Knichel v. Colvin
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 6/13/17. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL1, Acting
Commissioner of Social Security,
Case No. 4:16-CV-534 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On November 25, 2013, plaintiff Michelle Knichel protectively filed an
application for supplemental security income with an alleged onset date of July 10,
2010. (Tr. 272–75).2 After plaintiff’s application was denied on initial consideration
on December 31, 2013, (Tr. 149–52; 128–36), she requested a hearing from an
Administrative Law Judge (ALJ). (Tr. 153).
Plaintiff and counsel appeared for a hearing on November 20, 2014 (Tr. 86–
120, 169). The ALJ issued a decision denying plaintiff’s application on January 9,
2015. (Tr. 63–70). The Appeals Council denied plaintiff’s request for review on
March 21, 2016. (Tr. 1–7). Accordingly, the ALJ’s decision stands as the
Commissioner’s final decision.
II. Evidence Before the ALJ
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
Plaintiff filed this application for supplemental security income pursuant to 42 U.S.C. §§
A. Disability Application Documents
In a November 25, 2013, Disability Report,3 (Tr. 276–85), plaintiff listed her
medical conditions as (1) anxiety with panic attacks, (2) arthritis “throughout whole
body,” (3) left ankle with pins, screws, and plates, (4) a left knee that she could not
walk on, (5) “nerve damage throughout body from car wreck,” (6) “right shoulder
messed up,” (7) “right rib keeps popping out of place,” and (8) depression. (Tr.
277). Plaintiff reported that in July 2010, these conditions became so severe that
they prevented her from returning to work following her lay-off. (Tr. 277–78).
Plaintiff reported that she had completed the eleventh grade and did not obtain a
GED. She did not attend special education classes, and did not complete any type
of specialized training, trade, or vocational school. Id. She listed her prior work
experiences as a caregiver (2000–2001), housekeeper (2009–2010), and waitress
(1999–2000). (Tr. 279). Plaintiff listed her medications as Buspirone for anxiety, 4
Diclofenac for advanced arthritis,5 an indecipherable pain medication, and prenatal
vitamins. (Tr. 280).
A November 25, 2013, Disability Field Report (Tr. 272–75) listed plaintiff’s
prior Social Security income application decision dates as August 12, 1999, March
31, 2006, September 9, 2009, and March 31, 2011. (Tr. 273). Social Security
Administration official K. Braswell indicated that she did not observe plaintiff
Plaintiff submitted disability reports with her prior denied applications in September 2009
and March 2011. (Tr. 219–41).
Buspirone “is used to treat anxiety disorders or in the short-term treatment of symptoms
of anxiety.” https://medlineplus.gov/druginfo/meds/a688005.html (last visited June 8,
Diclofenac capsules are used “to relieve mild to moderate pain,” and diclofenac extended
release tablets are “used to relieve pain, tenderness, swelling, and stiffness caused by
osteoarthritis . . . and rheumatoid arthritis . . .” This medication can also be used to treat
https://medlineplus.gov/druginfo/meds/a689002.html (last visited June 8, 2017).
experiencing difficulties in hearing, reading, breathing, understanding, coherency,
concentrating, walking, or answering. (Tr. 274). She further described plaintiff as
“friendly and easy to interview,” “pleasant throughout the interview,” and as having
“clear speech.” Id.
In an updated Disability Report, dated April 5, 2014, plaintiff reported that
some changes in her condition had developed in January 2014. (Tr. 317–22).
Plaintiff did not specifically identify the changes, but noted her recent doctors’ visits
and the reasons for them. Plaintiff saw Craig Ruble, M.D., on January 20, 2014
(among other unlisted dates) for a consultation, x-rays, surgery, and post-surgery
check-up. (Tr. 318). She stated that she also had an appointment at Resolutions
Behavioral Health on February 24, 2014, to treat her anxiety, depression, and
bipolar disorder; she also sought to obtain prescription refills. (Tr. 318). She also
had a blood test and x-rays on her left knee and ankle in 2013. (Tr. 319). Plaintiff
listed her medications as Latuda for anxiety and depression,6 Meloxicam for
arthritis,7 Norco for pain,8 Ranitidine for acid reflux,9 Risperidone for panic attacks
and anxiety,10 and Trazodone for insomnia.11 Id. Plaintiff reported that she had
anxiety and bipolar disorder and that her short- and long-term memory were “bad.”
Latuda (Lurasidone) treats the symptoms of schizophrenia, or may be used to treat
https://medlineplus.gov/druginfo/meds/a611016.html (last visited June 8, 2017).
Meloxicam is used to “relieve pain, tenderness, swelling, and stiffness caused by
https://medlineplus.gov/druginfo/meds/a601242.html (last visited June 8, 2017).
Norco is a colloquial term to refer to Hydrocodone – which is generally used for pain relief.
https://medlineplus.gov/druginfo/meds/a601006.html (last visited June 8, 2017).
Ranitidine treats ulcers, GERD, and other conditions where the stomach produces excess
acid. https://medlineplus.gov/druginfo/meds/a601106.html (last visited June 8, 2017).
Risperidone treats schizophrenia and episodes of mania in those with bipolar disorder.
https://medlineplus.gov/druginfo/meds/a694015.html (last visited June 8, 2017).
Trazadone is a serotonin modulator and is prescribed to treat depression. https://
www.nlm.nih.gov/medlineplus/druginfo/meds/a681038.html (last visited Sept. 18, 2015).
(Tr. 320). She noted that her hands and arms were “all messed up” and that her
left leg and arthritis were in “bad shape.” Id. Finally, plaintiff complained of
migraine headaches. Id. Despite these problems, she stated that there had been
no alterations in her daily activities since her last report. Id.
