United States District Court, S.D. Texas, Houston Division
HANOVICE PALERMO, UNITED STATES MAGISTRATE JUDGE
seeks judicial review of the Acting Commissioner of the
Social Security Administration's (“the
Commissioner”) decision denying her application for
Social Security disability insurance benefits. The parties
consented to have this Court decide the matter pursuant to 28
U.S.C. § 636(c) and filed cross-motions for summary
judgment. As explained below, the Court GRANTS
Plaintiff's motion, DENIES the Commissioner's motion,
and REMANDS the case to the Commissioner for further
proceedings consistent with this opinion.
August 2012, Plaintiff applied for disability insurance
benefits under Title II of the Social Security Act
(“the Act”). R. 216-24. The Social Security
Administration denied her application initially and upon
reconsideration. R. 159-71. Pursuant to Plaintiff's
request, a hearing was held on February 21, 2014 before
Administrative Law Judge William B. Howard (“the
ALJ”). R. 125-58. Plaintiff, who was represented by
counsel, testified at the hearing, as did a vocational
expert. On July 2, 2014, the ALJ issued an unfavorable
decision, concluding that Plaintiff was not disabled within
the meaning of the Act and therefore not entitled to the
benefits for which she applied. R. 105-19. Plaintiff timely
requested that the Appeals Council review the ALJ's
decision. R. 89-91. The Appeals Council denied that request,
R. 1-6, after which Plaintiff commenced this action,
Pl.'s Compl., ECF No. 1. The Court heard argument on the
parties' cross-motions for summary judgment on December
Factual Background 1. Plaintiff's Work History
was born on December 12, 1967 and was 46 years old at the
time of the hearing before the ALJ. R. 132. She earned a GED
in February 2007. R. 133. From 1998 until early 2012,
Plaintiff worked as a patient care provider, first in an
assisted living facility and later in patients' homes. R.
134-36. Her job duties included bathing and grooming
patients, preparing their meals, doing their laundry and
shopping, making their beds, monitoring their vital signs,
and ensuring that they took their medications. R. 134.
Plaintiff has experienced chronic pain since 1986. R. 657. In
November 2011, she was involved in a car accident, which she
believes triggered many of her current physical impairments.
R. 137, 313-20. She returned to work a week after the
accident, but found herself unable to stoop, bend, or turn
patients over. R. 137. These limitations impeded
Plaintiff's work to such an extent that Plaintiff and the
agency for which she worked mutually agreed to end her
employment. R. 138. Plaintiff did not seek further employment
thereafter. R. 138-39.
Plaintiff's Medical History
early 2012 and mid-2013, Plaintiff received medical treatment
at hospitals and other health care locations. R. 139,
321-509, 541-612. In February 2012, Plaintiff presented at a
community clinic with “muscle spasms/joint pain.”
R. 333. Later that month, Plaintiff was hospitalized for
chest pain, dizziness, neck/back pain with radiculopathy,
anxiety. R. 336- 38. A physician's note from that visit
states that Plaintiff might have been suffering from
“cervical radiculopathy from shoulder/neck trauma at
work where she helps move an elderly woman, ” but
imaging tests were normal. R. 338. A neurological assessment
concluded that Plaintiff had 5/5 strength in her upper
extremities and feet, but a full examination of strength in
her lower extremities could not be performed “due to
pain.” R. 344. In March 2012, Plaintiff received
treatment for cervical radiculopathy, chronic pain syndrome,
and back pain, and was referred for pain management. R.
487-88. In May 2012, Plaintiff was assessed with joint pain
in her shoulder region following an examination. R. 482. In
August 2012, Plaintiff reported “having constant pain
in her lower abdomen, ” experiencing “sharp
sho[o]ting pains in her legs, ” and “suffering
with back pain since her first car wreck in 1986.” R.
460. Plaintiff was reported positive for back pain, negative
for joint swelling, and found to have a normal range of
motion. R. 461. In October 2012, Plaintiff sought treatment
for hypertension and pain in her back, joints, ankle, and
feet; she was noted as “positive for back pain and
arthralgias, ” but was found to have a “[n]ormal
range of motion.” R. 445-49. A December 2012 medical
assessment stated that Plaintiff was suffering from
“acute” “aching” pain in her
“left knee/left side.” R. 444.
