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Hickok v. Berryhill

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

May 31, 2018

DEBORAH A. HICKOK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          JOHN R. ADAMS JUDGE

          REPORT AND RECOMMENDATION

          Jonathan D. Greenberg United States Magistrate Judge

         Plaintiff, Deborah A. Hickok, (“Plaintiff” or “Hickok”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying her application for Period of Disability (“POD”) and Disability Insurance Benefits (“DIB”) under Title II 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 April 2014, Hickok filed an application for POD and DIB, alleging a disability onset date of September 25, 2013 and claiming she was disabled due to fibromyalgia, sciatic nerve, thyroid disorder, torn rotator cuff, diverticulosis, bulging disc, restless leg syndrome, and arthritis. (Transcript (“Tr.”) 20, 188.) The applications were denied initially and upon reconsideration, and Hickok requested a hearing before an administrative law judge (“ALJ”). (Tr. 20, 103-105, 107-109, 111.)

         On February 23, 2016, an ALJ held a hearing, during which Hickok, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 35-74.) On May 25, 2016, the ALJ issued a written decision finding Hickok was not disabled. (Tr. 20-30.) The ALJ's decision became final on May 22, 2017, when the Appeals Council declined further review. (Tr. 1-6.)

         On July 25, 2017, Hickok 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, 15.) Hickok asserts the following assignments of error:

(1) The ALJ erred in weighing and evaluating the medical opinion evidence, thereby failing to support the residual functional capacity determination by substantial evidence.
(2) The ALJ failed to properly consider Plaintiff's myalgias.

(Doc. No. 12.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Hickok was born in November 1959 and was fifty-six (56) years-old at the time of her administrative hearing, making her a “person of advanced age” under social security regulations. (Tr. 146.) See 20 C.F.R. §§ 404.1563(e) & 416.963(e). She has a tenth grade education and is able to communicate in English. (Tr. 62.) She has past relevant work as a grocery cashier (light, semi-skilled, SVP 3), gas station cashier (light, unskilled, SVP 2); and glass cross cutter (light, unskilled, SVP 2). (Tr. 20, 40, 45.)

         B. Relevant Medical Evidence[2]

         The record reflects Hickok established treatment with primary care physician Gwen Haas, M.D., on August 16, 2012. (Tr. 394-395.) She complained of left sided upper extremity pain and neck discomfort, rating her pain an 8 on a scale of 10. (Id.) Physical examination findings were normal. (Id.) Dr. Haas assessed cervical radiculopathy, paresthesia, ulnar nerve abnormality, and arm pain. (Id.) She prescribed Medrol and Flexeril and ordered imaging. (Id.) Dr. Haas also indicated Hickok should “continue light duty” at work. (Id.)

         An x-ray of Hickok's cervical spine showed “mild degenerative changes involving the lower cervical vertebral segments with moderate narrowing of the disc space and mild encroachment of bilateral neural foramina at the C5-C6.” (Tr. 419.) X-rays of her left shoulder were unremarkable. (Tr. 417, 418.) An x-ray of Hickok's left elbow showed “deformity of the medical epicondyle of the distal left humerus with 3 corticated ossific densities in the adjacent soft tissues measuring between 1mm and 4 mm in diameter that may represent bone fragments likely due to previous remote trauma.” (Tr. 415.)

         An MRI of Hickok's cervical spine showed (1) tiny midline herniation at ¶ 3-C4 touching the cord but not compressing it; (2) slightly right paramedian disc herniation at ¶ 4-C5 causing minimal right anterior cord flattening; (3) broad-based spur/disc complex at ¶ 5-C6 causing mild anterior cord flattening as well as neural foramen narrowing primarily on the right; and (4) disc bulging at ¶ 6-C7 without cord impingement. (Tr. 414.)

         On August 31, 2012, Hickok returned to Dr. Haas with complaints of longstanding restless leg syndrome and “horrible pain” and numbness in the left arm. (Tr. 391-392.) Physical examination findings were again normal. (Id.) Dr. Haas prescribed Ropinirole for Hickok's complaints of restless leg syndrome, and referred her to neurosurgery for her cervical spine issues. (Id.)

         On September 26, 2012, Hickok complained of neck and left side body pain, which she rated a 6 on a scale of 10. (Tr. 389-390.) She also stated that recently “every bone in [her] body hurt.” (Id.) Dr. Haas assessed cervical radiculopathy and polyarthralgia; prescribed Robaxin; and ordered lab work. (Id.)