In a Function Report dated December 10, 2013, (Tr. 298–308), plaintiff
stated that she lived in a house with her mother, son, and daughter. In response to
a daily activities inquiry, plaintiff stated that she arose at around 7:00 a.m. and
took her sixteen-year old son to school. Plaintiff noted that her son did not require
much care, but she did his laundry and took him to school and to his sports
activities. Plaintiff reported that taking care of her three-month old daughter took
up most of her time. According to plaintiff, her daughter had been sick since birth
and plaintiff had to “hold her a lot.” (Tr. 298). Plaintiff also watched television or
took a nap with her daughter.
In the evening, plaintiff helped her mother with
laundry and dishes. She explained that her mother took care of most of the
household chores. Plaintiff went to bed around 9:30 or 10:00 p.m.
Plaintiff stated that since her automobile accident in 1999, she had
experienced serious difficulties with her left leg and foot. Id. She added that she
had problems with her left arm and right shoulder, and that she does not know how
many surgeries she will require. Plaintiff also reported that she had broken her ribs,
and that they would not “stay when Dr. Greenlee work[ed] on her.” (Tr. 299).
Additionally, plaintiff claimed that had been in “constant pain” since the onset of her
disabling conditions. Id.
Plaintiff stated that she could generally tend to her personal care. She
expressed no difficulties in dressing, bathing, shaving, feeding herself, or using the
toilet. Id. But, she explained that sometimes she needed assistance with her hair
because her wrists would be “messed up.” Id. She did not require any reminders to
tend to her personal needs and grooming. (Tr. 300). But, she stated that she
needed reminders from her mother to take her medications. Id.
Plaintiff could also prepare her own meals every day. Id. She cooked
“complete meals” about three or four times each week, but otherwise made
sandwiches or other “easy stuff.” Id. Meal preparation took anywhere from ten to
twenty minutes or, occasionally, as much as two hours. Id. Plaintiff noted that her
left leg and foot were sometimes too swollen for prolonged standing. Id. Also, she
stated that her left knee and ankle sometimes buckled and she would fall. Id.
Plaintiff stated that she could do some household chores. She reported that she
could accomplish a little at a time until her arms or left leg gave out. Id. Outdoor
chores were not possible because plaintiff’s body was “very arthritic”; she also
noted her scoliosis and bulging discs. (Tr. 301).
Plaintiff reported that went outside every day. Id. She could drive a car, ride
in a car, or use public transportation. Id. And she could do so alone. Id. Plaintiff
went to the store about two times each week, for about thirty to forty-five minutes,
to shop for food and necessities. Id.
In addition, plaintiff went to doctors’
appointments. (Tr. 302). Plaintiff did not need reminders to go places. Id. She
stated that she would have severe panic attacks and anxiety around crowds. (Tr.
Plaintiff could also manage money in most respects. She could pay bills,
count change, and use a checkbook or money orders. (Tr. 301). Plaintiff also had
several hobbies and interests, including reading, watching television, resting, and
spending time with her children. (Tr. 302). She stated that she used to “do
everything with [her] son,” until 2010. Id. Since then, she said, “everything has
progressively gotten worse.” Id. She specifically mentioned her frequent falls. Id.
Plaintiff also engaged in social activities, and spent time with others. Id. She talked
to her family on the phone, or spent time with them at her house. Id. Plaintiff
seldom used the computer, and if she did, it would only be for a few minutes. Id.
Plaintiff stated that she sometimes had problems getting along with others, as she
could not handle “all the people”; she would get nervous and her heart would race.
Plaintiff stated that her conditions inhibited her abilities to (1) lift more than
ten pounds, (2) squat, (3) bend, (4) stand for more than ten to fifteen minutes, (5)
reach, (6) walk for more than ten to fifteen minutes, (7) sit,12 (8) kneel, and (9)
climb stairs. Id. When walking, plaintiff required ten to fifteen minutes of rest,
every ten to fifteen minutes. Id. She could only use her hands for a short time. Id.
Plaintiff also expressed difficulties with her memory, concentration, completion of
tasks, and handling of stress. (Tr. 303–04).
Testimony at Hearing
Plaintiff testified that the medical conditions preventing her from maintaining
employment included left ankle pain, nerve compression in her left leg, locking of
her left knee, right shoulder pain and arthritis, double vision, migraine headaches,
and anxiety. (Tr. 96–97).
Plaintiff testified that she received treatment for her ankle from Dr. Craig
Ruble, an orthopedic surgeon. (Tr. 97). Dr. Ruble removed hardware from plaintiff’s
Plaintiff noted that she could sit for eight to ten hours each day. (Tr. 303).
ankle earlier in 2014, but she testified that her ankle “still hurts” and “still locks.”
Id. According to plaintiff, standing increased her pain though she still experienced
left leg pain while sitting down. Id. She testified that she walked with a limp. Id.
She could only stand for twenty minutes before her knee or ankle would lock and
cause her to fall. (Tr. 98). And plaintiff could walk for about fifteen minutes before
she would need to stop and rest to preventing locking. (Tr. 99).
Plaintiff also testified about her right shoulder pain. She stated that sitting for
long periods caused intense shoulder pain. Id. Specifically, she could only sit for
about fifteen to twenty minutes before she needed to stand. Id. She also had pain
while extending or reaching her arm. (Tr. 100). Dr. Ruble performed a surgery on
plaintiff’s right shoulder in June 2014. (Tr. 111). She stated that during her followup visit, she reported continuing pain, and was told that the recovery process could
take up to a year and another surgery could possibly be required. Id.
Plaintiff testified about her left leg injury. (Tr. 101). She specifically told the
ALJ that she received a nerve decompression surgery on that leg. Id. She continued
to experience tingling and numbness after the surgery. Id.
