United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Tijerina (Plaintiff) seeks judicial review of a final
decision by the Commissioner of Social Security
(Commissioner) denying her claims for disability
insurance benefits (DIB) and supplemental security income
(SSI) under Titles II and XVI of the Social Security Act.
(See docs. 3; 23.) Based on the relevant filings,
evidence, and applicable law, the Commissioner's decision
is REVERSED, and the case is
REMANDED for reconsideration.
September 22, 2015, Plaintiff filed her applications for DIB
and SSI, alleging disability beginning on July 27, 2015.
(doc. 17-1 at 231, 233.) Her claims were denied initially on
December 16, 2015 (Id. at 118-19), and upon
reconsideration on April 13, 2016 (id. at 154-55).
On June 15, 2016, Plaintiff requested a hearing before an
Administrative Law Judge (ALJ). (Id. at 184.) She
appeared and testified at a hearing on May 19, 2017.
(Id. at 40-73.) On August 23, 2017, the ALJ issued a
decision finding her not disabled. (Id. at 21-35.)
timely appealed the ALJ's decision to the Appeals Council
on October 6, 2017. (Id. at 227.) The Appeals
Council denied her request for review on February 23, 2018,
making the ALJ's decision the final decision of the
Commissioner. (Id. at 5-9.) She timely appealed the
Commissioner's decision under 42 U.S.C. § 405(g).
(See doc. 3.)
Age, Education, and Work Experience
was born on October 1, 1968, and was 48 years old at the time
of the hearing. (doc. 17-1 at 43.) She completed the ninth
grade could communicate in English. (Id. at 43,
335.) She had past relevant work as a driver and a certified
nursing assistant. (Id. at 70.)
November 3, 2012, Plaintiff presented to JPS Health Network
(JPS) with moderate pain in the right foot and heel that was
constant and worsened in the mornings, numbness, and the
inability to bear weight. (Id. at 396.) She also
reported experiencing chest wall discomfort at least 8 times
a month, but denied chest pain. (Id.) Her
musculoskeletal review was positive for arthralgia and her
neurological review was positive for numbness, but her
remaining reviews of systems, including psychiatric and
behavioral, were negative. (Id. at 397.) An X-ray of
her right foot showed no evidence of fracture or dislocation,
but osteophytes were seen about the calcaneus, and there
was mild degenerative arthritis in the first metatarsal
phalangeal (MP) joint. (Id. at 415.)
November 16, 2014, Plaintiff went to Parkland Hospital
(Parkland)for dysuria and lower abdominal pain that was sharp
and radiated to her lower back. (Id. at 424-25.) She
reported increased frequency of, and pain, with urination.
(Id. at 425.) She exhibited suprapubic tenderness,
but was alert, oriented, and not in acute distress.
(Id.) She was assessed with a urinary tract
infection (UTI) and was instructed to take 100 mg of Macrobid
for 7 days. (Id. at 425-26.)
January 26, 2015, Plaintiff was seen at Parkland for back
pain by Dina Hazim, M.D. (Id. at 430.) She reported
pain along the entire back that was aching in character, 9
out of 10 in severity, and had been present for 6 months.
(Id.) She also reported pain on the bottom of her
right foot, but was able to walk without assistance, and no
raised leg signs were observed. (Id. at 430-31.) Her
musculoskeletal examination showed a normal range of motion
with no edema and some tenderness, while her cervical back
exhibited spasms but no swelling. (Id. at 431.) She
was assessed with type II or unspecified type diabetes
mellitus (DM) uncontrolled, without mention of complication.
February 2, 2015, Plaintiff returned to Parkland for imaging
studies of her spine and right foot. (Id. at
439-45.) Her cervical spine X-ray showed mild multilevel
degenerative changes that were most prominent at ¶ 6-C7
where there were small posterior osteophytes. (Id.
at 439.) It also showed mild bilateral neural foraminal
narrowing, but there were no fractures or dislocations.
