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Weiland v. Berryhill

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

February 28, 2018

LYLA WEILAND, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          DONALD C. NUGENT, JUDGE.

          REPORT AND RECOMMENDATION

          Jonathan D. Greenberg, United States Magistrate Judge.

         Plaintiff, Lyla Weiland, (“Plaintiff” or “Weiland”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying her applications for Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 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 August 2014, Weiland filed applications for POD, DIB, and SSI, alleging a disability onset date of April 22, 2002 (later amended to January 1, 2013) and claiming she was disabled due to Type 1 diabetes, dyslexia, and mental abuse.[2] (Transcript (“Tr.”) 19, 47, 261, 306.) The applications were denied initially and upon reconsideration, and Weiland requested a hearing before an administrative law judge (“ALJ”). (Tr. 211-217, 223-227, 228.)

         On April 5, 2016, an ALJ held a hearing, during which Weiland, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 43-83.) On December 1, 2016, the ALJ issued a written decision finding Weiland was not disabled. (Tr. 19-34.) The ALJ's decision became final on February 10, 2017, when the Appeals Council declined further review. (Tr. 1.)

         On April 7, 2017, Weiland filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 14, 15.) Weiland asserts the following assignments of error:

(1) The ALJ erred by failing to properly evaluate the impact of Plaintiff's uncontrolled Type 1 Diabetes Mellitus.
(2) The ALJ failed to follow the Treating Physician Rule in accordance with 20 CFR § 404.1527.

(Doc. No. 14.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Weiland was born in March 1986 and was thirty (30) years-old at the time of her administrative hearing, making her a “younger” person under social security regulations. (Tr. 32.) See 20 C.F.R. §§ 404.1563(c) & 416.963(c). She has at least a high school education and is able to communicate in English. (Id.) She has past relevant work as a retail clerk. (Tr. 32.)

         B. Relevant Medical Evidence[3]

         1. Physical Impairments

         Weiland was diagnosed with Type 1 diabetes mellitus when she was sixteen years old.[4](Tr. 438, 445.) On August 29, 2012, she presented to endocrinologist Anant Jeet, M.D., for a follow-up diabetic visit. (Tr. 549-552.) Dr. Jeet found Weiland's “disease course” and symptoms were worsening. (Tr. 549.) He indicated the presence of diabetic complications including nephropathy and hypoglycemia.[5] (Id.) Weiland's symptoms included dizziness, headaches, mood changes, nervousness/anxiousness, sleepiness, blurred vision, fatigue, polydipsia, and polyphagia. (Id.) Weiland's treatment included insulin injections and an “intensive insulin program.” (Id.) She followed a diabetic diet, exercised intermittently, and monitored her blood glucose at home three to four times per week. (Id.) Dr. Jeet noted Weiland was compliant with treatment “all of the time, ” and found her “blood glucose monitoring compliance is fair.” (Id.) Physical examination findings were normal. (Tr. 550.) Weiland's glucose level, however, was high at 215.[6] (Tr. 551.) Dr. Jeet assessed “type 1 (juvenile type) diabetes mellitus without mention of complication, not stated as uncontrolled.” (Tr. 550.)

         Weiland returned to Dr. Jeet on October 5, 2012. (Tr. 553-556.) She complained of fatigue, blurred vision, dizziness and headaches, polydipsia and polyphagia, and nervousness/anxiousness. (Tr. 553.) Dr. Jeet again noted Weiland's disease course and symptoms were worsening. (Id.) Physical examination findings were normal, but Weiland's glucose was high at 392. (Tr. 554-555.) Dr. Jeet diagnosed type 1diabetes mellitus without mention of complication, not stated as uncontrolled; and fatigue. (Tr. 554.) He increased her insulin dosage. (Id.)