Plaintiff also described her left knee injury and condition. (Tr. 102). She
stated that she shattered her knee in several places in a car accident. Id. After the
accident, doctors implanted metal hardware in her knee. Plaintiff later required
surgery on her knee to “remove a lot of the arthritis in it.” Id. Plaintiff testified that
because her knee locked, it would often give out and she would collapse. Id. This
would occur if she walks for about twenty to thirty minutes without resting or sitting
Plaintiff testified about her rheumatoid arthritis condition. Plaintiff testified
that she could not use a computer or type due to her rheumatoid arthritis. (Tr.
100). She specifically stated that the condition caused hand cramping, and she
could not grip. Id. Plaintiff had not seen a rheumatologist to diagnose the condition
at the time of the hearing. (Tr. 112).13 Furthermore, the medication she required
for treatment of her hepatitis C inhibited her ability to take medication for her
rheumatoid arthritis. Id.
Plaintiff reported to Midwest Health Group, LLC, for an appointment with Gina
Heberlie, N.P., on December 13, 2012. (Tr. 469). The notes indicate that plaintiff
presented with “ganglion of tendon sheath,” which began one year prior to this
visit. Id. Notes further state that the pain was “of moderate intensity,” and that
plaintiff experienced symptoms several times daily. Id. Plaintiff stated that nothing
relieved her symptoms. Id. Notes on plaintiff’s musculoskeletal system state that
plaintiff was “positive for myalgias,” secondary to the metal in plaintiff’s left knee.
Id. Plaintiff also reported chronic pain since 2002, which affected her lower back.
Id. A musculoskeletal exam showed a “normal gait,” “decreased range of motion” in
plaintiff’s left knee flexion and extension, “pain with range of motion” in left
shoulder adduction, and a two-centimeter “ganglion type nodule of the dorsal left
wrist. (Tr. 471). Nurse Heberlie prescribed Flexeril to treat plaintiff’s myalgia. (Tr.
472). She also referred plaintiff to a general surgeon regarding her ganglion of
tendon sheath. Id. A visit on January 14, 2013, reported nearly identical notes on
plaintiff’s musculoskeletal system. (Tr. 464–66).
Plaintiff also testified about her anxiety, migraines, and the symptoms of her hepatitis C.
On April 21, 2013, Craig R. Ruble, M.D., noted plaintiff’s shoulder joint pain
and impingement syndrome of the shoulder region. (Tr. 547).
Plaintiff presented to Washington County Memorial Hospital on October 2,
2013, for treatment of hepatitis C, among other issues. (Tr. 524–26). Angie
DeClue, F.N.P., observed no edema or musculoskeletal abnormalities. (Tr. 525).
On October 18, 2013, plaintiff received an evaluation of her left knee and
ankle from Daniel J. Martin, Jr., M.D. (Tr. 514). In his summary of plaintiff’s
history, he wrote that plaintiff had undergone open reduction internal fixation of
“her left ankle several years ago with a severe trauma as well as an injury to her
left knee,” and that she “had the hardware removed from her left knee.” Id. He
then noted that “[r]adiographs of the left knee show a varus alignment,” but she
had “good maintenance of the joint space.” Id. Dr. Martin explained that plaintiff’s
“ankle has advanced degenerative arthritis with post-traumatic changes.” Id. His
examination of plaintiff’s left knee also showed a “varus alignment,” intact
neurocirculatory exam, stable collateral ligaments, and negative results on the
Anterior Drawer and Lachman tests. Id. He observed crepitus with range of motion
of the left ankle and well-healed surgical scars. Id. He ordered an MRI of plaintiff’s
left knee. Id.
Plaintiff visited Washington County Memorial Hospital complaining of shoulder
pain, among other issues on November 15, 2013. (Tr. 520–23). Plaintiff told
Shelley Lee, D.O., that she had experienced shoulder pain for some time. (Tr. 520).
Plaintiff told Dr. Lee that heat and over-the-counter medications did not ease her
pain. Id. No musculoskeletal abnormalities were noted after her physical exam. (Tr.
Plaintiff presented to Washington County Memorial Hospital on November 25,
2013, complaining of worsening anxiety. (Tr. 516).
She claimed that her right
shoulder pain exacerbated her anxiety. Id. A review of plaintiff’s musculoskeletal
system showed right shoulder tenderness and mild pain with motion. (Tr. 517–18).
The prescribed plan included an orthopedic evaluation. Id.
On November 26, 2013, plaintiff received a right shoulder x-ray at
Washington County Memorial Hospital, pursuant to plaintiff’s complaints of pain.
(Tr. 528). Gaspar Fernandez, M.D., the reading physician, found that plaintiff had
(1) an intact clavicle, (2) a normally aligned acromioclavicular joint, (3) no evidence
of fracture, dislocation, focal osteolytic or osteoblastic lesions of the proximal
humerus, (4) no hypertrophic or erosive changes, and (5) intact ribs. He concluded
that no acute osseous abnormalities were identified and that “if internal
derangement is suspected,” an MRI could be conducted. Id.
On December 17, 2013, plaintiff visited Jefferson County Orthopaedic
Surgery and Sports Medicine for left medial and lateral knee pain, as well as medial
and lateral ankle pain. (Tr. 631). Plaintiff stated that she began experiencing
“problems after she had fractured her knee and ankle after being involved in a
motor vehicle crash back in 1999.” Id. Plaintiff also reported surgeries on both her
left knee and left ankle. Id. Plaintiff indicated several ongoing symptoms in her left
knee, including a constant ache of the anteromedial and lateral knee, occasional
swelling, popping, catching, locking, a sensation of instability, and some numbness
over the lateral fibular region. Id. She added that walking and other activity
aggravated her pain, while sitting alleviated her pain. Id. Dr. Craig Ruble conducted
a detailed physical exam, which showed well-healed incisions in plaintiff’s knee,
with no obvious swelling, erythema, or heat. (Tr. 632). Further, Dr. Ruble noted
that she “demonstrated 0 degrees of extension and 125 degrees of flexion with
obvious crepitus palpated.” Id. Her ligaments were stable and she had a positive
Tinel sign at the left common peroneal nerve at the fibular neck. Id. She showed no
Dr. Ruble also examined plaintiff’s ankle. He noted well-healed scars and
mild soft tissue swelling, with tenderness to palpation over the medial ankle. Id.
