France v. Comm'r of Soc. Sec. Admin.

• Decision Date: 24 January 2022
• Docket Number: 3:20-CV-02396
• Parties: KELLI L. FRANCE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
• Court: U.S. District Court — Northern District of Ohio

KELLI L. FRANCE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

No. 3:20-CV-02396

United States District Court, N.D. Ohio

January 24, 2022

JEFFREY J. HELMICK, DISTRICT JUDGE.

REPORT AND RECOMMENDATION

AMANDA M. KNAPP, UNITED STATES MAGISTRATE JUDGE.

Plaintiff Kelli L. France (“Plaintiff” or “Ms. France”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying her applications for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). (ECF Doc. 1.) This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2.

For the reasons set forth below, the undersigned recommends that the Court VACATE and REMAND the Commissioner's decision pursuant to sentence four of Section 405(g).

On remand, the ALJ should ensure that any residual functional capacity providing for a need to alternate between sitting and standing is articulated with the specificity required under SSR 96-9p, meaning that it should specifically state the frequency of any determined need to alternate between sitting and standing.

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I. Procedural History

A. Current Application

Ms. France filed her applications for DIB and SSI on September 4, 2018. (Tr. 11, 284, 310, 412-16, 417-18.) She asserted a disability onset date of July 16, 2018 (Tr. 11, 412, 417), and alleged that she was disabled due to back surgery and fusions with rods in her back, neuropathy, degenerative disc disease, nerve damage her back, asthma, and chronic bronchitis (Tr. 265, 287, 314, 331, 460). Her applications were denied at the initial level (Tr. 314-27) and upon reconsideration (Tr. 331-42). She requested a hearing (Tr. 345-47), which was held before an Administrative Law Judge (“ALJ”) on December 6, 2019 (Tr. 175-233).

On January 16, 2020, the ALJ issued an unfavorable decision, finding that Ms. France had not been under a disability within the meaning of the Social Security Act from July 16, 2018 through the date of the decision. (Tr. 8-27.) She requested review of the ALJ's decision by the Appeals Council. (Tr. 408-11.) On August 25, 2020, the Appeals Council denied her request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-7).

B. Prior Application

Ms. France filed a prior application for SSI on October 19, 2006. (Tr. 11, 234-45, 250.) After a remand by the Appeals Council, on January 27, 2012, a Notice of Decision - Unfavorable was issued finding Ms. France not under a disability as defined in the Social Security Act since October 19, 2006, the date the application was filed. (Tr. 246-63.) The ALJ considered this prior decision when rendering his January 26, 2020 decision pursuant to Acquiescence Rulings 98-3(6) and 98-4(6). (Tr. 11.) Ms. France does not refer to the prior January 27, 2012 decision or specifically challenge the ALJ's consideration of the decision.

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II. Evidence

Although Ms. France has a severe mental impairment that was identified by the ALJ (see Tr. 14), her challenge in this appeal relates to the sit-stand option the ALJ included in the RFC and the ALJ's assessment of severity of her chronic lower back pain complaints. (ECF Doc. 14, pp. 2, 17-22, ECF Doc. 19.) The evidence summarized herein is accordingly focused on evidence pertaining to her back impairments and related limitations.

A. Personal, Educational, and Vocational Evidence

Ms. France was born in 1974. (Tr. 19, 184.) She was 43 years old on the alleged disability onset date, and 45 years old at the December 6, 2019 hearing. (Id.) She lived with her mother and has three adult children. (Tr. 185-86.) She completed school through the eleventh grade. (Tr. 189.) She last worked in July 2018 as a stocker at a retail store, having previously worked as a debt collector and cashier. (Tr. 190-93, 460-61.)

B. Medical Evidence

1. Treatment History

Ms. France has a history of lumbar issues that have resulted in surgical intervention, including surgeries that predated the alleged onset date. She had an anterior lumbar interbody fusion (ALIF) at ¶ 4-L5 and L5-S1 performed by Dr. Thomas G. Andreshak, M.D. and Dr. Gregory Walker, D.O. at St. Luke's Hospital on December 19, 2013, and a lumbar fusion at ¶ 4 secondary to idiopathic scoliosis prior to that. (Tr. 669-773.) Imaging of her lumbar spine dated April 23, 2017 showed rods in place, no fracture, and slight leftward scoliosis. (Tr. 644.)

