Turk v. Colvin

Filing 19

MEMORANDUM OPINION. Signed by Magistrate Judge Joel C. Hoppe on 3/29/2017. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
ALICE M. HUFF TURK,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)

Civil Action No. 5:15-cv-00073
MEMORANDUM OPINION
By:
Joel C. Hoppe
United States Magistrate Judge

Plaintiff Alice M. Huff Turk (“Turk”) asks this Court to review the Commissioner of
Social Security’s (“Commissioner”) final decision denying her application for disability
insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401–434. The
case is before me by the parties’ consent under 28 U.S.C. § 636(c)(1). Having considered the
administrative record, the parties’ briefs, and the applicable law, I find that the Commissioner’s
decision is not supported by substantial evidence and that the case must be remanded for further
administrative proceedings.
I. Standard of Review
The Social Security Act authorizes this Court to review the Commissioner’s final
decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court’s role, however, is limited—it may not
“reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for
that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court
asks only whether the Administrative Law Judge (“ALJ”) applied the correct legal standards and
whether substantial evidence supports the ALJ’s factual findings. Meyer v. Astrue, 662 F.3d 700,
704 (4th Cir. 2011).

1

“Substantial evidence” means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is
“more than a mere scintilla” of evidence, id., but not necessarily “a large or considerable amount
of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes
into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera
Corp. v. NLRB, 340 U.S. 474, 487–89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir.
1984). Ultimately, this Court must affirm the ALJ’s factual findings if “conflicting evidence
allows reasonable minds to differ as to whether a claimant is disabled.” Johnson v. Barnhart, 434
F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an
improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987).
A person is “disabled” if he or she is unable to engage in “any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). Social Security ALJs
follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in
sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an
impairment that meets or equals an impairment listed in the Act’s regulations; (4) can return to
his or her past relevant work based on his or her residual functional capacity; and, if not (5)
whether he or she can perform other work. See Heckler v. Campbell, 461 U.S. 458, 460–62
(1983); 20 C.F.R. § 404.1520(a)(4). The applicant bears the burden of proof at steps one through

2

four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the
applicant is not disabled. See id.
II. Procedural History
Turk protectively filed for DIB on December 29, 2011, alleging disability caused by a
herniated disc with bone deterioration in her back and arthritis in her knees. Administrative
Record (“R.”) 64, ECF No. 9. She alleged an onset date of April 12, 2010, at which time she was
thirty-nine years old. Id. Disability Determination Services (“DDS”), the state agency, denied her
claims at the initial, R. 64–73, and reconsideration stages, R. 75–87. On April 9, 2014, Turk
appeared with counsel and testified at an administrative hearing before ALJ Brian P. Kilbane. R.
45–63. A vocational expert (“VE”) also testified at this hearing regarding the nature of Turk’s
past work and her ability to perform other jobs in the national and local economies. See R. 59–
62.
ALJ Kilbane denied Turk’s claim in a written decision issued on April 24, 2014. R. 21–
37. He found that Turk had severe impairments of degenerative joint disease of the bilateral
knees, degenerative disc disease with disc herniation, and obesity. R. 23. Turk’s other medically
determinable impairments, including migraines, irritable bowel syndrome, affective disorder, and
anxiety disorder, were deemed non-severe because they did not result in more than minimal
work-related limitations. R. 24–25. Next, none of Turk’s impairments, alone or in combination,
met or medically equaled the severity of a listed impairment. R. 25–26. As to Turk’s residual
functional capacity (“RFC”), she could perform sedentary work 1 with some additional
limitations. R. 26. Specifically, Turk could sit normally with normal breaks and stand for at least
1

“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
[objects] like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a). A person who can meet
those lifting requirements can perform a full range of sedentary work if he or she can sit for about six
hours and stand and/or walk for about two hours in a normal eight-hour workday. See Hancock v.
Barnhart, 206 F. Supp. 2d 757, 768 (W.D. Va. 2002); SSR 96-9p, 1996 WL 374185, at *3 (July 2, 1996).

3

thirty to forty-five minutes at a time and walk at least twenty to thirty minutes at a time during an
eight-hour workday; walk short distances without any assistive device, but would require a cane
for long distances and uneven terrain; lift and carry twenty pounds occasionally; infrequently
bend, stoop, crouch, and squat; and frequently reach, handle, feel, grasp, and finger. Id. As such,
Turk could not return to her past relevant work, all of which was classified at the light exertional
level or greater. R. 35–36. Turk could, however, perform sedentary jobs identified by the VE,
such as assembler, inspector/grader, and machine operator, which existed in significant numbers
in the national and local economies. R. 36–37. Therefore, ALJ Kilbane determined that Turk was
not disabled. R. 37. The Appeals Council denied Turk’s request for review, R. 1–4, and this
appeal followed.
III. Facts
A.

Relevant Medical Evidence
On July 31, 2009, an X-ray of Turk’s right knee showed some degenerative changes,

specifically joint space loss involving the medial and patellofemoral compartments. R. 282. An
MRI from the same day likewise showed degenerative changes of the medial and patellofemoral
joints with high signal in the medial meniscus, as axial imaging showed a joint effusion, patellar
cartilage thinning involving both the medial and lateral facet, and some anterior osteophytes. Id.
Medial and lateral collateral ligamentous complexes, anterior and posterior cruciate ligaments,
and quadriceps and patellar tendons were intact. Id.
Turk began seeing Terry Pleskonko, D.C., in April 2010. R. 424. She treated regularly
with Dr. Pleskonko for the entirety of the relevant period. R. 423–38, 495–96. Dr. Pleskonko’s
notes are entirely handwritten, difficult to read, and for the most part appear to be a recitation of
Turk’s subjective report from each visit. Id. That said, on April 21, 2010, Dr. Pleskonko did note

