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Jones v. Berryhill

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

June 21, 2019

RUTH JANICE JONES, Plaintiff,
v.
NANCY A. BERRYHILL[1], ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          JOHN R. ADAMS, JUDGE.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Ruth Janice Jones (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying her application for Disability Insurance Benefits (“DIB”). ECF Dkt. #1. In her brief on the merits, Plaintiff asserts that the administrative law judge (“ALJ”) failed to: (1) properly evaluate the opinions of her treating sources; (2) properly evaluate her credibility; and (3) meet the burden at Step Five of the Steps for Evaluating the Entitlement to Disability Benefits. ECF Dkt. #13. For the following reasons, the undersigned recommends that the Court REVERSE the decision of the ALJ and REMAND Plaintiff's case to the ALJ for reevaluation and analysis of Dr. Schnell's opinion.

         I. FACTUAL AND PROCEDURAL HISTORY

         Plaintiff protectively filed an application for DIB on February 17, 2016 alleging disability beginning September 29, 2015 due to a shattered left wrist, broken pelvic bone, generalized anxiety disorder, recurrent depression, and degenerative disc disease (“DDD”) in her neck and spine. ECF Dkt. #11 (“Tr.”) at 235-236, 263.[2] The Social Security Administration (“SSA”) denied her application initially and upon reconsideration. Id. at 171-187. Plaintiff requested a hearing before an ALJ, and the ALJ held a hearing on November 8, 2017, where Plaintiff was represented by counsel and testified. Id. at 81, 188. A vocational expert (“VE”) also testified. Id.

         On May 1, 2018, the ALJ issued a decision denying Plaintiff's application for DIB. Tr. at 16-26. Plaintiff requested that the Appeals Council review of the ALJ's decision and the Appeals Council denied her request for review on September 24, 2018. Id. at 1-4.

         On November 19, 2018, Plaintiff filed the instant suit seeking review of the ALJ's decision. ECF Dkt. #1. She filed a merits brief on March 13, 2019 and Defendant filed a merits brief on May 29, 2019. ECF Dkt. #s 13, 17. Plaintiff filed a reply brief on June 11, 2019. ECF Dkt. #18.

         II. RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE

         A. MEDICAL EVIDENCE

         1. PHYSICAL IMPAIRMENTS

         Notes dated May 14, 2015 from Dr. Hanna, a neurologist, show that Plaintiff presented for chronic neck pain for the last twenty years. Tr. at 981. Upon examination, Dr. Hanna found normal motor strength, sensation and a normal gait, but abnormal reflexes. Id. at 984. He diagnosed Plaintiff with cervical spondylosis and decided to treat her conservatively with medications and exercises. Id. He indicated that Plaintiff should not perform manual work above her shoulders in order to avoid prolonged cervical extension. Id.

         On September 27, 2015, Plaintiff presented to the emergency room after she had tripped over her cat and fell, injuring her left wrist and pelvis. Tr. at 421, 473. There was a consultation with Dr. Sechler as Plaintiff had an abnormal EKG, but it ended up being a baseline artifact that was misread by the computer. Id. at 422, 475. The consultation note indicated that Plaintiff reported never having cardiac issues and being very active as she played golf and basketball, and she mowed her own yard. Id. Physical examination revealed an obvious deformity in Plaintiff's left wrist and tenderness to palpation of her left hip. Id. at 473. X-rays showed a left wrist radius ulnar fracture with radial displacement of the distal fracture fragment and displaced ulnar styloid fracture, and a mildly displaced comminuted left iliac bone and acetabular fracture and mildly displaced angulated fracture of the left inferior pubic ramus. Id. at 474, 502, 507, 509, 667. A brain CT scan showed no abnormality, and a neck CT scan showed mild posterior disc osteophytes and bilateral facet arthropathy at ¶ 2-C3, C3-C4, C4-C5, C5-C6, and C6-C7, with mild to moderate left neural foraminal encroachment at ¶ 2-C3, moderate to severe right neural foraminal and mild to moderate left neural foraminal narrowing at ¶ 3-C4, mild canal stenosis and mild to moderate bilateral neural foraminal encroachment at ¶ 4-C5, moderate to severe canal and bilateral neural foraminal stenosis at ¶ 5-C6, and severe canal and bilateral neural foraminal encroachment at ¶ 6-C7. Id. at 506.

