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Tucker v. Colvin

United States District Court, D. Delaware

July 30, 2015

CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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For Plaintiff: Stephen A. Hampton, GRADY & HAMPTON, LLC, Dover, DE.

For Defendant: Charles M. Oberly, III, United States Attorney, and Heather Benderson, Special Assistant United States Attorney, OFFICE OF THE GENERAL COUNSEL, Philadelphia, PA; Nora Koch, Regional Chief Counsel, SOCIAL SECURITY ADMINISTRATION-REGION III OFFICE OF GENERAL COUNSEL, Philadelphia, PA.

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Leonard P. Stark, United States District Judge.


Plaintiff Fyresta Tucker (" Tucker" or " Plaintiff" ) appeals from a decision of Carolyn W. Colvin, the Acting Commissioner of the Social Security Administration

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(" Commissioner" or " Defendant" ), denying her claim for disability insurance benefits (" DIB" ) under Title XVI of the Social Security Act, 42 U.S.C. § § 401-33. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

Presently pending before the Court are cross-motions for summary judgment filed by Plaintiff and the Commissioner. (D.I. 9; D.I. 12) Plaintiff seeks an award of benefits for the entire period at issue or, in the alternative, asks that the Court reverse and remand the Commissioner's decision. (D.I. 10 at 20) The Commissioner requests that the Court affirm her decision denying Plaintiff's application for benefits. (D.I. 13 at 20) For the reasons set forth below, the Court will grant Plaintiff's motion for summary judgment and deny Defendant's motion for summary judgment.


A. Procedural History

Plaintiff filed her claim for DIB on March 1, 2010, alleging disability since May 4, 2009. (D.I. 5 (hereinafter " Tr." ) at 30) Her application was denied at the pre-hearing levels. ( Id. at 14) She appeared before an Administrative Law Judge (" ALJ" ) on June 5, 2012. ( Id. at 28) During this hearing, Plaintiff amended the onset date of the disability to September 28, 2009. ( Id. at 32) On June 26, 2012, the ALJ issued a decision against Plaintiff, and on May 14, 2013, the Appeals Council denied Plaintiff's request for review. ( Id. at 14, 2) Therefore, the June 26, 2012 decision of the ALJ became the final decision of the Commissioner. See 20 C.F.R. § § 404.955, 404.981; Sims v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000).

On July 17, 2013, Plaintiff filed a complaint seeking judicial review of the ALJ's June 26, 2012 decision. (D.I. 1) Subsequently, on January 30, 2014, Plaintiff moved for summary judgment. (D.I. 9) On April 2, 2014, the Commissioner filed a cross-motion for summary judgment. (D.I. 12)

B. Factual Background

1. Plaintiff's Medical History, Treatment, and Condition

Plaintiff was fifty-four years old on her amended alleged disability onset date, or a person closely approaching advanced age. (Tr. at 32; see also 20 CFR 404.1563 and 416.963) She was fifty-seven years old -- a person of advanced age -- when the ALJ rendered the decision that is now the subject of review. ( Id. )

Plaintiff has a high-school education and a two-year college degree. ( Id. at 35) She is able to communicate in English. ( Id. ) Plaintiff has past relevant work history as an insurance claims processor, data entry clerk, insurance clerk, and child care operator. ( Id. at 17) She last worked in December 2009 as an insurance claims processor. ( Id. at 33) Plaintiff's relevant medical history is detailed below.

a. Injury to Right Foot

Tucker has injured her right foot on three occasions since 2007 and has seen eight doctors to address the issue. In February 2007, a large co-worker stepped on her foot. ( Id. at 367) X-rays showed a chip fracture, and surgery was performed in June 2007 to remove any fragments. ( Id. ) However, Tucker's pain in the area worsened, and in August 2007, she had a cheilectomy. ( Id. at 299)

In February 2008, Tucker re-injured her right foot when a co-worker stepped on it again. ( Id. at 306) Linda L. Lawton, DPM, a podiatrist at Brandywine Foot Care, noted that Tucker felt her pain at this point was greater than it ever had been pre-or post-operatively, but the films of Tucker's foot were unavailable for review.

