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Lutizio v. Berryhill

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

July 23, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Jonathan D. Greenberg United States Magistrate Judge

         Plaintiff, Cathy Lutizio (“Plaintiff” or “Lutizio”), 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, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is VACATED and the case REMANDED for further consideration in light of this decision.


         In April 2014, Lutizio filed an application for SSI alleging a disability onset date of November 24, 2009[2] and claiming she was disabled due to “short [term] memory problems, back injury, major depression, aortic aneurism, chronic bronchitis, arthritis, spot on lung, PTSD, and borderline bipolar.” (Transcript (“Tr.”) at 10, 210, 237.) The applications were denied initially and upon reconsideration, and Lutizio requested a hearing before an administrative law judge (“ALJ”).[3] (Tr. 10, 162-164, 170-171, 174.)

         On March 18, 2016, an ALJ held a hearing, during which Lutizio, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 52-101.) On May 26, 2016, the ALJ issued a written decision finding Lutizio was not disabled. (Tr. 10-20.) The ALJ's decision became final on July 14, 2017, when the Appeals Council declined further review. (Tr. 1-6.)

         On August 29, 2017, Lutizio filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 15, 17.) Lutizio asserts the following assignments of error:

(1) The ALJ erred in rejecting treating physician opinion evidence with a generalized and perfunctory reason.
(2) The ALJ's determination of Ms. Lutizio's physical residual functional capacity is not supported by substantial evidence.

(Doc. No. 15.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Lutizio was born in January 1963 and was fifty-three (53) years-old at the time of her administrative hearing, making her a “person closely approaching advanced age” under social security regulations. (Tr. 19, 210.) See 20 C.F.R. §§ 404.1563(d) & 416.963(d). She has a limited education and is able to communicate in English. (Tr. 19.) She has past relevant work as a waitress (light, semi-skilled, SVP 3); clerk cashier (light, unskilled, SVP 2); office cleaner (light, unskilled, SVP 2); assembler worker (light, semi-skilled, SVP 3); and bartender (light, semi-skilled, SVP 3). (Tr. 19.)

         B. Relevant Medical Evidence[4]

         On February 8, 2013, Lutizio presented to the emergency room (“ER”) with complaints of back, knee, finger, and facial pain after having fallen two weeks previously. (Tr. 371-374.) Examination revealed normal muscle strength and gait but tenderness in Lutizio's left fourth finger and left lumbar paraspinal region. (Tr. 372.) An x-ray of Lutizio's left hand taken that date showed: (1) a distal segment avulsion fracture; (2) “advanced osteoarthtic changes within the 1st carpometacarpal joint with joint space narrowing and spurring, ” and (3) minor degenerative spurring within the 3rd metacarpophalangeal joint. (Tr. 373, 435.) Lutizio's fracture was immobilized and she was discharged in stable condition. (Tr. 374.)

         On May 22, 2013, Lutizio underwent an x-ray of her right knee, which revealed “advanced medial femorotibial compartment narrowing, mild to moderate lateral and medial patellofemoral narrowing with tricompartmental osteophytes” and a small joint effusion. (Tr. 544.)

         Lutizio presented to primary care physician Anthony J. Finizia, M.D., the following day. (Tr. 365.) She complained of right side neck tingling radiating to her right arm. (Id.) Examination revealed mild paraspinal spasm but was otherwise normal. (Id.) Dr. Finizia noted a diagnosis of cervical spondylosis and ordered imaging of Lutizio's neck “for etiology of radicular symptoms.” (Id.)

         On June 4, 2013, Lutizio underwent an x-ray of her cervical spine. (Tr. 433.) It revealed moderately severe degenerative disease and noted as follows: “There is narrowing of multiple intervertebral disc spaces and intervertebral neural foramina. Spurring is noted from multiple endplates anteriorly. There is no evidence of fracture or dislocation. Increased reactive sclerosis of the facet joint at the C7-T1 level is present.” (Id.)

         Lutizio returned to Dr. Finizia on June 6, 2013 with continued complaints of right neck pain and right arm numbness and tingling. (Tr. 363-364.) He assessed cervical spondylosis without myelopathy and referred her for a course of physical therapy. (Id.)

