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Porter v. Berryhill

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

March 2, 2018

SHIRLONDA PORTER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          SOLOMON OLIVER JUDGE

          REPORT AND RECOMMENDATION

          JONATHAN D. GREENBERG UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Shirlonda Porter, (“Plaintiff” or “Porter”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying her application for Supplemental Security Income (“SSI”) under Title 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 this matter REMANDED for further consideration consistent with this decision.

         I. PROCEDURAL HISTORY

         In June 2013, Porter filed an application for SSI, alleging a disability onset date of January 1, 2004 (later amended to June 17, 2013) and claiming she was disabled due to “diabetes; back injury; arthritis; pinched nerve in neck and shoulder; hernia; low vision; extreme legs, hands, and feet muscle cramps; numbness in hands, legs, and feet; migraines; and sciatic nerve pain.” (Transcript (“Tr.”) 58, 168, 182, 187.) The applications were denied initially and upon reconsideration, and Porter requested a hearing before an administrative law judge (“ALJ”). (Tr. 127- 129, 131-133.)

         On September 23, 2015, an ALJ held a hearing, during which Porter, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 75-101.) On November 17, 2015, the ALJ issued a written decision finding Porter was not disabled. (Tr. 58-70.) The ALJ's decision became final on March 10, 2017, when the Appeals Council declined further review. (Tr. 1-7.)

         On May 7, 2017, Porter filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 12, 13.) Porter asserts the following assignments of error:

(1) The ALJ erred in finding that Ms. Porter's hand limitations are not severe impairments.
(2) The ALJ's assessment of Residual Functional Capacity is not supported by substantial evidence.
(3) New and material evidence exists and requires remand for additional evaluation of Ms. Porter's hand impairments and back pain and assessment of residual functional capacity.

(Doc. No. 12.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Porter was born in November 1964 and was 50 (fifty) years-old at the time of her administrative hearing, making her a “person closely approaching advanced age, ” under social security regulations. (Tr. 69.) See 20 C.F.R. §§ 404.1563(d) & 416.963(d). She has at least a high school education and is able to communicate in English. (Id.) She has past relevant work as a sales clerk. (Tr. 68.)

         B. Relevant Medical Evidence[2]

         On May 17, 2011, Porter presented to Scott Feudo, M.D., for follow-up regarding “multiple issues including type 2 diabetes mellitus.” (Tr. 264-265.) Among other things, Porter complained of cramping pain in her calves, as well as “a history of intermittent episodes of polyuria and polydipsia[3] times years.” (Id.) Physical examination was normal aside from decreased reflexes bilaterally. (Id.) Dr. Feudo assessed the following: (1) hypertension; (2) gastroesophageal reflux; (3) type 2 diabetes mellitus; (4) nocturnal leg cramps; (5) migraines; and (6) osteoarthritis and degenerative disc disease of the lumbosacral spine with bilateral neuroforaminal stenosis. (Id.) Lab work showed high levels of glucose (198) and hemoglobin A1c (12.0).[4] (Tr. 306, 308.)

         Porter returned to Dr. Feudo on November 21, 2011. (Tr. 262.) She complained of (1) constant throbbing pain just below her right breast; (2) polyuria and polydipsia; (3) intermittent episodes of tingling in the right hand; and (4) intermittent episodes of daily pain on the right side of her neck. (Id.) Examination revealed full range of motion with increased pain in Porter's neck and chest; decreased reflexes (1) bilaterally; and negative Tinel's, negative Phalen's sign, and negative carpal compression in the right wrist. (Id.) Dr. Feudo diagnosed neuromuscular chest pain; hyperglycemia secondary to uncontrolled type 2 diabetes; right cervical radiculopathy secondary to right-sided neuroforaminal stenosis of the cervical spine, herniated disc; and possible compression neuropathy. (Id.) He ordered x-rays of Porter's chest and cervical spine, and prescribed Tramadol. (Id.) Lab work showed high levels of glucose (199) and hemoglobin A1c (11.2), as well as Vitamin D insufficiency. (Tr. 297, 300, 303.)

         Porter underwent an x-ray of her cervical spine on November 23, 2011, which found as follows: “Alignment is intact. The vertebral body heights and the disc heights are preserved. The neuroforamina are patent.” (Tr. 330.) On that same date, Porter underwent a chest x-ray. (Tr. 331.) This imaging did not reveal any abnormalities in Porter's heart or lungs, but did show mild to moderate diffuse thoracic spine disc space narrowing and endplate osteophytosis, as well as thoracic spine scoliosis. (Id.)

