United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
CHRISTINE A. NOWAK, UNITED STATES MAGISTRATE JUDGE
brings this appeal under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social
Security (“Commissioner”) denying his claim for
disability insurance benefits [Dkt 1]. After reviewing the
Briefs submitted by the Parties, as well as the evidence
contained in the Administrative Record, the Court finds that
the Commissioner's decision should be REMANDED.
Procedural History Of The Case
4, 2013, Anthony Joseph Losasso (“Plaintiff”)
filed his application for Disability Income Benefits
(“DIB”) under Title II of the Social Security Act
(“Act”), 42 U.S.C. §1382c(a)(3) [TR at
411-14]. In his application, Plaintiff alleged an onset of
disability date of December 31, 2012.
Id.Plaintiff's application was initially denied
by notice on September 27, 2013, and again upon
reconsideration on December 30, 2013, after which Plaintiff
requested a hearing before an administrative law judge
(“ALJ”). Id. at 361-64, 366-75. The ALJ
conducted a hearing on December 3, 2014
(“Hearing”), and heard testimony from Plaintiff
and Vocational Expert Sugi Komarov (“Ms. Komarov”
or “VE”). Id. at 1-40. Plaintiff was
represented by counsel at Hearing. Id. On February
20, 2015, the ALJ issued his decision denying benefits, and
found Plaintiff not disabled at step five of the prescribed
sequential evaluation process (discussed infra).
Id. at 61-81. Plaintiff requested that the Appeals
Council review the ALJ's decision, and on November 2,
2015, the Appeals Council denied Plaintiff's request for
review, making the decision of the ALJ the final decision of
the Commissioner. Id. at 41-48, 56-60.
December 22, 2015, Plaintiff filed his Complaint with this
Court [Dkt. 1]. On March 4, 2016, the Administrative Record
was received from the Social Security Administration
(“SSA”) [Dkt. 9]. On March 7, 2016, this case was
assigned to the undersigned by consent of all Parties for
further proceedings and entry of judgment [Dkt. 10].
Plaintiff filed his Brief on April 4, 2016 [Dkt. 13]. On June
3, 2016, the Commissioner filed her Brief in Support of the
Commissioner's Decision [Dkt. 14].
Statement Of Relevant Facts
Education, and Work Experience
was born on April 15, 1969, making him forty-three years old
at the alleged disability onset date (and classified at all
relevant times as a “younger person”) [TR at 75,
411]. See 20 C.F.R. § 416.963(c). Plaintiff
asserts that his onset date of disability is December 31,
2012. Id. at 7, 411. Plaintiff has at least a high
school education. Id. at 12, 75. Plaintiff has past
relevant work experience as a numerical control machine
operator. Id. at 26-27, 75.
Relevant Medical Record Evidence
Physical Health Treatment
has a lengthy medical history of difficulties with diabetes
and complications from his diabetes; however, the problems
became worse in October 2012 when he sliced his foot on a
sliding glass door and the wound did not heal. On January 14,
2013, Plaintiff sought medical treatment from Comprehensive
Wound Center for a chronic ulcer on the great right toe after
it became painful, red, and swollen [TR at 635-36]. The
Comprehensive Wound Center noted Plaintiff had a decrease in
peripheral sensation. Id. at 640. The wound did not
begin to heal properly until a month later; on February 18,
2013, Comprehensive Wound Center noted that Plaintiff's
ulcer was much smaller. Id. at 695-718. On April 8,
2013, Comprehensive Wound Center noted that Plaintiff had an
MRI which confirmed osteomyelitis of the distal and proximal
phalanx. Id. at 821. Plaintiff was also noted to
have a complete loss of pain sensation distally. Id.
April 16, 2013, Plaintiff's right big toe was amputated
due to osteomyelitis. Id. at 625. By May 23, 2013,
Plaintiff's foot appeared completely healed. Id.
at 560. However, Plaintiff still sought treatment for numbing
and tingling of his foot through the ankle. Id. at
832-37. Plaintiff subsequently (on July 29, 2013) was
diagnosed with moderate, demyelinating and axonal, sensory
motor neuropathy. Id. at 838. On June 30, 2015,
Plaintiff underwent surgery for a resection of left first
metatarsal after a diagnosis of osteomyelitis. Id.
at 210, 229. A month after the second amputation on his left
foot, Plaintiff was admitted to the Denton Regional Medical
Center on July 29, 2015 with a left foot MSSA infection.
Id. at 89. More bone was removed from the previously
amputated toe and a revisional primary closure was attempted.
Id. at 90. At the time of surgery, Plaintiff
complained of numbness. Id. at 91.
Examining Source - Dr. Tavarekere
November 20, 2013, Anuradha Tavarekere, M.D. examined
Plaintiff. Id. at 858-60. Dr. Tavarekere noted
Plaintiff's use of a cane. Id. at 859. Dr.
Tavarekere noted a left leg limp, an inability to sustain
standing due to unsteadiness, and slightly reduced (4/5)
motor strength in the lower extremities. Id. at 860.
Dr. Tavarekere noted normal upper extremities, normal hand
grip, and normal fine finger movements, noting that Plaintiff
“has ability to handle small objects and button
clothing.” Id. However, Plaintiff had
decreased deep tendon reflexes in all extremities.
State Agency - Drs. Kenney and Spoor
agency consultants, Dr. Charles Kenney and Dr. Scott Spoor,
also reviewed Plaintiff's records and provided statements
regarding his impairments. Dr. Kenney opined Plaintiff's
osteomyelitis, periostitis and other infections involving
bone and peripheral neuropathy constituted sever impairments,
but that Plaintiff could still sustain light work.
Id. at 331-41. Dr. Spoor, upon reconsideration,
affirmed the opinion of Dr. Kenney, but added a limitation
that Plaintiff could stand or walk for only three hours in an
eight hour day and could frequently stoop. Id. at
Treating Source - Dr. Ambavaram
started treatment with Sukanya Ambavaram, M.D. on February
21, 2014. Id. at 884. At that time, Dr. Ambavaram
noted diabetes, hypertension, neuropathy treated with Lyrica,
an amputated right big toe, and obesity. Id. at
885-86. Plaintiff's gait and stance was abnormal, and
Plaintiff was using a walker. Id. at 885. Dr.
Ambavaram noted that Plaintiff was “not taking
medications as instructed” for diabetes and recommended
diet control and increased physical activity, specifically
“regular moderate exercise.” Id. at
March 5, 2014, Dr. Ambavaram completed a Medical
Release/Physicians Statement wherein she opined on the
limitations imposed by Plaintiff's diabetes and
polyneuropathy. Id. at 902-04. Dr. Ambavaram opined
that Plaintiff was limited to sitting for four hours and
standing or walking for a total of four hours in an
eight-hour day. Id. at 902. Dr. Ambavaram also
opined that Plaintiff could lift, carry, push and pull for
four hours and climb, kneel and stoop for two hours in an