         On July 3, 2013, Lutizio presented to Dr. Finizia with complaints of right neck numbness radiating to her right upper arm and right leg numbness. (Tr. 361-362.) On examination of Lutizio's neck, Dr. Finizia noted painful range of motion with left rotation and no spasms. (Id.) With regard to her extremities, he noted normal upper extremity reflexes and strength. (Id.) He does not appear to have examined her back or lower extremities. Dr. Finizia assessed cervical radiculitis and lumbar radicular pain. (Id.) He ordered x-rays of her lumbar spine and increased her Neurontin and Pamelor. (Id.)

         Lutizio underwent an MRI of her cervical spine on July 10, 2013. (Tr. 431.) This study revealed as follows:

Multilevel degenerative changes are present. At the C3-C4 level, there is uncovertebral spurring and advanced facet arthropathy causing mild flattening of the thecal sac without significant canal []narrowing. There is moderate bilateral foraminal narrowing. At the C4-C5 level, there is uncovertebral spurring causing severe left foraminal and mild to moderate right foraminal narrowing. No significant canal stenosis is present. At the C5-C6 level, there is uncovertebral spurring and advanced facet arthropathy causing mild canal stenosis with mild flattening of the spinal cord and moderate bilateral foraminal narrowing. At the C6-C7 level, there is uncovertebral spurring and facet arthropathy causing mild canal stenosis and severe bilateral neural foraminal narrowing. At the C7-T1 level, there is uncovertebral spurring and ligamentum flavum hypertrophy causing mild canal stenosis and mild to moderate left neural foraminal narrowing. There is no frank disk extrusion.


         On August 23, 2013, Lutizio underwent an MRI of her lumbar spine, which revealed “multilevel degenerative changes which demonstrate progression at ¶ 1-2, L2-3, and L3-4, ” as follows:

At L1-L2, there has been interval progression of degenerative changes resulting in mild to moderate anterior CSF space effacement. There is no evidence of root compression. At ¶ 2-L3 there has been interval progression degenerative changes. There is a broad-based disc osteophyte complex resulting in moderate canal stenosis. Bilateral facet arthropathy. Mild bilateral neural foraminal stenosis. At ¶ 3-L4 slight interval progression of the degenerative changes with disc osteophyte complex and broad- based. In addition there is has been progression of bilateral facet arthropathy with a development of a right-sided probable calcified rim synovial cyst resulting in moderate to severe canal narrowing and compression of the right L4 nerve root. At ¶ 4-L5 no significant change in the degenerative disease with disc osteophyte complex. Bilateral facet arthropathy. In addition the intervertebral epidural lipomatosis posteriorly resulting in moderate thecal sac compression. There is mild bilateral neural foraminal stenosis.

(Tr. 430.)

         Lutizio returned to Dr. Finizia on October 18, 2013. (Tr. 357-358.) She complained of right knee pain, hip pain, chronic mid-back pain, and cervical radiculitis. (Id.) Dr. Finizia agreed to refill her pain medications until she could establish care with a new pain management physician. (Id.)

         On January 3, 2014, Lutizio presented to the ER with right wrist pain, after falling on the ice the night before. (Tr. 352-354.) Examination revealed bony tenderness in her thumb and the dorsal aspect of her right hand and wrist, normal range of motion in all four extremities, intact distal pulses, intact sensation, and normal gait. (Id.) Lutizio was discharged home in stable condition with a wrist splint and Vicodin. (Id.)

         On January 13, 2014, Lutizio underwent an x-ray of her right hand. (Tr. 427.) This imaging revealed “arthritic changes involving the carpal metacarpal articulation of the thumb within the 2nd and 3rd metacarpophalangeal joints with mild subluxation.” (Id.)

         Later that month, Lutizio returned to Dr. Finizia with complaints of elbow and lower back pain. (Tr. 350-351.) Examination revealed tenderness and pain with range of motion in Lutizio's right elbow. (Id.) Dr. Finizia ordered imaging of Lutizio's elbow and noted she had been referred to both a rheumatologist and a pain management specialist. (Id.)

