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Bell v. Commissioner of Social Security

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

September 24, 2019





         I. Introduction

         Plaintiff Crystal Autumn Bell seeks judicial review of the final decision of the Commissioner of Social Security denying her applications for supplemental security income (“SSI”) under Title XIV of the Social Security Act. This matter is before me pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), and Local Rule 72.2(b). Because the Administrative Law Judge (“ALJ”) failed to apply proper legal standards in evaluating Bell's subjective symptom complaints, I recommend that the Commissioner's final decision denying Bell's application for SSI be VACATED and that Bell's case be REMANDED for further consideration.

         II. Procedural History

         On January 15, 2014, Bell protectively applied for SSI. (Tr. 20, 228-44).[1] Bell alleged that she became disabled on December 3, 2013, due to reflex sympathetic dystrophy syndrome (“RSDS”)[2] in her left leg, anxiety, chronic back pain, mental problems, depression, and thyroid issues. (Tr. 120, 230). The Social Security Administration denied Bell's application initially and upon reconsideration. (Tr. 120-54). Bell requested an administrative hearing. (Tr. 172). ALJ Terry Banks heard Bell's case on July 12, 2017, and denied the claim in an October 31, 2017, decision. (Tr. 17-89). On May 14, 2018, the Appeals Council denied further review, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-7). On July 13, 2018, Bell filed a complaint to seek judicial review of the Commissioner's decision. ECF Doc. 1.

         III. Evidence

         A. Personal, Educational and Vocational Evidence

         Bell was born on November 19, 1979, and she was 34 years old on the alleged onset date. (Tr. 238). Bell had a tenth-grade education, and she did not have any vocational training or relevant transferrable skills. (Tr. 31, 58). Bell had previous work as a shipping and receiving clerk, but she was unable to perform any of her past work. (Tr. 30-31, 86).

         B. Relevant Medical Evidence

         On October 13, 2011, Bell saw James Weiss, MD, for a medication refill. Dr. Weiss noted that that she had chronic pain, intermittent swelling, and purple discoloration in her left foot after she dropped a wood pallet on her left leg a month before her visit. (Tr. 388). She reported that her treatment had improved her pain and functional status and that she did not have any adverse side effects from Vicodin. (Tr. 388).

         On October 19, 2011, Bell told Corey Russell, DPM, that she had continued pain in her left foot after she dropped a wood pallet on her left leg and Achilles tendon. (Tr. 381). She noted that she was using gabapentin for her pain and that she was receiving pain management for RSDS. (Tr. 381). Dr. Russell recommended that Bell perform range of motion exercises and receive physical therapy two to three times per week. (Tr. 381). He also gave Bell a walker and recommended that she follow up with pain management. (Tr. 381).

         On January 9, 2012, Bell told William James, MD, that she had chronic pain in her left foot, with intermittent swelling and purple discoloration. (Tr. 378). She said that, although she had some trouble with other medications, Vicodin effectively controlled her pain without side effects. (Tr. 378). Dr. James continued Bell's treatment through medication but also referred her to be evaluated for spinal cord stimulator (“SCS”) therapy. (Tr. 379).