4

a clinical impression of subluxation of L5 and left sciatica. R. 424. Additionally, an X-ray of the
left side of Turk’s pelvis showed mild left lumbar curve, significant decrease in lordosis, and a
decrease in L5-S1 disc height, which he interpreted as severe spondylosis at L5-S1 and short left
leg with resultant pelvic and lumbar compensation, R. 436. On February 15, 2012, Dr. Pleskonko
noted a clinical impression of subluxation of L5 and the right sacroiliac (“SI”) joint with
lumbalgia and left sciatica, and subluxation of C5 and T10 with cervicalgia and thoracic pain. R.
424.
On June 17, 2010, Turk began treatment with Kimberly Bird, M.D., who would become
her primary care physician. R. 344–45. Turk presented with a chief complaint of “24/7” back
pain in the lumbar area radiating down to her left leg, which she had suffered since moving from
one house to another the previous November. R. 344. Turk noted that she had been seeing Dr.
Pleskonko since April 2010 on a weekly basis and that she had not worked since that time on Dr.
Pleskonko’s recommendation. Id. Turk also relayed Dr. Pleskonko’s finding, based on X-rays he
took, that she was missing the L4 vertebra, which Dr. Pleskonko believed to have disintegrated.
Id. On examination, Dr. Bird observed that Turk appeared uncomfortable, and her deep tendon
reflexes at the knees and ankles were equal, motor strength was normal but painful, straight leg
raise testing was exceedingly painful on the left, sensation to light touch was intact, and there
was no spinous process tenderness in the back, but there was extreme tenderness and pain in the
left SI area where swelling versus a muscle spasm was palpated. R. 344–45. Dr. Bird assessed
back pain, started Turk on Naproxen, Flexeril, and Vicodin, and provided a trigger point
injection in the tender left SI area. R. 345. Bird returned for a follow up on June 29 and reported
no relief from the injections or chiropractic treatments. R. 346. Dr. Bird noted that Turk again

5

appeared uncomfortable and that her back exam remained unchanged. Id. Dr. Bird prescribed
Celebrex, Skelaxin, and Lidoderm patch and referred Turk to physical therapy. R. 347.
Turk presented to Rhonda Lambert, MPT, on July 27 for an initial consultation. R. 339.
MPT Lambert noted that Turk was presently taking only Tylenol PM as she had been taken off
all other medications at the recommendation of George Damewood, M.D., who was concurrently
treating Turk for Bell’s Palsy. Id. Turk said she could do basic activities of daily living, but at
times required help bathing, needed help with housework, and could drive. R. 340. MPT
Lambert conducted a physical examination, which revealed Turk’s active range of motion for her
lumbar spine to be 25% of normal for both flexion and extension and bilateral pain in the
posterior SI spine, but full range of motion bilaterally with sidebending and rotation; strength of
the extensor hallucis longus was 4+/5 on the right and 5/5 on the left, dorsiflexion was 5/5
bilaterally but with pain on the left, quadriceps were 5/5 on the right and 4+/5 on the left with
pain, hamstrings were 5/5 on the right and 4+/5 on the left with pain, 2 seated hip flexion was 5/5
on the right and 4-/5 on the left with pain; sensation to light touch was intact in the bilateral
lower extremities; and gait was antalgic, leaning to the left. R. Id.
On July 29, Turk followed up with Dr. Bird, again stating she received no relief from the
Celebrex, Skelaxin, or physical therapy. R. 337. Although Dr. Bird noted that Turk generally
appeared pleasant and had no spinous process tenderness in her back, she continued to have
tenderness of the SI area. Id. Dr. Bird assessed back pain, radicular syndrome of lower limbs,
and joint pain in the pelvis, and she started Turk on Diazepam and Dilaudid. R. 338. Turk
reported to Dr. Bird on September 13 that she had no relief from anti-inflammatories, Vicodin,
2

The treatment notes for quadriceps and hamstrings list strength results for the right twice, but nothing
for the left. Because the results for other extremities follow a pattern of right then left, the most
reasonable reading of this note is that the second entry for the quadriceps and hamstrings is the results for
the left.

6

Neurontin, lidocaine patches, Depo-Medrol injection, or Toradol, and that physical therapy had
not helped either. R. 330. She appeared tearful and uncomfortable. Back examination revealed
no spinous tenderness or palpable muscular spasm, and the remainder of the exam was
unchanged. Id. Dr. Bird noted that Turk was unable to complete an MRI because she could not
tolerate the claustrophobic environment. R. 331. She began looking into arranging an MRI with
sedation. She increased Turk’s neurontin, started a stronger narcotic, and provided a disabled car
sticker. Id.
On October 5, Turk was admitted to the Bath Community Hospital Emergency
Department with a chief complaint of low back pain for the past year, which was noted to be
obvious whenever she moved her left leg. R. 297. She said the pain worsened when she bent
down to pick up a coat from the floor, then was unable to get up on her own. Id. A CT scan
showed mild multilevel degenerative changes, greatest at L5-S1 where there was severe disc
space narrowing and gas in the disc, with osteophytosis and disc space narrowing at T12-L1 and
L5-S1. R. 295. A diffuse disc osteophytic bulge at L5-S1 also caused effacement of the thecal
sac, but there was no significant neuroforaminal narrowing, and the visualized prevertebral and
paraspinous soft tissues were unremarkable. Id. A physical exam also revealed mild edema, but
Turk’s pain significantly improved after taking Hydromorphone, Flexeril, Toradol, Ativan, and
Solu-Medrol. R. 297. Although Turk was discharged the same day and could walk to her car, R.
298, she returned the following afternoon via EMS, R. 286. Turk reported pain in her hip that
radiated through her left leg to her foot. R. 286, 290. She had 5/5 strength in the lower
extremities and no edema, light touch and pain sensation were intact, deep tendon reflexes were
2+ and equal in the knee and ankle jerk, and straight leg raise testing was positive on the left. R.
291. Noting Turk’s positive straight leg raising tests and radicular pain, the treating physician

