McCormick v. Saul

FLORENCE McCORMICK, Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration,¹ Defendant.

Case No. 18-cv-1704 (CKK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

June 25, 2021

MEMORANDUM OPINION

Pending before this Court are Plaintiff's [11] Motion for Judgment of Reversal (Pl.'s Mot.); Defendant's [12/13] [Consolidated] Motion for Judgment of Affirmance and Opposition to Plaintiff's Motion for Judgment of Reversal ("Def.'s Mot."); and Plaintiff's [14] Reply to Defendant's Motion for Judgment of Affirmance ("Pl.'s Reply").² Plaintiff Florence McCormick ("Plaintiff" or "Ms. McCormick") requests reversal of the Decision by the Acting Commissioner of the Social Security Administration ("SSA") to deny Plaintiff's application for Title II disability and disability insurance benefits. Plaintiff alleges that the Administrative Law Judge ("ALJ") who issued the Decision erred insofar as she: (1) failed to give controlling weight to the opinion ofPlaintiff's treating physician; (2) made a finding that Plaintiff's testimony was inconsistent with the record, which was not supported by substantial evidence; (3) failed to provide substantial evidence for her residual functional capacity ("RFC") finding; and (4) failed to adequately develop the record by refusing to leave the record open for additional evidence. See generally Pl.'s Mot., ECF No. 11, at 9-20.

Upon consideration of the pleadings, and for the reasons set forth herein, the undersigned finds that one of Plaintiff's four arguments - that the ALJ failed to give controlling weight to Plaintiff's treating physician without sufficiently explaining why - warrants remand of the Defendant's decision. Accordingly, the Court DENIES IN PART AND GRANTS IN PART Plaintiff's Motion for Judgment of Reversal, DENIES Defendant's Motion for Judgment of Affirmance, and REMANDS this matter to the Social Security Administration for further proceedings solely on that issue.

I. Background

Plaintiff Florence McCormick, who resides in Washington, D.C., was 55 years old as of her disability onset date of October 19, 2008, and 59 years old as of December 31, 2012, her date last insured. (Administrative Record ("AR") 236, 262.)³ She has a high school diploma, and her work history includes working: (1) for the District of Columbia Parking Authority, primarily placing "boots" on cars; (2) as a cleaner and receptionist for Jackson Hewitt; (3) as a cashier at Whole Foods; (4) at Dudley Beauty College, doing administrative work and restocking shelves; and (5) driving a transport van for Metro Access. (AR 82-84, 280-81, 304.)

In November 2013, Plaintiff filed an application for Disability Insurance Benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§401-434, alleging disability beginning on October 19, 2008 due to high blood pressure, kidney damage, and scoliosis. (AR 209-215, 239-246.) The SSA denied Plaintiff's application initially and upon reconsideration. (AR 111-12, 123.) On December 7, 2016, Plaintiff - who was represented by counsel - appeared for an administrative hearing and testified before an ALJ. (AR 62-93.) ALJ Francine Applewhite issued her Decision on February 13, 2017, whereby she denied Plaintiff's application and found that Ms. McCormick was not disabled before her date last insured of December 31, 2012 (AR 50-57.) After the Appeals Council denied Plaintiff's request for review, ALJ Applewhite's Decision became the final agency decision. Plaintiff requests judicial review in this Court under 42 U.S.C. § 405(g).

A. Evidence Before the ALJ

The evidence before ALJ Applewhite consisted primarily of: (1) medical records spanning from 2009 through 2014, including medical records from doctors who treated Plaintiff and reports from state agency physicians; and (2) testimony by Plaintiff and by Dr. James M. Ryan, a vocational expert, during the hearing held by the ALJ.

1. Plaintiff's Medical Records

This Court has reviewed the medical records cited by the ALJ in her Decision as well as the medical records in the Administrative Record relevant to Plaintiff's scoliosis and kidney disease, and those records are summarized below.⁴ During the relevant period between her allegeddisability onset of October 19, 2008 and her date last insured of December 31, 2012, Plaintiff received primary care treatment at Congress Heights Health Center ("Congress Heights") where her primary care physician was Jamie Hill-Daniels, M.D.

a. Scoliosis

Plaintiff was first diagnosed with scoliosis (curvature of the spine) when she was "around 18 years old." (AR 75.) When examined at Howard University's Department of Radiology on August 31, 2009, Ms. McCormick had a spine curvature of 46 degrees (AR 387.) On September 14, 2009, Ms. McCormick was seen by Dr. Hill-Daniel, and Plaintiff self-reported that she "had to quit [her job] as it was too painful to stand up all day[.]" (AR 364.) Plaintiff was instructed to get an MRI of her neck that week.⁵ (AR 364.)