         Hickok returned to Dr. Haas on December 11, 2012. (Tr. 387-388.) Dr. Haas noted Hickok had “surgery done on [cervical] spine and this relieved the numbness in arms and fingers of left arm.” (Id.) Hickok continued to complain of shoulder pain, however, which she rated a 4 on a scale of 10. (Id.) On examination, Dr. Haas noted “weakness to abduction 2/5 on the left.” (Id.) She ordered an EMG and Nerve Conduction Study of Hickok's left upper extremity. (Id.) Dr. Haas also noted Hickok was “unable to work as a cashier” and advised her to remain off work until her left shoulder is “more fully evaluated.” (Id.)

         An MRI of Hickok's left shoulder taken a few days later showed the following: (1) a 9 mm segment of full-thickness tearing of the anterior insertional fibers of supraspinatus with 4 mm of retraction of the torn fibers in the region of the anterior footplate, with moderate to severe underlying supraspinatus tendinopathy and mild marrow edema; (2) mild insertional infraspinatus tendinopathy; (3) mild to moderate subscapularis tendinopathy; (4) mild tendinopathy of the intra-articular long head of the biceps tendon; (5) mild glenchumeral chondromalacia; and (6) mild degenerative change at the acromioclavicular joint. (Tr. 404-405.)

         Hickok returned to Dr. Haas six months later, on June 11, 2013. (Tr. 384-385.) She complained of pain in her right knee, right calf, and lower back. (Id.) Hickok rated her pain a 10 on a scale of 10. (Id.) She indicated she had been seen in urgent care the previous month and prescribed Tramadol and Flexeril but continued to complain of “widespread [musculoskeletal] conditions.” (Id.) Dr. Haas assessed calf pain, restless leg syndrome, low back pain, knee pain, and sciatica. (Id.) She ordered imaging and referred Hickok to pain management physician Matthew Keum, M.D. (Id.)

         An x-ray of Hickok's lumbosacral spine taken that date showed mild to moderate degenerative changes in her lower thoracic and upper lumbar spines. (Tr. 402.) An x-ray of her right knee showed mild to moderate degenerative changes. (Tr. 400.) An ultrasound duplex venous of Hickok's right leg showed no evidence of deep venous thrombosis. (Tr. 399.)

         On June 28, 2013, Hickok presented to Dr. Haas with complaints that “her whole body is aching and not only back but knees, shoulders, arms, and [lower back].” (Tr. 381-382.) She also reported a history of peptic ulcer disease and recent fecal incontinence and “stomach burning.” (Id.) Physical examination findings were normal, but Dr. Haas noted ANA testing was “positive though not strongly.” (Id.) She referred Hickok to (1) rheumatology to rule out other conditions, such as lupus; (2) orthopedic surgery to address her “history of untreated torn rotator cuff;” and (3) gastroenterology to address her recent episode of fecal incontinence. (Id.) Dr. Haas also indicated she authored a “note for OFF WORK.” (Id.)

         On July 8, 2013, Hickok began treatment with gastroenterologist Neil Jacobson, M.D. (Tr. 301-302.) She complained of shortness of breath, abdominal cramps, change in bowel habits, diarrhea, heartburn, back pain, memory loss/confusion, anxiety and depression. (Id.) Dr. Jacobson ordered an EGD with MAC (i.e., an esophagogastroduodenoscophy with monitored anesthesia care). (Id.)

         The record reflects Hickok underwent a CT of her abdomen and pelvis on July 15, 2013, which revealed “wall thickening of the sigmoid colon with inflammatory changes of the adjacent mesenteric fat and small amount of free fluid in the cul-de-sac, most likely due to acute diverticulitis.” (Tr. 299-300.)

         On July 21, 2013, Hickok presented to the emergency room (“ER”) with complaints of abdominal cramping/aching and bloody stool. (Tr. 251, 254, 261.) She rated her pain an 8 on a scale of 10. (Tr. 263.) A CT of her abdomen and pelvis taken that date showed diverticulosis. (Tr. 272-273.) Hickok was treated with IV medication (Zofran and Morphine), which decreased her pain to a 5 on a scale of 10. (Tr. 265.) She was discharged home that same day in improved condition. (Tr. 266.) Hickok returned to Dr. Haas on August 1, 2013 for follow-up. (Tr. 379-380.) Physical examination findings were normal. (Id.)

