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Gage v. Berryhill

United States District Court, E.D. Arkansas, Jonesboro Division

June 27, 2017

LINDA S. GAGE PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT

          MEMORANDUM OPINION AND ORDER

         Plaintiff Linda S. Gage (“Gage”) began the case at bar by filing a complaint pursuant to 42 U.S.C. 405(g). In the complaint, she challenged the final decision of the Acting Commissioner of the Social Security Administration (“Commissioner”), a decision based upon findings made by an Administrative Law Judge (“ALJ”).

         Gage maintains that the ALJ's findings are not supported by substantial evidence on the record as a whole and offers two reasons why.[1] Gage first maintains that her impairments meet or equal Listing 1.02, and the ALJ erred at step three of the sequential evaluation process when she failed to so find.[2]

         At step three, the ALJ is required to determine whether a claimant's impairments meet or equal a listed impairment. See Raney v. Barnhart, 396 F.3d 1007 (8th Cir. 2005). The determination is solely a medical determination, see Cockerham v. Sullivan, 895 F.2d 492 (8th Cir. 1990), and the claimant bears the burden of showing that her impairments meet or equal a listed impairment, see Pyland v. Apfel, 149 F.3d 873 (8th Cir. 1998).

         Listing 1.02 encompasses a major dysfunction of a joint and is characterized by “gross anatomical deformity ... and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s) and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s).” See Listing 1.02. The listing additionally requires the involvement of one major peripheral weight-bearing joint resulting in an inability to ambulate effectively as defined in 1.00B2b or the involvement of one peripheral joint in each upper extremity resulting in an inability to perform fine and gross movements effectively as defined in 1.00B2c.

         The inability to ambulate effectively means “an extreme limitation of the ability to walk.” See Listing 1.00B2b. It includes, but is not limited to, such things as the inability to walk without the use of a walker or the inability to walk without the use of two crutches or two canes.

         The inability to perform fine and gross movements effectively means “an extreme loss of function of both upper extremities.” See Listing 1.00B2c. It includes, but is not limited to, such things as the inability to prepare a simple meal and feed oneself and the inability to take care of personal hygiene.

         Gage alleges that she became disabled on December 1, 2013, as a result of impairments that include back problems, diabetes, left arm pain, and feet problems. In her brief, she represents that her ambulatory limitation is caused by “chronic back and heel pain.” See Docket Entry 11 at CM/ECF 13. She also represents in her brief that her upper extremity limitation is caused by “an impingement of her left shoulder” and the pain the impingement causes in her neck, back, and shoulder. See Docket Entry 11 at CM/ECF 7, 13.

         The medical evidence relevant to Gage's ambulatory and upper extremity impairments reflects that she has sought medical attention for her back pain at irregular intervals. She underwent testing in January of 2010, and the results revealed, in part, the following: “[t]he bony structures in the T-spine show a little bit of mild osteoarthritic type changes.” See Transcript at 321. In March of 2013, she presented to a medical clinic complaining of back pain. See Transcript at 275-278. She represented that the pain radiated along her right side. Her vital signs were taken and reflected, inter alia, that she was sixty-four inches tall and weighed 174 pounds, or had a Body Mass. Index (“BMI”) of 29.71. No joint swelling or tenderness was noted, and no spinal tenderness was noted. A backache was assessed. In June of 2014, Gage was seen again for back pain. See Transcript at 494/507-509. She denied numbness and tingling but reported that the pain was exacerbated by standing and bending. She reported pain upon lumbar flexion, extension, and rotation, and her lumbar spine was tender to palpation. Physical therapy was recommended, as was a home exercise program that included stretching. She never completed the therapy program, though, because she was discharged from it because of her non-attendance.

         Gage has occasionally sought medical attention for leg pain and restless leg syndrome. The record indicates that she did so on at least three occasions prior to June of 2014. See Transcript at 334, 332-333, 315-316. No significant findings were recorded. In June of 2014, she presented to a medical clinic complaining of leg pain. See Transcript at 510-513. Her vital signs were taken and reflected, inter alia, that she was sixty-four inches tall and weighed 177 pounds, or had BMI of 30.38. A musculoskeletal examination was abnormal. The assessment included a backache and diabetes mellitus. Medication was prescribed. Gage was seen for depression in August of 2014. See Transcript at 452-453. The report from that examination is noteworthy because the nurse practitioner noted that Gage had pain in her calves when walking any distance.

