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McCaskill v. Berryhill

United States District Court, D. South Dakota, Southern Division

April 20, 2018

KATHRYN M. McCASKILL, as Successor in Interest to Jayne K. Marso, Plaintiff,
NANCY A. BERRYHILL, [1] Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.




         Plaintiff, Kathryn M. McCaskill as Successor in Interest to Jayne K. Marso, [2] seeks judicial review of the Commissioner's final decision denying Jayne K. Marso's application for social security disability and supplemental security income disability benefits under Title II of the Social Security Act.[3]Ms. McCaskill has filed a complaint and has requested the court to reverse the Commissioner's final decision denying Ms. Marso disability benefits and to enter an order awarding benefits. Alternatively, Ms. McCaskill requests the court remand the matter to the Social Security Administration for further proceedings.

         This appeal of the Commissioner's final decision denying benefits is properly before the district court pursuant to 42 U.S.C. § 405(g). This matter was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b) and the February 27, 2018, order of the Honorable Karen E. Schreier, district judge.


         A. Statement Of The Case

         This action arises from Ms. Marso's application for SSDI and SSI benefits filed June 8, 2012, alleging disability since April 7, 2012, due to arthritis/osteoarthritis, lupus, thyroid problems, Sjogren's disease, left knee injury, lower back disc bulge, compression and fracture, disc degeneration, chronic pain from neck to lower back, osteoporosis, torn ligament in right arm, vulvodynia, impaired concentration, focus and memory, severe bone and joint pain, swelling, rashes, headaches, impaired sleep, blurred vision, extreme fatigue, nervousness, and anxiety. AR132-33, 247, 256, 294, 303, 308-09. Ms. Marso's claim was denied initially and again upon reconsideration and Ms. Marso requested an administrative hearing on September 19, 2012. AR166, 172, 179, 184, 189.

         Ms. Marso's hearing was held 28 months later on January 23, 2015, where different counsel than current counsel represented her. AR31. An unfavorable decision was issued on March 6, 2015, by Administrative Law Judge Hortensia Haaverson (“ALJ”). AR10. At step one of the evaluation, [5] the ALJ found that Ms. Marso had not engaged in substantial gainful activity since April 7, 2012, the alleged onset of disability date. AR15. At step two, the ALJ found that Ms. Marso had severe impairments of takotsubo cardiomyopathy, lupus, Sjogren syndrome, and hypothyroidism. AR16. The ALJ also found that Ms. Marso had a medically determinable impairment of depression, but found that it was not severe because Ms. Marso had only mild restrictions in activities of daily living, social functioning, and in maintaining concentration, persistence or pace. AR16. The ALJ did not mention any other impairment at step two. AR16-17. At step three, the ALJ found that Ms. Marso did not have an impairment or combination of impairments that met one of the listed impairments in 20 C.F.R. 404, Subpart P, Appendix 1. AR17.

         The ALJ determined that Ms. Marso had residual functional capacity (“RFC”) to perform light work except:

She can lift and carry 20 pounds occasionally and 10 pounds frequently. She can sit, stand, or walk for six hours in an eight-hour workday (based on the opinion of State agency (DDS) medical consultant Christina Rodriguez, M.D. dated September 7, 2012 at Exhibit B7A, p. 12). She can sit no more than one hour at a time; and she can stand or walk no more than 15 minutes at one time before she needs to change positions, but can continue working. She requires a cane for ambulation.

AR17. The ALJ found that Ms. Marso's allegations regarding intensity, persistence and limiting effects of her symptoms were “partially credible for the reasons explained in this decision.” AR19. The ALJ determined at step four that Ms. Marso was capable of performing her past relevant work as a user support analyst, a skilled occupation with a specific vocational requirement (SVP) level of 7, based on the RFC and the testimony from the vocational expert, and the claim was denied. AR20-21.