         On August 8, 2012, Porter returned to Dr. Feudo with “multiple complaints.” (Tr. 260-261.) Specifically, she reported “daily episodes of throbbing pain in the right lateral supraorbital region over the past few months.” (Id.) Porter reported increased pain with head movement, as well as nausea, lightheadedness, photophobia, and phonophobia. (Id.) She also complained of “constant throbbing” pain over the right side of her neck radiating to her right upper arm, and right upper extremity weakness. (Id.) In addition, Porter stated she had suffered from “chronic intermittent episodes of tingling throughout [her] entire right hand.” (Id.) On examination, Dr. Feudo noted decreased range of motion in Porter's neck with increased pain, as well as tenderness to palpation. (Id.) He also found diminished sensation in Porter's right upper extremity, decreased reflexes, and 4/5 motor strength in the left upper extremity. (Id.) Dr. Feudo assessed hypertension, Vitamin D deficiency, type 2 diabetes, and attributed her chronic daily migraine headaches, neck pain, and right hand tingling to possible “right cervical radiculopathy secondary to herniated disc, right-sided neuroforaminal stenosis of the cervical spine.” (Id.) He prescribed Neurontin and ordered an MRI of Porter's cervical spine and brain. (Id.) Lab work showed high levels of glucose (175) and hemoglobin A1c (9.3). (Tr. 287, 291).

         Several days later, Porter underwent an MRI of her cervical spine, which showed broad-based disc bulges at the C4-C5 and C6-C7 levels that narrowed the subarachnoid space but did not deform the spinal cord. (Tr. 251.) She also underwent an MRI of her brain, which was unremarkable. (Tr. 250.)

         Nine months later, on May 7, 2013, Porter returned to Dr. Feudo with complaints of “pain and digestive issues.” (Tr. 356-359.) She reported (1) constant sharp chest pain; (2) generalized fatigue; (3) “chronic constant throbbing pain” on the right side of her neck radiating to the right shoulder, increased with movement; (4) throbbing pain along the left side of her neck radiating to the left shoulder; (5) chronic intermittent episodes of tingling in her right hand; (6) intermittent episodes of throbbing pain “superior lateral to the right eye, ” lasting “hours or days” with phonophobia, photophobia, nausea, and lightheadedness. (Tr. 356.) On examination, Dr. Feudo noted abnormal heart palpation and sounds; tenderness to palpation of Porter's cervical spine; decreased reflexes; and normal sensation. (Tr. 358.) He increased her Gabapentin dosage and stated Porter “may benefit from a rheumatology consultation.” (Tr. 358-359.) Lab work showed high levels of glucose (191) and hemoglobin A1c (12.4). (Tr. 280, 285.) It also revealed a high sedimentation rate of 66 (normal range 0-20), and elevated c-reactive protein. (Tr. 279, 282.)

         Porter returned to Dr. Feudo on November 19, 2013. (Tr. 353-355.) She complained of “aching, throbbing pain in both knees, ” as well as intermittent episodes of her left knee locking up or giving out. (Tr. 353.) Porter also reported sharp lower back pain radiating to her legs, as well as numbness in her bilateral feet. (Id.) On examination, Dr. Feudo noted full range of motion in Porter's lumbar spine with increased pain but no tenderness to palpation; full range of motion in her knees along with tenderness to palpation and crepitus; and decreased reflexes. (Tr. 355.) He prescribed Cymbalta and ordered x-rays of Porter's knees and an MRI of her lumbar spine. (Id.)

         X-rays of Porter's knees were negative. (Tr. 403.) The MRI of her lumbar spine showed the following:

Alignment is intact, Marrow signal is normal. There are no compression deformities. The conus is normal in caliber and signal. No focal abnormalities are appreciated at levels T12-Ll through L2-L3. At the L3-L4 level, there is mild facet hypertrophy but there is no significant canal or foraminal stenosis. At the L4-L5 level, there is minimal disc bulging and facet hypertrophy as well as mild ligament of flavum hypertrophy. There is no canal stenosis or right foraminal stenosis. There is mild left foraminal encroachment. At the L5-Sl level, there is minimal disc bulging and spurring as well as facet hypertrophy. There is no canal or foraminal stenosis.

(Tr. 398.)

         On December 3, 2013, Philip Michalos, O.D., examined Porter and completed a Medical Report regarding her vision. (Tr. 421-422, 510-512.) He identified diagnoses of compound hyperopic astigmatism OU, presbyopia OU, and meridional ambylopia OU. (Tr. 421-422.) Dr. Michalos noted these conditions cause mild blurring and opined they might cause Porter to have problems with “critical visual tasks, ” such as reading small print. (Id.)

