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Lance v. Commissioner of Social Security

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

April 27, 2018

JAMES P. LANCE, Plaintiff,


          Thomas M. Parker, United States Magistrate Judge

         I. Introduction

         Plaintiff, James Patrick Lance (“Lance”), seeks judicial review, pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3), of the final decision of the Commissioner of Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”). The parties have consented to my jurisdiction. ECF Doc. 18.

         The Commissioner's handling of the certain medical opinion evidence of record and the Step Three analysis regarding Listing 1.02(A) were supported by substantial evidence and require no remand. However, because the Commissioner's RFC determination is not supported by substantial evidence due to the failure to properly consider certain treating source opinion evidence, the final decision of the Commissioner must be VACATED and the case must be REMANDED.

         II. Procedural History

         Lance applied for DIB on November 15, 2012 (Tr.15) alleging a disability onset date of July 30, 2010. (Id.) Lance alleged disability due to conditions of diabetes, a labral tear in the right hip, plantar fibromatosis, and associated chronic pain in his feet and right hip. (Tr. 19, 252) Lance's application was denied initially on May 23, 2013, and on reconsideration on November 20, 2013. (Tr. 15) Thereafter, Lance filed a written request for rehearing on December 26, 2013. (Id.) Administrative Law Judge Christine Hilleren (“ALJ”) heard the case on May 6, 2015. (Tr. 15) The ALJ denied Lance's claim on August 12, 2015. (Tr. 12) The Appeals Council denied further review on February 21, 2017, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 5)

         III. Evidence

         Lance now raises two arguments: (1) the ALJ erred in weighing the opinion of treating physician, Susan Dominic, M.D.; and (2) the ALJ erred when she found that Lance's diabetes, labral tear in his right hip, plantar fibromatosis, and associated chronic pain in his feet and right hip did not meet the criteria of Listing 1.02, which concerns major dysfunction of certain joints. See ECF Doc. 13, Page ID# 700, 704, and 711. Because the issues are limited, it is not necessary to summarize the entire record.

         A. Personal, Educational, and Vocational Evidence

         Lance was 37 years old on his alleged onset date, and had turned 42 by the time of the hearing. (Tr. 23, 39) Id. Lance has worked as a bin filler, a transportation manager, in finances for a job placement service, and as a traffic manager. (Tr. 41-46).

         B. Medical Records Related to Lance's Conditions of Diabetes, a Labral Tear in the Right Hip, Plantar Fibromatosis, and Associated Chronic Pain in His Feet and Right Hip

         Lance's medical records indicate he had a history of diabetes with peripheral neuropathy. (Tr. 375) He uses an insulin pump. (Tr. 504) Lance underwent surgery to treat the plantar fibromatoses in both feet in 2008. (Tr. 351, 374) After the surgery, Lance reported continued pain and discomfort in both feet, but the pain was better than before the surgery. (Tr. 351, 422) On April 8, 2009 Lance reported a new and very painful plantar fibroma distal to where the old one had been excised and a little bit of tingling in the lateral aspect of his left foot. (Tr. 422)

         On September 11, 2012, Paramjeet Gill, M.D. completed an orthopedic consultation requested by Susan Dominic, M.D., Lance's primary physician. (Tr. 439) Dr. Gill noted Lance complained of occasional, moderate pain in his right hip that he had experienced for about six months, and a little bit of pain in his left hip. (Id.) Lance described the pain as sharp, stabbing, and shooting in nature. (Id.) Lance reported he was able to cook, don and doff shoes and socks, drive, get into and out of a bathtub, and walk “household distances.” (Id.) Lance reported he had difficulty ascending and descending stairs, completing community errands, getting in or out of a vehicle, sleeping on his affected side, squatting, kneeling, standing from a seated position and walking “community distances.” (Id.) Dr. Gill found Lance's gait was “relatively normal” and he had a “full supple range of motion of both hips in all planes, except for internal rotation where he had limitations bilaterally at approximately zero degrees.” (Tr. 440) Dr. Gill found no evidence of impingement on either side. (Id.) X-rays indicated early arthritic changes, ossification of the labrum, and an osteophytic bump developing at the femoral head/neck junction. (Id.) There was also some evidence of erosion of the cartilage in the joint space, particularly posteriorly. (Id.) An MRI of Lance's right hip also indicated some possible labral tearing, but that the labral morphology appeared preserved. (Tr. 440, 454) Dr. Gill diagnosed the development of a degenerative labral tear and chondral loss in Lance's right hip. (Id.) Dr. Gill recommended Lance modify his activities, use anti-inflammatories, and use potential intra-articular corticosteroid injections. (Id.)

