Bidwell v. Berryhill

          MEMORANDUM

          RICHARD P. CONABOY, United States District Judge

         Pending before the Court is Plaintiff's appeal from the Acting Commissioner's denial of Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. (Doc. 1.) Plaintiff filed an application for benefits on September 26, 2012, alleging a disability onset date of April 19, 2008. (R. 18.) After she appealed the initial denial of the claim, Administrative Law Judge (“ALJ”) Elizabeth Koennecke, presiding in Syracuse, New York, held a hearing on August 25, 2014, with Plaintiff and her attorney appearing in Binghamton, New York. (R. 58.) ALJ Koennecke held a supplemental hearing on December 2, 2014. (R. 82.) With her Decision of December 5, 2014, the ALJ denied benefits. (R. 124-43.) Plaintiff requested review of the Decision by the Appeals Council (R. 255-57) and the Appeals Council vacated the Decision and remanded the case for further proceedings on February 17, 2016 (R. 144-47). The Appeals Council specifically directed further evaluation of Plaintiff's mental impairments, further consideration of Plaintiff's maximum residual functional capacity (“RFC”), and vocational expert evidence if warranted. (See R. 40.)

         On August 22, 2016, ALJ Koennecke conducted another hearing (R. 95-107), and issued her second Decision denying benefits on August 30, 2016 (R. 40-52). Plaintiff again requested review which was denied by the Appeals Council on November 18, 2016. (R. 1-6, 35-36.) With the Appeals Council denial, the ALJ's August 30, 2016, decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on January 5, 2017. (Doc. 1.) In her supporting brief, Plaintiff asserts generally that the ALJ committed reversible error in finding there was insufficient evidence to establish Plaintiff could not engage in substantial gainful activity. (Doc. 10 at 7.) After referencing her hearing testimony, her written application, and her husband's Third Party Function Report, Plaintiff states that “[a]ny attempt by the Administrative Law Judge to discredit Ms. Bidwell's testimony as inconsistent falls short of the proper exercise of discretionary authority. The Administrative Law Judge abused her discretionary authority.” (Doc. 10 at 8 (citing R. 374-381, 396-403.) Plaintiff specifically avers that the ALJ's failure to find that she does not meet Listing 1.08 is reversible error (id. at 10), the ALJ's comments about Plaintiff's use of a cane were not consistent with the findings of treating and examining physicians (id. at 11-12), the ALJ demonstrated a predisposition to deny Plaintiff's claim (id. at 12), and the ALJ's credibility findings are not supported by evidence of record (id.). After careful review of the record and the parties' filings, the Court concludes this appeal is properly granted.

         I. Background

         Plaintiff was born on June 4, 1978, and was thirty-five years old on September 30, 2013, the date last insured. (R. 50.) She has a high school education, an associate degree as a vascular technician, and past relevant work as a waitress, telemarketer, and supervisor. (R. 50, 86.) At the August 25, 2014, ALJ hearing, Plaintiff explained that she was studying for her vascular technician boards and working as a waitress in April 2008 when she sustained the electrical burn injury which is the basis of impairments at issue here. (R. 63-64.) Plaintiff claimed that the following conditions limited her ability to work: PTSD, RSD, depression, severe anxiety, and severe nerve damage due to electrocution in her left leg and hip. (R. 362.)

         A. Medical Evidence^[1]

         After suffering the electrical burn at her house, Plaintiff was taken to Moses Taylor Hospital in Scranton, Pennsylvania, and transferred to the Lehigh Valley Hospital where she was admitted for burn care on April 19, 2008. (R. 451.) The April 21, 2008, Discharge Summary indicates Plaintiff's hospital stay was uneventful and she was discharged to home with directions for wound care and Vicodin for pain control. (Id.) A follow-up appointment in the Burn Recovery Center was scheduled for April 25, 2008. (Id.) At the April 25^th visit, Plaintiff was directed to make an appointment with a pain management doctor closer to home to help relieve the post-injury pain. (R. 475.) She was also prescribed Percocet for pain. (R. 497.)

         Plaintiff began seeing Thomas W. Hanlon, M.D., of Pain Care Consultants in May 2008. (R. 620.) At the time, Plaintiff described severe pain in the left foot with radiation to the left knee and associated numbness and burning sensation. (Id.) Dr. Hanlon diagnosed left foot neuropathic pain, and left foot pain secondary to electrical burn. (R. 621.) In June 2008 Dr. Hanlon increased pain medication and in August he planned to schedule a left lumbar sympathetic block to address Plaintiff's continuing pain. (R. 618, 619.) Physical examination in August showed that sensation was positive for allodynia in the left foot, and the foot demonstrated color change, edema, hyperhidrosis, and antidromic radiation of pain up the leg on the left side. (R. 618.)

         On May 4, 2009, Plaintiff continued to report pain despite oral analgesics and a single lumbar sympathetic block. (R. 614.) She was scheduled to have another block at the office visit. (Id.) On June 24, 2009, Dr. Hanlon noted that examination showed that neurologically Plaintiff was still having severe pain in the left lower extremity with left foot pain and severe problems with ambulation secondary to the lower extremity problems. (R. 613.) Dr. Hanlon commented that, although motor was 5/5, there was some weakness developing in the left lower extremity secondary to lack of use, sensation was grossly intact to light touch with the exception of the hyperesthesia over the left foot, and deep tendon reflexes remained absent at the left ankle. (R. 613.)

         In July 2009, Dr. Hanlon recorded that there was no rush to proceed with a possible spinal cord stimulator trial in that Plaintiff was fairly well controlled on her analgesic regimen. (R. 612.) In September Plaintiff reported fair pain control. (R. 611.)