“She had slightly decreased flexion and decreased rotation of the left ankle.” Id. He
described plaintiff’s right lower extremity as “within normal limits,” “unremarkable,”
and “neurovascularly intact.” Id. A diagnostic study of plaintiff’s ankle showed
“plates and screws laterally with a sutured anchor in the medial ankle”. (Tr. 632,
634). Imaging also revealed bone-on-bone degenerative joint disease. Id. Images
of plaintiff’s left knee showed “previous fractured lateral tibial plateau” with
removed hardware. Id.
Dr. Ruble concluded that plaintiff had ankle pain arising from post-traumatic
degenerative joint disease, painful orthopedic hardware in the left ankle, and knee
pain from “questionable medial and lateral meniscus tearing and probable
recommended several treatments including (1) icing and elevating the knee and
ankle frequently, (2) taking a Mobic14 prescription with intermittent doses of
Tylenol, (3) stopping smoking, (4) beginning a home exercise program for the knee
Mobic (Meloxicam) is used to “relieve pain, tenderness, swelling, and stiffness caused by
osteoarthritis (arthritis caused by a breakdown of the lining of the joints) and rheumatoid
https://medlineplus.gov/druginfo/meds/a601242.html (last visited June 9, 2017).
and ankle, (5) taking cortisone injections for the knee and ankle, and (6) removing
the hardware in the left ankle. Id.
On January 7, 2014, plaintiff underwent surgery to remove hardware from
her left ankle. (Tr. 640). The post-operative diagnosis indicated that had significant
degenerative joint disease in her left ankle. Id.
Plaintiff reported to Washington County Memorial Hospital on January 9,
2014, with a migraine headache. (Tr. 586). Her listed chronic conditions included
pain in the thoracic spine, osteoarthritis (generalized, involving multiple sites),
rheumatoid arthritis, and migraines. Id.
On January 20, 2014, plaintiff visited Jefferson County Orthopaedic Surgery
and Sports Medicine for a follow-up evaluation of her left-ankle hardware removal.
(Tr. 629). Notes represent that plaintiff was “doing well” and “denie[d] any
problems.” Id. But, plaintiff did say she had “some pain proximal at the lower
extremity with numbness and tingling.” Id. A physical exam of plaintiff’s left ankle
showed good range of motion in all directions with good strength and stability. Id.
Dr. Ruble met with plaintiff and recommended that she ice and elevate her ankle
frequently, increase activity as tolerated, bear weight as tolerated, and wear her
boot as needed. Id. They also discussed the risks and benefits of a left knee
arthroscopy with decompression of the common peroneal nerve at the fibular neck.
Id. A re-evaluation was scheduled a month after this visit. Id.
That same day plaintiff had an appointment at Mineral Area Family Surgery.
(Tr. 678–83). William C. Sippo, M.D., consulted plaintiff regarding her shoulder
pain. (Tr. 678). Her shoulder injury purportedly occurred two years prior when
plaintiff fell and landed on her outstretched arm. Id. She stated in particular that
since that incident, she experienced pain medial to the right scapula. Id. Records
further explain that plaintiff received no prior shoulder or bone imaging studies. Id.
In an examination of plaintiff’s musculoskeletal system, Dr. Sippo noted tenderness
on palpation in the medial to right scapula. (Tr. 681). Dr. Sippo opined that the
scapula pain could be related to a compression fracture of the spine; he also
considered that plaintiff might have a rib injury. Id. He found no other
abnormalities. Id. A summary of plaintiff’s conditions included pain in the thoracic
spine, chest wall pain, chronic hepatitis C, bipolar disorder, panic disorder without
agoraphobia, tobacco dependence syndrome, gastroesophageal reflux disease,
lower back pain, and chronic pain syndrome. (Tr. 682).
On January 24, 2014, plaintiff underwent left knee arthroscopic surgery,
which involved a partial lateral meniscectomy, chondroplasty of the medical femoral
condyle, and debridement of hypertrophic synovium with an excision of pathologic
superomedial plica. (Tr. 637). Dr. Ruble also conducted an open decompression of
the left leg common peroneal nerve at the fibular neck. Id. Dr. Ruble performed the
surgery to provide relief for plaintiff’s left knee pain, which spread down the lateral
aspect of her left leg to her foot, and led to burning, numbness, and tingling
sensations. Id. Those sensations had “been going on for several months.” Id.
Plaintiff reported a history of osteoarthritis and rheumatoid arthritis during
visits concerning her mental health on December 30, 2013, January 27, 2014, and
April 14, 2014. (Tr. 601–03, 604–06, 607–10).
On February 6, 2014, plaintiff reported to a post-operative visit at Jefferson
County Orthopaedic Surgery and Sports Medicine. (Tr. 627). Plaintiff’s evaluation
after her left knee arthroscopy showed soreness, numbness, and tingling. Id. Her
swelling had improved and she could bear weight on the knee. Id. Dr. Ruble
ordered a prescription for Meloxicam and recommended frequent elevation. Id.
On March 3, 2014, plaintiff visited the Great Mines Health Center complaining
of ankle pain, lower leg pain, anxiety, and vision problems. (Tr. 538). In relevant
part, plaintiff stated that she experienced “dull,” ongoing pain in her left ankle,
where a metal plate was removed. Id. Moreover, plaintiff related lower leg pain. Id.
She said her leg pain was constant and ongoing. Id. Her diagnoses included leg
pain and arthritis, among others. Id.