(Id.) Plaintiff's thoracic spine X-ray showed no
sign of fracture, significant prior injury, or excess
kyphosis, but there was moderate disc degeneration with
multilevel large anterior and right lateral partial bridging
osteophyte formation that was relatively prominent from T4-T5
through T10-T11. (Id. at 441.) The X-ray of her
lumbar spine showed mild obvious disc base narrowing size
degeneration and mild-moderate facet arthropathy at ¶
4-L5d and L5-S1 levels, and minimal (2mm) L4 anterolisthesis
relative L5, but an otherwise normal alignment.
(Id.) The X-ray of her right foot showed
mild-moderate first MP joint degeneration with small marginal
osteophytes and slight joint space narrowing, but there were
no signs of chronic active synovitis or other premature joint
degeneration. (Id. at 445.) There were also moderate
calcaneal enthesophytes that were more prominent at the
Achilles insertion. (Id.)
February 12, 2015, Dr. Dina evaluated Plaintiff's X-rays
and laboratory results and assessed her with new onset DM,
other and unspecified hyperlipidemia, and osteoarthritis.
(Id. at 447.) A nurse telephoned Plaintiff about her
updated medical assessment and treatment plan. (Id.
March 21, 2015, Plaintiff returned to Parkland with pain,
mild swelling of the right lower eyelid, and blurred vision.
(Id. at 450.) She had been experiencing tingling and
numbness of the right side of her face for the past two days.
(Id.) She was oriented to person, place, and time,
had a normal tandem walk, and displayed normal reflexes and
coordination. (Id. at 451.) Her diagnosis was
unclear, and she was referred to the emergency room for a
possible CT scan. (Id.)
September 9, 2015, Plaintiff presented to Dr. Dina at
Parkland for her diabetes. (Id. at 453.) She stated
that she had the same back and foot pain, but had not been
taking her DM medication because the side effects were
“worse tha[n] the problem itself.” (Id.)
She was positive for back and joint pain, but was not
distressed, had no edema, and was able to walk without
assistance. (Id. at 453-54.) Dr. Dina noted that
Plaintiff had been non-complaint with treatment, but had
agreed to restart with her medication. (Id. at 454.)
December 10, 2015, Yvonne Post, D.O., completed a physical
residual functional capacity (RFC) assessment for Plaintiff.
(Id. at 101-02.) She considered her DM a severe
impairment, and opined that she could occasionally lift
and/or carry 20 pounds, frequently lift and/or carry 10
pounds, stand and/or walk for a total of six hours in an
eight-hour workday, sit for a total of six hours in an
eight-hour workday, and push and/or pull without limitations,
other than shown for lift and/or carry. (Id.) Dr.
Post found that Plaintiff's allegations were
“partially supported” by the evidence of record.
(Id. at 102.) SAMC Kavitha Reddy, M.D., affirmed Dr.
Post's physical RFC assessment on April 6, 2016.
(Id. at 134.)
January 12, 2016, Plaintiff presented to Parkland for pain
and numbness from her right elbow down to her right hand.
(Id. at 505.) She also reported piercing pain in her
neck and back that was exacerbated by prolonged standing,
walking, and sitting. (Id.) She admitted that she
had not been taking any of her medication and was trying to
control her DM with diet only. (Id.) She exhibited
tenderness of the lower cervical spine, mild paravertebral
muscle tenderness of lumbar, and positive straight leg raises
bilaterally. (Id. at 506.) The examining physician
discussed the importance of medication compliance, and
Plaintiff was referred for lab work and back/neck imaging.
(Id. at 507.)
January 14, 2016, an X-ray of her cervical spine showed mild
multilevel degenerative changes, most prominent at ¶
6-C7 with anterior and posterior osteophytosis and disc
height loss. (Id. at 511-12.) The same day, an X-ray
of her lumbar spine revealed mild to moderate multilevel
degenerative changes, most pronounced at ¶ 4-L5, with
degenerative disc disease and facet joint osteoarthritis.
(Id. at 514.)
