Cherry v. Barnhart

• Decision Date: 07 January 2004
• Docket Number: No. 03-CV-156-CL.,03-CV-156-CL.
• Citation: 327 F.Supp.2d 1347
• Parties: Tresa Faye CHERRY, Plaintiff, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

327 F.Supp.2d 1347

Tresa Faye CHERRY, Plaintiff, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant.

No. 03-CV-156-CL.

United States District Court, N.D. Oklahoma.

January 7, 2004.

Gayle Louise Troutman, Troutman & Troutman, PC, Tulsa, OK, for plaintiff.

Cathryn Dawn McClanahan, United States Attorney, Tulsa, OK, Eric B Tucker, Social Security Administration, General Counsel, Dallas, TX, for defendant.

ORDER

CLEARY, United States Magistrate Judge.

Pursuant to 42 U.S.C. § 405(g), plaintiff Tresa Faye Cherry ("Cherry") requests judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for supplemental security income benefits ("SSI benefits") under Title XVI, 42 U.S.C. § 1381 et seq. of the Social Security Act. In accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have consented to proceed before a United States Magistrate Judge. Any appeal of this order will be directly to the Tenth Circuit Court of Appeals. Cherry appeals the decision of the Administrative Law Judge ("ALJ") and asserts that the Commissioner erred because the ALJ incorrectly determined that Cherry was not disabled. For the reasons discussed below, the Court REVERSES the Commissioner's decision.

Claimant's Background

Cherry was born on November 13, 1954, and was 47 years old at the time of the ALJ's decision. (R. 57, 382). She has a twelfth grade education. (R. 153). Cherry worked as a babysitter. (R. 385-86). She alleges an inability to work beginning March 13, 1999, due to obesity, diabetes mellitus with neuropathy, high blood pressure, migraine headaches, and back problems. (R. 128, 147). She also claims to suffer from foot ulcers and arthritis in the lumbar spine.

Cherry has a history of morbid obesity. She is 63 inches tall with an average weight of 290-300 pounds over the three years prior to the administrative hearing. (R. 382). Due to her diabetes mellitus, Cherry has been insulin dependent for many years and has developed peripheral neuropathy with numbness in her legs and feet, as well as a history of foot ulcers and polyuria. (R. 200-203, 209-211, 390-392, 410-411).

Cherry received treatment from Morton Comprehensive Health Services ("Morton") commencing March 18, 1999. (R. 10-20, 198, 301-19). On that date, a lumbar spine x-ray revealed grade I spondylolisthesis of L5/S1, mild to moderate disc space narrowing between L4-5, and mild degenerative and osteoporotic changes in both hips. (R. 190). On June 22, 1999, a MRI confirmed grade I spondylolosthesis and lateral bulging at L5/S1 with bilateral encroachment on the L5/S1 intervertebral foramen. (R. 198). Cherry received treatment with steroids and anti-inflammatory drugs. (R. 184-89).

Cherry's physician at Morton, Larry Bowler, M.D., referred Cherry for evaluation to a neurosurgeon at University Hospital in Oklahoma City. (R. 253). In her August 16, 1999 letter to Dr. Bowler, neurosurgeon Mary Kay Gumerlock, M.D. confirmed Cherry's grade I L5-S1 spondylolisthesis and bilateral S1 radiculopathy and noted Cherry's extreme obesity, tender back, and peripheral neuropathy with decreased reflexes and sensation in both ankles and feet. (R. 295-96). Dr. Gumerlock determined that Cherry was not an "operative candidate" at that point and recommended that she be referred to a dietitian for weight loss and for physical therapy for her diabetic foot ulcers as well as an exercise training regimen. In addition, Dr. Gumerlock also recommended that Cherry see a pain management specialist and a urologist for her urinary incontinence. Id.

On August 3, 1999, Cherry underwent a consultative examination by Varsha Sikka, M.D., at the request of the Social Security Administration ("SSA"). Dr. Sikka diagnosed Cherrry with chronic degenerative disc disease of the lumbosacral spine, obesity, history of diabetic foot ulcers, possible peripheral poly-neuropathy and history of diabetes mellitus. (R. 209-214). Dr. Sikka noted the following in her examination: Cherry's range of motion in the lumbosacral spine was within normal limits although painful; she had grade II-III ulcers on her feet. (R. 211). Dr. Sikka also observed "decreased sensation in the stocking distribution,"¹ and that Cherry's gait was wide-based and slow, though a cane was unnecessary. She did not express an opinion as to Cherry's functional limitations.

From May 18, 1999 through March 26, 2002, Cherry received treatment from podiatrist Steven Smith, D.P.M. for neuropathy with foot pressure ulcers. (R. 200-03, 338). On October 24, 2000, Dr. Smith completed a Medical Source Statement opining that Cherry was unable to lift or carry more than 10 pounds, stand or walk more than two hours a day and was restricted in her lower extremities. (R. 298-300). Dr. Smith also stated that Cherry could kneel and crawl only occasionally and could never climb, balance or crouch. Id. He attributed these restrictions to her severe neuropathy with foot pressure ulcers.