         Ms. Marso then timely requested review of the denial by the Appeals Council on April 29, 2015. But, on July 1, 2016, while waiting for the Appeals Council to act, she died. AR9, see death certificate attached to Docket No. 11, showing death due to cardiomyopathy, nonischemic, July 19, 2013; lupus, 2013; hypothyroidism, 2010; and stroke, 2013. The Appeals Council denied review on August 18, 2016, making the ALJ's decision the final decision of the Commissioner. AR3. On October 13, 2016, Ms. Marso's prior counsel requested an extension of time to file a civil action in order to determine a successor in interest to Ms. Marso's claim, which the Appeals Council granted on July 30, 2017. AR1-2. Ms. Marso's daughter, Ms. McCaskill, was determined to be the proper successor in interest to Ms. Marso's claim and Ms. McCaskill timely filed this action. 20 C.F.R. § 404.503(b).

         B. Plaintiff's Age, Education and Work Experience

         Ms. Marso was born on October 28, 1968, making her 43 years old at the time of her alleged onset of disability (April 7, 2012), 46 years old at the time of the decision, and 47 years old at her death. AR256, see death certificate attached to Docket 11. The disability report indicated Ms. Marso completed two years of college in 1994. AR295. The ALJ found that Ms. Marso's past relevant work consisted of the occupations of user support analyst, computer support specialist, and teacher-aide-I.[6] AR20.

         C. Relevant Medical Evidence

         1. Orthopedic Treatment Records

         Ms. Marso received treatment from the Joint Implant Surgeons of Florida, which document problems with her left knee beginning with arthroscopy of the knee on December 5, 2006, and continued treatment into 2007 where the April 12, 2007, treatment note references Ms. Marso was also being treated for lupus. AR362, 365. Ms. Marso also received treatment there for her right hip with a February 21, 2008, diagnosis of right pelvic trigger point. AR359. Ms. Marso continued to have left knee symptoms and received an Orthovisc injection on May 8, 2008, for left knee osteoarthritis. AR357. Ms. Marso was seen on August 28, 2008, when her knee gave out and she fell and injured her wrist. AR356. The treatment note referenced that Ms. Marso was receiving Enbrel[7] injections for her lupus at that time. AR356. Ms. Marso continued to receive treatment on her knee and the record indicated that surgery was discussed on February 16, 2009, but Ms. Marso did not want surgery. AR354.

         Ms. Marso also received treatment at Orthopedic Specialists of Southwest Florida around this time and was seen on September 28, 2008, for neck pain when an MRI revealed degenerative changes at ¶ 5 to C7, as well as disc protrusions and bulges, without cord compression. AR383. Surgical treatment was discussed in light of the consideration that her healing may be slowed down because of her lupus and prednisone and methotrexate periodic treatments. AR384. By January 6, 2009, conservative treatment had not helped and Ms. Marso elected to proceed with surgery and a C5-C6 cervical diskectomy and fusion was performed on January 8, 2009. AR381, 385. Ms. Marso's medical impressions at that time included lupus, ankylosing spondylitis, [8] and Hashimoto's thyroiditis. AR389. On March 20, 2009, Ms. Marso was seen after being in an automobile accident and had discomfort in the neck, but the graft, plates and screws from the prior surgery at ¶ 5-C6 were intact. Ms. Marso was seen again on April 3, 2009, due to low back pain following the automobile accident and prescribed physical therapy and anti-inflammatories. AR377. When Ms. Marso did not improve a lumbar MRI was obtained on April 23, 2009, which revealed no fractures, but showed a lesion at ¶ 5 and spondylolysis and bulging at ¶ 5 that could result in bilateral L5 symptoms; lumbar injections were given. AR368, 370, 376.

         Ms. Marso was also receiving physiatric treatment during this time at Athletic Orthopedics and Reconstructive Center where she was seen on September 12, 2008, for neck, shoulder, knee, hip and elbow problems. AR418. Examination revealed spasming of the cervical muscles and the right hand side levator scapula, and tenderness in all 18 triggerpoint locations. AR420. The physiatrist suspected that the majority of Ms. Marso's pain was from lupus with likely a coexisting fibromyalgia syndrome and administered trigger point injections; however, the injections caused more pain. AR416, 421. On March 5, 2009, after her neck surgery Ms. Marso was seen again primarily for ongoing knee pain and an MRI was obtained of her knee, which revealed a tear or scuffing along the medical meniscus. AR413-14, 423. Conservative treatment was attempted, then injections on May 11, 2009, and August 7, 2009, were administered. AR410, 412.