         Porter returned to Dr. Feudo on January 16, 2014. (Tr. 427-430.) She reported (1) constant sharp pain in the mid-thoracic region; (2) chronic intermittent episodes of aching, throbbing knee pain as well as episodes of her knees “locking up” or “giving out;” (3) chronic intermittent episodes of numbness in her bilateral feet; and (4) chronic near constant sharp pain in her lower back. (Tr. 427.) On examination, Dr. Feudo noted full range of motion in Porter's thoracic and lumbar spines and knees with increased pain; tenderness to palpation in her lumbar spine and bilateral knees; crepitus bilaterally; and negative Lachman's test, negative McMurray test, and negative patellar apprehension test. (Tr. 429.) Dr. Feudo also found diminished sensation in Porter's right foot, and decreased reflexes. (Id.) He concluded Porter's knee pain was “possibly secondary to osteoarthritis, fibromyalgia, internal derangement such as torn menisci;” and found “possible etiologies” for her thoracic pain included osteoarthritis, degenerative disc disease, myofascial pain, and compression fracture. (Id.) Dr. Feudo referred Porter to an orthopedist for her knee pain, and ordered x-rays of her thoracic spine. (Tr. 480.) Lab work showed high levels of glucose (129) and hemoglobin A1c (11.6). (Tr. 435, 437.) It also revealed a high sedimentation rate of 28 (normal range 0-20). (Tr. 438.)

         On February 12, 2014, Porter presented to Dr. Feudo with complaints of pain in her left foot and toe after striking her foot on a table two days previously. (Tr. 423-426.) She also again complained of bilateral knee pain, foot numbness, lower back pain, and “intermittent episodes of nausea and sometimes headache.” (Id.) Porter indicated her pain levels had decreased somewhat since taking Cymbalta. (Id.) On examination, Dr. Feudo noted as follows:

Thoracic spine and lumbar spine- no erythema or swelling. Full range of motion with increased discomfort noted in the thoracic region in all directions of motion with the exception of bending bilaterally. Full range of motion in the lumbar spine with increased discomfort only on bending to the right. Palpation of the mid thoracic region the level of T5-T6 revealed increased tenderness no increase in warmth.
Knees- no erythema or swelling. Full range of motion with pain noted in the right knee on flexion and extension of the left knee. Palpation revealed crepitus bilaterally no tenderness or increase in warmth. Negative Lachman's test, negative McMurray test, negative patellar apprehension test.
Left foot area of swelling and ecchymosis noted extending from the left fifth toe along the dorsal surface of the lateral end of the right foot. Full range of motion with increased pain noted in all directions of motion. Palpation of the entire region revealed increased tenderness no increase in warmth.
Neurologic. Lower extremities- detailed neurological exam was normal except for the following. Reflexes 1 bilaterally.

(Tr. 425.) He ordered x-rays of Porter's thoracic spine and left foot, and referred her to an orthopedist for evaluation of her knee pain. (Tr. 426.)

         The x-rays of Porter's thoracic spine revealed mild disc space narrowing throughout the spine, with moderate marginal ostephyte formation in the lower thoracic spine and small marginal osteophytes in the mid-thoracic spine. (Tr. 444.) The x-ray of her left foot showed a possible fracture. (Tr. 443.)

         On February 18, 2014, Porter presented to orthopedist Shana Miskovsky, M.D., for evaluation of her left foot pain. (Tr. 458-461.) She complained of left foot pain, sweats, headaches, dizzy spells, arthritis, chronic cough, easy bruising, shortness of breath, nausea, frequent diarrhea, urinary frequency, muscle cramps, sleep disturbances, depression, sinus problems, and stomach problems. (Tr. 458.) On examination, Dr. Miskovsky noted normal pulses, no pitting edema, intact sensation in Porter's lower extremities, and soreness/tenderness to palpation in the fourth and fifth toes of her left foot. (Tr. 459-460.) She assessed grade 2 adult onset flat feet (pes planus), stress fracture of the metatarsal bone, toe sprain, and Kohler's disease. (Tr. 460.) Dr. Miskovsky prescribed a tall Cam Walker boot for four to six weeks. (Id.)

         She further noted as follows:

Her situation is complex in that she has adult onset flatfoot deformity with already arthritic changes of the talonavicular joint. The radiologist was concerned that this may be an acute fracture of the dorsal navicular- the patient clinically has no pain or swelling in that area and also the appearance on x-ray is more chronic due to calcification pattern and ossicle and developments of the osteoarthritic changes of the talonavicular joint suggest a chronic process. * * * Unfortunately, her morbid obesity has a great deal of effect on her development of a collapsed arch and arthritis of her foot and contributes most likely to her difficulty controlling her blood sugars, which she reports to range in the 200s. It is important that she follow up with her medical team to try to get her weight under better control or she may have to consult with the bariatric surgery department.