Plaintiff reported to Great Mines Health on March 13, 2014, to discuss several
health issues and establish care. (Tr. 642–47). Specifically, plaintiff complained of
anxiety, ankle and lower leg pain, vision change, and hepatitis C. (Tr. 642). An
examination of plaintiff’s musculoskeletal system showed multiple surgical scars on
her upper and lower leg, as well as ankle distortion and swelling. (Tr. 644). She
demonstrated normal gait and station. Id. Plaintiff had no clubbing or edema in her
extremities. Id. Nona Mungle, N.P., diagnosed plaintiff with bipolar disorder,
anxiety, hepatitis C, leg pain, arthritis, insomnia, and acute sinusitis. (Tr. 644–45).
Plaintiff received Meloxicam and Hydrocodone prescriptions for her leg pain. (Tr.
Plaintiff received an evaluation for treatment of hepatitis C on April 16, 2014.
(Tr. 542–44). During that visit, plaintiff told Paul Garvin, M.D., that she suffered
from chronic pain syndrome “due to her left ankle post surgical pain and arthritic
condition.” (Tr. 542). Dr. Garvin observed that plaintiff moved all her extremities
well, and that she had no edema, clubbing, or cyanosis. (Tr. 543).
On April 18, 2014, plaintiff visited Great Mines Health Center, to discuss
discontinuing Vicodin because it was not compatible with the treatment plaintiff was
receiving for hepatitis C treatment. (Tr. 648). She requested Ultram and a muscle
relaxer as replacements. Id. With regard to her musculoskeletal system, plaintiff
complained in particular about leg pain, hip pain, and knee pain. Id. She denied
muscle spasms. Id. Overall, plaintiff’s gait and station appeared normal. (Tr. 650).
Edwardo Verzola, M.D., diagnosed limb pain, arthropathy not otherwise specified,15
hepatitis C, and allergic rhinitis. Id. Edwardo Verzola, M.D. prescribed Flonase for
allergies, Tramadol and Robaxin for pain,16 a return visit in three months, and
adding one hour of aerobic exercise each day. Id.
Plaintiff presented with right shoulder pain to Jefferson County Orthopaedic
Surgery and Sports Medicine on April 21, 2014. (Tr. 624). She noted that she had
experienced the pain for the last two years, and that the pain worsened with
sitting; she rated the pain as a seven out of ten, on average. Id. Her medication list
included Trazodone, Robaxin, Tramadol, Zantac, and Seroquel. Id. Examination of
plaintiff revealed full range of motion and good strength and ability. (Tr. 625). Dr.
Ruble noted a positive impingement test. He also stated that plaintiff was “tender to
palpation across the medial scapular border.” Id. Her upper and bilateral lower
extremity exams were unremarkable. Id. Diagnostic scanning of plaintiff’s right
shoulder showed no fracture, dislocation, or significant changes, but did reveal a
small spur. (Tr. 625–26). Dr. Ruble recommended icing and frequent elevation, a
Arthropathy is a generic label for “any joint disease.” Taber’s Cyclopedic Medical
Dictionary 125 (14th ed. 1981).
Robaxin (Methocarbamol) “is used with rest, physical therapy, and other measures to
relax muscles and relieve pain and discomfort caused by strains, sprains, and other muscle
injuries.” https://medlineplus.gov/druginfo/meds/a682579.html (last visited June 9, 2017).
daily at-home exercise program, Mobic as an anti-inflammatory, and physical
therapy. (Tr. 625). He also gave plaintiff a steroid injection. Id.
On May 19, 2014, plaintiff visited Jefferson County Orthopaedic Surgery and
Sports Medicine regarding her shoulder pain, incurred with “any motion.” (Tr. 622).
She rated her pain as an eight out of ten on average. Id. She stated that she did
not attend physical therapy because her insurance did not cover it. Id. Craig Ruble,
M.D., conducted a physical exam of plaintiff’s right shoulder and found that she had
“full abduction and forward elevation with pain,” tenderness to palpation over the
scapular border, and “minimal” tenderness over the AC joint. Id. He found
unremarkable results upon assessing plaintiff’s left shoulder. Id. Plaintiff scheduled
her surgery during this visit. (Tr. 623).
Plaintiff visited Great Mines Health Center on June 5, 2014, complaining of
hepatitis C, depression, headache, arthralgia, ankle pain, lower leg pain, and
anxiety. (Tr. 653). Plaintiff noted that she experienced pain throughout her body
due to a car accident in 1999. Id.
The pain associated with those injuries was
purportedly diffuse, ongoing, aching, and chronic. Id. An exam of plaintiff’s system
indicated multiple surgical scars of the upper and lower leg, ankle distortion and
swelling, and normal gait and station. (Tr. 655). Her medications at that time were
Robaxin, Flonase, Trazodone, Seroquel, Amoxicillin, Zantac, Ibuprofen, and
Hydrocodone. (Tr. 653).
Dr. Ruble performed plaintiff’s arthroscopic shoulder surgery on June 27,
2014. (Tr. 593–96). Notes indicate that the procedure was intended to decompress
the subacrominal space with a partial acromioplasty. (Tr. 593). Dr. Ruble’s report
states that plaintiff had “significant pain in her right shoulder . . . for some time,”
and had previously “undergone extensive conservative treatment.” Id. Plaintiff
attended a follow-up appointment on July 10, 2014, after her shoulder surgery. (Tr.
620). Kasey Schmitt, P.A., noted that plaintiff’s pain persisted, but that her right
shoulder seemed “to be healing well” and that she had “good range of motion in all
recommended that plaintiff ice frequently and work on a daily exercise program.
On July 25, 2014, plaintiff presented at Washington County Memorial
Hospital for an individual therapy session. (Tr. 598). During that visit, plaintiff
related that she suffered from osteoarthritis involving multiple sites, as well as
rheumatoid arthritis. Id.