         In 2010 and 2011, Ms. Marso received treatment from the Joint Implant Surgeons of Florida for a torn left hamstring, a fractured left clavicle, and a subsequent additional shoulder injury. AR543, 557. She also received treatment for her right elbow on August 29, 2011, due to a spontaneous rupture of the right lateral epicondylar muscular structure. AR542. An MRI of the elbow revealed medial and lateral epicondylitis of the elbow, and her elbow was injected on October 20, 2011. AR537, 539-40.

         Ms. Marso received treatment from The Spine Center where she was seen on June 14, 2010, for follow-up of her low back pain and she had responded well to prior epidural injections, but by November 30, 2010, she continued to require ongoing NSAIDs so another epidural was administered on December 14, 2010. AR616, 618-19. Ms. Marso returned on December 12, 2011, and had been doing well until two weeks earlier when she began having non-stop severe low back pain. AR614. She had been receiving treatment for ankylosing spondylitis and receiving hydrocodone. AR614. Ms. Marso's hydrocodone was continued with a plan for an epidural injection when she could afford to pay for it. AR614. Ms. Marso continued to be maintained on hydrocodone resulting in moderate lumbar pain level through June 2012. AR611, 613.

         Ms. Marso was seen at The Spine Center on June 26, 2012, complaining of excruciating neck pain extending into the right arm with burning, numbness, and tingling, and had not responded to prednisone treatment. AR609. X-rays revealed the prior fusion and obvious anterior spurring below C6-7, and examination revealed Ms. Marso was in clear distress with tenderness to palpation, somewhat positive impingement signs, positive Spurling's testing, [9] some mild sensory deficits in the medial biceps region on the right, and decreased grip strength on the right. AR609, 620. A cervical MRI was indicated but Ms. Marso could not afford it and an epidural injection was given. AR608-09. When seen for follow-up her pain had improved by 75%, although she continued to have numbness in digits 1 and 2 of the right hand, but no further follow-up or diagnostic evaluation was recommended due to Ms. Marso's lack of insurance and she was continued on gabapentin and hydrocodone. AR664, 666. When seen for follow-up on December 4, 2012, Ms. Marso reported that her overall pain was still quite severe, worse with activities, but overall stable with the medications. AR683.

         Ms. Marso continued to be seen at The Spine Center for follow-up and on February 21, 2013, reported chronic cervical and lumbar pain with some radiculopathy to her buttocks bilaterally, and that her pain had begun to escalate about six weeks earlier. AR681. Examination revealed positive straight leg raise tests bilaterally, positive facet loading maneuver, somewhat decreased range of motion in the lumbar spine, and some guarding of the left lower extremity with a slight left limp. AR681-82. Ms. Marso's hydrocodone was increased and an epidural offered but she could not afford it. AR679, 682.

         2. Lee Physicians Group Records

         a. Primary Care - Dr. Waks

         Ms. Marso received her primary care treatment as well as some specialty treatment at Lee Physicians Group. Ms. Marso was seen by a nurse practitioner on June 15, 2010, for hyperlipidemia. AR600-01. Ms. Marso reported fatigue, myalgia, back pain, joint swelling, and arthralgias and headaches. AR601. The record indicated that she was being followed by Dr. Bustillo and Dr. Augusty for her history of ankylosing spondylosis and had been receiving epidural injections. AR601. An October 13, 2008, overview by Dr. Bustillo documented functional deficits, pain, fatigue, and morning stiffness due to ankylosing spondylitis. AR599. Ms. Marso saw Dr. Waks on September 15, 2010, to follow-up regarding her multiple joint pains and fatigue. Ms. Marso reported that the Enbrel was helping and activity helped but it resulted in soreness the next day. AR591-92. Ms. Marso's fingers were swollen and she had pain in the low back and hip, sporadic numbness in her left toe, and she reported fatigue. AR592. Ms. Marso's medications at that time included hydrocodone, trazodone, tramadol, prednisone, methotrexate, [10]flector patches, and weekly Enbrel injections. AR594-95.

         Dr. Waks saw Ms. Marso on October 11, 2011, and she continued to have joint pain, swelling and inflammation which were being followed by Dr. Bustillo. AR582-83. Ms. Marso had stopped Enbrel and started plaquenil[11]in June, but it was less effective and her soreness had increased. AR583. She had also fractured her left clavicle in April and continued to have pain and weakness, and was seeing Dr. Creech for skin rash on her arms and legs. AR583. Her lipid tests continued to not meet goal. AR584.