7

assessed possible herniated disc. Id. Turk received Toradol, Aleve, and two doses of Dilaudid as
well as Bactrim for urinary tract infection. Id.
Turk visited Dr. Bird three more times in 2010, complaining of back pain and persistent
left foot swelling. R. 321–26. On October 11, Turk appeared comfortable despite reporting pain
of 9/10. R. 323. She was tearful, but Dr. Bird noted she was alert considering the amount of pain
medications she was taking. Id. Dr. Bird added diazepam, a muscle relaxer, to Turk’s
prescriptions. R. 324. During the other visits, Dr. Bird noted few findings on examination, most
of which were generally normal, and no edema in the extremities on November 1, R. 321, and
trace edema in the extremities on November 15, R. 325.
Turk then visited Matthew Pollard, M.D., for a comprehensive orthopedic exam on
December 7. R. 305–06. She complained of constant back pain with associated paresthesia,
which was made worse with activity and movement and radiated through the left lower extremity
to her foot. R. 305. Dr. Pollard noted that Turk stood with an erect posture and ambulated
normally without difficulty. Id. Findings for the extremities were unremarkable, with normal
passive range of motion, no crepitation, 5/5 strength, no abnormal tone or rigidity, and no pain
with rotation. Id. Normal thoracic kyphosis was noted, and range of motion in the lumbar spine
was normal and painless, although tenderness was noted in the lower lumbar segments, and
straight leg raise testing was positive on the left. R. 306. Dr. Pollard assessed herniated lumbar
disc with severe nerve compression resulting in chronic (1 year) severely symptomatic left
lumbar radiculopathy. Id. He discussed treatment options, including surgery in the form of a
microdiscectomy, and noted that Turk would return in two weeks. Id. During the follow-up on
December 30, Turk reported that she still experienced severe pain. R. 307. Dr. Pollard reviewed
her imaging showing a large herniated nucleus pulposus (“HNP”) and disc space collapse at L5-

8

S1. Id. Dr. Pollard again conveyed the different treatment options available, including continued
medical care, epidural steroid injections (“ESI”), or surgery (L5-S1 discectomy or discectomy
and fusion), but noted that Turk was hesitant because she lacked insurance. Id. Dr. Pollard also
offered to refer her to the pain center for an ESI or to the University of Virginia (“UVA”) to see
if either could help. Id.
Turk saw Dr. Bird five times during the ensuing year and a half regarding her back and
knee issues. On March 14, 2011, she complained of getting no pain relief from her medications,
experiencing increasingly sore knees, and losing balance and falling. R. 384. During
examination, Turk appeared uncomfortable and tearful, and she displayed tenderness proximal
and distal to the right kneecap, but no effusion, and tenderness in the left anserine bursa and
lateral joint line area. Id. Dr. Bird noted that Turk was taking three, rather than the prescribed
four, Dilaudid because of cost concerns. She also opined that an MRI of Turk’s right knee taken
a year before showed extensive degenerative disease. Dr. Bird added amitriptyline to her
medications. R. 384–85. On May 10, during a visit for a possible urinary tract infection, Turk
reported that the anti-inflammatory medication helped her knees, even though Dr. Bird noted that
it also caused edema; Dr. Bird decided to keep her on the medication, however, as it was the only
one that had provided relief thus far. R. 380. Turk expressed her frustration at not qualifying for
financial assistance to get back surgery. On September 12, Turk expressed discontentment with
continuing to take so many medications without any relief and reported that she stopped taking
Lasix and potassium. R. 376. Turk was frustrated by poor results from physical therapy,
transcutaneous electrical nerve stimulation, and anti-inflammatory medications, and she
depended on high-dose narcotics which only dulled her discomfort. Id. She also reported being
denied financial assistance at four hospitals even though she qualified for a sliding financial scale

9

with Dr. Bird’s office. A physical examination revealed tenderness in the low lumbar/sacral area,
positive straight leg raising test left greater than right, and dysesthesia in the lateral side of the
left leg from the buttock to the little toe. R. 377. On January 27, 2012, Dr. Bird noted that Turk
had not come in recently because of a lack of finances and that she could not afford her
antibiotics. R. 374. On June 19, Turk followed up for her back pain and reported similar
frustrations about the ineffectiveness of her pain medications and her inability to qualify for
assistance at any of the area hospitals. R. 408.
Imaging of Turk’s lumbosacral spine from June 21 showed changes of degenerative disc
disease at L5-S1 because of moderate to severe narrowing of the L5-S1 disc space with a
vacuum phenomenon, but all other disc spaces maintained normal heights, vertebral alignment
was normal, and there were no acute bony abnormalities. R. 394.
On September 21, Turk returned to Dr. Bird, who noted that she appeared tearful and
discouraged. R. 444. Dr. Bird switched her from Diazepam to Skelaxin because it worked better.
Id. On February 1, 2013, Turk told Dr. Bird that back and leg pain had gotten worse and limited
her to standing for no more than thirty minutes. R. 471. She was in no acute distress and had no
clubbing or edema in her extremities. Id. Dr. Bird instructed Turk to reapply for a discount
program at Augusta Health and to check with Dr. Pollard regarding what it would cost for him to
see her. R. 472. On May 10, Turk said Dr. Pollard’s office had not approved her for financial
assistance, and she complained about a bill for lab work being sent to collections. R. 479. Turk
reported falling, hitting her head, and losing consciousness, but Dr. Bird questioned her report of
losing consciousness and thought her head injury sounded more like a mild concussion. Id. Dr.
Bird noted mild edema of the extremities and mild irritation of the fifth toe on the left foot. R.
480.