On July 18, 2018, Ms. France went to the Fulton County Health Center Emergency Room where she saw Dr. Timothy Scott, D.O. for complaints of right-sided neck pain radiating into her back as well as occasional left foot pain. (Tr. 521, 531-33, 538-39.) She first sought treatment at

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an urgent care, but relayed that she was instructed to go to the emergency room after she reported having a little bit of stool in her underwear. (Tr. 531.) At the emergency room, Ms. France reported a history of scoliosis and multiple surgeries and stated that her back had been hurting since starting a new job that involved stocking at a retail store. (Id.) She reported that her left foot pain had been ongoing for a few months. (Id.) She denied any new arm or leg numbness, tingling, or weakness. (Id.) On examination, Ms. France was in no apparent distress. (Tr. 532.) She had limited range of motion in her back, but relayed that it was not new for her. (Id.) She had no step-off deformity, but did have a lot of tenderness and hypertonicity throughout her entire spinal column. (Id.) Her reflexes and sensation were intact, and there were no motor or sensory deficits. (Id.) Dr. Scott noted that her “physical exam [was] grossly unremarkable with the exception of signs of chronic changes and postoperative changes from her severe scoliosis in her back.” (Id.) Dr. Scott commented that he could not provide Ms. France with narcotics or muscle relaxers because she drove herself to the emergency room, but he provided her with Toradol IM and prednisone. (Id.) X-rays taken that day showed chronic degenerative disc changes, postoperative changes, and mild leftward scoliosis. (Tr. 521, 538.) She was assessed with acute exacerbation of chronic back pain. (Tr. 533.) Her condition was good at discharge and Dr. Scott provided her with prescriptions for prednisone and Percocet and instructed her to follow up with her primary care physician Dr. Antony Uribes, M.D. (Tr. 532-33.)

On July 30, 2018, Ms. France saw Dr. Uribes at Parkview Physicians Group (“Parkview”) for follow up regarding her back problems, reporting increased back pain for the prior four to six weeks. (Tr. 661-62.) She reported current symptoms of paresthesias in both feet and stiffness and weakness in her left leg with multiple falls. (Tr. 661.) She reported her symptoms were exacerbated by sitting, standing, and walking. (Id.) She relayed that the

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Percocet she received at the emergency room the prior week had helped some, and that she had tried Neurontin and Lyrica in the past but had not tolerated them. (Id.) She reported attempting jobs at three different places, but said she was unable to stay at the jobs because of her pain and falling at work. (Id.) She inquired about applying for SSI disability. (Id.) Ms. France had a positive straight leg raise on the left at 30 degrees, but was alert and in no distress. (Id.) Her neck examination was normal, her back was symmetric with no curvature, range of motion in her back was normal and there was no CVA tenderness. (Id.) Her extremities, strength, tone, reflexes, coordination, and gait were normal. (Id.) She was diagnosed with degeneration of lumbar or lumbosacral intervertebral disc and idiopathic scoliosis (and kyphoscoliosis). (Id.) Dr. Uribes ordered a lumbar spine MRI, instructed her on how to apply for SSI, and prescribed tramadol. (Id.)

On September 10, 2018, Ms. France underwent a myelogram and CT of her lumbar spine. (Tr. 523-24, 534-37.) The myelogram showed “Old fusion for scoliosis with Harrington rods in place. Mild leftward scoliosis. No. critical compromise of the canal . . .” (Id.) The CT showed an “[i]ncomplete fusion at the L5-S1 level with the irregular endplates and marginal sclerosis, ” and “[r]ight posterior lateral disc protrusion at ¶ 3-4 narrowing the right foramen” with a recommendation for correlation with clinical findings, and “[n]o significant canal compromise at any level.” (Id.)

Ms. France returned to see Dr. Uribes on September 21, 2018 to discuss the imaging results and next steps for treatment and medication. (Tr. 658.) She reported her current symptoms included pain in her right buttock and radiating down the outside of her leg, paresthesias in both feet, and stiffness and weakness in her left leg with multiple falls. (Id.) She complained that her symptoms had worsened since her last visit and were aggravated by sitting,

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standing, and walking. (Id.) She also reported that tramadol had not helped much and, while Percocet had helped her some, she ran out of it. (Id.) Ms. France's examination findings were similar to her July 30, 2018 exam. (Compare Tr. 658 with Tr. 661.) Dr. Uribes continued to diagnose degeneration of lumbar or lumbosacral intervertebral disc and idiopathic scoliosis (and kyphoscoliosis), and added a diagnosis of neuropathy. (Tr. 658.) He prescribed Percocet and advised her to follow up in two months. (Tr. 659.)

On November 19, 2018, Ms. France presented to the Fulton County Health Center Emergency Room for aggravation of chronic pain in her right neck, right shoulder, lower back, and right leg. (Tr. 528.) She reported seeing a pain management specialist as well as her family physician. (Id.) She relayed that she was taking Lyrica for her pain with only minimal relief. (Id.) She also relayed that she was taking Percocet but ran out of it two...