         On January 14, 2013, Christian N. Anderson, M.D. and Marc R. Safran, M.D. evaluated Lance's hip at the Stanford hospital. (Tr. 447) Lance complained of ongoing right hip pain “for six months” that came about gradually and progressively worsened. (Id.) Lance reported sharp pain with both adduction and abduction of his hip. (Id.) Lance reported the pain was worse when standing from a sitting position, and that it made it “difficult” for him to play with his two-year-old child. (Id.) The doctors found the range of motion on Lance's right side was 95 degrees of flexion, 5 degrees of internal rotation, and 15 degrees of external rotation. (Id.) The doctors assessed Dupuytren's and plantar fibromas, hip pain with significant loss of motion, but virtually no osteoarthritis based on the x-ray. (Tr. 448) They also found mixed femoral acetabular impingement. (Id.) The doctors diagnosed potential frozen hip or bursitis. (Id.) The doctors recommended physical therapy and exercise. (Id.) Lance was also talking Norco, which seemed to help with his pain and sleep. (Tr. 473)

         In May, 2013, Lance's glycemic control was significantly improving. (Tr. 516) In July, 2014, endocrinologist Paul Norwood, M.D., found Lance's control of his diabetes was very good, but that his diabetic neuropathy had been worsening. (Tr. 539) In October of 2014, Victoria Walton, M.D. performed electrodiagnostic testing on Lance and found significant generalized peripheral neuropathy. (Tr. 526) Examinations of Lance's feet indicated decreased touch sensation and vibration. (Tr. 539, 542, 546)

         Dr. Dominic, Lance's treating physician, evaluated him many times between 2012 and 2015. Her notes document that Lance repeatedly complained regarding his pain levels. (Tr. 553, 557, 558, 560, 566, 569, 570) On March 2, 2015, Lance filled out a pain questionnaire for Dr. Dominic. (Tr. 554; see also Tr. 563) He indicated he experienced frequent to constant pain in his feet, ankles, and hips that he described as aching, throbbing, shooting, stabbing, sharp, burning, exhausting, and numb. (Id.) He stated that medications and being off of his feet made his pain better. (Id.) On November 28, 2012, Dr. Dominic discussed with Lance what sort of jobs he could do and she determined the job must be sedentary because of Lance's foot and hip pain. (Tr. 561) Nothing in Dr. Dominic's notes indicate she ever mentioned or prescribed the use of a cane or other assistive walking device.

         C. Opinion Evidence

         1. Roger Wagner, M.D. - Consultative Examiner

         On April 10, 2013, Roger Wagner, M.D. performed an internal medicine evaluation of Lance regarding his complaints of Type 2 diabetes mellitus, right hip labral tear, and bilateral foot plant fibromatosis. (Tr. 504) Dr. Wagner noted that Lance cooked, cleaned, shopped, and performed his own activities of daily living without assistance. (Tr. 505) He noted Lance did a bit of walking and cared for his three-year-old child for exercise. (Id.) He found Lance was easily able to get up out of his chair in the waiting room and to walk at a brisk pace to the examination room without assistance. (Id.) Dr. Wagner noted Lance sat comfortably and could easily get on and off the examination table. (Id.) Dr. Wagner noted Lance was very slow to bend over at the waist and could take off his shoes and socks, while demonstrating good dexterity and flexibility. (Id.) Lance was easily able to walk on toes and heels and his gait was normal. (Tr. 506) Dr. Wagner found Lance's left foot was mildly tender and there was minimal tenderness on his right foot. (Tr. 507) Lance had some minor discomfort over the greater trochanter on the right and external rotation and some groin pain with internal rotation of the right hip. (Id.) In his diagnoses, Dr. Wagner noted that Lance had some discomfort in walking long distances, but did not have particular difficulty climbing stairs. (Id.) Dr. Wagner noted Lance had some tenderness in his left foot, but found no real residual thickening of the tendons. (Id.)