         On December 7, 2012, Dr. Jeet found Weiland's diabetes and symptoms were “improving.” (Tr. 557.) Weiland continued to complain of fatigue, blurred vision, dizziness and headaches, polydipsia and polyphagia, and nervousness/anxiousness. (Tr. 557.) Physical examination findings were normal, however, and her glucose level was improved at 123. (Tr. 558-559.) Dr. Jeet diagnosed type 1diabetes mellitus without mention of complication, not stated as uncontrolled; and diabetic nephropathy. (Tr. 558.) Several months later, on March 4, 2013, Weiland's glucose and hemoglobin A1c levels were high at 146 and 9.9, [7] respectively. (Tr. 464-465.)

         Weiland returned to Dr. Jeet on March 8, 2013. (Tr. 561-564.) She complained of fatigue, blurred vision, dizziness and headaches, polydipsia and polyphagia, and nervousness/anxiousness. (Tr. 562.) Dr. Jeet found Weiland's disease course and symptoms were “stable.” (Tr. 561.) Her glucose level was 121. (Tr. 563.)

         On April 18, 2013, Weiland was admitted to the hospital for treatment of diabetic ketoacidosis.[8] (Tr. 436-462.) She presented with complaints of nausea, increased heart rate, and dehydration. (Tr. 445.) Weiland explained her insulin pen had malfunctioned and she missed two days of insulin. (Id.) Lab testing showed ketones in Weiland's urine and a very high blood glucose level of 593. (Tr. 445-446, 452.) Weiland was placed on an IV insulin drip. (Tr. 451-452.)

         Weiland returned to Dr. Jeet on May 10, 2013. (Tr. 565-568.) Dr. Jeet described her disease course and symptoms as stable, and diagnosed type 1diabetes mellitus without mention of complication, not stated as uncontrolled; and diabetic nephropathy.[9] (Tr. 565-566.) Weiland's glucose level was 154. (Tr. 567.)

         On June 12, 2013, Weiland underwent an electromyogram (“EMG”) of her lower extremities due to complaints of neuropathy. (Tr. 434-435.) This EMG found as follows:

Essentially normal nerve conduction studies of the lower extremities except for low amplitude tracings of the common peroneal nerves and some mildly decreased conduction velocity in the right common peroneal nerves as seen in diabetes. These findings do not suggest a large fiber neuropathy. A small fiber neuropathy may be due to diabetes. Other causes of neuropathies must be ruled out. There is no suggestion of any myopathy potentials.

(Tr. 434.)

         On August 9, 2013, Weiland presented to pain management specialist Heather Scullin, D.O. (Tr. 690-698.) Weiland complained of bilateral hand pain, which she described as moderate and rated a 5 on a scale of 10. (Tr. 690.) She also reported chronic neck pain, which occurred “constantly” and had been “gradually worsening.” (Tr. 691.) Weiland rated her neck pain a 7 on a scale of 10, and indicated it was aggravated by bending and stress. (Id.) Dr. Scullin also noted mental health problems, including “bizarre behavior, negative symptoms, and somatic symptoms.” (Id.) Somatic symptoms included fatigue, headaches, and myalgias. (Id.) Finally, Weiland complained of focal sensory loss and weakness, which had been “gradually worsening.” (Id.)

         On examination, Dr. Scullin found Weiland did not have a “sickly appearance” and did not appear ill. (Tr. 694.) Her neck was supple and had normal range of motion, with no edema or thyromegaly. (Id.) Dr. Scullin noted decreased range of motion, tenderness, pain and spasm in Weiland's cervical and lumbar backs. (Id.) In addition, she found decreased range of motion, tenderness, decreased sensation, and decreased strength in Weiland's bilateral hands. (Tr. 695.) On neurological examination, Dr. Scullin found normal strength, muscle tone, coordination and gait, with no atrophy or tremor. (Tr. 696.) Abnormal achilles reflexes were present on the left and right. (Id.) On psychiatric examination, Dr. Scullin noted normal behavior, judgment, speech, cognition, memory, and thought content, but found blunted affect, depressed mood, and poor eye contact. (Id.)

