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Losasso v. Commissioner of Social Security

United States District Court, E.D. Texas, Sherman Division

March 24, 2017




         Plaintiff 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.


         I. Procedural History Of The Case

         On June 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.

         On 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].

         II. Statement Of Relevant Facts

         1.Age, Education, and Work Experience

         Plaintiff 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.

         2. Relevant Medical Record Evidence

         a. Physical Health Treatment

         Plaintiff 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.[1] 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. at 825.

         On 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.

         b. Examining Source - Dr. Tavarekere

         On 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. Id.

         c. State Agency - Drs. Kenney and Spoor

         State 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 344-57.

         d. Treating Source - Dr. Ambavaram

         Plaintiff 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 885-86.

         On 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 ...

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