         Based on the exam findings, Dr. Wagner found Lance could walk and stand for a maximum of up to six hours and could sit without limitation, with normal breaks. (Tr. 508) Dr. Wagner found no assistive device was necessary. (Id.) He determined Lance's maximum lifting and carrying capacity was fifty pounds occasionally and twenty-five pounds frequently. (Id.) Dr. Wagner found Lance could climb no more than frequently, there were no limitations on Lance's capacity for manipulative activities, and no workplace environmental limitations. (Id.)

         2. Susan Dominic M.D., ABIM - Treating Physician

         Treating physician Susan Dominic, M.D., ABIM prepared a medical source statement of Lance's ability to do work-related physical activities on April 2, 2015. (Tr. 530-35) Dr. Dominic found Lance could both only occasionally lift and carry up to ten pounds and up to twenty pounds and never lift or carry twenty-one or more pounds. (Tr. 530) Dr. Dominic based these findings on Lance's right hip labral tear, severe diabetic painful peripheral neuropathy, and his plantar fascial fibromatosis, which cause Lance severe pain while standing or walking. (Id.)

         Dr. Dominic found Lance could sit for two hours without interruption, and that he would need to stand to relieve hip pain from prolonged flexion while sitting. (Tr. 531) She found Lance could stand for thirty minutes and walk for fifteen to thirty minutes without interruption, because he was limited by the painful peripheral neuropathy and the plantar fascial fibromatosis in his feet. (Id.) Dr. Dominic found Lance could sit for eight hours, stand for one hour, and walk for thirty to forty-five minutes in an eight-hour workday. (Id.) Dr. Dominic opined Lance “sometimes” required the use of a cane to ambulate, that he could use his free hand to carry light and small objects, and that he could only ambulate about 60 ft. without the use of a cane. (Id.) She indicated Lance's use of a cane was medically necessary, due to his antalgic gait caused by the pain from the labral tear in his right hip and diabetic peripheral neuropathy and plantar fascial fibromatosis in his feet. (Id.)

         Dr. Dominic opined Lance could frequently perform reaching, handling, fingering, and feeling, but could not occasionally push or pull with his hands. (Tr. 532) Although Dr. Dominic found minimal restrictions in Lance's ability to use and manipulate his upper extremities, she opined that his ability to push and pull were limited by the weight of the object and the extent to which Lance would have to use his right hip. (Id.)

         Dr. Dominic opined Lance could never operate foot controls with either foot but could occasionally climb stairs and ramps, stoop, and kneel. He could never climb ladders or scaffolds, balance, crouch, or crawl. (Tr. 533) Dr. Dominic opined Lance could occasionally operate a motor vehicle or be exposed to humidity and wetness, but could never be exposed to unprotected heights, moving mechanical parts, dust, odors, fumes, or pulmonary irritants, extreme cold, extreme heat, or vibrations. (Tr. 534)

         Dr. Dominic opined Lance could shop, travel without a companion for assistance, ambulate to a limited degree without using a wheelchair, walker, two canes, or two crutches, walk a block at a very slow pace on rough or uneven surfaces, use standard public transportation, climb a few steps at a reasonable pace with the use of a single hand rail, prepare a simple meal and feed himself, care for his personal hygiene, and sort, handle, and use papers and files. (Tr. 535) Dr. Dominic also opined that the medications Lance was taking caused sedation and limited his mental acuity. (Id.)