         On September 3, 2013, Hickok returned to Dr. Jacobson. (Tr. 295-296.) He noted Hickok's EGD was negative and indicated she was “generally better” with some continued cramps and diarrhea. (Id.) Dr. Jacobson advised her to follow a diverticulitis diet and ordered a colonoscopy. (Id.) Hickok underwent the colonoscopy the following month, which was normal. (Tr. 292-293.)

         On October 7, 2013, Hickok presented to Dr. Haas with complaints of “nagging and shooting” right side pain. (Tr. 375-376.) Physical examination findings were normal; however, Hickok's responses to depression screening indicated she was “severely depressed.” (Id.) Dr. Haas referred Hickok to a psychiatrist, a surgeon for a possible scope of her abdomen, and to a urologist. (Id.)

         On October 18, 2013, Hickok underwent an MRI of her lumbar spine, which revealed (1) mild narrowing of the central canal at the L4-L5 secondary to bulging disc and mild degenerative changes involving facet joints; and (2) posterior annular tear at the L5-S1 with no herniated disc. (Tr. 354.)

         Shortly thereafter, on October 22, 2013, Hickok presented to pain management physician Matthew Keum, M.D., with complaints of persistent lower back pain radiating to her right leg. (Tr. 342-347.) She indicated her pain was worse with prolonged standing, prolonged walking, bending and stooping. (Tr. 342.) Hickok also reported tingling/numbness in her right lower extremity. (Id.) On examination, Dr. Keum noted the following:

• normal gait;
• normal muscle strength;
• paraspinal tenderness and sacroiliac joint tenderness on the right;
• limited range of motion due to stiffness and pain, especially with extension and right rotation;
• normal tone;
• decreased sensation to pinprick on the right lower leg and foot;
• decreased reflexes on the right knee and bilateral ankles;
• negative Babinski's bilaterally; • negative straight leg raise bilaterally;
• tenderness along the L-5 paraspinal muscles;
• mildly positive Spurling's test;
• mildly positive radicular symptoms on the right leg;
• normal pulses;
• normal muscle bulk; and
• negative Romber's sign.

(Tr. 345-346.) He assessed (1) lumbar spondylosis without myelopathy; (2) spinal stenosis of the lumbar region; (3) displacement of lumbar intervertebral disc without myelopathy; (4) lumbar radiculitis; and (5) lumbar sprain and strain. (Tr. 347.) Dr. Keum prescribed Cymbalta and ordered an EMG. (Id.) He also recommended Hickok undergo a lumbar epidural block, which she did on October 30, 2013. (Tr. 340-341.)

         Hickok underwent an EMG and Nerve Conduction Study of her right lower extremity on October 22, 2013. (Tr. 351-353.) It showed (1) evidence of subacute right L5 radiculopathy; and (2) no conclusive electrophysiologic evidence of focal neuropathy, peripheral neuropathy, or L-S plexoplathy. (Id.)

         On December 12, 2013, Hickok returned to Dr. Keum with complaints of “worsening pain from head to toe.” (Tr. 334-339.) She also reported “aching and soreness all over, ” difficulty getting out of bed, decreased energy, mild “all-over” weakness, sleep disturbance, dizziness, headaches, and difficulty balancing. (Tr. 334-336.) On examination, Hickok was in mild distress. (Tr. 337.) Dr. Keum noted “positive tender points throughout the body, without new skin changes, consistent with Fibromyalgia syndrome.” (Tr. 338.) He also noted many of the same physical examination findings as Hickok's previous visit, including normal gait, normal muscle strength, positive paraspinal tenderness, limited range of motion due to pain and stiffness, decreased sensation to pinprick on the right leg and foot, decreased reflexes, negative Babinski's, negative straight leg raise, normal muscle bulk, and negative Romber's sign. (Tr. 338.) Dr. Keum assessed (1) unspecified myalgia and myositis; (2) polymyalgia; (3) polyarthralgia; (4) lumbar spondylosis without myelopathy; (5) spinal stenosis of the lumbar region; (6) displacement of the lumbar intervertebral disc without myelopathy; (7) lumbar radiculitis; and (8) lumbar sprain and strain. (Tr. 339.) He prescribed Topamax and recommended she perform daily stretching exercises and low impact aerobic exercises. (Id.)