         At her January 14, 2010, visit with Dr. Hanlon, Plaintiff complained of increased pain antidromically radiating back to the hip which Dr. Hanlon noted was consistent with reflex sympathy dystrophy. (R. 610.) He also noted that cold weather had resulted in exacerbation of Plaintiff's pain. (Id.) Examination showed limited range of motion about the ankle secondary to pain, the foot was cold, somewhat cyanotic and hypersensitive to touch, sensation was intact except for the left foot, and deep tendon reflexes were symmetric though not obtainable on the left ankle. (Id.)

         In April 2010, Plaintiff reported that pain increased with weight-bearing and she had moderate relief with her current medication. (R. 608.) Dr. Hanlon's musculoskeletal exam was normal (including a normal gait) except for left foot allodynia and 1 edema. (R. 609.) In August, Plaintiff complained of more hip pain which Dr. Hanlon noted to be “secondary to gait changes secondary to RSD.” (R. 606.) Plaintiff also said she had less relief with Oxycodone. (Id.) No abnormal musculoskeletal or neurological findings were recorded. (R. 607.)

         In May 2011, Dr. Hanlon noted that Plaintiff had failed lumbar sympathetic block, she remained on chronic opioid medication, and she was never able to attend physical therapy due to the severity of her pain. (R. 600.) In June Plaintiff complained of low back pain radiating to the left hip as well as radicular left leg pain and numbness in the left foot with symptoms worsening with walking. (R. 598.) Follow-up MRI of the lumbar spine showed mild disc bulging diffusely within the lumbar spine, and mild left foraminal narrowing at ¶ 4-5 and L5-S1. (R. 622.)

         At her September 22, 2011, office visit, Plaintiff reported radiating left foot and leg pain with cramping in the left foot. (R. 596.) Plaintiff described the pain as severe, throbbing, aching, and burning with associated symptoms of numbness, foreign body sensation, and swelling. (Id.) She also said the pain increased with weight-bearing. (Id.)

         On January 27, 2012, Plaintiff was seen by Paul Horchos, D.O., of Northeastern Rehabilitation Associates. (R. 704-06.) Dr. Horchos noted that Plaintiff's neuropathic pain had intensified and appeared “to be moving proximally in the leg running up to the medial aspect of the foreleg and knee and then diagonal pattern across the knee to the lateral aspect of the left thigh.” (R. 704.) Physical examination findings included the following:

Her ambulation is very abnormal. She has highly antalgic gait. She walks with her left leg out to the side and kind of lagging behind. She leans heavily on a cane to try to take weight off her left leg. She does not have a normal heel strike. She does not have a normal roll over with her left leg. Her left foot is cool to the touch but no[t] ischemic. . . . She does have hypersensitivity of the dorsum of the foot and has dysthesias of the sole of the foot. On the sole of her foot she states it feels like I am slicing her with a razor blade and on the dorsum of the foot she states it feels as though it's pins and needles. Her ability to move her left ankle and left toes is intact but impaired when compared to the other side. . . . Knee and hip range of motion are within normal limits when she's seated, but when she stands she tends to hold them kind of in a stiff and lightly bent pattern.

(R. 705.) Dr. Horchos's impression was reflex sympathetic distrophy involving the left lower extremity with some proximal progression. (Id.) He noted that sympathetic ganglion blocks were the mainstay for treatment of reflex sympathetic dystrophy but they did not provide Plaintiff with much relief. (R. 706.) He recommended physical therapy and acupuncture. (Id.)

         On January 31, 2012, Dr. Hanlon noted that Plaintiff presented with low back pain related to her chronic left foot pain, RSD secondary to electrical burn/injury, and subsequent neuropathic pain and gait disturbance. (R. 590.) He reported that sharp pain in the left knee with ambulation was consistent with gait disturbance from RSD of the left foot. (Id.) Dr. Hanlon noted that Plaintiff “most assuredly has opioid tolerance” and pain continued to trouble her although he had little to offer other than spinal cord stimulator. (R. 592.)

         On April 20, 2012, Dr. Hanlon recorded that Plaintiff remained on oral opioids and her pain was not completely controlled but was acceptable. (R. 588.) He added that Plaintiff had severe pain with ambulation and she used a cane as an ambulatory assist. (R. 588.) Dr. Hanlon found decreased range of motion of the left foot and ankle, 1 edema, slight erythema, and sensory intact excpet marked allodynia in the left foot. (Id.)

         At her August 9, 2012, visit with Dr. Hanlon, Plaintiff expressed her desire to attempt to wean her opioid medication. (R. 587.)

         Plaintiff had a consultative examination with Sandra Pascal, D.O., on March 24, 2013. (R. 680.) Plaintiff reported that she had been on opioids for five years but she was not getting any relief and had recently weaned off oxycodone. (Id.) She rated her pain at 8/10 at the time of the visit. (Id.) On general physical examination, Dr. Pascal noted that Plaintiff demonstrated pain behaviors as she ambulated and she ambulated independently with a cane in her hand. (R. 681.) Examination of the spine showed a limited range of motion of the lumbar spine in flexion. (R. 682.) Examination of the extremities showed that Plaintiff had a limited range of motion of the left hip, no range of motion of the left hip in backward extension, difficulty moving her toes, and her left foot was mainly in eversion. (R. 682.) Neurological examination findings included

positive left straight leg raise. She had decreased strength of the left lower extremity. She had an antalgic gait and was dependent on the right lower extremity. She had difficulty lifting her leg in order to walk without the cane. She was unable to do toes, heels, or tandem walking. She had decreased sensation and numbness of the left leg upon palpation. Deep tendon reflex of the left patella was 3. The claimant can walk only about 10 feet without her cane, ...