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Tijerina v. Saul

United States District Court, N.D. Texas, Dallas Division

September 23, 2019


         Consent Case[1]


         Tamira Tijerina (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner)[2] 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.

         I. BACKGROUND

         On September 22, 2015, Plaintiff filed her applications for DIB and SSI, alleging disability beginning on July 27, 2015. (doc. 17-1 at 231, 233.)[3] 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.)

         Plaintiff 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.)

         A. Age, Education, and Work Experience

         Plaintiff 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.)

         B. Medical Evidence

         On 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[4] were seen about the calcaneus, and there was mild degenerative arthritis in the first metatarsal phalangeal (MP) joint. (Id. at 415.)

         On 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.)

         On 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. (Id.)

         On 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.)

         On 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. at 447-48.)

         On 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.)

         On 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.)

         On 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.)

         On 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.)

         On 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.)

         On 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 522.)

         On June 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.)

         On July 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. (Id.)

         On 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.)

         C. Psychological and Psychiatric Evidence

         On 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 ...

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