         Hickok returned to Dr. Haas on February 21, 2014 with complaints of abdominal cramping. (Tr. 372-373.) Dr. Haas noted Hickok did not wish to attend physical therapy for her left shoulder nor did she wish to proceed with left shoulder surgery. (Id.) She further noted Hickok “refuses spinal injection for back pain and states that it was a horrifying experience.” (Id.) Dr. Haas referred Hickok to a rheumatologist. (Id.)

         On March 17, 2014, Hickok complained of restless leg syndrome and left elbow pain. (Tr. 370-371.) Dr. Haas ordered an x-ray of her left elbow, which showed mild degenerative changes. (Tr. 370-371, 397.)

         Hickok presented to Dr. Keum on March 31, 2014. (Tr. 327-333.) She reported worsening chronic low back pain radiating to her bilateral thighs, legs, and feet, as well as tingling/numbness in her lower legs. (Tr. 327.) Hickok also complained of left elbow pain and mild numbness. (Id.) On examination, Dr. Keum noted normal gait, normal muscle strength, positive paraspinal tenderness, limited range of motion due to pain and stiffness, decreased sensation to pinprick on the right leg and foot, decreased reflexes, negative Babinski's, negative straight leg raise, positive Spurling's test, positive bilateral radicular symptoms to legs, decreased sensation along the medial left forearm, mildly positive Tinnel's compression, normal muscle bulk, and negative Romber's sign. (Tr. 331-332.) He ordered a lumbar epidural block, which Hickok underwent on April 2, 2014. (Tr. 324-325.)

         Hickok returned to Dr. Haas on May 23, 2014. (Tr. 368-369.) Dr. Haas stated Hickok “has ongoing fibromyalgia syndrome and has ongoing muscle aches and joint pains and is seen recently by Dr. Roter. Dx fibromyalgia.” (Id.) Physical examination findings were normal, although Hickok rated her pain a 9 on a scale of 10. (Id.) Dr. Haas assessed restless leg syndrome, cervical radiculopathy, gastroesophageal reflux disease, low back pain, and chronic pain. (Id.)

         On August 12, 2014, Hickok returned to Dr. Keum with complaints of gradual, worsening, chronic lower back pain radiating to her right leg. (Tr. 317-323.) She indicated “feeling better” after the epidural block but was “not interested in more epidural block due to discomfort.” (Tr. 317.) Physical examination findings were largely the same as her last visit with Dr. Keum. (Tr. 321-322.) Dr. Keum referred Hickok to physical therapy, and prescribed Topamax and Zoloft. (Tr. 322.)

         Hickok returned to Dr. Haas on October 10, 2014. (Tr. 366-367.) Dr. Haas noted Hickok had multiple conditions, including fibromyalgia, left shoulder rotator cuff tear, lower back pain and sciatica, restless limb syndrome, depression, and diverticulitis. (Id.) She indicated Hickok's only remaining options are physical therapy and “reconsider surgery and injections in future as per pain management recommendation.” (Id.) Physical examination findings were normal aside from restricted range of motion in her left shoulder for abduction. (Id.)

         On that same date, Dr. Haas completed a questionnaire regarding Hickok's physical impairments. (Tr. 361-363.) She indicated diagnoses of chronic pain, sciatica and restless limb syndrome, cervical radiculopathy, left shoulder torn rotator cuff, diverticulitis, and depression. (Tr. 362.) Dr. Haas stated Hickok suffered from fatigue, reduced mobility in her left upper extremity, lower back pain, and fibromyalgia. (Id.) She indicated Hickok had declined left shoulder surgery and lumbar injection. (Id.) When asked to describe “any limitations his/her impairment(s) imposes on the ability to perform sustained work activity, ” Dr. Haas indicated: “Works as cashier and therefore unable to perform repetitive upper extremity work and back issues [illegible] to perform lifting.” (Tr. 363.) Dr. Haas concluded by stating Hickok “is requesting total disability.” (Id.)

         On October 28, 2014, Hickok underwent a Doppler evaluation of her right lower extremity. (Tr. 509.) It found no evidence of deep venous thrombus. (Id.)

         On December 24, 2014, Hickok presented to Diane Eden, M.D., for treatment of depression. (Tr. 423.) Dr. Eden found Hickok's response to medication was “improved but not optimal.” (Id.) Mental status examination findings were normal. (Id.) Dr. Eden characterized the severity of Hickok's symptoms as mild, but nonetheless increased her Zoloft dosage, added Hydroxyzine, and referred her to therapy. (Id.)