Plaintiff visited Washington County Memorial Hospital on August 3, 2014, for
extremity swelling or pain. (Tr. 694). David Mullen, D.O., ordered a rheumatoid
screening, and formulated an impression of rheumatoid arthritis. (Tr. 701, 703).
Dr. Mullen prescribed Celebrex, Hydroxychloroquine, and Prednisone. (Tr. 703). Dr.
Mullen recommended a long-term follow-up with a rheumatologist. Id.
On August 4, 2014, plaintiff received an exam from Bruce R. Bacon, M.D.,
regarding hepatitis C treatment. (Tr. 550–55). During the course of that visit,
Bacon about her medical history. She reported “severe
musculoskeletal problems related to her left ankle and also to her arthritic
conditions.” (Tr. 555).
Plaintiff visited Great Mines Health Center on August 5, 2014, for
polyarticular joint pain17. (Tr. 658). Notes indicate that she previously received a
diagnosis for rheumatoid arthritis. Id. Plaintiff described her joint pain as diffusely
located, chronic, and increasing in frequency. Id. It purportedly moderately limited
her activities. Id. Diagnoses included rheumatoid arthritis, hepatitis C, and tobacco
use disorder. (Tr. 659). John S. Pearson, D.O., prescribed that plaintiff stop use of
hydrocodone, cease use of further steroids or Plaquanil until her hepatitis C therapy
completed, and start Oxycodone. (Tr. 660). He also recommended a follow-up
Plaintiff returned to Great Mines Health Center on August 27, 2014. (Tr. 663–
67). She presented with chronic, diffuse joint pain, which started about one month
prior to her appointment. (Tr. 663). Plaintiff stated that her frequency of episodes
declined with use of Oxycotin and Celebrex. Id. Further, her symptoms moderately
limited her activities. Id. Notes again indicate that plaintiff received a diagnosis of
rheumatoid arthritis in an earlier emergency room visit. Id. Plaintiff specifically
complained about hand pain, leg pain, stiffness, and arthralgia(s). (Tr. 664). An
examination of plaintiff’s musculoskeletal system showed heberdens’s node on her
digits, no erythema, and bouchard’s node. (Tr. 665). Further, a normal gait and
station were observed. Id. Nurse Mungle diagnosed hepatitis C and rheumatoid
arthritis. Id. Nurse Mungle prescribed a return visit in a month and a refill of
Celebrex and Oxycodone. Id. She referred plaintiff to rheumatology after
completion of her hepatitis C treatment. Id.
Polyarticular means “affecting many joints.” Taber’s Cyclopedic Medical Dictionary 1131
(14th ed. 1981).
Plaintiff again reported to Great Mines Health Center on September 26, 2014,
for her joint pain and a renewal of her Oxycodone prescription. (Tr. 668). Plaintiff
again noted hand pain, leg pain, stiffness, swelling, and arthraliga. (Tr. 668–69).
Observations regarding her musculoskeletal system remained the same. (Tr. 670).
Her diagnoses included rheumatoid arthritis, constipation, tobacco use disorder,
hepatitis C, and allergic rhinitis. Id.
Plaintiff presented at Great Mines Healthcare on November 6, 2014,
regarding several concerns, including joint complaints. (Tr. 766–71). Records
indicate that plaintiff needed refills of Oxycodone and Seroquel. (Tr. 766). Records
also demonstrate that plaintiff began treatment in November 2014, which would
continue for three months. Id. Her treatment for rheumatoid arthritis would be
limited “until treatment for Hepatitis C [was] completed.” Id. Additionally, plaintiff’s
joint pain was purportedly diffuse, as well as ongoing at that time. Her condition
“moderately limit[ed] activities with Oxycotin and Celebrex,” and the frequency of
her episodes was decreasing. Id. A review of plaintiff’s musculoskeletal system
states that, “plaintiff complained of hand pain, leg pain, stiffness, swelling and
arthralgia(s).” (Tr. 767). An examination of her digits and nails, showed Heberden’s
node and Bouchard’s node, but no erythema. (Tr. 768). She demonstrated a normal
gait and station. Id. Her diagnoses included pain in her limbs and rheumatoid
On December 9, 2014, plaintiff visited Christopher Sloan, DPM, a podiatrist,
regarding the arthrodesis of her left ankle, and consultation regarding a possible
total joint arthroplasty procedure. (Tr. 762).
III. The ALJ’s Decision
On January 9, 2015, the ALJ issued a decision containing the following
findings with respect to plaintiff’s application for disability benefits pursuant to
Social Security Act § 1614(a)(3)(A):
Plaintiff did not engage in substantial gainful activity since November
21, 2013, the application date. 20 C.F.R. § 416.971, et seq.
Plaintiff had the following severe impairments: left ankle fracture with
degenerative arthritis, hepatitis C, and right shoulder impingement
syndrome. 20 C.F.R. § 416.920(c).
Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. 20 C.F.R. §§
416.920(d), 416.925, 416.926.
Plaintiff had the residual functional capacity to perform sedentary work
as defined in 20 CFR 416.967(a), except no foot controls with left
lower extremity and only occasional overhead work with right upper
Plaintiff has no past relevant work. 20 C.F.R. § 416.965.
Plaintiff was born on August 27, 1980, and was 33 years old, which is
defined as a younger individual age 18-44 on the date the application
was filed. 20 C.F.R. § 416.963.
The plaintiff had a limited education and could communicate in English.
20 C.F.R. § 416.964.
Transferability of job skills was not an issue because plaintiff did not
have past relevant work. 20 C.F.R. § 416.968.
Considering the plaintiff’s age, education, work experience, and
residual functional capacity, there were jobs that existed in significant
numbers in the national economy that the claimant could perform. 20
C.F.R. § 416.969.