10

On October 21, Turk treated with Ruth Holmass, NP, for an initial evaluation of her
chronic low back pain. R. 499–500. NP Holmass noted that Turk currently took Neurontin,
Effexor, Skelaxin, and Dilaudid for her pain. R. 499. A physical examination revealed limited
range of motion in all directions, paraspinal (but no vertebral) tenderness, antalgic gait and
frequent shifting of position while seated, and +3 left patellar and +2 right patellar strength. R.
500. Additionally, a straight leg raising test could not be completed because of pain. Id. NP
Holmass recommended that Turk continue the same medications. Id.
B.

Opinion Evidence
1.

Treating Providers
a.

Dr. Bird

Over the course of treatment, Dr. Bird completed two physical capacity evaluations
regarding Turk’s functioning. First, on August 13, 2012, Dr. Bird opined that Turk could sit for
three hours, stand for one hour, and walk for one hour, and she would need to ambulate from
sitting every thirty minutes during an eight-hour work day. R. 401. Turk had no problems with
her hands or right foot, but could not use her left foot for repetitive movements. R. 402. She
could lift and carry ten pounds occasionally, but nothing more, and she could frequently reach
above shoulder level, occasionally bend and crawl, and never climb or squat. R. 403. She was
not restricted from exposure to dust, fumes, gases, and marked changes in temperature and
humidity, moderately restricted from driving automotive equipment and being around moving
machinery, and totally restricted from unprotected heights. R. 404. Her severe pain, corroborated
by an MRI, interfered with her sleep, ability to concentrate on job tasks, activities of daily living,
and interpersonal relationships, and there was no evidence of malingering. R. 405.

11

On September 23, 2013, Dr. Bird completed a second evaluation, finding that Turk could
sit for four hours, stand for two hours, and walk for one hour, and she needed to change positions
approximately every hour to relieve pain. R. 482. She had no issues with her hands, but could not
use her feet for repetitive movements. Id. Turk could lift and carry ten pounds occasionally, but
nothing more; occasionally bend, crawl, and reach above shoulder level; and never squat, climb,
or stoop. R. 483. She had no restrictions from driving automotive equipment or exposure to dust,
fumes, gases, and marked changes in temperature and humidity, but had moderate restrictions
involving unprotected heights and being around moving machinery. R. 484. Her severe pain
interfered with her sleep, ability to concentrate on job tasks, and activities of daily living, but not
her interpersonal relationships, and there was no evidence of malingering. R. 485. In support of
these restrictions, Dr. Bird identified an MRI done on November 8, 2010, at UVA that showed
L5-S1 disc extrusion with resultant severe narrowing of the left lateral recess, abutting the left L5
nerve root and descending S1 nerve root. R. 485. She noted the diagnosis of L5-S1 disc extrusion
compressing the nerve roots provided a definitive etiology of Turk’s complaints and this
condition was amenable to surgical correction. R. 486.
b.

Dr. Pleskonko

Dr. Pleskonko completed three physical capacity evaluation forms regarding Turk’s
functioning. On September 19, 2012, he opined that Turk could sit for four hours, stand for two
hours, and walk for one hour, alternating positions between all three for maximum comfort,
during an eight-hour workday. R. 417. She had no problems with her hands or right foot, but
could not use her left foot for repetitive movements. R. 417–18. She could lift ten pounds and
carry five pounds occasionally (but nothing more), frequently reach above shoulder level,
occasionally bend and squat, and never crawl or climb. She had mild restrictions in driving

12

automotive equipment and exposure to dust, fumes, and gases; moderate restrictions from
moving machinery and exposure to marked changes in temperature and humidity; and total
restriction from exposure to unprotected heights. R. 419–20. Her severe pain interfered with her
sleep, ability to concentrate on job tasks, activities of daily living, and interpersonal
relationships, and there was no evidence of malingering. R. 421. Dr. Pleskonko identified
positive straight leg raising, Braggard’s sign, and Faber Patrick sign, as well as diminished
lumbar range of motion, left achilles strength, and left lower leg strength as objective medical
evidence in support of his opinion. Id.
On September 30, 2013, Dr. Pleskonko offered a second opinion that Turk could sit for
three hours, stand for one hour, and walk for one hour during an eight-hour workday. R. 488. She
had no problems with her hands, but could not use her feet for repetitive movements. Id. She
could lift and carry ten pounds occasionally (but nothing more); occasionally reach above
shoulder level, bend, and stoop; and never squat, crawl, or climb. R. 489. She had no restriction
involving exposure to dust, fumes, and gases, mild restriction involving exposure to marked
changes in temperature, moderate restriction involving driving automotive equipment and being
around moving machinery, and total restriction involving unprotected heights. R. 490. Her severe
pain, corroborated by objective tests, X-rays, and MRIs, interfered with her sleep, ability to
concentrate on job tasks, activities of daily living, and interpersonal relationships. R. 493. She
showed no evidence of malingering. Id.
On March 12, 2014, Dr. Pleskonko opined that Turk could sit for two hours, stand for one
hour, and walk for one hour during an eight-hour workday. R. 501. The rest of his assessment
remained unchanged from September 2013. R. 501–03, 506. Dr. Pleskonko further explained

13

that her condition seemed to slowly decline and that he noticed more symptoms and objective
findings over time. R. 505.
2.

Non-treating Providers
a.