         Gage has on occasion sought medical attention for heel pain. In October of 2007, she presented to a medical clinic complaining of a burning sensation in her feet. See Transcript at 323-324. It was attributed to diabetic neuropathy, and she was prescribed medication. She did not seek medical attention for her heel pain again until February of 2013. See Transcript at 282-284. No significant findings were recorded, but diabetes mellitus was again diagnosed.

         Gage has on occasion sought medical attention for pain and swelling in her right shoulder. In September of 2006, she presented to a medical clinic complaining of right shoulder pain. See Transcript at 339. A strain/spasm in her rhomboid muscles was assessed, and medication was prescribed. She did not seek medical attention for her right shoulder again until September of 2014. See Transcript at 498-499. At that time, she exhibited a decreased range of motion in her shoulder and some tenderness but had no effusion or swelling. Joint pain was diagnosed.

         Gage has also sought medical attention for pain in her left shoulder, and a left shoulder impingement has been noted. See Transcript at 253. In October of 2012, she presented to a medical clinic complaining of pain in her left shoulder. See Transcript at 291-294. She reported that a recent “steroid shot” had helped, as did over-the-counter ibuprofen. See Transcript at 291. A musculoskeletal examination revealed joint pain and stiffness but no joint swelling. Joint pain and diabetes mellitus were assessed. Gage declined an x-ray and attributed the pain to “just arthritis and working.” See Transcript at 294. Mobic was prescribed.

         In February of 2013 and again in March of 2013, Gage presented to a medical clinic complaining of left shoulder pain. See Transcript at 282-284, 390-392. No joint swelling or tenderness was noted in February of 2013, but joint pain localized in her left shoulder was assessed. In March of 2013, the attending physician recorded Gage's report that “[h]er pain radiates down to the elbow at times” and her pain “increased with overhead activity, behind the back activities, and when she sleeps on her left side.” See Transcript at 391. Gage was observed to have a decreased range of motion in her left shoulder. A treatment plan included therapy and a home exercise program that included stretching and strengthening exercises.

         In February and March of 2014, Dr. James Ameika, M.D., (“Ameika”) saw Gage in connection with medical imaging testing and to discuss the occulsion, or blockage, he found in her right and left internal carotid arteries. See Transcript at 356-359, 363-367. The findings contained in his reports are relevant to her ambulatory and upper extremity impairments in the following four respects. First, he observed that she had “no weakness involving either of her upper or lower extremities.” See Transcript at 356. Second, a musculoskeletal examination revealed no evidence of arthralgia, joint pain, joint swelling, limb pain, or limb swelling. Third, an examination of her extremities revealed the following: “pedal pulses are within normal limits, ... no clubbing, edema was not present, showed no cyanosis, cellulitis was not present, ...” See Transcript at 359. Fourth, a neurological examination revealed, inter alia, that she had no difficulty walking but had a normal gait.

         At step three, the ALJ considered whether Gage's impairments meet or equal several of the listings. The ALJ specifically considered whether Gage's impairments meet or equal Listing 1.02. The ALJ found that they do not meet the listing because “the available medical evidence did not demonstrate the specified criteria required of the listing.” See Transcript at 15. In so finding, the ALJ observed that “the evidence does not demonstrate that the claimant has the degree of difficulty in performing fine and gross movements as defined in 1.00B2c.” See Transcript at 15. The ALJ made no observation with regard to whether Gage's impairments give rise to an inability to ambulate effectively as required by 1.00B2b. In considering whether Gage's impairments meet or equal Listing 1.04, though, the ALJ observed that “there is no evidence ... [his] back disorder result[s] in an inability to ambulate effectively ...” See Transcript at 15.[3]

         Substantial evidence on the record as a whole supports the ALJ's finding at step three because Gage has failed to produce medical evidence that her impairments meet or ...


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