Bivens v. Saul
| Docket Number | Civil Action 3:20-CV-1904-K-BH |
| Decision Date | 07 March 2022 |
| Parties | PATTY L. BIVENS, Plaintiff, v. ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Referred to U.S. Magistrate Judge[1]
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
Patty L. Bivens (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner) denying her claims for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI, respectively, of the Social Security Act (the Act), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). (docs. 1, 20.) Based on the relevant filings, evidence, and applicable law, the Commissioner's decision should be REVERSED in part, and the case should be REMANDED for further proceedings.
On May 23, 2017, Plaintiff filed her application for DIB and SSI alleging disability beginning on September 18, 2016. (doc. 20 at 5-6.)[2] Her claim was denied initially on August 2, 2017 (id. at 17-1 at 131-150), and upon reconsideration on December 8, 2017 (id. at 153-72). On February 5, 2018, Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (Id. at 17.)
She appeared and testified at a hearing on November 28, 2018 and at a supplemental hearing on May 30, 2019. (Id. at 85-101, 105-30.) On October 23, 2019, the ALJ issued a decision finding her not disabled. (Id. at 46.)
Plaintiff timely appealed the ALJ's decision to the Appeals Council on October 30, 2019. (Id. at 13.) The Appeals Council denied her request for review on May 29, 2020, making the ALJ's decision the final decision of the Commissioner. (Id. at 6-10.) She timely appealed the Commissioner's decision under 42 U.S.C. § 405(g). (doc. 1.)
Plaintiff was born on January 5, 1964; she was 54 years old at the time of the first hearing and 55 at the time of the second. (doc. 17-1 at 85, 107.) She had completed high school as well as some college course work. (Id. at 106, 108.) She had past relevant work as a customer service representative, home attendant, teacher's aide, and mail room clerk. (Id. at 124.)
On May 27, 2016, Plaintiff presented to Christus Santa Rosa Medical Center (CSRMC) in San Antonio, Texas, for abdominal pain/atypical chest pain and was seen by Carlos A. Nieto Fonseca, M.D. (Id. at 509-12.) She had normal tone, bulk, and movement of all extremities. (Id. at 510.) Plaintiff was diagnosed with morbid obesity, asthma, hyperglycemia, hypertension, vertigo, chronic sinusitis, and hyperlipidemia. (Id. at 506.)
On September 20, 2016, Plaintiff returned to CSRMC after a motor vehicle accident. (Id. at 537.) She complained of shoulder pain, but shoulder imaging was normal; she was diagnosed with muscle spasm and discharged in stable condition. (Id. at 539.) Plaintiff returned the next day due to pain in her right shoulder when she moved it. (Id. at 552.) At discharge, she was noted as being ambulatory. (Id.)
From September 27, 2016, to December 20, 2016, Plaintiff was treated at River City Chiropractic in San Antonio with electric muscle stimulation, mechanical traction, and spinal adjustments. (Id. at 605, 607, 609, 611, 613, 615, 617, 619, 621, 623, 627, 631, 633, 635, 637, 639, 641, 643, 645, 647, 649, 651, 655, 659, 661, 663, 665, 669.) She continued to exhibit some tenderness and muscle tension. (Id. at 654, 661, 663, 665, 667-68.) Eric Salinas, D.C., diagnosed her with radiculopathy of the cervical and lumbar region, sprain of ligaments, unspecified sprain of the right shoulder, cervicalgia, disc displacement, and other specific joint derangement. (Id. at 603, 605, 607, 609, 611, 613, 615, 617, 619, 621, 623, 627, 631, 633, 635, 637, 639, 641, 643, 645, 647, 649, 651, 655, 659, 661, 663, 665, 659.) He expected her to “require further medical management and periodic orthopedic evaluations” and to “experience exacerbations of her symptoms.” (Id. at 670.)
On October 13, 2016, Plaintiff presented to CSRMC for a primary assessment. (Id. at 552, 829.) Ioannis J. Berios, DO, noted she had a normal gait and required no ambulatory aid. (Id.)
On October 25, 2016, Hugo Alonzo Rojas, M.D., at Family Clinics of San Antonio (Family Clinics), noted that Plaintiff had muscle spasms and limited range of motion in the cervical and lumbar spine. (Id. at 689-90.) A handwritten note on the medical record indicated she had right shoulder pain with severe limitation, could not raise her arm above the shoulder, and had “10/10” pain. (Id. at 690.) Dr. Rojas diagnosed her with neck, lumbar, and shoulder strain/sprain, and he ordered imaging of the cervical and lumbar spine and right shoulder. (Id.)