Dr. Khaja

On June 23, Minhaj Khaja, M.D., performed a consultative exam of Turk’s physical
functioning. R. 387–92. Turk reported that she stopped working in April 2010. She said she
could stand for thirty minutes, walk one hundred feet, and lift and carry five pounds frequently
and twenty pounds occasionally. On examination, Dr. Khaja observed asymmetric limping gait,
leaning towards the left, with a limp in the right knee; leg flexion and leg extension of 4/5 on the
left and 3/5 on the right; positive straight leg raise testing at 10 degrees bilaterally with severe
pain, which caused Turk to cry out; cervical lumbar junction flexion of 30 degrees and extension
of 15 degrees; and knee flexion of 120 degrees bilaterally. R. 391. Bilateral hip strength testing
could not be performed because of pain. R. 390–91. Dr. Khaja also noted no joint swelling,
erythema, effusion, tenderness, or deformity. R. 390. Turk was able to lift, carry, and handle
light objects, tandem walk, and rise from a sitting position without assistance, but she was unable
to squat and rise, walk on heels and toes, and hop or stand on either foot. Id.
Dr. Khaja stated that Turk provided her best effort during the examination. R. 391. He
concluded that Turk could sit normally with normal breaks and stand for at least thirty to fortyfive minutes at a time and walk at least twenty to thirty minutes at a time during an eight-hour
workday; walk short distances without any assistive device, but would need a cane for long
distances and uneven terrain; lift and carry twenty pounds occasionally; infrequently bend, stoop,
crouch, and squat; and frequently reach, handle, feel, grasp, and finger. R. 391–92. He further

14

opined that Turk’s “low back pain extending into her legs appears debilitating and in addition to
bilateral knee pain makes activity difficult.” R. 391.
b.

DDS Physicians

On July 5, 2012, as part of the initial review of Turk’s claim, DDS expert Luc Vinh,
M.D., assessed her physical functioning. R. 64–73. Dr. Vinh found that Turk could perform
sedentary work consisting of lifting and carrying ten pounds frequently (with the same maximum
capacity for occasional lifting and carrying) and standing or walking for two hours and sitting for
about six hours in a normal eight-hour workday. R. 70, 72. He limited Turk to frequent balancing
and occasional stooping, kneeling, crouching, crawling, and climbing of ramps, stairs, ladders,
ropes, and scaffolds. R. 70. On reconsideration, DDS expert R.S. Kadian, M.D., confirmed Dr.
Vinh’s findings, except that he concluded Turk could lift and carry twenty pounds occasionally.
R. 75–87.
C.

Turk’s Submissions and Testimony
Turk provided information in two function reports as part of her DIB application. R. 196–

203, 225–32. Turk reported that she lived with her daughter and her boyfriend. R. 196, 225. She
slept three to four hours per night, woke up in pain, and left her house only when necessary. Id.
She took care of her daughter and intermittently struggled with personal care. R. 197, 226. For
example, her boyfriend assisted her with dressing, bathing, washing her hair, and shaving when
the pain was too great. R. 226. Turk continued to cook—albeit less frequently than before her
impairments developed—a few times per week for one to four hours at a time depending on the
meal and her level of pain. R. 198, 227. She completed limited chores, such as laundry, dishes,
and some picking up, at a very slow pace, R. 227, and at some point could not do any house or
yard work, R. 198–99. She left the house a few times per week and shopped about once per

15

month. R. 199, 228. Her current hobbies included reading, watching movies, sewing, and playing
cards with friends, all of which she could do from the couch, but before her injuries she enjoyed
hiking. R. 200, 229. Turk’s condition affected her ability to lift, squat, bend, stand, reach, walk,
sit, kneel, climb stairs, and complete tasks. R. 201, 230. At most, she could lift five pounds, stand
for thirty minutes, and walk for fifteen minutes. Id. She used a cane and was constantly afraid of
falling and being unable to get up. R. 202, 231.
At the administrative hearing, Turk testified that her pain developed in the left leg in
December 2009 after moving boxes into a new house, but she continued working for a few
months to pay bills. R. 53. She stopped working on April 14, 2010, at the recommendation of
Drs. Bird and Pleskonko. R. 48. The pain was in her lower back, and it radiated through her hip,
down her left leg, and into her foot, causing numbness and tingling. R. 55. Although neither
treating provider specifically prescribed her a cane, both endorsed the use of one if it helped
because she frequently lost her balance and fell. R. 48–50. She could not afford surgery, despite
Dr. Pollard recommending it, and did not have health insurance. R. 50–51. She was presently
taking Hydromorphone, Neurontin, and Skelaxin, which caused her teeth to fall out and affected
her memory. R. 54. Turk lived with her boyfriend and cooked occasionally; on a good day, she
would make a pot of spaghetti or pork chops, but on a bad day, she made just a TV dinner. R. 55.
She never cleaned the house and did laundry occasionally with the help of her teenage daughter.
R. 55–56. Turk could lift five pounds comfortably, sit for fifteen to twenty minutes at a time
depending on the chair, stand for ten to fifteen minutes at a time, and walk for about fifty feet
before needing to stop and rest. R. 56–57. She experienced frequent cramps in the back of her
left thigh and left calf. R. 56. She spent most of her time lying down and resting for two to three
hours, and she slept for about three and a half hours per night. R. 56, 58.

16

IV. Discussion
Turk asserts that ALJ Kilbane erred in finding that she had the RFC 3 to perform
sedentary work. She challenges his evaluation of both her subjective statements regarding her
pain and the opinions of her treating providers, Drs. Bird and Pleskonko. Pl. Br. 6–19, ECF No.
14. I find both of Turk’s arguments persuasive.
A.

Severity of Symptoms
Turk argues that ALJ Kilbane rejected her pain testimony without a legally or factually

sufficient reason. Id. at 14–19. The regulations set out a two-step process for evaluating a
claimant’s allegation that she is disabled by symptoms, such as pain, caused by a medically
determinable impairment. Fisher v. Barnhart, 181 F. App’x 359, 363 (4th Cir. 2006) (citing 20
C.F.R. § 404.1529). The ALJ must first determine whether objective medical evidence 4 shows
that the claimant has a medically determinable impairment that could reasonably be expected to
cause the kind and degree of pain alleged. 20 C.F.R. § 404.1529(a)–(b); see also Craig, 76 F.3d
at 594. If the claimant clears this threshold, then the ALJ must evaluate the intensity and
persistence of the claimant’s pain to determine the extent to which it affects her physical or
mental ability to work. SSR 16-3p, 2016 WL 1119029, at *4 (Mar. 16, 2016); see also Craig, 76
F.3d at 595.
The ALJ cannot reject the claimant’s subjective description of her pain “solely because
the available objective medical evidence does not substantiate” that description. 20 C.F.R.