2013, Plaintiff began receiving regular medical treatment
from Dr. Rhonda Barnes-Jordan, M.D. (“Dr.
Barnes-Jordan”). R. 661. A medical report from
Plaintiff's first visit to Dr. Barnes-Jordan on July 31,
2013 contains the following pertinent observations:
Patient complains of joint pain. The patient notes diffuse
joint pain. This has been a problem for the past more than 5
years. She describes the discomfort as unbearable. Symptoms
have been mild or transient punctuated by episodic flare-ups.
Primary joints affected include the cervical and lumbar
spine, shoulders, elbows, wrists, hands, fingers, hips,
knees, ankles, feet, and toes. Muscle groups affected include
both gastrocnemius and the hamstrings. Associated symptoms
include fatigue, sleep problems, depression, joint stiffness,
swollen joints, joint warmth and night sweats. . . .
Pertinent medical history is remarkable for injury long ago
from auto accident and joint trauma (Pt has been in 3 car
accidents 1986, 1996, 2011).
R. 661. The report further described Plaintiff's gait as
“affected by a limp and slowed” and noted
tenderness in “both legs and arms and lower
back.” R. 663. Dr. Barnes-Jordan assessed Plaintiff as
having “diffuse arthralgia” and
“dysmetabolic syndrome X” and prescribed her
various medications. R. 663.
visited Dr. Barnes-Jordan again on at least seven occasions:
August 21, 2013, R. 657-60, 692-95; October 21, 2013, R.
652-56, 687-91; October 24, 2013, R. 686; November 6, 2013,
R. 647-51, 682-85; January 13, 2014, R. 638-46, 673-81;
January 21, 2014, R. 633-37, 668-72; and February 5, 2014, R.
712, 714-19. The “assessment” and/or
“current problems” sections of the medical
records from these visits show that Dr. Barnes-Jordan
repeatedly noted Plaintiff as having the following conditions
(among others): diffuse arthralgia,  fatigue,  dysmetabolic
syndrome X,  muscle spasm,  and a body mass index
consistent with obesity. Between November 6, 2013 and February
5, 2014, Dr. Barnes-Jordan also repeatedly recorded Plaintiff
as having hip pain,  knee pain,  low back pain,
and female pelvic pain. The “review of systems”
(“ROS”) portions of Dr. Barnes-Jordan's
records show that: on August 21, 2013, Plaintiff was found
“negative” for arthralgias, back pain, and
myalgia,  R. 657; on October 21, she was found
“positive” for arthralgias, back pain, shoulder
pain, knee pain, and hip pain, but negative for joint
stiffness, limp pain, and myalgia, R. 653; on November 6, she
was found positive for left knee and hip pain, but negative
for arthralgias, back pain, joint stiffness and myalgia, R.
647; on January 13, 2014, she was found positive for
arthralgias, back pain, joint stiffness and “limb pain
(knee pain), ” R. 638; on January 21, 2014, she was
found positive for “limb pain (Bilateral knee
pain)” and negative for arthralgias, back pain, joint
stiffness and myalgia, R. 633; and on February 5, 2014, she
was found positive for “limb pain (left knee)”
and negative for arthralgias, back pain, joint stiffness and
myalgia, R. 712, 714.
Barnes-Jordan's notes from January 21, 2014 show that
Plaintiff complained of chronic low back pain with episodes
of acute exacerbation and bilateral knee pain. R. 633. The
doctor noted that “[t]he pattern of joint symptoms has
been progressive worsening.” Id. X-rays
ordered by Dr. Barnes-Jordan on that date failed to indicate
abnormalities in Plaintiff's lumbar spine but showed
“minor degenerative changes” in her knees. R.
636, 720-21. On February 5, 2014, Dr. Barnes-Jordan injected
lidocaine into Plaintiff's left knee joint to alleviate
her pain. R. 716.
hearing, Plaintiff testified that Dr. Barnes-Jordan was then
treating her for diabetes, arthritis, depression, and fibroid
tumors. R. 139. Plaintiff stated that she had been undergoing
treatment for diabetes and arthritis for three to six months
prior to the hearing and had been suffering from depression
due to her brother's murder six or seven years prior. R.