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( Id. at 306) In March 2008, Tucker returned to Dr. Lawton for a surgical consult and was diagnosed with capsulitis and joint pain. ( Id. at 303) Dr. Lawton also noted that Tucker's labs showed an elevated rheumatoid factor. Given the severity of Tucker's pain, Dr. Lawton believed Tucker may have inflammatory arthritis. ( Id. ) Dr. Lawton recommended a rheumatology consult and an evaluation by the consulting physician for capsulitis. ( Id. at 304)

In October 2008, Robert A. Garter, M.D., from Delaware County Rheumatology, PC, evaluated Tucker and documented continued pain in her toe with limited motion and swelling in the area in which the surgery had been performed. ( Id. at 367)

In May 2009, Tucker injured her foot for a third time when a co-worker stepped on the back of her shoe. ( Id. at 295) Dr. Lawton noted that Tucker had decreased range of motion in both dorsiflexion and plantarflexion. ( Id. ) Additionally, the first metatarsal was structurally dorsiflexed and there was crepitus with range of motion. ( Id. ) Tucker reported that she had been in constant pain since this third injury. ( Id. ) After reviewing an x-ray that showed a lack of joint space at the dorsal third joint, Dr. Lawton recommended a joint replacement with an implant and a possible graft. ( Id. at 296)

b. Hallux Rigidus

In mid-July 2009, Tucker saw Paul C. Kupcha, M.D., for a second opinion. Dr. Kupcha noted that Tucker walked with a limp on her right side, that she had limited motion of her toe, and that the tests were " excruciating and painful" for her. ( Id. at 328) After examining Tucker's x-rays, Dr. Kupcha diagnosed her with hallux rigidus (i.e., stiff right great toe, see D.I. 13 at 2) and recommended viscosupplementation, interposition arthroplasty, and fusion -- in contrast to Dr. Lawton's recommendation of replacement arthroplasty. ( Id. ) On August 4, 2009, Tucker elected to undergo another cheilectomy. ( Id. at 330-31) At the end of that month, Dr. Kupcha noted that she was improving overall, there were no signs of complications, and the swelling in her right great toe was as was to be expected. ( Id. at 322)

In late July 2009, Tucker visited Christopher Davis, D.O., and Robert F. Sing, D.O., at Springfield Sports Science Center. ( Id. at 410) She began physical therapy there about one month after her August 4, 2009 surgery with Dr. Kupcha. ( Id. at 411)

c. Complex Regional Pain Syndrome (" CRPS" )/ Reflex Sympathetic Dystrophy (" RSD" )

Roughly five months after her August 4, 2009 surgery, Tucker began to see Gerald E. Dworkin, D.O., a pain management specialist at Delaware Valley Orthopedic and Spine Surgicenter. ( Id. at 478) On January 7, 2010, Dr. Dworkin noted that Tucker was still in significant pain despite having undergone total surgery procedures and was making very little progress in therapy. ( Id. ) Although there were no significant abnormalities in the back, hip, or knee, he documented significant tenderness and burning dysesthesias in the right dorsum of her foot, discoloration, and mild swelling. ( Id. ) Dr. Dworkin diagnosed Tucker with Complex Regional Pain Syndrome, Type 1 (" CRPS" )/ Reflex Sympathetic Dystrophy (" RSD" )[1] and recommended

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lumbar sympathetic blocks. ( Id. ) Dr. Dworkin administered no fewer than eleven of these blocks between January 27, 2010 and March 14, 2012. ( Id. at 23-24, 337, 339-40,466-69, 473-77, 630-34)

On March 31, 2010, Dr. Dworkin completed a RSD/CRPS Residual Functional Capacity (" RFC" ) Questionnaire indicating that Tucker had some work-preclusive limitations. ( Id. at 333-336) He indicated that Tucker could walk less than one block, stand or walk less than two hours in an eight hour day, and sit for about two hours in an eight hour day. ( Id. at 334) Furthermore, he indicated she could never twist, stoop, crouch, squat, or lift more than ten pounds. ( Id. at 335) In light of these issues, Dr. Dworkin suggested that Tucker was capable of low stress jobs and would be absent about two days per month. ( Id. at 336)

Six days after completing the questionnaire, Dr. Dworkin noted that Tucker had significantly improved with the help of sympathetic block injections but much of her pain had recurred. ( Id. at 472) A physical examination revealed " continued warmth and swollen, distal, right, lower extremity with painful [range of motion] at the ankle." ( Id. )

On May 28, 2010, Tucker's doctors at Springfield Sports noted that Tucker " does get significant relief with the injections." ( Id. at 493) They also reported " [d]ecreased range of motion in the first digit... [and] [p]ain with palpation and hypersensitivity along the whole medial side of the foot." ( Id. )