3

A claimant’s RFC is the most he or she can do on a regular and continuing basis despite his or her
impairments. 20 C.F.R. § 404.1545(a); SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).

4

Objective medical evidence is any “anatomical, physiological, or psychological abnormalities” that can
be observed and medically evaluated apart from the claimant’s statements and “anatomical, physiological,
or psychological phenomena [that] can be shown by the use of medically acceptable diagnostic
techniques.” 20 C.F.R. § 404.1528(b)–(c). “Symptoms” are the claimant’s description of his or her
impairment. Id. § 404.1528(a).

17

§ 404.1529(c)(2). Nonetheless, a claimant’s allegations of pain “need not be accepted to the
extent they are inconsistent with the available evidence, including objective evidence of the
underlying impairment, and the extent to which that impairment can reasonably be expected to
cause the pain the claimant alleges she suffers.” Craig, 76 F.3d at 595. 5 The ALJ must consider
all the evidence in the record, including the claimant’s other statements, her daily activities, her
treatment history, any medical-source statements, and the objective medical evidence, id. (citing
20 C.F.R. § 404.1529(c), and must give specific reasons, supported by relevant evidence in the
record, for the weight assigned to the claimant’s statements, Eggleston v. Colvin, No. 4:12cv43,
2013 WL 5348274, at *4 (W.D. Va. Sept. 23, 2013).
Although ALJ Kilbane offered many reasons for rejecting Turk’s statements about her
symptoms and pain, they find little support in the record. First, the ALJ explains that Turk’s
treatment was relatively limited and conservative overall and that other than an injection, she
was primarily treated with medications, physical therapy, and chiropractic treatment, all of which
appeared to be relatively effective. R. 34. Turk objects to this characterization of the evidence,
Pl. Br. 17, and the record supports her position. The Fourth Circuit has distinguished between a
situation in which only conservative care is recommended versus a situation “in which there is
any suggestion that [a claimant] required more aggressive treatment yet received conservative
treatment for other reasons.” Dunn v. Colvin, 607 F. App’x 264, 275 (4th Cir. 2015). Here, Dr.
5

The Social Security Administration now cautions that the subjective prong of this analysis should not be
approached with an undue focus on the claimant’s “credibility.” See SSR 16-3p, 2016 WL 1119029, at
*1. The scope of this inquiry should be limited to those matters concerning the claimant’s symptoms,
rather than other factors that might otherwise be probative of the claimant’s overall honesty. Id. at *10.
“In evaluating an individual’s symptoms, [ALJs] will not assess an individual’s overall character or
truthfulness in the manner typically used during an adversarial court litigation. The focus of the
evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful
person.” Id. Statements that are internally inconsistent or that are inconsistent with the other evidence of
record, however, may lead the ALJ to “determine that the individual’s symptoms are less likely to reduce
his or her capacities to perform work-related activities.” Id. at *7.

18

Pollard recommended that Turk undergo an L5-S1 discectomy, but she did not pursue this option
for a valid reason: she could not afford it. See Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir.
1986) (“A claimant may not be penalized for failing to seek treatment that she cannot afford.”).
Although the ALJ recognized that Dr. Pollard recommended surgery, he did not acknowledge
Turk’s many unsuccessful attempts to obtain financing for this procedure. See R. 307, 408, 440,
444, 479, 499. His reasons for downplaying the significance of this recommendation—that she
did not require frequent hospitalizations, emergency room visits, or ongoing treatment by a
specialist—do not hold up. Turk regularly sought treatment for her back and leg pain, including
an orthopedic assessment by Dr. Pollard, and she was admitted to the emergency department on
back-to-back days for those conditions. On this record, the ALJ’s criticism of her treatment is
entirely misplaced.
Moreover, on at least a half dozen occasions, Turk expressed frustration at her inability to
qualify for financial assistance to obtain the surgery that her doctors recommended she receive to
alleviate her pain. Nonetheless, ALJ Kilbane asserted,
While the claimant alleges an inability to afford treatment, it is generally known
that treatment is available at reduced rates or free of charge through free clinics
and State facilities for individuals who cannot afford to pay. In this regard, it is
noted that the claimant apparently purchases cigarettes as she reportedly smoked
for much of the period at issue.
R. 34. Turk takes issue with both stated reasons. She argues that the ALJ did not consider her
frequent attempts to obtain the very treatment he said was available and that conflating the
purchase of cigarettes with the ability to afford back surgery was improper. Pl. Br. 16. Both
reasons given by the ALJ badly miss the mark. The ALJ’s comparison of purchasing a couple
packs of cigarettes a week with being able to pay for back surgery, which could cost tens of
thousands of dollars, offers no support for his implied finding that she could somehow pay for