         Ms. Marso saw Dr. Waks on January 13, 2012, for a new onset of right shoulder pain and saw him again on June 22, 2012, for right shoulder pain with pain into her neck/back muscles with paresthesias down the arm into the last two fingers, but she felt it was unrelated to her neck/cervical pain. AR574. Ms. Marso was seeing pain management and rheumatology specialists, and had some tears in her elbow shown on MRI a few months prior. AR574. Examination revealed decreased range of motion and tenderness in the right shoulder with strength diminished on her right side, and she was prescribed prednisone for ulnar nerve entrapment and advised to follow-up with her orthopedic doctor. AR575-76. “NCV”[12] was to be held off due to lack of insurance. AR576.

         Ms. Marso saw Dr. Waks on August 1, 2013, for hospital follow-up after having severe left ventricular impairment with akinesia of the anterior, apical and distal inferior wall consistent with Takotsubo cardiomyopathy with a left ventricle ejection fraction in the range of 20% and having had a stroke on July 24, 2013. AR863. Ms. Marso was having palpations and complained of shortness of breath, and jaw pain due to her fall from her syncopal event, and she was very anxious. AR865. She was following with Dr. Butler for her cardiomyopathy and lorazepam was prescribed. AR866.

         Ms. Marso switched her primary care to the Lee Physicians Group - United Way North clinic after losing her health insurance on August 27, 2013. AR1219; see (low fee or no fee clinic). Ms. Marso reported symptoms of depression, fatigue, feeling cold, neck stiffness, and back pain and arthralgias. AR1217-18. Examination revealed decreased range of motion and pain in her cervical and lumbar back and several lupus lesions in various stages of healing. AR1218. Future referrals were planned for cardiology, mental health, and physical therapy for her cardiomyopathy, anxiety, depression, and pain. AR1220.

         Ms. Marso was seen on September 16, 2013, for follow-up on low back pain and reported her pain as sharp, shooting, constant pain in the low back without radiation. AR1196. Ms. Marso reported increased symptoms with sitting, standing, and walking, and had been avoiding activities and had tried physical therapy which helped with her upper back but increased the pain in her lower back. AR1196. A future referral to pain management was planned. AR1198.

         Ms. Marso was seen on October 7, 2014, for her ongoing problems and right rib pain. AR1109. An x-ray obtained in August had not shown a rib fracture, but with continuing symptoms a recent x-ray revealed a fracture of the 7th rib. AR1109, 1358 (x-ray). She had been off her thyroid medication since July 1, 2014, and reported increased dry skin and fatigue. AR1109. Compression was discussed as an option for pain management of the rib fracture, but it was decided with her immunosuppressed state and weakness to continue without compression. AR1109.

         b. Rheumatology - Dr. Bustillo

         Ms. Marso was seen by Dr. Bustillo on August 13, 2010, to follow-up on her ankylosing spondylitis (“AS”) and reported fatigue, back pain, no joint swelling and arthralgia, but was having difficulty with activities of daily living. AR805. Her AS was clinically stable with very minimal stiffness, fatigue was the same, she was following with pain management and her medications were continued. AR806. Her medications included flexeril, trazodone, hydrocodone, and Enbrel injections. AR806-10. Ms. Marso saw a PA on November 10, 2010, and her AS continued stable with occasional stiffness in her neck and hands, and Enbrel and her pain medications were continued. AR796. Ms. Marso saw Dr. Bustillo on February 9, 2011, and reported fatigue, mild back pain, stiffness and difficulty with walking. AR785. Examination revealed tenderness in her hips and lumbar back, and her medications were continued. AR785-86.