         Dr. Schnell, an orthopedic surgeon, examined Plaintiff on September 28, 2015 and recommended an open reduction and internal fixation for her left wrist, to which she agreed. Tr. at 478. Plaintiff underwent a left distal radius open reduction and internal fixation on September 28, 2015. Id. at 479, 673. Plaintiff was discharged from the hospital on September 30, 2015. Id. at 482.

         Dr. Schnell's October 9, 2015 treatment notes show that Plaintiff followed up for her left wrist and hip and she reported that her pain level was 6 out of 10 and he was not bearing weight on either extremity. Tr. at 648. Dr. Schnell noted that x-rays showed satisfactory alignment of the fracture and hardware and no significant displacement of the acetabular fracture of the left hip. Id. Dr. Schnell reminded Plaintiff of the severity of her wrist injury and how unstable it was with marked articular comminution. Id. He stressed to her that she was not to bear weight for at least 6 weeks and he put her in a long arm fiberglass cast. Id. He also told her not to bear weight on her left lower extremity. Id.

         On October 23, 2015, Plaintiff followed up with Dr. Schnell and he noted no obvious deformity and that her wound was healing. Tr. at 585, 647. X-rays showed that there was some interval subsidence of the posterior articular surface of the distal radius with questionable penetration of the screws. Id. X-rays of the pelvis showed no evidence of any significant displacement of the fracture. Id. Dr. Schnell told Plaintiff that there was some subsidence of the articular surface dorsally and she would likely benefit from elevation articular surface of dorsal plating. Id. He also indicated that he wanted to consult with colleagues concerning her wrist x-rays. Id.

         On October 27, 2015, Plaintiff followed up with Dr. Schnell after he reviewed her x-rays with colleagues and they agreed with him about re-reducing the fracture and plating the dorsal radius, which would require removing the pins from the volar side also. Tr. at 587, 649. He discussed the surgery with Plaintiff. Id.

         On October 30, 2015, Plaintiff underwent a revision of open reduction and internal fixation of a left distal radial fracture with failure of fixation. Tr. at 423. He noted that Plaintiff underwent an open reduction and internal fixation with a volar locking plate on September 27, 2015, but at her one-month follow up, she showed a loss of fixation with dorsal collapse of the articular surface. Id. Dr. Schnell noted that they discussed a revision surgery and the risks associated with it, and Plaintiff wished to proceed with surgery, which was performed on October 30, 2015. Id. The procedure went well and there were no complications. Id. at 426.

         Dr. Schnell's November 6, 2015 treatment note indicates that Plaintiff followed up with him and said her pain was well-controlled, but she was upset that a home health aide told her that she could bear weight on the left side, although she was using a cane due to her hip and groin pain. Tr. at 588, 646, 658. X-rays of the left wrist showed satisfactory alignment of the fracture and hardware. Id. Dr. Schnell advised Plaintiff of the seriousness of her wrist injury and he explained that she was likely going to have significant posttraumatic arthrosis in the future. Id. at 588.

         On November 13, 2015, Plaintiff followed up with Dr. Schnell for her left wrist and she reported that her pain was improving, but she was still having volar radial wrist pain. Tr. at 584, 645. He removed her sutures and placed her in a short arm fiberglass cast. Id. November 30, 2015 treatment notes indicate that Dr. Schnell reviewed x-rays with Plaintiff which showed that despite the buttressing of the dorsal articular surface, she had further collapse. Id. at 589, 645. He told her that there were not many good options and they discussed putting an external fixator on, although Plaintiff did not seem interested and he indicated that even with the external fixator, he could not guarantee that the outcome would be significantly better. Id. He put her wrist back in a cast. Id.

         Dr. Schnell's December 11, 2015 treatment note shows that Plaintiff presented with complaints of moderate pain in her left wrist and chronic aching in her pelvic area and lower back, especially after prolonged walking. Tr. at 589, 650. X-rays showed no significant interval changes in the overall alignment of her wrist fracture and some collapse of the dorsal articular surface with dorsal translation of the lunate. Id. He put her in a wrist splint and limited her range of motion in the wrist with no weight-bearing, as further collapse could occur with weight-bearing. Id.

