United States District Court, D. South Dakota, Southern Division
KATHRYN M. McCASKILL, as Successor in Interest to Jayne K. Marso, Plaintiff,
NANCY A. BERRYHILL,  Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
Kathryn M. McCaskill as Successor in Interest to Jayne K.
Marso,  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.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
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,
Statement Of The Case
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.
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,  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.
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
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.
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).
Plaintiff's Age, Education and Work Experience
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. AR20.
Relevant Medical Evidence
Orthopedic Treatment Records
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 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.
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,  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.
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.
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,
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.
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,  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.
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.
Lee Physicians Group Records
Primary Care - Dr. Waks
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, flector patches, and weekly Enbrel
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 plaquenilin 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.
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” was to be held off due to lack of
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.
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
http://www.wecareforlee.org/ (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.
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.
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
Rheumatology - Dr. Bustillo
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.
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.
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.
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.
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.
Pain Management - Dr. Mahaney
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.
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.
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.
Hospital Admission and Cardiology Records
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. 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,  and could not tolerate
Coreg due to hypotension. AR910.
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.
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.
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.
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
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.
State Agency Physical RFC Assessments
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
https://secure.ssa.gov/poms.nsf/lnx/0412015100. 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.
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
State Agency Mental Assessments
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.
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.
Summary of Testimony at ALJ Hearing
Ms. Marso's Testimony
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.
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.
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.
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.
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.
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.
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
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.
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.
Standard of Review
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 ...