19

the surgery. Moreover, as Turk noted, the record shows her repeated attempts to qualify for
financial assistance at numerous area hospitals to no avail. See, e.g., R. 307, 376, 384, 408, 440,
444, 465, 479, 499. These documented efforts directly contradict the ALJ’s wholly unsupported
assertion that medical care, presumably back surgery, is available for free or at reduced rates
affordable to Turk.
Furthermore, the record directly refutes ALJ Kilbane’s conclusion that Turk’s treatment
was relatively effective. In support, ALJ Kilbane cited Dr. Bird’s decision to put Turk back on an
anti-inflammatory because, despite causing some swelling, it was the only medication that had
provided relief. R. 34 (citing R. 380). Turk, however, consistently reported that she did not get
any relief from her medications, see, e.g., R. 325, 330, 337, 376, 384, that physical therapy had
not helped, see R. 330, 337, and that her chiropractic treatment provided minimal relief, see R.
346, 499. Her treating physicians, Dr. Bird and Dr. Pollard, as well as her chiropractor identified
her L5-S1 disc herniation with nerve compression as the source of her pain and never questioned
the severity of her claims. Thus, the one instance of an anti-inflammatory providing relief does
not outweigh the entirety of the record suggesting otherwise. The ALJ also referenced Turk’s
improvement in her depression despite only taking medication sporadically. R. 34 (citing R.
471). Not only is the purported improvement not clear from the treatment notes the ALJ cited,
but even if it were, the effectiveness of medication in controlling Turk’s depression, which ALJ
Kilbane found to be non-severe, has no bearing on her physical functioning at issue here.
Next, the ALJ noted that “repeated physical examinations have failed to reveal
significantly decreased strength, sensation, or range of motion of any extremity, as would be
expected with the degree of limitation alleged.” R. 34. This observation is mostly accurate,
although it does not acknowledge Dr. Khaja’s findings of limited lower extremity flexion and

20

extension, NP Holmass’s findings of limited range of motion, and numerous observations of
antalgic gait. Moreover, treatment providers consistently assessed positive straight leg raise
testing and tenderness and occasionally swelling. Furthermore, in his credibility analysis, the
ALJ did not discuss the imaging showing moderate to severe narrowing of the L5-S1 disc space
and nerve compression, which Dr. Pollard noted caused chronic severe left lumbar
radiculopathy. This imaging and the findings of limitations on exam diminish the significance of
the ALJ’s assessment that the physical findings do not support the degree of limitation alleged.
ALJ Kilbane also reasoned that Turk’s failure to report her alleged back and lower
extremity pain during numerous visits weighed against her credibility. R. 34. Of the six visits the
ALJ cited in support, however, all but one fail to support his reasoning. For example, the ALJ
referenced two visits to Dr. Damewood, who treated Turk’s Bell’s Palsy. See R. 302, 334.
During Turk’s initial consultation, a review of systems revealed that she reported her
longstanding history of low back pain that was also recently exacerbated. R. 302. During a
follow-up with Dr. Damewood, Turk did deny some lower extremity pain, lending a sliver of
credence to the ALJ’s reasoning, but a careful examination shows that she only denied pain
below the knee. R. 334. The ALJ also cited to the September 21, 2012, visit to Dr. Bird, but that
visit was for her back pain, and a review of systems showed that Turk complained of back pain,
joint pain, and lower extremity swelling. R. 465. Lastly, the ALJ referenced three additional
appointments with Dr. Bird, see R. 378, 386, 407, but these visits were for conditions not related
to her back and lower extremity pain. More significantly, over the course of four years of
treatment, Turk regularly complained of severe back pain. These few instances where Dr. Bird
did not document Turk’s back pain do not detract from the overwhelming record of those
complaints.

21

Additionally, ALJ Kilbane stated that Turk had been noncompliant with taking her
recommended medications, thereby indicating her symptoms were not as disabling as alleged. R.
34. Failure to follow treatment prescribed by a physician without good reason can weigh against
the claimant’s credibility. See SSR 16-3p, 2016 WL 1119029, at *8. Again, however, the
examples 6 cited by the ALJ do not provide substantial evidence for his conclusion, and the
record contains numerous instances of Dr. Bird expressly stating that Turk had been compliant
with her recommended medications. See R. 376, 408, 440, 444, 465. Moreover, considering
Turk’s adherence to her numerous prescriptions and her efforts to obtain surgery, the record
simply does not depict a lack of follow through with available treatment.
Last, the ALJ concluded that Turk’s activities of daily living—including gardening,
studying for and obtaining a GED, caring for personal needs, performing household chores with
minimal assistance, preparing meals for three to four hours, driving, shopping, going out
independently, handling finances, and visiting with others on a regular basis—suggested a
greater level of physical and mental functioning than alleged. R. 34. Turk counters that the ALJ’s
recitation of these activities selectively ignores her statements qualifying these activities to
suggest greater limitation, thus painting an inaccurate description of her day-to-day activity. Pl.
Br. 18. Again, Turk has the better argument. For instance, nowhere in the opinion did ALJ
Kilbane acknowledge Turk’s first function report from March 5, 2012, which indicated several
6

The first example simply contains no indication that Turk was noncompliant with her medications. R.
291. The next example cited by the ALJ is a secondary report by MPT Lambert summarizing Turk’s
recent treatment history. R. 339. Although MPT Lambert noted that Turk had recently stopped taking her
medications, rather than being a matter of voluntary noncompliance, this was done at the recommendation
of the doctor treating her Bell’s Palsy. Id. The third example does indicate that Turk expressed dismay at
taking so many medications and that she stopped taking Lasix and potassium. R. 376. Dr. Bird, however,
noted on the same page that Turk had been compliant with all her treatment recommendations. Id. The
fourth example shows that Turk took it upon herself to take Dilaudid three times per day rather than every
four hours as recommended. R. 384. ALJ Kilbane neglects to mention, however, that Turk did so out of
cost concerns. The last example appears to show that Turk unilaterally decreased her dose of Effexor, but
does not otherwise show noncompliance. R. 471–72.