(Tr. 460.)

         On August 14, 2014, Porter returned to Dr. Fuedo with complaints of “constant pain” in her left hand after falling down the steps a month previously. (Tr. 463-468.) She also reported cramping and locking up of the fingers on both her hands, as well as intermittent numbness throughout her bilateral hands and feet. (Tr. 463.) Porter reported worsening vision and acknowledged “she has not always [been] regular with her use of medication and has not been regularly following her diabetic diet.” (Tr. 463-464.) On examination, Dr. Feudo noted full range of motion in Porter's fingers with increased pain in the PIP and DIP joints of her left hand; tenderness to palpation in those joints; diminished pinprick sensation in Porter's right upper extremity; decreased reflexes; positive Tinel's sign; negative Phalen's sign, and positive carpal compression in both hands. (Tr. 466.) He found her finger numbness, cramping, and locking up “may be secondary to osteoarthritis, bilateral median neuropathy.” (Tr. 467.) Dr. Feudo prescribed wrist splints and ordered blood work. (Tr. 468.) Lab work showed high levels of glucose (261) and hemoglobin A1c (11.8). (Tr. 471, 472.) It also revealed elevated c-reative protein. (Tr. 474.)

         Porter returned to Dr. Feudo on February 10, 2015. (Tr. 493-497.) She complained of right shoulder pain radiating to her right elbow, left ankle pain, and sharp pain in her mid-thoracic region. (Tr. 493.) On examination of Porter's right shoulder, Dr. Feudo noted decreased range of motion with increased pain on flexion and rotation, positive Hawkin's sign, positive arm crossover test, and positive impingement sign. (Tr. 496.) Examination of Porter's thoracic spine revealed full range of motion with pain on flexion, and tenderness to palpation of the mid-thoracic region. (Id.) Dr. Feudo found Porter's right shoulder pain “may be secondary to rotator cuff tendinitis/tear, biceps tendinitis.” (Id.) He ordered a right shoulder x-ray and stated “she will probably require a referral to physical therapy and/or an orthopedic specialist for the shoulder pain and mid-back pain.” (Tr. 497.) Porter thereafter underwent an x-ray of her right shoulder, which revealed no acute fractures, dislocations, or significant osseous abnormality. (Tr. 507.)

         On July 16, 2015, Porter complained of “sensation of the heart racing, ” both at rest and with mild exertion. (Tr. 489-492.) Dr. Feudo assessed possible tachycardia, arrthymia, and anxiety. (Tr. 492.) He ordered an EKG and blood work. (Id.) Lab work showed high levels of glucose (237) and hemoglobin A1c (13.2). (Tr. 499, 500.) It also revealed an elevated c-reative protein level. (Tr. 505.)

         Several days later, on July 21, 2015, Porter returned to Dr. Michalos for an eye examination. (Tr. 508-510.) Dr. Michalos concluded Porter was a “glaucoma suspect based on optic nerve cupping.” (Tr. 509.) He also assessed non-proliferative diabetic retinopathy and type 2 diabetes with opthalmic complications. (Id.)

         On August 3, 2015, Porter returned to Dr. Feudo reporting “chronic intermittent episodes of a sensation of the heart racing.” (Tr. 514-517.) She also reported “chronic intermittent episodes of throbbing pain in the right lateral supraorbital region, ” with photophobia, phonophobia, vertigo, nausea, and lightheadedness. (Id.) Examination revealed abnormal heart palpation, along with diminished sensation in the right hand, diminished pinprick sensation in the right foot and right hand, and decreased reflexes. (Tr. 516.) Dr. Feudo ordered placement of a 48 hour Holter monitor, and prescribed Topamax. (Id.)

         Porter wore a Holter Monitor from August 18 to August 20, 2015 to evaluate possible coronary problems. (Tr. 519.) This testing revealed sinus bradyarrthymias/sinus arrhythmia, and supraventicular ectopic activity. (Id.)

         C. State Agency Reports

         On September 13, 2013, state agency physician Jeffrey Vasiloff, M.D., reviewed Porter's medical records and completed a Physical Residual Functional Capacity (“RFC”) Assessment. (Tr. 107-109.) He found Porter could lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk about 6 hours in an 8 hour workday; and sit for about 6 hours in an 8 hour workday. (Id.) Dr. Vasiloff also concluded Porter could frequently stoop, kneel, and crouch; occasionally climb ramps and stairs; occasionally crawl; and never climb ladders, ropes, and scaffolds. (Id.) In addition, Porter had an unlimited capacity to balance and ...


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