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Gentry v. Commissioner of Social Sec.

United States Court of Appeals, Sixth Circuit

February 4, 2014

Erika GENTRY, Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

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[Copyrighted Material Omitted]

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ON BRIEF:

Anthony W. Bartels, Bartels Law Firm, LLC, Jonesboro, Arkansas, E. Gregory Wallace, Campbell University School of Law, Raleigh, North Carolina, for Appellant.

Mary Ann Sloan, Dennis R. Williams, Douglas G. Wilson, Dana L. Myers, Natalie Liem, William L. Hogan, Social Security Administration, Atlanta, Georgia, for Appellee.

Before: MERRITT, SUTTON, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

Erika Gentry appeals the district court's opinion affirming the decision of the Commissioner of Social Security to deny her disability benefits. Substantial evidence on the record as a whole establishes that Gentry is disabled by multiple physical impairments. Because the Commissioner's decision rejecting Gentry's application is not supported by substantial evidence and is flawed in several respects, we REVERSE and REMAND for an award of benefits.

I. FACTS AND PROCEDURAL HISTORY

This case has an extended history before the Social Security Administration that includes two remands and three hearings before an ALJ. Due to the scope and size of the medical record, we begin with an overview of Gentry's medical history. Gentry's primary category of illness is her long history of psoriasis, a chronic autoimmune condition characterized by patches of raised, red skin covered with flaky, white buildup of dead skin cells called " plaques" that can be painful and that crack and bleed. National Psoriasis Foundation, Facts About Psoriasis 1.[1] In the more severe

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cases, the condition interferes with sleeping, walking, sitting, standing, and using one's hands, especially when the plaques are located on the hands and feet. Id. at 2. Gentry also has psoriatic arthritis, an inflammatory disease developed by thirty percent of those with psoriasis that causes generalized fatigue, stiffness and swelling in and around the joints, tenderness, pain and swelling in the tendons, swollen fingers and toes, and reduced range of motion. NPF, Facts about Psoriatic Arthritis 1. It, too, can interfere with use of the hands, sleeping, walking, sitting, and standing. Id. at 2. There is no cure for psoriasis or psoriatic arthritis, but many treatments exist in a somewhat tiered system where doctors move from the first-line treatments to the more high-risk medications as the severity of the conditions increases and the response to first-line treatments decreases. See generally, NPF, Psoriasis, Treatments.

Gentry also has severe injuries in her left ankle, right arm and wrist, and right hip resulting from a 1994 car accident. Eventually, she developed avascular necrosis and post-traumatic arthritis in her left ankle, eventually losing ankle movement, and post-traumatic arthritis in her hip. She requires a metal brace on her left leg to walk, walks with a limp and waddling gait, stands up with stiffness, and has frequent pain in her left leg and foot, low back, neck, and hands. In addition, she has been diagnosed with deformities in her foot, ankylosing spondylitiscervical radiculopathy, cervical stenosis, lumbar spondylosis, possible sacroilitis or facet arthropathy in the low back, degenerative joint disease in the low back, chronic lumbar strain, possible herniated disc, carpal tunnel syndrome, and lumbosacral/thoracic radiculopathy, among other things. She has been prescribed many medications over the years, including the higher-tiered psoriasis medications, most of them with limited or temporary success.

In June 2004, Gentry filed an application for disability benefits under Title II of the Social Security Act, 42. U.S.C. §§ 401 et seq, alleging disability since June 7, 2004. At the time, she was twenty-nine years old with a high school education and some college. She had worked approximately 10 years as a pizza maker and a pizza delivery driver. She had most recently worked as a receptionist at a chiropractor's office but had been discharged after 2 months because she bled on the paperwork due to her plaques from psoriasis.

After Gentry's application was denied, the case was remanded twice for further proceedings. The first time, the district court granted the unopposed motion of the Commissioner to remand. The second time, the Appeals Council remanded with instructions for the Administrative Law Judge (ALJ) to complete the administrative record, to consider medical evidence through 2009 including the January 2009 treating source opinion of Dr. Andrew Murphy, to revisit its assessment that Gentry's impairments had not changed since the first ALJ decision in 2006, to provide an adequate rationale to support the physical residual functional capacity (RFC) assessment, and to correct the incongruous finding that Dr. Murphy's assessment was consistent with a sedentary residual capacity when Dr. Murphy said

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that Gentry cannot sit for long periods of time. The Appeals Council instructed the ALJ to request further clarification from the treating physician if necessary.

An ALJ held a third hearing in September 2011. Afterward, the ALJ issued a November 2011 decision denying Gentry's application for benefits at the fourth step of the required disability analysis. See 20 C.F.R. § 404.1520(a) (2011).[2] The ALJ found that although Gentry was disabled in 2011, she did not qualify for disability benefits prior to the last insured date of December 31, 2009. The ALJ found that Gentry did not have an impairment that met the severity of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 and that Gentry had the residual functional capacity (RFC) to perform past relevant work as a receptionist. The Appeals Council declined jurisdiction, and the district court affirmed.