Plaintiff was not under a disability, as defined in the Social Security
act, since November 21, 2013, the date the application was filed. 20
C.F.R. § 416.920(g).
IV. Legal Standards
The Court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.” Long v. Chater, 108
F.3d 185, 187 (8th Cir. 1997). “‘Substantial evidence is less than a preponderance,
but enough so that a reasonable mind might find it adequate to support the
conclusion.’” Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the
Court finds it possible to draw two inconsistent positions from the evidence and one
of those positions represents the Commissioner’s findings, the Court must affirm
the decision of the Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011) (quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove he is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009). “Each step in the disability determination entails a separate analysis and
legal standard.” Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) he is not currently
engaged in substantial gainful activity, (2) he suffers from a severe impairment,
and (3) his disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at
942. If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
APrior to step four, the ALJ must assess the claimant=s residual functioning
capacity (>RFC=), which is the most a claimant can do despite her limitations.”
Moore, 572 F.3d at 523 (citing 20 C.F.R. ' 404.1545(a)(1)). “RFC is an
administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling
(SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and
others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).
At step four, the ALJ determines whether a claimant can return to her past
relevant work, by comparing the RFC with the physical and mental demands of a
claimant’s past work. 20 C.F.R. § 404.1520(f). The burden at step four remains
with the claimant to prove her RFC and establish that he cannot return to her past
relevant work. Moore, 572 F.3d at 523; accord Dukes v. Barnhart, 436 F.3d 923,
928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to
past relevant work, the burden shifts at step five to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs within
the national economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001); see
also 20 C.F.R. § 404.1520(f). If the claimant is prevented by his impairment from
doing any other work, the ALJ will find the claimant to be disabled.
Plaintiff claims that the ALJ erred in (1) determining that plaintiff’s arthritis
did not constitute a severe impairment, (2) formulating plaintiff’s RFC due to
improper consideration of plaintiff’s arthritis, depression as an indicator of disabling
pain, and credibility, and (3) establishing that plaintiff could perform a significant
number of jobs in the national economy, attendant to flawed hypotheticals to the
vocational expert. She also claims that the Appeals Council erred in failing to
consider her newly submitted evidence. Because the Court finds that the ALJ erred
in failing to consider all relevant medical evidence of plaintiff’s rheumatoid arthritis,
and remand is merited, the Court will not address the remainder of plaintiff’s
Step 2: Severe Impairment Analysis
A severe impairment is an impairment or combination of impairments that
“significantly limits [a claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c). Conversely, an impairment is not severe if it is
“a slight abnormality (or a combination of slight abnormalities) that has no more
than a minimal effect on the ability to do basic work activities.” SSR 96-3P, 1996
WL 374181 (1996).
Regulations define “basic work activities” as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. § 404.1521. Examples of such abilities
include, “(1) [p]hysical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) [c]apacities for seeing, hearing, and
speaking; (3) [u]nderstanding, carrying out, and remembering simple instructions,
(4) [u]se of judgment; (5) [r]esponding appropriately to supervision, co-workers
and usual work situations; and (6) [d]ealing with changes in a routine work
setting.” § 404.1521(b).
The impairment “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques. A physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only
by [the claimant’s] statements of symptoms.” 20 C.F.R. § 404.1508.
“It is the claimant’s burden to establish that his impairment or combination
of impairments are severe.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
“Severity is not an onerous requirement for the claimant to meet, see Hudson v.
Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989), but it is also not a toothless standard.
. .” Id. at 708. Here, the ALJ found that plaintiff’s left ankle fracture with
degenerative arthritis, hepatitis C, and right shoulder impingement syndrome
constituted severe impairments pursuant to 20 C.F.R. § 404.1520(c).
determined that the claims of arthritis and nerve damage throughout plaintiff’s
body, and the mental impairments of anxiety and depression did not constitute
Plaintiff contends that the ALJ failed to “articulate a legally sufficient rationale
relative to the severity of plaintiff’s arthritic condition.” [Doc. #13 at 6]. She adds
that the ALJ’s determination is “called into significant question by evidence of
record.” Id. To support this assertion, plaintiff submits Dr. Craig Ruble’s medical
assessment from December 2013, Dr. Daniel Martin’s letter from October 2013, Dr.
David Mullen’s August 2014 reactive arthritis record, an August 2014 emergency
room diagnosis of rheumatoid arthritis by Dr. David Mullen, and new evidence from
rheumatologist Dr. Francisco Garriga (from February 2016). Id. at 6–7.
As a preliminary matter, it is critical to distinguish the ALJ’s separate arthritis
findings. The ALJ found that plaintiff did in fact have the severe impairment of
degenerative arthritis (osteoarthritis) in her ankle. (Tr. 65). But, he concluded that
plaintiff did not have a medically determinable abnormality of arthritis throughout
her body (rheumatoid arthritis) that significantly limited her ability to perform
work-related activities for twelve months or longer.18 Id. Specifically, the ALJ
reasoned that “[a]lthough maybe one examiner noted the claimant might have
arthritis, examinations failed to reveal consistent signs indicative of an abnormality
that would cause her pain throughout her body. Particularly notable are those
examinations that failed to reveal[stet] signs of either whole-body arthritis or a
neurological disorder.” Id. The ALJ also stated: “most examinations revealed she
had intact sensation . . . and no edema. During one examination it was noted she
had normal overview of her musculoskeletal system.” Id. The ALJ concluded his
analysis by adding that there was only one occurrence in the record where plaintiff
received treatment for edema. Id.