Plaintiff was prescribed acetaminophen for her scoliosis at an August 25, 2011 visit with Dr. Hill-Daniel, (AR 334), while she had previously been prescribed ibuprofen for her scoliosis. (AR 353, 355.) On November 15, 2011 Ms. McCormick presented to Dr. Hill-Daniel and requested a screening examination for scoliosis. (AR 330.) A November 21, 2011 radiology report from Howard University Hospital indicated a "thoracal lumbar spine" curvature of 53 degrees, no cervical scoliosis, and no evidence of acute fracture or subluxation. (AR 379.)

On April 11, 2013, Plaintiff reported to Dr. Hill-Daniel that she was "having more back pain," which was "affecting her ability to work at this point," and she had "been less active." (AR 600.) Plaintiff was referred to an orthopedist, Dr. Joseph O'Brien, with regard to her scoliosis. (AR 601.) A May 7, 2013 MRI of Ms. McCormick's thoracic spine from the United Medical Center showed an approximately 50-degree curvature in her lower thoracic spine, with "nosignificant disc bulge or disc herniations [or] central stenosis." (AR 440.) On May 21, 2013, Plaintiff presented to Dr. O'Brien, at the George Washington University Medical Faculty Associates, Department of Orthopaedic Surgery, where she self-reported significant pain over the past few years, mostly in her low to mid-back and neck, which worsened with lifting and extended standing and improved with stretching and brief walks. (AR 459.) During that visit, Plaintiff also reported some urinary urge incontinence. (AR 459.) Plaintiff was deemed to be "in no apparent distress" and her [mo]od [was pleasant." (AR 460.) No edema [swelling caused by excess fluid] was noted, and her strength was 5/5 and she had "normal sensation on gross exam." (AR 460.) Imaging showed "moderate" scoliosis in the lower thoracic spine (around 50 degrees), with "minimal degenerative disc disease" and "[n]o central stenosis or disc herniation." (AR 460.) Spinal x-rays showed approximately 70-degree thoracolumbar scoliosis. (AR 460). As part of her social history, it was noted that Plaintiff's "activities and hobbies include[d] brief walk[s], short bike rides, reading and listening to music." (AR 460.) "[C]onservative treatment" was prescribed, including "physical therapy as well as the Spine Center for pain management" and a recommendation for annual follow-ups, or more frequently if her symptoms became significantly worse. (AR 460.)

b. Kidney Disease (including discussion of edema)

On August 20, 2009, Plaintiff presented to Dr. Hill-Daniel for a follow-up on a complaint of leg swelling, which she stated was relieved by rest and elevating her legs. (AR 368.) Doctor Hill-Daniel noted that Plaintiff's extremities were without clubbing, cyanosis or edema. (AR 368.) On March 5, 2010, Plaintiff presented to Dr. Hill-Daniel for a follow-up visit pertaining to her chronic medical issues and to obtain a refill of her prescriptions. (AR 353.) Plaintiff requested a work release and complained of "pain in side and not urinating as frequently as she should." (AR353.) The medical records indicate that Plaintiff's urology was negative for stress and urge incontinence. (AR 353.) Plaintiff received a prescription for Lasix (furosemide) for treatment of her renal problems, and she was instructed to follow up in 3 months.⁶ (AR 352.) On November 5, 2010, Plaintiff visited Dr. Hill-Daniel for a follow-up on her medical conditions and to get prescriptions refilled. (AR 344-345.) With regard to her kidney function, the doctor counseled Plaintiff regarding a low protein diet and change in medication to try to stabilize Plaintiff's elevated creatine, and Plaintiff was referred to radiology and the Nephrology Clinic. (AR 345.)

On July 12, 2011, Plaintiff had a walk-in visit at Congress Heights, and she requested a refill of medication because of the swelling in her legs, but the attending doctor noted that Plaintiff was "taken off this secondary to abnormal kidney function tests." (AR 339.) Furthermore, Plaintiff had been referred for radiologic testing and nephrology in the fall, "but she never did these." (AR 339.) Plaintiff was counseled to comply with the medical orders and to follow up in four weeks. (AR 341.) On July 21, 2011, Plaintiff went to the emergency department at the George Washington University Hospital, and she complained of leg swelling and flank pain. While she was being treated there, the nurses noted that she ambulated "with a steady gait." (AR 648, 650.) Ms. McCormick was diagnosed with edema, but she was not given any medication because of her kidney function issues. (AR 640-641.)⁷ The following day, Plaintiff visited Congress Heights as a walk-in patient regarding her leg swelling. (AR 336.) Edema was noted in Plaintiff'sextremities, and there was a recommendation of support stockings, elevation, and a trial of a diuretic, with a follow-up visit to be scheduled in 2-3 weeks. (AR 337-338.)

Plaintiff's August 15, 2011 radiology examination indicated "[b]...