         Treatment notes from January 7, 2016 show that Plaintiff presented to Dr. Stecyk for medication refills and complaints of sinus problems and left leg swelling. Tr. at 613. Physical examination showed left lower extremity edema, but normal range of motion and strength. Id. at 615-616. He diagnosed Plaintiff with acute sinusitis, insomnia, and statis edema of the left lower extremity. Id. at 616. He ordered an ultrasound of Plaintiff's left lower extremity. Id. The duplex scan was negative for acute deep vein thrombosis. Id. at 628.

         January 8, 2016 treatment notes from Dr. Schnell show that Plaintiff followed up for her wrist pain. Tr. at 603. She reported that she still had significant pain in the wrist, but the pain in her pelvis was improving. Id. X-rays of the wrist showed intraarticular penetration of the distal locking screws. Id. Dr. Schnell informed Plaintiff that the hardware would need to come out of her wrist because of irritation of the tendons from the volar plate. Id. He advised Plaintiff that she would likely have chronic pain and may ultimately need a fusion. Id.

         On January 28, 2016, Plaintiff presented to the emergency room with neck pain. Tr. at 400. She explained that she was reaching up into a cabinet with her right hand and her neck popped and she felt some left arm pain and paresthesias. Id. Physical examination showed that Plaintiff was in no apparent distress, except for a supple neck with cervical paraspinal pain with palpation, and normal extremities with no edema. Id. at 401. Plaintiff was diagnosed with acute cervical sprain and cervical radiculitis and given injections of Toradol and Norflex. Id. A cervical x-ray showed Grade 1 retrolisthesis at ¶ 5-C6 and C6-C7 and severe disc space narrowing at those points anterior endplate osteophytes. Id. at 403, 634. The impression was cervical spondylosis and Plaintiff was given medications, told to ice the area, and discharged with a cervical collar. Id. at 402.

         On February 1, 2016, Plaintiff presented to Dr. Schnell and reported that her neck was feeling better, but she had crepitation with flexion/extension of her fingers and pain and swelling of the left long finger. Tr. at 651. Dr. Schnell noted swelling along the incision of the left hand with some crepitation volarly with flexion/extension of the fingers. Id. X-rays showed the previously noted collapse of the articular surface with intraarticular penetration. Id. Dr. Schnell talked with Plaintiff about the x-ray and informed her that she was getting significant tendon irritation and he recommended taking the plates out of her wrist to prevent further tendon injury. Id. He also told Plaintiff that she may require further surgery at a later date. Id.

         February 4, 2016 treatment notes from Dr. Stecyk indicate that Plaintiff presented to him for medication refills. Tr. at 609. Review of Plaintiff's symptoms indicated that she complained of anxiety and neck pain, and x-rays showed degenerative joint disease. Id. He also noted that Plaintiff saw Dr. Schnell for her left wrist fracture. Id. Dr. Stecyk noted no masses or swelling in Plaintiff's neck, no back pain or myalgias, no difficulty walking or limb weakness, no numbness or tingling, and no anxiety or depression. Id. at 609-610. Physical examination showed tenderness in the neck, left wrist tenderness and swelling, normal range of motion and muscle strength, intact judgment and insight, and normal mood and affect. Id. at 611. He diagnosed anxiety, insomnia, left arm fracture, and neck pain. Id. at 611-612. He added a medication, renewed her other medications, and referred her for physical therapy for neck pain. Id. at 612.

         On February 24, 2016, Plaintiff underwent surgery by Dr. Schnell to remove symptomatic hardware from her left wrist. Tr. at 364, 597, 670. The operative report outlined Plaintiff's original injury in September of 2015 and her subsequent open reduction and internal fixation and allograft bone grafting. Id. The report also noted that after the first procedure, Plaintiff underwent a second procedure on October 30, 2015 with revision for placement of the volar hardware and a dorsal plate. Id. Dr. Schnell further noted that the articular surface collapsed again despite the two procedures and Plaintiff developed crepitation along the volar aspect of the wrist with finger flexion and extension. Id. The decision was then made to remove the plates with this third procedure. Id. The hardware was removed and Plaintiff tolerated the third procedure well. Id. at 365.

         Treatment notes from Dr. Schnell indicate that on February 26, 2016, Plaintiff reported that her pain was tolerable and she no longer had the crepitus with flexion/extension of her fingers. Tr. at 583. Dr. Schnell noted that Plaintiff had minimal bleeding and well-approximated incisions, and Plaintiff could flex/extend her fingers with no evidence of crepitation. Id.

