiliac joint, with a limited lumbar range of motion. (Tr. 409.) However, she also had normal gait and adequate neck range of motion. (Id.) Dr. Mayer ordered a right sacroiliac joint injection, and suggested to Ginley if she had positive results from this injection, he would refer her for a sacroiliac joint fusion procedure. (Id.)

         On May 7, 2014, Dr. Klein filled out a “Physical RFC Assessment” prepared by Ginley's attorney. (Tr. 526-527.) Dr. Klein provided the following limitations for Ginley:

• She can lift and carry less than ten pounds on an occasional and frequent basis;
• She can stand/walk for less than 2 hours in an 8-hour workday;
• She can sit for less than 2 hours in an 8-hour workday;
• She can sit for 20 minutes, before needing to change position to relieve discomfort;
• She can stand for 5 minutes, before needing to change position to relieve discomfort;
• She requires the opportunity to shift positions at will from sitting or standing/walking;
• She can reach, handle, push, pull, and finger less on a than occasional basis; and
• She will be absent from work more than 3 times a month.

(Id.)

         Ginley returned to Dr. Yao's office on June 3, 2014, indicating she had experienced relief from her recent injection but continued to have jerking movements and lower back pain. (Tr. 429.) On examination, she was jerking frequently, and had difficulty getting on and off of the examination table. (Tr. 430.) Dr. Yao referred her for pain management and a physical capacity evaluation. (Tr. 431.)

         On June 10, 2014, Ginley visited Dr. Klein, reporting an increased heart rate, but denying shortness of breath or chest pain. (Tr. 456.) Ginley then saw her cardiologist, Dr. Martin, on June 19, 2014. (Tr. 424.) Dr. Martin noted recent echocardiograms revealed ejection fractions of 55% and 65%. (Id.) Ginley reported low blood pressure readings, and daily episodes of rapid heart rate, lightheadness, and dizziness. (Tr. 425.) She denied any syncope. (Id.) Dr. Martin ordered diagnostic testing and instructed her to return in a month. (Tr. 426.)

         On August 14, 2014, Ginley underwent a functional capacity evaluation with physical therapist Marie Soha, MPT. (Tr. 528.) During the examination, Ms. Soha made the following observations:

• Ginley's objective sitting tolerance was 25 minutes, her standing tolerance was 10 minutes, her standing/walking tolerance was 15 minutes, and her walking tolerance was 5 minutes;
• Her stair climbing tolerance was below normal;
• She had poor balance with a single leg stance, but her balance was within the normative data for her age and gender;
• She spent the greatest length of time in the sitting position. However, while sitting, she demonstrated frequent bodily jerking movements, mostly on the left side of her body;
• She “self-limited” during physical tasks;
• She ambulated without an assistive device, and had a short step length.

(Tr. 528-535.) Based upon this evaluation, Ms. Soha determined Ginley could work at the sedentary physical demand level, “indicating an occasional lift weight of 1.5 [pounds], demonstrating tolerance for lifting at this weight 0-33% of the workday.” (Tr. 528.) She recommended Ginley enter a chronic pain rehabilitation program, to address her pain, poor mobility, depression, and anxiety. (Tr. 529.)

         On November 5, 2014, pain management physician Hong Shen, M.D., filled out a “Physical RFC Assessment” prepared by Ginley's attorney. (Tr. 448-449.) Dr. Shen provided the following limitations for Ginley:

• She can lift and carry less than ten pounds on an occasional and frequent basis;
• She can stand/walk less than 2 hours in an 8-hour workday;
• She has no sitting limitations;
• She can sit for 60 minutes before requiring a change in position to relieve discomfort;
• She can stand for 30 minutes before requiring a change in position to relieve discomfort;
• She will need the opportunity to shift positions at will from sitting or standing/walking;
• She can reach, handle, push, pull, and finger less than occasionally;
• She has no limitations in feeling;
• She will be absent from work more than 3 times a month.

(Id.)

         On November 25, 2014, Ginley saw nurse practitioner Charlotte Bancho, CNP, in Dr. Martin's office. (Tr. 547.) She indicated multiple episodes of near syncope and syncope since her last office visit. (Tr. 548.) She reported she had fallen off her porch and broke her right foot in September 2014. (Id.) Ms. Bancho encouraged Ginley to wear compression stockings, increase her salt intake, and stay hydrated. (Tr. 549.)

         On December 4, 2014, Ginley returned to Dr. Yao's office. She reported fatigue, joint soreness, and burning in her hips. (Tr. 537.) On examination, Ginley had normal gait, but was jerking frequently and had difficulty getting on the examination table. (Tr. 538.) She had no swelling or warmth in her joints, but did have some mild tenderness over her right hip. (Tr. 539.) Dr. Yao ordered updated labwork, and encouraged Ginley to follow up with a spinal specialist. (Id.)

         Ginley returned to Dr. Klein on December 17, 2014, at which time she renewed Ginley's thyroid ...


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