         Dr. Scullin diagnosed (1) bilateral hand pain, active, severe; (2) numbness and tingling in hands, active in her ring and 5th digit bilaterally; (3) carpal tunnel syndrome, active, pending EMG; (4) depression, active, severe; (5) history of self-mutilation; (6) neuropathy; (7) type 1 diabetes mellitus without mention of complication, not stated as uncontrolled, active; (8) neck pain, active; and (9) whiplash injury, chronic, active. (Tr. 696-697.) She prescribed Diclofenac; advised Weiland to exercise three times per week; and ordered an EMG and lab work. (Tr. 697-698.)

         Several weeks later, on August 17, 2013, Weiland returned to Dr. Jeet. (Tr. 699-701.) He found Weiland's diabetes and symptoms were worsening. (Tr. 699.) Complications again included nephropathy and hypoglycemia. (Id.) Weiland complained of fatigue, blurred vision, polydipsia, polyphagia, dizziness, headaches, and nervousness/anxiousness. (Tr. 699-700.) Physical examination was normal; however, Weiland's A1c level was high at 11.4. (Tr. 700.)

         Weiland returned to Dr. Scullin on September 23, 2013. (Tr. 702-710.) She complained of hand pain, weakness, numbness and tingling. (Tr. 702.) Weiland also reported fatigue, nosebleeds, neck pain and stiffness, myalgias, dizziness, headaches, sleep disturbance, decreased concentration, insomnia, and nervousness/anxiousness. (Id.) Examination of Weiland's cervical, thoracic and lumbar backs was normal; however, Dr. Scullin noted decreased sensation in Weiland's bilateral hands. (Tr. 705-706.) She diagnosed (1) history of self-mutilation, active; (2) neuropathy, active; (3) neck pain, active; (4) ulnar nerve entrapment at elbow, active; (5) carpal tunnel syndrome, active; (6) bipolar 1 disorder; (7) epicondylitis, lateral (tennis elbow); (8) whiplash injury, chronic; and (9) type 1 diabetes mellitus without mention of complication, not stated as uncontrolled. (Tr. 707-708.) She ordered wrist splints and referred Weiland to surgery.[10] (Tr. 707.)

         On November 11, 2013, Weiland returned to Dr. Jeet. (Tr. 748-752.) He noted Weiland's disease course and symptoms were improving. (Tr. 748.) Physical examination findings were normal. (Tr. 749.) However, Weiland's A1c level was high at 10.1, and she complained of fatigue, blurred vision, dizziness, headaches, polydipsia, polyphagia, and nervousness/anxiousness. (Id.)

         Shortly thereafter, on November 21, 2013, Weiland was hospitalized for treatment of diabetic ketoacidosis and dehydration. (Tr. 422-426.) She presented to the ER with complaints of nausea, headache, and sore throat. (Tr. 424.) Her blood sugar had been high at home, “more than 600.” (Id.) Lab work performed at the hospital revealed a glucose level of 528. (Id.) Weiland was started on IV fluids and insulin. (Id.) She was diagnosed with uncontrolled diabetes type 1, early diabetic ketoacidosis, and dehydration; and discharged on November 22, 2013. (Tr. 424-425, 422.)

         On January 27, 2014, Dr. Jeet completed a “Health Care Provider Certification Form for non-Job Protected Family and Medical Leave.” (Tr. 466-469.) Dr. Jeet concluded Weiland would need to miss work on an intermittent basis due to her type 1 diabetes. (Tr. 467.) Specifically, he concluded as follows: “[Weiland] will need 1 day off every 2-3 months to come in for office visits and an additional 2 days a month if she has blood sugar problems.” (Tr. 468.) Dr. Jeet further found Weiland could work eight hours each day but she “will need breaks to check blood sugars or to have snacks.” (Id.) He concluded it was medically necessary for Weiland to miss work as set forth above. (Id.)