140- 41. Plaintiff also stated that she had been suffering
from joint pain for “a long time, over 10 years.”
R. 140. She described the pain as affecting her joints
generally but noted particular discomfort in her
“shoulder joints, hip joint, knee joint, toe joints,
[and] knuckles.” R. 140. She detailed her pain as
follows: “Pains are sharp; I have muscle spasms in my
back; in my lower legs; I also catch them in my feet . . . it
feels like my toes are curling upward.” R. 142.
Plaintiff stated that she has trouble sleeping at night; she
“wake[s] in discomfort from the muscle spasms, the
pain” and also has trouble breathing. R. 142.
testified that she uses a cane, which a doctor prescribed to
her. R. 146. She described herself as walking “kind of
slowly” and stated that, with her cane, she was able to
walk from the parking lot to the building where the hearing
was held, but then had to rest. R. 147. She cannot climb a
flight of stairs. R. 147. Plaintiff said that she has
problems sitting throughout the day due to severe back pain,
which requires her to constantly shift position. R. 147. As
she put it: “when I sit, I tend to hurt my back, my
joints, especially this right side. And I don't know how
long I could do that.” R. 148. Plaintiff testified that
she has difficulty bathing and getting in and out of the
bathtub and needs help getting dressed. R. 143. She stated
that, on an average day, her daughter helps her get dressed
and prepares her meals, R. 143. Plaintiff rests about four to
eight hours per day, R. 146. She sometimes reads or watches
television, but otherwise does not “do too much.”
R. 144, 146. Plaintiff does not cook, do laundry, vacuum,
mop, take out the garbage, go grocery shopping, or exercise.
R. 144-45. Plaintiff stated that she has tried to wash dishes
and cook but has difficulty standing or sitting for long
periods of time, has to constantly adjust her body, and
“wind[s] up dizzy” when she tries to stand. R.
144. She drives a vehicle twice a week, but “[o]nly
when [she] ha[s] to because [she] fell asleep behind the
wheel.” R. 145.
hearing, Plaintiff stated she was taking metformin for
diabetes, R. 140, and hydrocodone (a narcotic) every 12 hours
for pain, R. 154. A list provided to the ALJ at the hearing
shows that Plaintiff was also taking the following
medications: losartan for high blood pressure; gabapentin and
tramadol for pain; furosemide for fluid build-up; sertraline
for depression; meloxicam for arthritis; potassium and iron
supplements; and a laxative. R. 127, 309-11. Plaintiff stated
that the medication helped with her pain but did not relieve
it completely. R. 154.
Assessments of Plaintiff's Physical Abilities/Impairments
underwent a consultative physical examination on October 11,
2012. R. 511-18. The resulting report stated that Plaintiff
had: no joint swelling but exhibited tenderness in her right
paracervical muscles and right shoulder region; weakness in
her right upper extremity; a normal range of motion in her
left upper and lower extremity; “mild weakness”
in her upper and lower extremity; and normal range of motion
and strength in both knees. R. 513. The report further
observed that Plaintiff was unable to squat or walk on her
heels or toes, but able to rise from the sitting position and
“get up and down from the exam table with some
difficulty”; and that, while “able to maneuver
about the exam room without the use of” her cane,
Plaintiff needed the cane for “longer distances and
uneven terrain.” Id. Plaintiff's muscle
strength was assessed as 5/5 for “all muscle tested,
” except that her “right upper and lower was
4/5” and her grip strength was “reduced on the
right.” R. 514. The “clinical impression”
section included the following conditions: “chronic
cervical and lumbar pain with radiculopathy secondary to
multiple traumas”; “right-sided weakness/history
of multiple trauma events with resultant radiculopathy with
muscle weakness right upper and lower extremity”; and
obesity. R. 514.
record also contains an eight-page form entitled
“Physical Residual Functional Capacity
Assessment.” R. 519-26. It is dated November 28, 2012
and signed by Dr. Shabnam Rehman, M.D., who is identified as
a medical consultant. R. 526. The form states that Plaintiff
can occasionally lift and/or carry a maximum of 20 pounds;
frequently lift and/or carry a maximum of 10 pounds; stand
and/or walk (with normal breaks) for a total of about 6 hours
in an 8-hour workday; sit (with normal breaks) for a total of
about 6 hours in an 8-hour workday; and that her ability to
push and/or pull is “unlimited, ” subject to the
“lift and/or carry” limitations. R 520.