Gentry now seeks review in this court, contending that her psoriasis and psoriatic arthritis meet the requirements for a disability listing under Appendix 1 and that the ALJ ignored objective medical evidence of the severity of these conditions in step three of the analysis. Gentry also argues that the ALJ erred at step five of the analysis by failing to give controlling weight to the opinion of her treating physician that she cannot sit for prolonged periods of time when objective medical evidence supports this opinion. The following lengthy discussion of the facts captures the salient information from the voluminous administrative record.

A. Early Medical History

In 1994, Gentry first saw Dr. James Turner, a dermatologist, for " painful uncomfortable lesions" on the scalp and shoulder. Dr. Turner diagnosed " Pustular Seborrhea" [3] and prescribed an antibiotic, erythromycin, and some topical medications. Gentry returned to Dr. Turner years later for psoriasis-related problems, but in the meantime, she received treatment elsewhere for more pressing medical needs resulting from a serious car accident.

On May 22, 1994, at the age of nineteen, Gentry was treated in an emergency room after a head-on car collision. She suffered fracture dislocations of the right hip and the left ankle, fracture of the right distal radius, fracture of the right wrist, and miscarriage of her 33-week old fetus. Gentry underwent multiple surgeries and afterward continued to have problems including restrictions against bearing weight on her lower extremities.

Over the next two years, Gentry received ongoing post-operative treatment from Dr. William Jameson, an orthopedic surgeon at the Orthopaedic Clinic, seeing him a total of fifteen times by March 1996. Gentry developed avascular necrosis (death of bone tissue that can lead to the bone's eventual collapse) and collapse of the left talar dome (the top of the ankle joint) and was ordered to wear either a Bledsoe boot or patella tendon bearing brace for some time, to unload weight from her foot and ankle area. Over time, Dr. Jameson noted a continuing need for the

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brace and concerns about the neck and ankle areas, but Gentry generally improved. By June 1995, Gentry had mild pain over one of the screws, limitations in the subtalar motion in her ankle, and some underlying subtalar arthritis, but Dr. Jameson reported that she had probably reached " maximum medical improvement."

In April 1996 and 1997, Gentry saw both Dr. Jameson and his colleagues a number of times, for a twisting injury to the left ankle that prevented Gentry from standing or walking for long periods; for a large callus, which " may be related to the foot stiffness secondary to her previous massive foot trauma; " and for pain and tenderness in the wrist that had been ongoing for three weeks. Dr. Jameson indicated that Gentry still had some components of avascular necrosis of the talus and had permanent limitations related to her car accident injuries: " combined impairment for her fracture dislocation of the ankle with associated talar neck fracture is 10% of the whole person, 22% of the lower extremity and 30% of the foot." Dr. Jameson paired down the lesion and recommended a wrist immobilizer. In 1998, after Gentry was involved in another car accident and treated in an emergency room, she began to see Dr. Lynn Stegall, a colleague of Dr. Jameson, for pain and tenderness in the left knee, left ankle, and right hip and for a sprain in her ankle. Over the next couple of years, Gentry both called Dr. Jameson and visited him in the office complaining of pain in her ankle, possibly related to the cold weather and to the fact that she was on her feet all day at work; he prescribed Vioxx.

During this period, Gentry was still seeing Dr. Turner, the dermatologist who had diagnosed her with psoriasis. At first, she was prescribed topical medications, a first line psoriasis treatment, and then a steroid injection of Aristocort was added. NPF, Facts about Psoriasis 2; NPF, Psoriasis, Treatments, Topical Treatments. In 2000, Gentry saw Dr. Turner several times with psoriasis that was " moderate to severe" with " [e]xtensive, large plaque psoriasis of extensor areas, hips and scalp," some " actually getting in and around the eye." She began taking Methotrexate, which was originally used by cancer patients and is now used for those with " moderate to severe psoriasis and psoriatic arthritis" who do not respond to first line treatments. NPF, Psoriasis, Treatments, Traditional Systemic Medications; NPF, Psoriasis, Treatments, Systemic Medications: Methotrexate. Methotrexate increases the risk of infection as well as risks to the liver and kidneys, and these risks are higher for those who are obese or have diabetes. Id. By the end of 2000, the psoriasis was responding to treatment, but Gentry still had " [g]eneralized scattered, psoriasiform plaques," and Dr. Turner thought it necessary to continue her on the Methotrexate.

B. Medical History: 2001-2005

Around 2001, Gentry's medical record became far more complicated as her diagnoses and her doctors increased in number. After falling in the shower in 2001, Gentry saw Dr. Cole, another doctor at the Orthopaedic Clinic, who noted that Gentry was positive for arthritis, had pain in the right hip, tenderness with certain rotations, mild swelling, and that she has traumatic trochanteric bursitis.[4] Gentry had recently stopped taking Vioxx as it had not been helpful, and Dr. Cole prescribed Vicodin, a habit forming drug containing

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hydrocodone, and instructed Gentry to use it sparingly.