         Weiland returned to Dr. Jeet for a diabetic follow up visit on February 10, 2014. (Tr. 574-578.) He found her condition and symptoms were worsening. (Tr. 574.) Weiland's glucose and A1c levels were both high, at 395 and 10.9, respectively. (Tr. 575, 577.) Dr. Jeet diagnosed “type 1 (juvenile type) diabetes mellitus without mention of complication, uncontrolled.” (Tr. 576.)

         Weiland returned to Dr. Jeet in May, July, and October 2014. (Tr. 579-584, 585-589, 766- 770.) In May 2014, Weiland's diabetes and symptoms were “stable, ” although both her glucose and A1c levels were high (at 189 and 10.8, respectively). (Tr. 579-584.) In July and October 2014, Dr. Jeet determined Weiland's diabetes and symptoms were “worsening.” (Tr. 585-589, 766-770.) Although Weiland was “compliant with treatment all of the time, ” he diagnosed her type 1 diabetes as uncontrolled during all three visits. (Tr. 582, 587, 769.) Dr. Jeet also assessed diabetic nephropathy and gastroenteritis. (Id.)

         On January 29, 2015, Dr. Jeet again concluded Weiland's diabetes and symptoms were “worsening.” (Tr. 771-775.) Weiland complained of fatigue, polyuria, dizziness, and weakness. (Tr. 772.) She was nervous and anxious, and presented with a dysphoric mood. (Id.) Physical examination findings were normal. (Id.) However, Weiland's A1c level was very high at 12.4, and her glucose was elevated at 151. (Tr. 772, 774.) Dr. Jeet diagnosed uncontrolled type 1 diabetes mellitus. (Tr. 773.)

         Weiland returned to Dr. Jeet on April 30, 2015. (Tr. 886-890.) At that time, Dr. Jeet found Weiland's disease course and symptoms were improving. (Tr. 886.) She was compliant with treatment “most of the time.” (Id.) Physical examination findings were normal. (Id.) However, Weiland's glucose and A1c levels were both high at 229 and 9.9, respectively. (Tr. 887, 889.) Dr. Jeet again diagnosed uncontrolled type 1 diabetes mellitus. (Tr. 888.)

         The record reflects Weiland was in a motor vehicle accident on June 8, 2015. (Tr. 852-853, 914.) She presented to the ER with complaints of neck, back and knee pain. (Id.) The following day, Weiland presented to Ronald Carissimi, M.D. (Tr. 913-917.) She complained of continued back and neck pain, as well as a slight headache. (Tr. 914.) On examination, Dr. Carissimi noted slight tenderness in Weiland's neck, thoracic spine, and right knee, with normal range of motion, 5/5 upper extremity strength, and no focal deficits. (Tr. 915.) He diagnosed neck pain, mid-back pain, and knee contusion; and prescribed Naprosyn. (Id.)

         On June 10, 2015, Weiland returned to Dr. Jeet. (Tr. 882-885.) He found Weiland's disease course and symptoms were worsening. (Tr. 883.) Weiland complained of fatigue, myalgias, dizziness, and nervousness/anxiousness. (Id.) Dr. Jeet assessed uncontrolled type 1 diabetes mellitus. (Tr. 884.)

         On that same date, Weiland began treatment with chiropractor Brian Studer, D.C. (Tr. 873.) She complained of pain on the “whole left side” of her body, including in her neck, back, arm, shoulder, elbow, wrist, hand, hip, leg, knee, and ankle/foot. (Id.) She described the pain as constant and moderate in intensity. (Id.) Weiland also complained of headache, blurry vision, loss of balance, poor memory/loss, difficulty sleeping, language difficulty, reduced mental stamina, hand tremors, nausea, numbness, irritability, chest pain, fatigue, extremity weakness, grip strength weakness and anxiety. (Tr. 876.) On examination, Dr. Studer noted pain, spasms, and fixations in Weiland's cervical, thoracic, and lumbar spines. (Tr. 874.) He also found decreased range of motion in her cervical spine and thoracic spine. (Id.) Dr Studer diagnosed (1) segmental dysfunction; (2) cervical strain; (3) thoracic strain; (4) left shoulder strain; (5) left elbow contusion; (6) left wrist strain; (7) anxiety; (8) left elbow strain; (9) lumbosacral strain; (10) left ankle strain; (11) headache; (12) muscle spasm; (13) anterior rib strain; (14) dizziness; and (15) blurred vision. (Tr. 869.)