22

problems with her personal care and limited engagement in house or yard work. R. 226–28.
Additionally, although she does go out shopping alone, she only does so once a month. R. 199,
228. Moreover, “[a]s courts in both this circuit and elsewhere have recognized, a claimant’s
ability to perform modest activities of daily living with some assistance is not a reason to reject
claims of disabling pain.” Ellis v. Colvin, No. 5:13cv43, 2014 WL 2862703, at *12 (W.D. Va.
June 24, 2014) (collecting cases). Here, the ALJ selectively referenced portions of Turk’s
subjective statements without acknowledging other contradictory statements. Without an
explanation for why he credited certain statements over others, I cannot find that this reason is
supported by substantial evidence.
The vast majority of the ALJ’s reasons for questioning the credibility of Turk’s report of
symptoms are flawed. Accordingly, I find that substantial evidence does not support the ALJ’s
credibility assessment.
B.

Treating Physician Opinions
Turk also contends that ALJ Kilbane improperly rejected the opinions of her treating

primary care physician, Dr. Bird, and her chiropractor, Dr. Pleskonko. Pl. Br. 6–14. An ALJ
must consider and evaluate all opinions 7 from “medically acceptable sources,” such as doctors,
in the case record. 20 C.F.R. § 404.1527. The regulations classify medical opinions by their
source: those from treating sources and those from non-treating sources, such as examining
physicians and state-agency medical consultants. See id. § 404.1527(c). A treating physician’s
opinion “is entitled to controlling weight if it is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence
7

“Medical opinions are statements from . . . acceptable medical sources that reflect judgments about the
nature and severity of [the applicant’s] impairment(s),” including: (1) the applicant’s symptoms,
diagnosis, and prognosis; (2) what the applicant can still do despite his or her impairment(s); and (3) the
applicant’s physical or mental restrictions. 20 C.F.R. § 404.1527(a)(2).

23

in the record.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); see also 20 C.F.R. §
404.1527(c)(2). Conversely, opinions from non-treating sources are not entitled to any particular
weight. See 20 C.F.R. § 404.1527(c).
An ALJ may reject a treating physician’s opinion in whole or in part if there is
“persuasive contrary evidence” in the record. Hines, 453 F.3d at 563 n.2; Mastro, 270 F.3d at
178. The ALJ must “give good reasons” for discounting a treating physician’s medical opinion.
20 C.F.R. § 404.1527(c). Furthermore, in determining what weight to afford a treating source’s
opinion, the ALJ must consider all relevant factors, including the relationship—in terms of
length, frequency, and extent of treatment—between the doctor and the patient, the degree to
which the opinion is supported or contradicted by other evidence in the record, the consistency of
the opinion with the record as a whole, and whether the treating physician’s opinion pertains to
his or her area of specialty. Id. The ALJ must consider the same factors when weighing medical
opinions from non-treating sources. 20 C.F.R. § 404.1527(c), (e)(2).
ALJ Kilbane’s treatment of Dr. Bird’s opinion was inadequate. In assigning Dr. Bird’s
opinion little to no weight, the ALJ stated that “[a]lthough some of Dr. Birds [sic] reported
postural limitations are consistent with the residual functional capacity above, the opinion on an
issue of disability is reserved to the Commissioner . . . and her opined limitations . . . would
prevent the claimant from doing even sedentary work . . . .” R. 35 (citations omitted). 8 This
reason is entirely unsupported by the record and is a misstatement of the law. There is nothing
improper about a medical opinion weighing in on a person’s functional abilities. See 20 C.F.R. §
404.1527(a)(2). Indeed, that is their purpose. See id. Such an assessment of specific functional
8

The ALJ’s analysis “gets things backwards” see Mascio v. Colvin, 780 F.3d 632, 639 (4th Cir. 2015)
(discussing ALJ’s comparison of credibility findings to RFC determination), because he assessed the
accuracy of Dr. Bird’s opinion by comparing it to his RFC. Medical opinions inform the RFC, not the
other way around.

24

capabilities is separate from a finding of disability, which is reserved to the Commissioner, 20
C.F.R. § 404.1527(d)(1); see also Dunn v. Colvin, 607 F. App’x 264, 268 (4th Cir. 2015) (“[A]
medical expert’s opinion as to whether one is disabled is not dispositive; opinions as to disability
are reserved for the ALJ and for the ALJ alone.”), even if the sum of that assessment would show
a person is so limited that she could not work. Dr. Bird provided an assessment of Turk’s
functional capabilities, and nowhere in her opinion did she say that Turk was disabled, although
Dr. Bird’s assessment of limitations would certainly lead to that conclusion.
Moreover, the ALJ’s reasoning that Dr. Bird’s opinions were “not supported by the
longitudinal record with its limited physical findings and generally routine and conservative
treatment. . . . [and] not supported by [her] contemporaneous treatment notes,” is also flawed. As
explained in detail above, the ALJ’s characterization of Turk’s treatment as generally routine and
conservative is not supported by the record. See supra Pt. IV.A. Additionally, the ALJ failed to
acknowledge significant evidence that appears to support Dr. Bird’s conclusions. For example,
he failed to discuss MPT Lambert’s physical findings, R. 340, and Dr. Pollard’s assessment that
severe narrowing of the L5-S1 disc space and nerve compression caused chronic severe left
lumbar radiculopathy. Additionally, although as a chiropractor Dr. Pleskonko is not an
acceptable medical source, his findings and opinions are important to consider in evaluating
whether the longitudinal record supports Dr. Bird’s opinions, and the ALJ only gives a cursory
overview of Dr. Pleskonko’s findings, omitting key details that could support Dr. Bird.
Therefore, I cannot find that substantial evidence supports ALJ Kilbane’s evaluation of Dr.
Bird’s opinions.

25

V. Conclusion
For the foregoing reasons, I find that substantial evidence does not support the
Commissioner’s final decision. Accordingly, the Court will DENY the Commissioner’s Motion
for Summary Judgment, ECF No. 16, REMAND this case for further administrative
proceedings, and DISMISS this case from the docket. A separate Order will enter.
The Clerk shall send a copy of this Memorandum Opinion to all counsel of record.
ENTER: March 29, 2017

Joel C. Hoppe
United States Magistrate Judge

26