January 19, 2016, an MRI of her cervical spine showed mild
multilevel degenerative changes, including small central disc
protrusion at ¶ 3-C4, anterior osteophytes at ¶
5-C7, and left paracentral disc protrusion at ¶ 7-T1.
(Id. at 517.) The same day, an MRI of her lumbar
spine showed minimal grade 1 anterolisthesis of L4 on L5,
disc desiccation at ¶ 2-L3 and L5-S1 with fatty end
plate changes, and multilevel degenerative changes, most
prominent at ¶ 5-S1, where a left paracentral disc
protrusion impinged upon the descending left S1 nerve root
that correlated for left S1 radiculopathy. (Id. at
28, 2016, Plaintiff presented to Parkland with right heel
pain. (Id. at 531.) She reported that her right heel
was painful upon ambulation, and had been for the last 6
months. (Id.) She was assessed with right foot pain
and a retrocalcaneal spur of the right foot, and was fitted
for an orthopedic device for her right foot on September 8,
2016. (Id. at 532, 563.)
6, 2016, Plaintiff presented to the orthopedic spine clinic
at Parkland with neck and low back pain. (Id. at
552.) She described the neck pain as “a constant dull
throbbing pain” and the low back pain as “a
constant strong pain.” (Id.) She reported
difficulty with prolonged sitting, standing, and walking, and
was unable to attend physical therapy. (Id.) She
also reported severe pain in her right heel from a heel spur.
(Id.) The examining physician noted that sensation
was grossly intact throughout the bilateral upper (CF-T1) and
lower (L2-S1) extremities, and that there were no long tract
signs present. (Id. at 552-53.) Plaintiff was
negative for both straight leg raises and Spurling's
bilaterally. (Id. at 553.) She was referred to
physical therapy classes for her neck and back, and was
encouraged to maintain an active lifestyle by walking,
cycling, swimming, and using an elliptical machine.
March 16, 2017, Plaintiff returned to Parkland complaining of
lower back pain. (Id. at 532-33.) The pain radiated
to the right buttock and posterior right thigh and worsened
while driving, but she did not take any medications because
they were unaffordable . (Id. at 543.) She also
reported bilateral shoulder pain that was intermittent and
related to her chronic neck pain. (Id.) Plaintiff
was not in apparent distress, but depression was noted from a
prior psychological review. (Id. at 534.) She was
observed with a normal gait and ambulating without assistant
devices. (Id.) Her musculoskeletal evaluation showed
full neck range of motion; positive tenderpoints over the
lumbar spine, paraspinous muscles, bilateral sacroiliac (SI)
joint, and bilateral facet loading; and negative bilateral
straight leg raises and Spurling's test. (Id. at
534-35.) Plaintiff was assessed with poorly-controlled DM,
cervical and lumbar spondylosis, lumbar facet arthropathy,
and obesity. (Id. at 536.) Her right shoulder X-ray
revealed moderate acromioclavicular degenerative joint
disease and mild glenohumeral degenerative joint disease,
while her left shoulder X-ray showed moderate
acromioclavicular and glenohumeral degenerative joint disease
with marginal osteophyte formation. (Id. at 539.)
Psychological and Psychiatric Evidence
December 1, 2015, Plaintiff presented to Betty Eitel, Ph.D.,
for a psychological evaluation. (doc. 17-1 at 493.) Her chief
complaints were a bone spur, arthritis in her foot and back,
diabetes, anxiety (panic attacks), and depression.
(Id.) Dr. Eitel noted that no medical records were
provided for review. (Id.) Plaintiff stated that she
actively avoided leaving the house because she experienced
fear and anxiety when going out alone. (Id.) Her
anxiety started during childhood, had worsened in the last 5
years, and had been interfering in her everyday life.
(Id.) She had difficulty sleeping and reported
sleeping more during the day due to fatigue. (Id. at
493-94.) Plaintiff stated that she was agitated, angry,
“snap[ped] a lot, ” and had “zero
tolerance” for people and things ...