January 30, 2014, Dr. Barnes-Jordan completed a form entitled
“Medical Assessment of Ability To Do Work-Related
Activities (Physical), ” in which she reported:
■ Plaintiffs lifting/carrying ability is limited to a
maximum of 10-15 pounds, both occasionally and frequently,
due to “upper extremity weakness, decrease
[sic] ROM [i.e., range of motion], lower back pain,
[and] chronic knee pain bilaterally.” R. 702.
■ Plaintiffs ability to stand and/or walk is limited to
3-4 hours in an 8-hour day, both in total and without
interruption, due to “chronic lower back pain”
and “bilateral knee pain.” R 702.
■ Plaintiffs ability to sit is limited to 3-4 hours in
an 8-hour day, both in total and without interruption, due to
“chronic lower back pain.” R. 702.
■ Plaintiff is “never” able to climb,
kneel, crouch, stoop, or crawl, but she can
“frequently” balance. R. 703.
■ Plaintiffs reaching, handling, and push/pulling
abilities are impaired due to “decreased range of
motion (ROM) of shoulders and antalgic gait” resulting
from “chronic pain including lower back, shoulders, and
knees.” Plaintiffs feeling, seeing, hearing, and
speaking functions, however, are not affected by these
impairments. R. 703.
■ Plaintiffs impairments cause “environmental
restrictions” related to heights, moving machinery,
temperature extremes, and vibration. Plaintiff “cannot
climb to any height level or move machinery, ” and
“extreme weather can worsen joint pain.” Dr.
Barnes-Jordan noted that the medical findings supporting this
assessment were “decreased ROM of knees, hips, back and
shoulder.” R 703.
Barnes-Jordan concluded the report by reiterating that
Plaintiff “has difficulty with sitting/standing for
long periods of time due to back and knee pain” and
that she “cannot lift heavy objects due to upper
extremity weakness.” R. 703.
questionnaire dated February 3, 2014, Dr. Barnes-Jordan wrote
■ Plaintiff s physical therapy has aggravated her
condition, not reversed it. R. 706.
■ Plaintiffs x-rays were “unremarkable” but
that Plaintiff “complains of chronic pain.” R
■ Plaintiff “shows moderate to severe pain and
reports that pain has been chronic and consistent since prior
accidents despite therapy.” R. 706.
■ Plaintiffs complaints of pain are credible, based on
reasonable medical evidence. R. 706.
■ Plaintiff “has pain with range of motion
flexion/extension of back and knees which are not consistent
with x-ray.” R 707.
■ Plaintiff has a limited range of motion in moving
from the vertical position; has weakness in her back and
difficulty lifting more than 15 pounds; has no ability to
squat due to knee pain; has a limited ability to walk on
heels or toes due to back pain; experiences pain when
rotating her right shoulder; experiences right hip pain and a
decreased range of motion when raising or lowering legs in a
standing position; has “significant motor loss”
in her right shoulder, right hip, and back flexion; and has a
“slowed gait assisted with cane.” R. 707-08.
■ Plaintiffs pain medications “would be expected
to interfere” with her coordination, concentration, and
ability to remain awake and alert. R. 709.
Barnes-Jordan also stated that she did not believe Plaintiff
“can perform in competitive gainful employment in a
forty hour work week situation.” R. 709.
ALJ's Findings and Conclusions
ALJ's decision contains the following findings of fact
and conclusions of law:
Plaintiff met the Act's insured status requirements
through December 31, 2016. R. 110.
Plaintiff has not engaged in substantial gainful activity
since March 2, 2012, the alleged onset date of her
Plaintiff has the following severe impairments: morbid
obesity and chronic pain syndrome with pain ...