         On March 3, 2016, Plaintiff presented to Dr. Stecyk for her neck pain and he found no masses and no swelling in the neck, and he found that Plaintiff had no difficulty walking, no limb weakness, no numbness, and no tingling. Tr. at 605-606. He noted left wrist and neck tenderness, but normal muscle strength and range of motion. Id. at 607. He found that her judgment and insight were intact, and her mood and affect were normal, with no anxiety or depression. Id. at 606-607. He diagnosed Plaintiff with anxiety, depression, left arm fracture, and neck pain. Id. at 608. He renewed her psychiatric medications and prescribed Oxycodone for her pain. Id. at 607.

         March 4, 2016 notes from Dr. Schnell show that Plaintiff was doing well after surgery and he removed Plaintiff's suture and put her in a temporary volar splint. Tr. at 655.

         On April 4, 2016, Dr. Schnell wrote a “To Whom This May Concern” letter indicating that Plaintiff had fallen down a staircase on September 27, 2015 and suffered a significant left wrist fracture and fractures to her superior and inferior pubic rami. Tr. at 702. He described her wrist surgeries and concluded that, “[d]ue to the severity of her original injury and multiple surgeries, the patient's progress has been slow. She has been unable to work during this recovery.” Id.

         April 8, 2016 treatment notes from Dr. Schnell indicate that Plaintiff presented with more wrist pain and a red raised area over her left wrist incision. Tr. at 652. Dr. Schnell noted the small raised area over the wrist and a small vicryl suture working its way through the skin. Id. He diagnosed a small vicryl stitch abscess and removed it. Id. at 652. Plaintiff followed up on April 15, 2016 and reported that the pain was better, but she had pain along the ulnar aspect of the wrist that radiated proximally. Id. at 653. Dr. Schnell's examination showed that there was no swelling over the wrist, but Plaintiff was very tender along the volar aspect of the wrist. Id. He also noted that Plaintiff was able to fully flex and extend the fingers and thumb, but her wrist range of motion was limited due to discomfort. Id. He prescribed anti-inflammatories for pain. Id.

         On May 20, 2016, Dr. Schnell's treatment notes show that Plaintiff presented for right wrist pain and numbness and tingling. Tr. at 654, 720. Examination showed that she was able to fully flex and extend her fingers and thumb, but she had a positive Tinel's and Phalen's at the wrist. Id. Dr. Schnell believed that Plaintiff was developing carpal tunnel syndrome (“CTS”), and he ordered an EMG of Plaintiff's left wrist. Id.

         Dr. Schnell wrote another “To Whom It May Concern” letter on June 2, 2016 indicating that Plaintiff fell down a staircase on September 27, 2015 and sustained a left wrist fracture and fractures to her superior and inferior pubic rami. Tr. at 700. He noted that she underwent a left wrist open education and internal fixation on September 28, 2015 and upon failure of the fixation surgery, she underwent revision surgery on October 30, 2015 and she was immobilized for an extended period of time. Id. He further noted that Plaintiff participated in physical therapy and then hardware irritation developed and Plaintiff underwent a third surgery on February 24, 2016 to remove the plates on the volar and dorsal aspects of her wrist. Id. Dr. Schnell continued that Plaintiff was having intermittent pain, numbness and tingling along the ulnar part of her wrist and she appeared to be developing CTS. Id. Dr. Schnell concluded that Plaintiff's progress had been “very slow” and she had not been able to work during her recovery “[d]ue to the severity of her original surgery, having multiple surgeries and her ongoing symptoms.” Id.

         June 3, 2016 treatment notes show that Dr. Schnell discussed the EMG results with Plaintiff which showed very subtle evidence of irritation of the left ulnar sensory branches to the fifth finger and no evidence of cervical radiculopathy. Id. at 654, 660, 709, 720. He told her to finish the medication that he prescribed to reduce the swelling and then take Aleve as once the swelling decreased, the ulnar nerve irritation should as well. Id. He also had her wear a wrist splint when she was active. Id.

         July 29, 2016 treatment notes from Dr. Schnell indicate that Plaintiff presented complaining of significant left wrist pain, with numbness and shooting pain along the dorsoulnar aspect of her wrist and fingers. Tr. at 719. He gave her a corticosteroid injection and ordered a bone density scan and ...


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