         On October 22, 2013, Bell saw James Otting, MD, at the Comprehensive Center for Pain Management (“CCPM”) for treatment of lumbar pain and numbness in her leg. (Tr. 561). Dr. Otting noted that Bell had stimulation in all areas of pain after an SCS revision, but she had new pain in her left buttock after falling and burning pain in her SCS generator site. (Tr. 561). Bell complained that she had pain in her left calf and foot. (Tr. 561). Bell also stated that an injection on January 6, 2012 improved her functioning, that her SCS reduced her pain by 50%, and that Vicodin was effective in controlling her pain without side effects. (Tr. 562). Bell continued seeing Dr. Otting for regular pain management sessions from October 2013 through March 2017. (Tr. 374, 402, 503-05, 509-11, 514-16, 537-58, 695-96, 705-07, 710-11, 728-30, 759-60, 768-70, 938-95, 1000-01). At her pain management sessions, Bell regularly rated her lumbar pain between 8 and 7 on a 10-point scale, indicated that her SCS and opioid medications helped her pain without side effects, and said that she was more active and could perform home exercises. (Tr. 374, 402, 503-05, 509-11, 514-16, 537-58, 695-96, 705-07, 710-11, 728-30, 759-60, 768-70, 938-95, 1000-01). Bell regularly reported joint and muscle pain, especially in her left calf and ankles. (Tr. 516, 544, 550, 554, 707, 711, 962, 970, 976-77). On December 13, 2013, Dr. Otting performed an SCS revision, and on January 14, 2014, he said that Bell's “SCS reprogramming . . . was able to greatly improve symptoms.” (Tr. 374, 402, 556). Bell reported that she had numbness, weakness, and tingling in her leg, but no swelling on March 17, 2015, July 14, 2016, September 13, 2016, and November 15, 2016; however, she reported leg/ankle swelling, discoloration, and coldness on May 12, 2015, July 14, 2015, January 11, 2016, March 8, 2016, and May 10, 2016. (Tr. 505, 511, 696, 730, 995, 983, 989). Over the course of Bell's treatment, Dr. Otting gave her several lumbar sympathetic block injections, which Bell tolerated well and said reduced her pain by up to 75%. (Tr. 538, 544, 550, 564, 566, 568, 570, 572, 574, 696, 706, 965-66, 976-78, 980-81, 994, 1000-01). Diagnostic imaging on September 17, 2015, and November 13, 2015, showed only mild degenerative changes in Bell's spine and that her spinal condition was otherwise normal. (Tr. 759-60, 768, 770). In January through March 2017 - after Bell injured her ankle - Dr. Otting noted that Bell had swollen ankles, joint and muscle pain, numbness, and tingling. (Tr. 941, 948, 955). Nevertheless, she was able to move all her extremities well and could walk with an immobilizing boot on her right leg. (Tr. 942, 948, 956).

         On April 11, 2014, Bell told Raja Hanif, MD, that she “fe[lt] well with no complaints” and that her medication was effective. (Tr. 361, 397). On examination, Dr. Hanif noted that Bell had no swelling, no tenderness, and no deformities. (Tr. 398).

         On October 13, 2014, Bell went to the triage unit at Bay Park Hospital for treatment of a cough. (Tr. 775). Bell said that she had aching pain all over her body, but examination indicated that her neck, back, lower extremities, range of motion, gait, and neurological function were all normal. (Tr. 776-77). Bell returned to Bay Park Hospital with the same complaints (a cough and “intermittent” pain) on September 18, 2015, but examination again revealed that her neck, back, range of motion, gait, and neurological function were normal. (Tr. 762-64).

         On October 21, 2014, December 31, 2014, and January 20, 2015, Bell saw Bryant Ittiara, DO, at CCPM for pain management. (Tr. 519-33). Bell told Dr. Ittiara that she had aching back pain and “burning” or “throbbing” pain in her left calf and foot. (Tr. 525, 531). She also said that she had numbness, tingling, and weakness in her left leg, but did not report any swelling. (Tr. 521-22, 528, 533). Bell told Dr. Ittiara that her medication and other treatment helped her pain without side effects, and that she was able to be more active and perform home exercises. (Tr. 519-20, 525-26, 531).

         In September 2015, Bell had three physical therapy sessions at CCPM. (Tr. 716, 718, 721). Records from those sessions indicate that Bell tolerated therapy well, understood her home exercise plan, and was “slowly progressing” toward her treatment goals. (Tr. 716, 718, 721). On October 6, 2015, Bell had a physical therapy session at Bay Park Hospital, where she told Trent Gardner, PT, that she had “good and bad days” with her pain. (Tr. 1003). Gardner noted that although Bell's pain and range of motion improved during her physical therapy sessions, she would return the following day with little or no improvement. (Tr. 1004-05).