Rheumatoid arthritis is “an inflammatory disease that causes pain, swelling, stiffness, and
loss of function in the joints. It occurs when the immune system . . . turns its attack against
the membrane lining the joints. Rheumatoid arthritis has several features that make it
different from other kinds of arthritis. For example, rheumatoid arthritis generally occurs in
a symmetrical pattern, meaning that if one knee or hand is involved, the other one is also.”
https://www.niams.nih.gov/health_Info/Rheumatic_Disease/default.asp (last visited June 8,
2017). On the other hand, degenerative arthritis or osteoarthritis, “is the most common
form of arthritis,” which is “sometimes called degenerative joint disease or “wear and tear”
arthritis.” https://www.cdc.gov/arthritis/basics/osteoarthritis.htm (last visited June 8,
2017). It occurs when “the cartilage and bones within a joint begin to break down.” Id.
Several of the records that plaintiff cites pertain to degeneration or
osteoarthritis in plaintiff’s ankle. But, the ALJ did in fact find that the ankle injury
with degenerative arthritis was a severe condition.19 Accordingly, those records do
not undermine the ALJ’s finding that plaintiff did not have an impairment of arthritis
throughout her body. However, plaintiff also cites several records, which indicate
definitive diagnoses for rheumatoid arthritis. Defendant acknowledges the existence
of records mentioning plaintiff’s history of rheumatoid arthritis. But, defendant
argues that those notations “were primarily contained in mental treatment records
or referred to a history of rheumatoid arthritis, suggesting that such references
were based largely on subjective complaints rather than objective evidence.” [Doc.
#18 at 5]. The Court disagrees.
First, plaintiff received a diagnosis of rheumatoid arthritis from the
emergency department of Washington County Memorial Hospital on August 3,
2014. (Tr. 694–703). She presented to the hospital complaining of “extreme
swelling or pain.” (Tr. 694). The preliminary nursing examination revealed “the
right and left lower leg had 3 plus edema.” (Tr. 696). Next, records indicate that
plaintiff received a “rheumatoid FCT Screen.” (Tr. 697). That rheumatoid factor
screen was interpreted as abnormal. (Tr. 701). David Mullen, D.O., accordingly
issued an impression of rheumatoid arthritis. (Tr. 703). Dr. Mullen also wrote a
prescription for hydroxychloroquine20, 200 mg, to take twice daily for “pain and
Plaintiff cites to an x-ray interpretation that states that there was bone-on-bone DJD” in
plaintiff’s ankle. [Doc. #13 at 6 (citing Tr. 634)]. Plaintiff also points to plaintiff’s left ankle
surgery in January 2014, and to the opinion of Dr. Martin from October 2013. [Doc. #13 at
6 (citing Tr. 640, 573, 514)]. All of these records serve to confirm the ALJ’s finding of the
severe condition of degenerative arthritis in plaintiff’s ankle.
Hydroxychloroquine is used to treat acute attacks of malaria, as well as discoid or
https://medlineplus.gov/druginfo/meds/a601240.html (last visited June 8, 2017).
swelling.”21 (Tr. 698). Her disposition also included a “follow up with [a]
rheumatologist.” Id. Emergency room personnel forwarded plaintiff’s follow-up
instructions to her healthcare provider, Nona Mungle. (Tr. 703). Although the ALJ
described the finding of edema in this August 2014 record, he failed to acknowledge
the rheumatoid arthritis diagnosis from the blood test on that date.
Second, subsequent records confirm the issuance of this diagnosis. In
particular, plaintiff’s rheumatoid arthritis diagnosis appears in records from visits to
Great Mines Health Center on August 5, 2014, August 27, 2014, September 26,
2014, and November 6, 2014 (Tr. 658–60; 663–67; 668–72, 766–71), and in
records of consultation with Dr. Bruce R. Bacon regarding her hepatitis C treatment
on August 4, 2014 (Tr. 550–55). Those subsequent records also indicate symptoms
of chronic, diffuse, joint pain or polyarticular joint pain, as well as Bouchard’s nodes
and Heberden’s nodes. The ALJ failed to acknowledge all of these subsequent
medical records that refer to the diagnosis of rheumatoid arthritis.
Third, although the record reflects a relative dearth of records pertaining to
plaintiff’s rheumatoid arthritis, several documents also acknowledge that plaintiff
was compelled to delay treatment in light of her hepatitis C treatment plan. (Tr.
766–71; 663–67; 660). Plaintiff also confirmed this fact in her testimony. (Tr. 107).
Consideration of this August 2014 record is also critical in light of plaintiff’s diffuse
joint pain and considerable pain medication prescriptions throughout the record.
Fourth, the ALJ’s failure to address these records becomes even more
material in light of plaintiff’s new evidence - a diagnosis of rheumatoid arthritis
from rheumatologist Francisco Garriga, M.D. (Tr. 54).
Upon reporting to the hospital plaintiff only held prescriptions for Hydrocodone, Klonopin,
Mobic, Seroquel, Trazodone, and Zantac.
In sum, although plaintiff’s evidence of a rheumatoid arthritis diagnosis
“went uncontradicted,” the ALJ did not incorporate this clinical evidence into his
analysis or hypotheticals. See Snead v. Barnhart, 360 F.3d 834, 837–39 (8th Cir.
2004) (reasoning that an ALJ failed to fully develop the record in light of his failure
to consider plaintiff’s heart condition); Draper v. Barnhart, 425 F.3d 1127, 1130
(8th Cir. 2005) (reasoning that although deficiencies in opinion-writing without
practical effect do not provide a sufficient basis to set aside an ALJ’s finding, an
incomplete analysis can serve as a basis for remand). As a result of the ALJ’s failure
to consider all relevant medical evidence, the determination that plaintiff retains the
RFC to perform sedentary work, without foot controls with the lower left extremity
and with only occasional overhead work with the right upper extremity, is not
supported by substantial evidence in the record as a whole.
For the reasons set forth above,
IT IS HEREBY ORDERED that the decision of the Commissioner is
reversed and this matter is remanded pursuant to the fourth sentence of 42
U.S.C. § 405(g) for further proceedings.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 13th day of June, 2017.
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