Cherry also received regular chiropractic care from R. Brent Newcomb, D.C. from August 28, 1999 to January 24, 2000. (R. 215-39, 254). Dr. Newcomb observed that Cherry had very limited range of motion in her lumbar spine, restricted to 10% of normal. (R. 237). After extensive treatment, Cherry improved to 50% of normal. (R. 222). In his January 24, 2000 letter, Dr. Newcomb opined that Cherry's primary problem was low back pain which was complicated by spondylolisthesis, L5/S1 disc bulging, diabetes and obesity. (R. 215). He stated that her physical rehabilitation must be limited to non-weight bearing exercise "due to ulcers on her feet which will never allow her to stand or walk for extended periods," and that she should avoid lifting, carrying or handling objects greater than five pounds. Id.

On September 16, 1999, a state disability medical consultant reviewed the record and determined Cherry had the residual functional capacity ("RFC") for sedentary work. This assessment was affirmed as written by another consultant on February 4, 2000. (R. 240-251).

On November 9, 2000, Dr. Bowler completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) opining that Cherry was unable to lift or carry more than ten pounds, could stand or walk less than two hours and sit less than six hours in an eight-hour day, and she was unable to climb, balance, kneel, crouch and crawl. (R. 302-304). Medical records from Dr. Bowler's examinations of Cherry through February 18, 2002 assess her conditions as chronic (though stable) musculoskeletal back pain from degenerative disc disease, obesity, insulin dependent diabetes mellitus and hypertension. (R. 326-337).

Although not before the ALJ for decision, the Appeals Council also considered Cherry's medical records from Morton for the period of February 18, 2002 to September 20, 2002 which reflected Dr. Bowler's continued diagnosis of chronic degenerative disc disease of the lumbar spine, obesity, hypertension and diabetes. (R. 6-20). Prior to July 5, 2002, Dr. Bowler characterized Cherry's degenerative disk disease as chronic and stable. (R. 13-16). In response to Cherry's complaint that her back pain had increased and that she was denied disability benefits based on the incorrect assumption that her condition was stable, Dr. Bowler scheduled another MRI on July 25, 2002 at Cherry's request. (R. 12-13). The July 29, 2002 MRI report provided the following diagnosis:

1. LIMITED STUDY DUE TO PATIENT BODY HABITUS.

2. GRADE II SPONDYLOLISTHESIS AT L5-S1 WITH BULGING DEGENERATED DISK. BILATERAL FORAMINAL STENOSIS WITH NEAR IMPINGEMENT OF THE BILATERAL L5 NERVE ROOTS. BECAUSE OF THE ANTERIOR SPONDYLOLISTHESIS, THE DURAL SAC AND S1 NERVE ROOTS ARE ALMOST COMPRESSED AGAINST THE SUPERIOR POSTERIOR MARGIN OF THE S1 SACRAL SEGMENT.

3. L2-3 DISK BULGING, EXAGGERATED LUMBAR LORDOSIS.

(R. 18). On August 22 and September 20, 2002, Dr. Bowler prescribed MS Contin for Cherry's back pain. (R. 10-11).

Procedural History

On May 18, 1999, Cherry protectively applied for SSI benefits under Title XVI (42 U.S.C. § 1381 et seq.). (R.127). After a hearing on October 5, 2000, Administrative Law Judge Lantz McClain ("ALJ") denied her application for benefits on January 26, 2001. (R. 78-87, 339-75). On June 22, 2001, the Appeals Council remanded with instructions to obtain a medical source statement from Dr. Gumerlock as well as evidence from a "medical expert to clarify the nature and severity" of Cherry's impairments "to resolve the conflicts in the record regarding the claimant's ability to perform certain work-related functions," and to evaluate Cherry's obesity under SSR 00-3p to determine whether her "obesity considered alone or in combination with her other impairments is equivalent to a listed impairment and, if not, its impact on her ability to perform work-related activities on a sustained basis." (R. 115-18).

On remand, another hearing before Administrative Law Judge Lantz McClain was held on March 19, 2002. (R. 376-416). The ALJ introduced into the record a returned second request of Dr. Gumerlock to provide the SSA with an assessment of Cherry's RFC which contained a subscribed note from a Dr. Robert Wienecke, advising the following:

We have seen this patient in consultation only. We do not make social security statements. Jim Thorpe and Health South do make the evaluations via health care providers trained to do so.

(R. 320, 378-379). The ALJ also heard further testimony from Cherry, the SSA's medical consuitant, Harold Earl Goldman, M.D., and a vocational expert. (R. 121-127, 376-416). By decision dated June 18, 2002, the ALJ found that Cherry was not disabled at any time through the date of the decision. (R. 42-58).

On January 14, 2003, the Appeals Council denied review of the ALJ's findings. Thus, the decision of the ALJ represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. § 416, 1481.

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