         On June 16, 2015, Weiland presented to her primary care physician Jennifer Calabrese, M.D. (Tr. 852-861.) Physical examination findings were normal with the exception of mild trapezius pain bilaterally. (Tr. 855-856.) Dr. Calabrese diagnosed cervical strain, acute; uncontrolled type 1 diabetes mellitus; neuropathy; bipolar 1 disorder; and depression. (Tr. 856.) She prescribed Flexeril and Mobic, and indicated Weiland needed physical therapy. (Tr. 856-857.)

         Weiland returned to Dr. Calabrese on July 24, 2015. (Tr. 846-851.) She complained of memory loss following her motor vehicle accident, particularly with regard to “simple short term memory.” (Tr. 846.) Physical examination findings were normal. (Tr. 849-850.) Dr. Calabrese ordered a CT scan of Weiland's head with contrast. (Tr. 850.)

         Meanwhile, Weiland presented regularly to Dr. Studer for chiropractic treatment between June and August 2015. (Tr. 863-868.) On July 15, 2015, Weiland reported her pain had improved by 65% since the motor vehicle accident. (Tr. 871.) She continued to complain of neck and back pain, but stated she no longer experienced chest/anterior rib pain or blurred vision. (Id.) Weiland also indicated that, while still present, her headaches and dizziness had decreased. (Id.) Later that month, Weiland indicated she was “approximately 70 to 75% better overall.” (Tr. 864.)

         On August 21, 2015, Weiland returned to Dr. Calabrese for follow-up regarding her post-accident memory loss. (Tr. 945-949.) Physical examination findings were normal. (Tr. 948.) Dr. Calabrese referred Weiland to neurology for evaluation of her memory issues, noting “if memory issues worsen [Weiland] may need to stop” driving. (Tr. 949.)

         Weiland presented to Dr. Jeet on September 11, 2015. (Tr. 1026-1030.) He found Weiland's disease course and symptoms were improving. (Tr. 1027.) Weiland complained of fatigue, polydipsia, polyuria, dizziness, and nervousness/anxiousness. (Tr. 1028.) Her glucose level was high, at 134. (Tr. 1029.) Dr. Jeet assessed uncontrolled type 1 diabetes mellitus. (Id.)

         Weiland continued to present to Dr. Studer between October 2015 and February 2016. (Tr. 926-930.) On October 7, 2015, Weiland rated her neck pain a 3 on a scale of 10; and her mid-back pain a 4 on a scale of 10. (Tr. 930.) She stated her lower back pain was mild and intermittent. (Id.) The following month, Weiland reported her mid-back and neck pain had decreased. (Tr. 928.) Dr. Studer noted she was mildly improved. (Id.) Treatment notes indicate Weiland's neck and back pain were exacerbated in December 2015, but later improved somewhat. (Tr. 926-927.)

         Meanwhile, on November 30, 2015, Weiland returned to Dr. Jeet. (Tr. 1021-1025.) He found her disease course “has been fluctuating” and her symptoms were “worsening.” (Tr. 1021.) Physical examination findings were normal. (Tr. 1023.) Weiland's glucose and A1c levels were both high, at 181 and 10.6, respectively. (Tr. 1024.)

         On that same date, Weiland presented to Dr. Calabrese. (Tr. 938-944.) Physical examination findings were normal. (Tr. 941-942.) Noting an MRI of Weiland's brain was normal, Dr. Calabrese advised counseling “since PTSD from [motor vehicle accident] possibly the culprit per neurology.” (Tr. 942.)