         On November 16, 2015, Bell saw Jennifer Delaney, CNP, for treatment of her RSDS. (Tr. 591). Nurse Delaney noted that Bell had joint pain but did not have any joint redness, swelling, or muscle atrophy. (Tr. 592). Bell saw Nurse Delaney for five medication management appointments from February 23, 2016, through June 15, 2017. (Tr. 1122-38). Bell regularly reported having back and joint pain, but examination did not indicate any joint swelling or muscle atrophy. (Tr. 1122, 1129, 1132-33, 1136-37). In addition to refilling Bell's medication, Nurse Delaney instructed Bell to maintain a healthy diet and exercise regularly. (Tr. 1123, 1127, 1130, 1134, 1138). On February 9, 2017, Nurse Delaney noted that Bell had injured her back in December 2016, but it was healing with treatment. (Tr. 1126).

         On October 20, 2016, Bell told Connie Nolina, RN, that she had chronic back pain following a car accident and that she wanted to make sure her SCS unit was not damaged. (Tr. 737-38). During her visit, diagnostic imaging showed no evidence of compression fracture, malalignment of the spine, or acute bony pathology, but there was reduced disc space in the L5 S1 region. (Tr. 745). On examination, Nurse Nolina noted that Bell's lower extremity strength, range of motion, and sensation were normal. (Tr. 739-40). Upon discharge, Nurse Nolina noted that Bell ambulated without assistance and drove herself. (Tr. 740).

         On November 2, 2016, Bell saw Dr. Russell for treatment of an ingrown toenail and pain and swelling in her left ankle. (Tr. 794). Dr. Russell noted that Bell was in pain management for RSDS. (Tr. 794). On examination, Bell had full muscle strength and her muscle mass, muscle tone, and range of motion were within normal limits. (Tr. 794). Dr. Russell debrided the ingrown toenail and gave Bell an ankle brace. (Tr. 794).

         On December 16, 2016, Bell told Gregory Georgiadis, MD, that she injured her right ankle after slipping on ice on December 14, 2016. (Tr. 841, 1019); see also (Tr. 855). Dr. Georgiadis noted that Bell had gone to Bay Park hospital, but they did not properly reduce her ankle fracture and sent her home in a posterior short leg splint. (Tr. 841, 1019). Dr. Georgiadis noted that Bell did not complain of any pain in her upper or lower extremities other than her right ankle pain. (Tr. 841, 1019). Dr. Georgiadis admitted Bell for ankle surgery. (Tr. 844, 1023). On December 17, 2016, Dr. Georgiadis noted that Bell did not have any edema or other issues in her left leg. (Tr. 848). Dr. Georgiadis estimated that, after surgery on her right ankle, Bell would be non-weight-bearing for up to three months. (Tr. 849, 1033). After surgery, Bell was admitted to a rehabilitation facility for physical therapy. (Tr. 1037). She was discharged to home care on December 19, 2016. (Tr. 1046). At a follow-up on January 3, 2017, Dr. Georgiadis noted that Bell was doing well and did not note any issues with Bell's left leg. (Tr. 1048). On January 24, 2017, Dr. Georgiadis noted that Bell had mild swelling in her left leg, but her sensation was intact, she was doing well, and she was able to increase her weight-bearing. (Tr. 1051). On March 7, 2017, Dr. Georgiadis noted that Bell was partially weight- bearing, used a walker and boot to ambulate, and could tolerate her ankle pain. (Tr. 1054). Bell's left ankle was “unremarkable.” (Tr. 1054). On May 2, 2017, Dr. Georgiadis removed Bell's boot and noted “minimal swelling” in her ankle. (Tr. 1058). He instructed Bell to wean off her boot and crutches and did not recommend use of any other ambulatory aids. (Tr. 1059). He continued Bell's pain medication and recommended outpatient physical therapy; however, Bell stated she was “not interested” in physical therapy. (Tr. 1059).