         On March 19, 2014, Lutizio presented to rheumatologist Bassam Alhaddad, M.D. (Tr. 344-347.) She complained of severe degenerative joint disease of the neck and lower back, pain “shooting down from the neck down the arm, ” shoulder pain, and morning stiffness in her back and hands. (Tr. 345.) Lutizio also reported she had a left knee replacement in April 2011 and “right knee needs to be done as well.” (Id.) On examination, Dr. Alhaddad noted tenderness in Lutizio's shoulders, elbows and hips; full grip strength; and full range of motion in her wrists, hips, knees, and ankles. (Tr. 346.) He ordered an x-ray of Lutizio's right elbow, which showed a fracture of the right radial neck. (Tr. 347, 426.) In addition, Dr. Alhaddad ordered lab work to rule out inflammatory arthropathy. (Tr. 347.)

         On March 24, 2014, Lutizio presented to orthopedist Kevin Malone, M.D., for evaluation of her right elbow pain. (Tr. 340-343.) Lutizio rated her elbow pain an 8.5 out of 10 in severity. (Tr. 341.) Examination revealed “pain in apprehension to range of motion of the elbow, but . . . very good elbow range of motion.” (Id.) Dr. Malone assessed right radial neck fracture. (Id.) He raised surgery as an option, but noted “she may lose motion as a result of” the surgery and further stated “[i]t is unlikely that she goes to a completely pain-free situation.” (Id.) Lutizio indicated she was interested in proceeding with surgery. (Id.)

         The record reflects Lutizio underwent right elbow arthroplasty on April 9, 2014. (Tr. 328-337.) Shortly thereafter, on April 16, 2014, Lutizio presented to the ER with complaints of shortness of breath and cough. (Tr. 303-326.) She was admitted for treatment of COPD exacerbation and acute bronichitis. (Id.) While hospitalized, Lutizio underwent imaging that revealed an “aneurysmal dilatation of the ascending ascending thoracic aorta.” (Tr. 325, 420.) She was discharged on April 21, 2014 with instructions to follow up with her primary care physician. (Tr. 324-326.)

         On April 22, 2014, Lutizio presented to Dr. Finizia. (Tr. 301-302.) He assessed ascending aortic aneurysm, lung nodules, liver lesion, and elbow pain. (Id.) With regard to her aneurysm, Dr. Finizia recommended she consider evaluation by a vascular surgeon. (Id.)

         Two days later, Lutizio returned to Dr. Malone for evaluation status post right elbow surgery. (Tr. 300-301.) She rated her pain a 7 on a scale of 10. (Id.) Dr. Malone found Lutizio's wound had healed and noted she could tolerate “gentle motion” in her elbow. (Id.) He referred her to occupational therapy for a formal post-operative rehabilitation program. (Id.)

         On May 14, 2014, Lutizio underwent x-rays of her right elbow and lumbar spine. (Tr. 412.) The right elbow x-ray revealed her radial head orthopedic prosthesis was intact. (Id.) The lumbar spine x-ray showed mild disc space narrowing at ¶ 2-3, L3-4, and L4-5, as well as end plate osteophyte formation and vascular calcifications. (Id.)

         Lutizio presented to Dr. Malone the following day for follow-up regarding her right elbow. (Tr. 293-294.) She reported “she was doing quite well with making good progress with her range of motion [until] she fell going down a flight of stairs at her home last week and landed on her elbow.” (Id.) On examination, Dr. Malone noted Lutizio had full elbow extension, no evidence of elbow instability, and “normal radial motor, ulnar motor, and sensory examination of the hand.” (Tr. 294.)

         On May 22, 2014, Lutizio underwent an x-ray of her bilateral knees. (Tr. 543.) Her left knee x-ray revealed post-surgical changes compatible with left knee arthroplasty with intact surgical hardware. (Id.) With regard to her right knee, imaging revealed pancompartmental degenerative change with periarticular osteophytosis and narrowing of the medial tibiofemoral joint compartment. (Id.) It also showed patellar spurring, mild narrowing of the medial patellofemoral joint space, moderate joint effusion, and “a new well corticated calcification . . . along the posterior medial soft tissue, ” which “could be an intra-articular loose body.” (Id.)

         On June 5, 2014, Lutizio presented to pain management physician Preeti Gandhi, M.D., for evaluation. (Tr. 575-582.) She complained of pain in her neck, right arm, right leg, and lower back, which she rated an 8 on a scale of 10. (Tr. 575.) Lutizio described her pain as “constant ache, burning, shooting at times, and is relieved by nothing.” (Id.) She stated she had tried acupuncture, physical therapy, pool therapy, heat, ice packs, massage, nerve blocks, and tens units, but continued to have pain. (Id.) Lutizio ...

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