         Ms. Marso continued to follow with Dr. Bustillo for her AS and when seen on August 15, 2011, her Enbrel was stopped due to an ongoing rash. AR765. When Ms. Marso saw Dr. Bustillo on October 18, 2011, she reported increased symptoms including pain in her thoracic and lumbar spine, fatigue, and difficulty walking and getting dressed. AR754. She had been off Enbrel for eight weeks but her rash continued. AR755. By November 29, 2011, when she was seen her pain was worse, and she had stiffness of the lumbar spine and hips with morning stiffness lasting 45 minutes; plaquinel had been prescribed. AR744. Examination revealed tenderness in her hips and lumbar back and decreased range of motion. AR744. Prednisone was prescribed in addition to the plaquinel, and Dr. Bustillo concluded that the Enbrel may have caused a lupus like skin reaction, since her skin had finally improved. AR745. Ms. Marso saw Dr. Bustillo on February 29, 2012, complaining of fatigue, pain in her back, knees, and right shoulder, and reported difficulty walking, getting dressed, bathing, doing housework, laundry and shopping. AR734. Examination revealed tenderness and reduced range of motion in her shoulder and she was unable to obtain the needed MRI due to lack of insurance. AR735. She continued to be off immunomodulators and was taking tramadol and flexeril. AR735.

         When Ms. Marso was seen on May 29, 2012, she had been started on plaquinel, which Dr. Bustillo said she was tolerating and doing well on, but also noted chronic degenerative joint disease with her AS symptomology and Ms. Marso continued to report difficulty walking and dressing. AR724-25. When seen on September 28, 2012, she continued to have chronic degenerative joint disease with her AS symptomology and Ms. Marso continued to report difficulty walking and dressing. AR724-25. When seen on September 28, 2012, she continued to have chronic back pain, dry mouth and dry eyes, but her functioning was adequate and her plaquinel, tramadol and flexeril were continued. AR715. Dr. Bustillo mentioned potential testing due to her sicca or Sjogren's symptoms, but the tests were expensive and she had no insurance and the symptoms could have been caused by her AS, thyroid and medications she was taking. AR715.

         Ms. Marso saw Dr. Bustillo on February 14, 2013, and reported dry mouth, fatigue, a lot of stiffness in her back, hips and difficulty functioning with increased symptoms since being off Enbrel. AR702. Examination revealed tenderness in her hips and back and decreased range of motion in her lumbar back. AR702. Dr. Bustillo indicated she was off Enbrel because she had no insurance, and continued her plaquinel and tramadol, changed her flexeril to zanaflex and added salagen for dry mouth. AR703. Ms. Marso was seen on May 23, 2013, and had been started on a 90-day trial of twice weekly Enbrel injections and reported feeling better, but Ms. Marso continued to report significant problems doing her ADLs, laundry, cooking and shopping, and examination continued to show tenderness and decreased range of motion in her back. AR691-92.

         Dr. Marso saw Dr. Bustillo on August 22, 2013, following hospitalization for emotional cardiomyopathy, and continued to report ongoing arthralgias, back stiffness and problems with bathing, housework, laundry and shopping, AR1255. Weekly Enbrel injections and tramadol were continued and Xanax was prescribed. AR1256. On November 26, 2013, Ms. Marso was seen and reported fatigue, weight gain, and feeling cold all over but no significant back pain and Dr. Bustillo felt her AS was stable and the current symptoms were likely from her hypothyroid being adjusted. AR1240-41. The last treatment record in the appeal record from Dr. Bustillo was on December 1, 2014, and Ms. Marso reported that for weeks she had had arthralgias, myalgias, back pain and weakness in her arms that may have coincided with stopping plaquinel. AR1078. Dr. Bustillo noted proximal arthralgias, myalgias, but no weakness on exam, and ordered blood tests, which were normal and prescribed prednisone. AR1080, 1082.

         c. Pain Management - Dr. Mahaney

         Ms. Marso received pain management treatment from Dr. Mahaney and nurse practitioners supervised by Dr. Mahaney. A lumbar MRI was obtained on October 4, 2013, which revealed broad based bulging at ¶ 2-3 and L3-4, facet joint hypertrophy at ¶ 2-3, 3-4 and 4-5. AR1367-68. Ms. Marso received an epidural injection on October 9, 2013, and again on December 10, 2013. AR1371, 1374.

         Ms. Marso was seen on March 5, 2014, for follow-up for cervical and low back pain. AR1290. Her prior treatment (epidural injection on December 10, 2013 - AR1299, 1374) had reduced the pain by at least 50% for six weeks. AR1290. Examination revealed decreased range of motion, tenderness, pain, and spasm in the cervical back and similar findings in the lumbar back. AR1292. Cervical epidurals were given due to Ms. Marso's reduced level of functioning because of her chronic pain. AR1294. Dr. Mahaney also recommended exercise and walking be increased to continue to explore non-medication based options for pain control. AR1294, 1377.