         C. Relevant Opinion Evidence

         1. Treating Physician-Corey Russell, DPM

         On April 14, 2017, Dr. Russell completed a “residual functional capacity assessment form” based on his experience treating Bell from June 2010 through November 2016. (Tr. 925-29). Dr. Russell noted that Bell was diagnosed with RSDS, an unstable ankle, and an ingrown toenail. (Tr. 925). He indicated that Bell's condition improved with treatment, and she had no restrictions related to hazard exposure, operating machinery, or driving. (Tr. 926, 928). Dr. Russell indicated that Bell did not need to have her legs elevated when she sat for prolonged periods and that she would not need “periods of recumbency during the work day as a result of [her] impairments.” (Tr. 927).

         2. Treating Physician-Gregory Georgiadis, MD

         On May 7, 2017, Dr. Georgiadis completed a “residual functional capacity assessment form” based on his experience treating Bell. (Tr. 1013-17). Dr. Georgiadis noted that he treated Bell after she sustained a right ankle fracture in December 2016, that x-rays showed that she was stable after his operation, that Bell was “slowly improving from ankle surgery, ” and that her prognosis was “good.” (Tr. 1013-14). Dr. Georgiadis indicated that Bell could sit for up to two hours at a time and up to eight hours during an eight-hour workday; stand for two hours at a time and up to two hours during an eight-hour workday; and walk for one hour at a time and up to one hour during an eight-hour workday. (Tr. 1014). He said that Bell would need a sit/stand option and would “need to elevate her right lower extremity on an as needed basis . . . for pain and swelling.” (Tr. 1014-15). He estimated that, if needed, Bell would raise her right leg for 20% of the workday. (Tr. 1015). Dr. Georgiadis opined that Bell was able to perform full-time, sedentary work. (Tr. 1014). She could occasionally lift up to 20 pounds and occasionally carry up to 10 pounds. (Tr. 1015). He said that Bell could not use her feet for repetitive movement such as pushing or pulling leg controls, and she could not squat, crawl, or climb. (Tr. 1016). Bell could occasionally bend and reach with both legs. (Tr. 1016). Bell had mild restrictions to moving machinery, exposures to extreme temperatures, and driving, and she had a moderate restriction to unprotected heights. (Tr. 1016).

         3. Treating Nurse-Jennifer Delaney, CNP

         On July 5, 2017, Nurse Delaney completed a “residual functional capacity assessment form” based on her experience treating Bell. (Tr. 1140-44). Nurse Delaney indicated that Bell could sit for one hour at a time and up to four hours during an eight-hour day, but she could not stand or walk at all. (Tr. 1141). Nurse Delaney indicated that if engaged in sedentary work, Bell would need to keep her legs elevated at waist level or higher for 50% of the day. (Tr. 1142). She said that Bell could never use her feet for repetitive movement; never squat, crawl, or climb; occasionally bend; and frequently reach with both legs. (Tr. 1143).

         4. Consultative Examiner-Sushil Sethi, MD

         On August 13, 2015, Sushil Sethi, MD, examined Bell on referral from the Division of Disability Determination. (Tr. 577-83). Bell told Dr. Sethi that she had back and left leg pain “off and on, ” but she denied any paralysis, weakness, or loss of control in any part of her body. (Tr. 577). On examination, Dr. Sethi noted that Bell did not have any edema, cyanosis, or clubbing in her lower extremities. (Tr. 578). Bell did not use any ambulatory aids, and her gait was normal. (Tr. 578). Diagnostic imaging revealed mild osteoarthritis and a slight decrease in intervertebral space, but her spine was otherwise normal. (Tr. 579). Based on his examination, Dr. Sethi determined that Bell had chronic back pain and mild osteoarthritis. (Tr. 579). He determined that Bell had a normal ability to sit, stand, walk, lift, carry, and handle objects; she could carry 30-50 ...

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