On July 26, 2010, Tucker saw Lee S. Cohen, D.P.M., who noted that at that time Tucker had had three injections but continued to have numbness and swelling in her toes and foot, could not propel off the foot, and experienced pain when putting weight on it. ( Id. at 429) Dr. Cohen also noted that Tucker's x-rays indicated " some bone atrophy in the demineralization of the right foot compared with the left, which is consistent with crypt syndrome." ( Id. at 430)[2] He diagnosed her with hallux rigidus in addition to chronic regional pain syndrome. ( Id. ) Dr. Cohen recommended Tucker continue with epidural treatments and suggested that once the crypt syndrome subsided, she should use a shoe insole or have a joint replacement. ( Id. ) For the time being, he planned to proceed with a custom orthotic with no platform since she had experienced pain with the platform in her current custom shoes. ( Id. )

Tucker saw Dr. Cohen again on August 23, 2010. ( Id. at 486) Dr. Cohen noted that there was no obvious sign of Grips Syndrome at that time even though Tucker was being treated for it. ( Id. ) The color, texture, temperature, and turgor of her skin were within normal limits. ( Id. ) He also indicated that Dr. Dworkin had decided to forego radiofrequency wave treatments for nerve pain and instead to continue with additional epidural blocks that Tucker felt were not effective. ( Id. )

On August 28, 2010, Edgar E. Folk, III, M.D., performed an internal medicine examination of Tucker for Maryland Disability Determination Services. ( Id. at 435) Dr. Folk noted the deformity of Tucker's great right toenail and generalized swelling over the dorsum of her right foot and great toe. ( Id. at 436-37) He also documented Tucker's inability to move her toe

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and pain -- even to very light touch -- of her great toe and dorsum of her right foot. ( Id. ) Dr. Folk believed Tucker could return to work with proper treatment but suggested that her recuperation may take time. ( Id. at 437)

On August 31, 2010, non-examining state agency physician A.R. Totoonchie, M.D., completed a physical RFC assessment of Tucker based on her file. ( Id. at 439-46) He made note of Tucker's personal and third party accounts of her activities of daily living (" ADL" ), finding them credible. ( Id. at 444) He also recounted the highlights of Tucker's medical history, including her most recent clinical evaluation with Dr. Folk. ( Id. at 446) Dr. Totoonchie concluded that, despite the diagnoses of RSD in her right foot, Tucker could occasionally lift 20 pounds, frequently lift ten pounds, stand for at least two hours total, and sit for six hours total in an eight-hour workday. ( Id. at 440) Postural limitations were all occasional with the exception that she was never to climb a ladder, rope, or scaffold. ( Id. at 441) No manipulative, visual, communicative, or environmental limitations were indicated. ( Id. at 441-43)

On September 14, 2010, Tucker's doctors at Springfield Sports noted that she continued to experience constant severe pain and hypersensitivity in her right foot. ( Id. at 492) The sensitivity was especially pronounced in her great toe, which she could not move at all and showed darkish discoloration. ( Id. ) They also documented that she limped with walker support and had a special shoe. ( Id. ) The doctors planned to proceed with a surgery to be performed by Dr. Cohen and to continue with the injections. ( Id. )

Less than a week later, however, Dr. Cohen wrote to Dr. Sing that the planned surgical procedure was outdated and pointed out that Tucker had had problems with the same procedure in the past. ( Id. at 483) He reiterated that it was unclear whether Tucker had CRPS or RSD and that Tucker was frustrated with the injections from Dr. Dworkin because she was not " seeing any real changes." ( Id. ) Dr. Cohen suggested that the surgery may be helpful if there were no indications that Tucker had CRPS. ( Id. )

On February 15, 2011, Dr. Sing saw Tucker and noted that she continued to experience severe, unrelenting pain over her right foot and great toe. ( Id. at 656) Dr. Sing also indicated atrophy and discoloration of the toe. ( Id. )

That same day Dr. Sing completed a RSD/CRPS RFC Questionnaire. ( Id. at 645-48) He noted that Tucker's chronic, severe pain increased with activity and consistently affected her attention and concentration while performing even simple tasks. ( Id. at 648) Dr. Sing concluded that Tucker could walk up to one block without pain, sit for less than two hours and stand for less than two hours total in an eight-hour workday, and would need to take ten minute breaks every 20 minutes. ( Id. at 646-48) He further indicated that Tucker could never lift more than 20 pounds, could rarely lift ten pounds, and that extreme temperatures would adversely affect the injury. ( Id. at 647-48) As a result of these issues, Dr. Sing believed Tucker was capable of low stress jobs only and would be absent more than four days a month. ( Id. at 648)

On March 15, 2011, non-examining state agency physician J. Johnston, M.D., conducted a RFC assessment of Tucker's file and agreed with Dr. Totoonchie that Tucker could perform a range of light work. ( Id. at 552-59) Dr. Johnston diagnosed Plaintiff with degenerative joint disease in the left knee and CRPS in her right great toe. ( Id. at 552) The doctor ...

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