Also in 2001, Gentry saw Dr. David Dowling, with Spine Memphis. Dr. Dowling's notes contain extensive information on Gentry's physical state: back pain radiating into her right leg to the knee; pain with forward flexion; burning, shooting pain that grew worse with exercise or walking and sitting and interfered with her sleep; some numbness; and " psoriatic skin lesions throughout both her elbows and knees and into her shins." He assessed probable discogenic radiculitis,[5] previous hip dislocation and ankle reconstructions, and psoriasis. He placed her on a Decadron taper, [6] prescribed Celebrex,[7] and started her on an extensive physical therapy program. Dr. Dowling's 2003 notes indicate: persistent neck and right shoulder girdle pain; sharp and burning pain that interfered with sleep; and stabbing pain across the lumbosacral junction, near the small of the back. He assessed chronic, cervical facetogenic [8] pain; possible SI (sacroiliac) joint mediated chronic right low back and gluteal pain; and noted that he did not see evidence of the underlying disc pathology that he has previously assessed. He noted that Gentry had previously done home exercises rather than formal therapy and he prescribed a " couple sessions" to set Gentry up on a home therapy program.

During 2003, Gentry again began seeing Dr. Jameson, the ortheopedic surgeon, for pain in her forefoot, hindfoot, and hip. Examinations showed that she had very little ankle motion, no subtalar motion, cock-up deformities of her lesser toes, a cavus foot deformity, very prominent metatarsal heads, and pain on extreme motion of the hip. Xrays showed mild degenerative changes of the calcaneal cuboid and talonavicular joint, severe changes in the subtalar and ankle joint, and probable avascular necrosis of the talus. Dr. Jameson discussed the possibility of several extensive surgeries to Gentry's ankle, but said he was not certain the surgeries would help. He ultimately determined that protective measures could be taken for the hip and that the forefoot seemed to be helped by orthotics, but said that the hindfoot might need to be addressed later by the surgical insertion of a rod.

Perhaps the most significant development in the record in 2003 was the alteration in Gentry's psoriasis treatments and diagnosis. By 2001, although Gentry continued taking Methotrexate, she still had " [e]rythematous plaques on the elbows and knees," and was reporting some side effects of nausea; in 2003, Dr. Turner began considering other options. In June 2003, Gentry went to see Dr. Turner with " [g]eneralized scattered, plaque psoriasis, pretty much head to toe, with large lesions

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of the central portion of the torso and arms." Her flare up was " even going to the face." Gentry also had " a great deal of difficulty with joint problems with morning stiffness and difficulty in ambulation, difficulty working." For the first time, Dr. Turner diagnosed severe psoriasis with psoriatic arthritis.

By July, Gentry was " having a lot of pain, peeling and itching." Dr. Turner noted several adverse side effects Gentry had from the Methotrexate, including cold sweats and nausea, and instead started her on Enbrel injections, with special instructions and warnings, and continued her on topical treatments. Enbrel falls within a line of drugs called " biologics," which are grown from live tissue and which attack the immune system. Biologics are prescribed to those with " moderate to severe cases of psoriasis and psoriatic arthritis ... who have not responded to or who have experienced harmful side effects from other treatments." NPF, Psoriasis, Treatments, Moderate to Severe Psoriasis: Biologic Drugs. Such drugs carry risks of infection, and may not be used by those with a compromised immune system or an active infection. Id. Other side-effects include everything from night sweats, nausea, and bruising, to bleeding, skin infection, and joint pain. See, e.g., Enbrel, Drugs.com, http:// www. drugs. com/ enbrel. html (last visited Dec. 19, 2013).

Enbrel worked at first. In early August 2003, the plaque psoriasis was responding " extremely well," but Gentry continued to have " joint discomfort that had not improved as much as we had hoped." Additionally, Gentry was having " some adverse events which possibly may or may not be associated with the Enbrel which includes some chronic fever blisters, acid reflux, and joint discomfort." Dr. Turner prescribed Valtrex for the cold sores and continued her on Enbrel. By the end of August 2003, however, Dr. Turner instructed Gentry to hold the Enbrel because she had a tooth abscess that needed to be treated with antibiotics. In October 2003, Dr. Turner put Gentry back on Enbrel, but with hesitations. She had stopped taking it because she had been having gum problems and because she was having oral procedures associated with her accident. Dr. Turner restarted the Enbrel, with Percoset, a narcotic containing oxycodone, for the gum problems, but told her to stop taking it if the problems continued.

Over the next few months, Gentry was off and on Enbrel while she was treated by others for ear infections, bronchitis, vomiting, chills, GERD (chronic gastroesophageal reflux disease), and depression. In May 2004, Dr. Turner noted that Gentry had stopped taking Enbrel, as previously instructed, due to the gum infections. At the time, Gentry's psoriasis was " moderate to severe," she continued to have psoriatic arthritis, and Dr. Turner noted that a biologic drug was warranted. However, he could not restart her on Enbrel until ...


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