         On February 9, 2015, Hickok underwent an MRI of her right knee. (Tr. 506-507.) This study revealed the following: (1) a longitudinal horizontal tear along the tibial surface of the mid-body to central posterior horn of the medial meniscus; (2) grade 3 chondromalacia central outer margin of the medial femorotibial compartment with subtle equivocal subchondral stress fracture outer margin of the femoral condyle; and (3) mild patellofemoral arthrosis. (Id.)

         The following month, Hickok underwent an MRI of her cervical spine, which revealed: (1) internal fixation from C5 to C7 by plates and screws from her previous surgery; (2) mild disc space narrowing at the C4-5 level with mild degenerative change; (3) a 2 mm central disc protrusion at ¶ 3-4 with mild canal narrowing and slight cord impingement; (4) a 2 mm central disc protusion at ¶ 4-5 with mild canal narrowing and slight cord impingement; and (5) a 2 mm osteophyte at ¶ 5-6 with mild canal narrowing without cord compression. (Tr. 502-503.)

         The record reflects Dr. Haas completed a second, undated questionnaire regarding Hickok's physical impairments.[3] (Tr. 421-422.) Therein, Dr. Haas identifies the “date of illness/injury/surgery” as approximately 2014 due to fibromyalgia. (Id.) She indicates Hickok is “not progressing” and notes she had been referred to orthopedics, vascular medicine, and pain management. (Id.) When asked to identify “other restrictions or limitations, ” Dr. Haas states Hickok is (1) unable to mobilize her right knee due to athroscopy in February 2015; (2) unable to lift her shoulder due to her rotator cuff tear; and (3) suffering from chronic pain. (Id.) Dr. Haas opined Hickok's hours should be reduced from 20 to 15 hours per week, and recommended she go on long-term disability “soon.” (Id.)

         On August 3, 2015, Hickok presented to the ER for evaluation after she dropped a plate on her foot and injured her toe. (Tr. 482, 484.) On examination, the ER doctor found a subungual hematoma on her left great toe. (Tr. 489.) An x-ray of Hickok's left toes showed a “subtle nondisplaced fracture of the tuft of the first distal phalanx.” (Tr. 497.) The hematoma was drained in the ER and Hickok was discharged home. (Tr. 492.)

         Several months later, on October 7, 2015, Hickok returned to the ER with complaints of intermittent heart palpitations over the prior two weeks, as well as shortness of breath. (Tr. 435, 443.) Hickok underwent an EKG and chest x-ray, both of which were normal. (Tr. 450.) She was discharged home and referred to her primary care physician for a Holter Monitor. (Id.) The record reflects Hickok underwent a Holter Monitor Study in December 2015, which showed normal sinus rhythm and no significant tachydysrhythmias or bradydysrhythmias. (Tr. 428.)

         On December 14, 2015, Hickok presented to vascular specialist Razieh Mohseni, M.D., for evaluation of “heaviness, restlessness, and tiredness with aching pain in both legs.” (Tr. 424-425.) Hickok stated she suffered from varicose veins in both legs for many years and “they appear to be getting worse over time.” (Id.) She indicated her symptoms were interfering with her daily activities, noting she “cannot stand longer than a few hours without pain.” (Id.) On examination, Dr. Mohseni indicated normal gait and pulses, and no edema. (Id.) However, an ultrasound performed that date showed chronic venous insufficiency of both lower extremities. (Tr. 425, 427.) Specifically, this study revealed as follows:

The right great saphenous vein is incompetent and enlarged at 5.8 mm. There are no incompetent perforators seen in the right lower extremity. The small saphenous vein on the right is enlarged at 5.3 mm and is incompetent. The great saphenous vein on the left is incompetent and enlarged at 5.7 mm. There are no incompetent perforators in the left lower extremity. The left small saphenous is normal in size at 2.1 mm and is competent.

(Tr. 425.) Dr. Mohseni found Hickok “has significant symptoms related to her venous insufficiency, ” noting “she has tried and failed compression stockings which never helped.” (Tr. 426.) He recommended Hickok undergo ablation of her right great and small saphenous veins, ablation of her left great sapenous vein, and sclerotherapy to the enlarged and incompetent branches of her bilateral lower extremities. (Id.)

         C. State Agency Reports

         1. ...


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