         3. State Agency Reviewing Physicians - Jonathan Norcross, M.D. and A. Nasrabadi, M.D.

         On April 25, 2013, state agency reviewing physician Jonathan Norcross, M.D. assessed Lance's physical residual function capacity. (Tr. 90) Dr. Norcross opined Lance could occasionally lift and/or carry fifty pounds and frequently lift and/or carry twenty-five pounds. (Tr. 91) He opined Lance could sit and stand and/or walk about six hours in an eight-hour workday. (Tr. 91) He opined Lance's abilities to push and pull were unlimited other than the limitations on his ability to lift and carry. (Id.) Dr. Norcross found Lance had no postural, manipulative, visual, communicative, or environmental limitations. (Id.) He noted that while Lance's “MDI's can reasonably be expected to produce the alleged pain and symptoms, ” “the objective medical evidence alone does not reasonably substantiate [Lance's] allegations about the intensity, persistence and functionally limiting effects of the symptoms.” (Id.)

         On November 20, 2013, state agency reviewing physician A. Nasrabadi, M.D. reached the same conclusions as Dr. Norcross regarding Lance's physical residual function capacity. (Tr. 104)

         4. Prior State Agency Physical Consultants - Eli Perencevich, D.O. and W. Jerry McCloud M.D.

         On March 3, 2008, a previous state agency physical consultant, Eli Perencevich, D. O., indicated, in relevant part, that Lance could lift and carry twenty pounds occasionally and ten pounds frequently. (Tr. 359) On July 16, 2009, another state agency physical consultant, W. Jerry McCloud, M.D. affirmed this assessment. (Tr. 437)

         D. Testimonial Evidence

         1. Claimant's Testimony

         At the May 6, 2015 hearing, Lance testified that he drove his children to school at least once a day. (Tr. 41) Lance stated he graduated high school, joined the Air Force, went to technical school, and completed a small amount of college coursework, but did not obtain a college degree. (Id.)

         Lance stated he worked in a call center in 2009 and 2010 where he was primarily seated and never had to lift anything greater than 10 pounds. (Tr. 42)

         Lance did bin filling, quality control-type work from 2006 to 2009. (Id.) He stated he became injured when briskly walking between five to fifteen miles in steel-toed shoes in that position. (Id.) Lance primarily stood and walked and lifted up to 30 pounds at that job. (Id.)

         From 2001 to 2004, Lance worked for a freight forwarding company, in positions ranging from ocean imports to transportation manager, working primarily seated and lifting up to ten pounds. (Tr. 43-44)

         Lance testified that he was unable to work because whenever he exerted himself, he experienced foot pain that shot through his legs and toward his back. (Tr. 47) He indicated the pain had progressively worsened over time and that it affected him whether seated or standing. (Id.) He stated that, when he sat for over an hour, there would be swelling that would cause pain that would distract him and force him to stand, but when he stood for too long, he would experience even worse pain. (Tr. 47-48)

         Lance stated that in 2006, he had growths removed from his feet. (Tr. 48) He stated the growths had returned in the same areas of his feet, but they were smaller and more painful than the previous growths. (Id.) Lance stated the growths were so painful that his pain medication no longer provided him with much relief and caused him to become very sleepy on a daily basis. (Tr. 49, 58) Lance stated his current doctor had not suggested surgery to remove the new growths on his feet. (Id.) He testified the pain in his feet on an average day was an eight out of ten without medication and a seven out of ten with medication. (Tr. 54)

         Lance stated he had used an insulin pump for two years to effectively control his blood sugar levels and diabetes. (Tr. 50) Lance stated that, unless he was using effective pain medications, he would experience constant, tingling, shooting pains whenever he engaged in physical activity, like going to and from the grocery store with his family. (Tr. 50-51) Lance stated there had been a lot of nerve damage. (Tr. 50) Lance stated he had experienced tingling and numbness in his feet, with the pain being worse in his left foot, and shooting pain in his feet, hips, legs, and back. (Tr. 51-52)

         Lance stated he was unsure what caused the tearing in his right hip. (Tr. 52) One doctor had recommended hip surgery, but no surgery had been performed. (Tr. 53) Lance stated he was treating his right hip with physical therapy exercises and the medications doctors had prescribed for his feet. (Id.) Lance stated he was taking Lyrica, OxyContin, and hydrocodone, which would provide him with about twenty minutes of relief, but would also make him drowsy and impair his ability to concentrate. (Tr. 53, 66) Lance testified ...

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