On October 27, 2016, Plaintiff presented to Premier Medical Imaging in San Antonio for a Magnetic Resonance Imaging (MRI) of her cervical spine, which revealed disc herniation indents and disc bulge flattening of the thecal sac at ¶ 3-4. (Id. at 673-74, 677-78, 683-84.) On November 7, 2016, she returned for x-rays of her right shoulder, which revealed a tear of the distal supraspinatus tendon, the acromioclavicular joint revealed joint space narrowing with mild articular hypertrophy; a Type III acromion with mild impingement. (Id. at 575, 680.) The same day, she also had an MRI of the lumbar spine, which revealed no subluxation or retrolisthesis, disc desiccation at the L4-5 and L5-S1 levels, an annular disc bulge at ¶ 4-5, and a diffuse disc bulge at ¶ 5-S2 with bilateral facet joint arthrosis and mild bilateral foraminal narrowing; L1-2, L2-3, and L3-4 levels were unremarkable. (Id. at 676, 681.)
On December 7, 2016, Plaintiff presented to orthopedic surgeon, Elliot I. Clemence, M.D., at South Texas Center for Orthopaedics in San Antonio, for right shoulder pain. (Id. at 685.) Plaintiff rated her pain as “7/10 to include night pain, pain with pushing, pulling, lifting, reaching and overhead work”, and it radiated to her scapula and neck. (Id.) Her range of motion of the shoulder was “2/4 with pain, ” and she had “positive supraspinatus, deltoid, Hawkins, Neer, and apprehension signs, weak rotator cuff, tenderness around the anterior and posterior acromion, scapular tenderness[, ] and trapezial tenderness.” (Id.) Dr. Clemence noted that she weighed 264 pounds. (Id.) He diagnosed her with rotator cuff tear of the supraspinatus, and recommended open repair of the rotator cuff tear. (Id.)
On December 13, 2016, Plaintiff returned to Dr. Rojas at Family Clinics for back pain. (Id. at 687.) He diagnosed her with lumbar and cervical disc herniation and rotator cuff impingement of her right shoulder and prescribed her Norco for the pain. (Id. at 687, 691.) She followed up with him again on February 27, 2017. (Id. at 686.) He noted lumbar spasms and limited range of motion and continued her on Norco. (Id.)
On July 12, 2017, Plaintiff underwent a consultative physical examination by Mahmood Panjwani, M.D., P.A., in Carrollton, Texas. (Id. at 697-701.) He noted that she took small steps, used a “walking cane, ” and complained of chronic neck and low back pain with radicular symptoms, arthritis with bilateral knee pain, and right shoulder pain. (Id. at 697, 699.) She was alert and oriented times three, but tearful. (Id. at 699.) Her motor strength was “5/5” in all muscle groups tested, her fine finger movements were normal, and she had a “normal ability to handle small objects and button buttons on clothing.” (Id. at 700.) She was 5'5” tall, weighed 264 pounds, was unable to bend down fully, and did not attempt to squat or walk on her toes, heels, or in a straight line. (Id. at 699-700.) Dr. Panjwani diagnosed her with chronic neck pain and low back pain with radicular symptoms, arthritis with bilateral knee pain, and chronic right shoulder pain with history of rotator cuff tear. (Id. at 701.)
On August 1, 2017, Plaintiff visited the urgent care clinic of Parkland Health and Hospital System (Parkland) in Dallas, Texas, for back pain. (Id. at 734-35.) Joychristine Palmer, RN, noted that she exhibited no edema and “ambulate[d] with steady gait to room.” (Id. at 734, 739.) An x-ray of the thoracic spine showed “severe degenerative changes” “with no subluxation seen in the upper and mid cervical regions.” (Id. at 737-38.) Additionally, mild discogenic and facet degenerative changes were most prominent at ¶ 4-5. (Id.)
On August 2, 2017, Yvonne Post, D.O., a state agency medical consultant (SAMC), reviewed Plaintiff's treatment record and completed a physical residual functional capacity (RFC) assessment. (Id. at 131-50.) She found that Plaintiff had the following physical RFC: lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for 4 hours in an 8-hour workday; sit for about 6 hours in an 8-hour workday; unlimited push and/or pull (including operation of hand and/or foot controls) except for the lift and/or carry restriction; occasionally stoop, kneel, crouch crawl; climb ramps/stairs, ladders/ropes/scaffolds occasionally; and balance frequently, with no postural, manipulative, visual, communicative, or environmental limitations. (Id. at 137, 147.) Dr. Post considered that Plaintiff had some disorders of the back/discogenic and degenerative (DDD) and osteoporosis in her right knee, and was able to “prepare simple meals, do light household chores, drive a car, and shop in stores.” (Id. at 135, 137, 145, 148.) Dr. Post expressly concluded that Plaintiff's limitations were partially supported by the medical evidence of record. (Id. at 135-36, 138, 145-46, 148.) He found that Plaintiff demonstrated the maximum sustained work capability for light work. (...
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