         On February 15, 2016, Dr. Studer completed a Physical Medical Source Statement. (Tr. 922-925.) He identified diagnoses of lumbago, cervicalgia, and thoracic pain; and indicated Weiland's prognosis was “guarded.” (Tr. 922.) Dr. Studer listed Weiland's symptoms as neck pain, mid/upper/lower back pain, headaches, anxiety, dizziness, and left shoulder pain. (Id.) He offered the following opinions regarding Weiland's physical functional limitations:

• She could walk 1 to 2 city blocks without rest or severe pain.
• She could sit for 2 hours at one time, and for at least 6 hours total in an 8 hour workday.
• She could stand for 2 hours at one time, and stand/walk for at least 6 hours total in an 8 hour workday.
• She would need a job that permits shifting positions at will from sitting, standing, or walking.
• She would need periods of walking around during an 8 hour workday. Specifically, she would need to walk every 90 minutes for 15 minutes each time.
• In addition to normal breaks every two hours, she would need unscheduled breaks every two to three hours for 15 minutes each time due to her muscle weakness and pain.
• She could frequently lift and carry 10 pounds; occasionally lift and carry 20 pounds; and rarely lift and carry 50 pounds.
• She could frequently twist; occasionally stoop, climb stairs, and climb ladders; and rarely crouch/squat.
• She had no significant limitations with reaching, handling or fingering.
• She would likely be off-task 25% or more of a typical workday.
• She is capable of tolerating moderate work stress.
• Her impairments are likely to produce good days and bad days.
• She would likely be absent from work as a result of her impairments or treatment about two days per month.

(Tr. 922-925.)

         Weiland returned to Dr. Jeet on February 29, 2016. (Tr. 1016-1020.) He found her disease course and symptoms were worsening. (Tr. 1016.) Weiland complained of fatigue, dizziness, and nervousness/anxiousness. (Tr. 1017.) Physical examination findings were normal. (Tr. 1017-1018.) Dr. Jeet assessed uncontrolled type 1 diabetes mellitus, and diabetic nephropathy. (Tr. 1019.)

         On that same date, Weiland presented to Dr. Calabrese. (Tr. 987-993.) Her glucose and A1c levels were both high at 153 and 11.9, respectively. (Tr. 989, 991.) Dr. Calabreses “again had a lengthy discussion with [Weiland] about the risks of poorly controlled diabetes, ” including vascular complications, blindness, and death. (Tr. 992.)

         During that visit, Dr. Calabrese completed a Medical Source Statement regarding Weiland's physical functional limitations. (Tr. 982-985.) She indicated she had treated Weiland for 10 years and characterized her prognosis as “fair.” (Tr. 982.) Diagnoses included diabetes type 1, depression, anxiety, and carpal tunnel syndrome. (Id.) Dr. Calabrese listed Weiland's symptoms as headache, fatigue, mood swings, forgetfullness, and pain in her neck, lower back, and “left side of body.” (Id.) She indicated Weiland's condition was “worsened by unpredictable sugar fluctuations and strain, ” and noted in particular that Weiland experienced drowsiness as a result of her sugar fluctuations. (Id.) Dr. Calabrese offered the following opinions regarding Weiland's physical functional limitations:

• She could walk ½ of a city block without rest or severe pain.
• She could sit for 45 minutes at one time, and for a total of less than 2 hours in an 8 hour workday.
• She could stand for 15 minutes at one time, and stand/walk for a total of less than 2 hours in an 8 hour workday.
• She would need a job that permits shifting positions at will from sitting, standing, or walking.
• She would need periods of walking around during an 8 hour workday. Specifically, she would need to walk every 30 minutes for 5 minutes each time.
• In addition to normal breaks every two hours, she would need unscheduled breaks every one to two hours for 15 minutes each time due to her muscle weakness and pain.
• She could rarely lift and carry 10 pounds, and never carry 20 or 50 pounds.
• She could occasionally twist, stoop, and crouch/squat; rarely climb stairs, and never climb ladders.
• She had no significant limitations with reaching, handling or fingering.
• She would likely be off-task 15% or more of a typical ...

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