         Ms. Marso continued to have similar symptoms and examination findings and received additional treatments due to her reduced functioning caused by chronic pain including, caudel epidural injection for lumbar pain and hydrocodone on April 2, 2014, (AR1300-03); lumbar caudel epidural injections on May 7, 2014, (AR1305-09, 1380); continued hydrocodone on June 11, 2014, and August 13, 2014, (AR1314-18, 1320-24); epidural injections on August 27, 2014, (AR1326-32, 1383); continued hydrocodone and voltaren topical gel on September 24, 2014, (AR1335-40); and an additional epidural on October 10, 2014 (AR1342-47, 1386). Ms. Marso also received an intercostals block at ¶ 5- 6, 6-7 due to a fractured rib on November 5, 2014. AR1349-50, 1389. A bone scan obtained on October 10, 2014, also revealed osteopenia. AR1364.

         3. Hospital Admission and Cardiology Records

         Ms. Marso was admitted to the hospital from July 12, 2013 to July 24, 2013, for syncopal episodes where she felt dizzy and then passed out. AR814. A witness to one episode described her as shaking, kind of staring into space, and being unresponsive for a minute or so. AR814. An echocardiogram was performed which indicated her ejection fraction was 60% but a cardiac catheterization revealed severe left ventricular dysfunction with actual ejection fraction of 20% with possible Takotsubo cardiomyopathy.[13] AR820, 1424, 1432-33. Later hospital records also indicated that Ms. Marso had a small cardioembolic cerebrovascular accident (CVA) or stroke at the time of the cardio catheterization on July 20, 2013, shown by MRI. AR910, 920, 924. Ms. Marso had been started on coumadin and had nonsustained ventricular tachycardia (NSVT), she had been started on amiodarone, [14] and could not tolerate Coreg[15] due to hypotension. AR910.

         Ms. Marso presented to the hospital again on August 13, 2013, and was admitted with chest heaviness and dyspnea, mid-sternal chest discomfort reproducible on exam, with pain through her back. AR910, 914, 918. Another echo performed on August 14, 2013, again revealed normal findings and 60-65% ejection fraction. AR920-22, 1435. Ms. Marso's cardiology diagnoses on discharge included takotsubo cardiomyopathy, chest pain, dyspnea, stroke, cardiomyopathy, nonischemic, nonsustained ventricular tachycardia, and ventricular dysfunction, along with her other diagnoses of lupus, depression, Sjogrens, ankylosing spondylitis, and others. AR923. Ms. Marso's chest pain was felt to be likely noncardiac, she was prescribed amio, aldactone for her takotsubo cardiomyopathy, and amiodarone for her NSVT, and was discharged on August 17, 2013. AR923-24.

         Ms. Marso presented for cardiac follow-up on September 10, 2013, and denied palpations, but did report some episodes of orthostatic dizziness/lightheadedness. AR1412-13. She was found to be asymptomatic with her most recent echocardiogram on August 14, 2013, showing normalized LV function with an ejection fraction of 60-65%. AR1412. Ms. Marso was seen again on October 8, 2013, and reported feeling a fast heartbeat, feeling lightheaded and squeezing in her chest once in a while, and was found to be asymptomatic, and continued on coumadin therapy. AR1405, 1419.

         Ms. Marso was seen again on April 21, 2014, for cardiac follow-up and a holter monitor had indicated no further episodes of ventricular tachycardia so she was to be weaned off of amiodarone. AR1399. An echocardiogram obtained on April 11, 2014, revealed an ejection fraction of 50-55% with mild mitral and tricuspid valve insufficiency. AR1399, 1438. Ms. Marso's cholesterol was elevated but she had no further episodes of chest pain or shortness of breath. AR1399.

         Ms. Marso was seen again for cardio follow-up on November 14, 2014, and the treatment note indicated that Ms. Marso had a “history of Tikosyn to cardiomyopathy normalization of the left ventricular function normal coronary anatomy nonsustained ventricular tachycardia which resolved. She did normalization of LV function.” AR1394. Ms. Marso's thyroid had been out of control with a TSH of 132 with medications adjusted by her primary care physician and she had occasional episodes of atypical electric sharp chest discomfort with a stinging quality that lasted less than a minute. AR1394. The note indicated no further workup was needed, but never mentioned an echocardiogram obtained on November 7, 2014, which revealed moderately reduced left ventricular ejection fraction of 35-45%, reversal of early to late diastolic velocities c/w diastolic dysfunction, mild mitral regurgitation, mild tricuspid regurgitation, and mild pulmonic valvular regurgitation. AR 1440-41. It appears that echocardiogram was not available because the November 14, 2014, treatment note stated there were “no lab studies or procedures available for review at the time of the visit.” AR1398.

         The appeal record also included a lower extremity arterial duplex test obtained on December 19, 2014, and a CT angiography of Ms. Marso's abdomen, pelvis, and lower arteries obtained on December 29, 2014, for an associated diagnosis of peripheral vascular disease; however, there are no other related treatment records in the appeal record. AR1086-87, 1443-51. The arterial duplex test indicated Ms. Marso was having symptoms of claudication (cramping, pain and weakness), and numbness and tingling in her legs. AR1450. The duplex study of her lower extremities revealed calcified walls bilaterally, poor circulation in the right PTA, evidence of left iliac/CF stenosis, and moderate vascular insufficiency in the left lower extremity based on Doppler and pulse volumes and the CT was recommended. AR1451.

         4. State Agency Physical RFC Assessments

         The State agency assessment of Ms. Marso's physical limitations at the initial level was conducted under the Single-Decision Maker Model without the use or review of a medical expert. AR119 (noting SDM NO-DR); see POMS DI 12015.100 at The agency decision maker on August 10, 2012, found that Ms. Marso had severe DDD (disorders of back-discogenic and degenerative) and severe other and unspecified arthropathies. AR115. The decision maker found based on a record review that Ms. Marso could occasionally lift 20 pounds and frequently 10, stand and/or walk 6 hours of an 8-hour workday, sit 6 hours of an 8-hour workday. The decision maker noted Ms. Marso's history of a MVA, osteoarthritis, anemia, lupus, thyroid problems, cholesterol, left knee injury, Sjogren's, vulvodynia, sleep problems, chronic neck and back pain, and a torn ligament in her right arm in the section provided for explanation of the exertional limits. AR116. The decision maker also found that Ms. Marso was limited to never climbing ladders/ropes/scaffolds, frequently climbing stairs/ramps, and occasionally balancing, stooping, kneeling, crouching, and crawling due to chronic pain, DDD, fatigue and tendinosis. AR116-17. The decision maker also found Ms. Marso was limited to only occasional overhead reaching on the right due to pain and must avoid concentrated exposure to vibration and hazards. AR117-18.

         The ALJ apparently recognized that the single-decision maker was not an acceptable medical source and expressly stated in the RFC finding that the RFC determination was based on the opinion of Christina Rodriguez, MD who completed the assessment at the reconsideration level. AR17, 159. However, the assessment completed by Dr. Rodriguez at the reconsideration level on September 7, 2012, made virtually identical findings for severe impairments and resulting limitations as the decision maker at the initial level, except Dr. Rodriguez added environmental restrictions to also avoid extreme cold and wetness. AR155-58.

         5. State Agency Mental Assessments

         As noted above, the State agency utilized a single decision maker rather than an acceptable medical source at the initial level on August 12, 2012, and noted that Ms. Marso complained of anxiety and alleged mental limitations, but then stated that “this is inconsistent with MER objective findings and TS report that NO MENTAL Impairment is present. Mental has been addressed and ruled out, no need for a PRTF.” AR114. No mental assessment was conducted and no acceptable medical source reviewed the evidence or signed the report. AR110-120.

         At the reconsideration on September 7, 2012, again Ms. Marso's allegations of mental impairments and limitations were noted but the mental health evidence was never reviewed by the State agency utilizing an acceptable medical source and no mental assessment was completed. AR154, 161.

         D. Summary of Testimony at ALJ Hearing

         1. Ms. Marso's Testimony

         Ms. Marso appeared at the video hearing on January 23, 2015. AR31. Ms. Marso testified that she did not have a teaching certificate but she worked for the McCook school district for about two years in the computer lab two hours per day Monday through Friday and as a physical education teacher one hour per day, three days per week. AR35, 38-40. She explained her teaching duties were only part-time, and the rest of the time she assisted other teachers like watching over study halls or assisting in the library. AR40. She testified she also worked as a computer technical specialist and as a PC support person at Newsbank. AR37. Ms. Marso testified she left the job due to difficulty sitting with lower back pain. AR41. She testified that she had to lift 40-45 pounds at that job emptying water condensers. AR43, see also AR276.

         Ms. Marso testified she lived with a friend who carried the laundry for her, and she did some light dusting and loading or unloading the dishwasher. AR45. She said she used a computer to communicate with her daughter and to look up prices such as airline tickets. AR46. Ms. Marso testified that she had flown to South Dakota from Florida to visit her daughter but had back injections four days before she left that helped with being able to tolerate the flight and she utilized wheelchair assistance in the airport, but it was excruciating and it took a good day to settle back down. AR54-55.

         Ms. Marso said a typical day for her involved rest due to her fatigue. AR48. She would either rest or lay down with heat and ice 1-1½ hours twice per day. AR48. Ms. Marso testified she could sit for 30 minutes and stand or walk for 10-15 minutes and lift 10 pounds. AR42. Ms. Marso testified she used a cane that had been originally prescribed after a fall in 2009, and she used it at the time of the hearing when she felt unbalanced, which was becoming more frequent. AR51-52. Ms. Marso testified she had difficulty concentrating and remembering things and had to reread things over again. AR53.

         Ms. Marso testified that she had blurred vision, constipation, diarrhea, cramps, dizziness and tiredness due to her medications, including weekly Enbrel injections. AR48-49. Ms. Marso said her roommate gave her the injections because her right hand shakes and gets inflamed. AR49-50. She said she did not have the hand shake before her stroke in July 2013. AR50. Ms. Marso testified that after the stroke she was back in the hospital in August 2013, with chest pains and tachycardia, and she continued to have chest pains about once a week. AR55. She also testified that since the stroke people have told her she speaks with some hesitancy. AR56.

         Ms. Marso testified that she received counseling at Hope Hospice related to her mother's passing and they also work on other issues that arise. AR58.

         2. Vocational Testimony

         The ALJ's first hypothetical was to assume an individual who was limited as follows: “able to lift and carry 20 pounds, occasionally, and 10 pounds, frequently, stand or walk about six hours of an eight-hour workday, sit about six hours of an eight-hour workday.” AR60. The ALJ then added that the individual required a cane for ambulation and the vocational specialist (VE) said the only past job available would be the user support analyst job. AR60.

         The ALJ's second hypothetical was to assume an individual who was limited as follows: “able to lift and carry ten pounds, occasionally, and less than 10 pounds, frequently, stand or walk two hours of an eight-hour workday, and sit at least six hours of an eight-hour workday.” AR61. The ALJ then added that the individual required a cane for ambulation and the vocational specialist (VE) said the user support analyst job could be performed. AR61. The ALJ then added to this last hypothetical that the individual was able to sit for no longer than one hour at a time and stand or walk for no more than 15 minutes at one time before needing to change positions, but could continue working, and the VE testified that the user support analyst job would still be available. AR61.

         The VE testified that if the individual in any of the hypotheticals required two breaks of 60-90 minutes to lay down each day there would be no work they could perform. AR62. The VE also testified that if an individual could not use their dominant hand to handle, finger and feel a majority of the day they would not be able to perform the user support analyst job. AR62.

         The VE testified that her responses were consistent with the Dictionary of Occupational Titles except the sit and stand, the use of a cane, and the issues of breaks, which were all based on her vocational rehab experience, not the DOT. AR64.


         A. Standard of Review

         When reviewing a denial of benefits, the court will uphold the Commissioner's final decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Minor v. Astrue, 574 F.3d 625, 627 (8th Cir. 2009). Substantial evidence is defined as more than a mere scintilla, less than a preponderance, and that which a reasonable mind might accept as adequate to support the Commissioner's conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Klug v. Weinberger, 514 F.2d 423, 425 (8th Cir. 1975). "This review is more than a search of the record for evidence supporting the [Commissioner's] findings, and requires a scrutinizing analysis, not ...

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