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Sharp v. Colvin

United States District Court, W.D. Arkansas, Fayetteville Division

December 5, 2014

LYLE WAYNE SHARP
v.
CAROLYN W. COLVIN, Commissioner Social Security Administration

For Lyle Sharp, Plaintiff: Susan E. Brockett, LEAD ATTORNEY, Nolan Caddell Reynolds P.A., Fort Smith, AR.

For Social Security Administration Commissioner, also known as Carolyn Colvin, Defendant: Office of Regional Counsel-Dallas, LEAD ATTORNEY, Dallas, TX; William Winston Newbill, LEAD ATTORNEY, Social Security Administration, Office of General Counsel, Dallas, TX.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

HON. ERIN L. SETSER, UNITED STATES MAGISTRATE JUDGE.

Plaintiff, Lyle Wayne Sharp, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (" Commissioner") denying his claim for a period of disability and disability insurance benefits (" DIB") under the provisions of Title II of the Social Security Act (" Act"). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g).

I. Procedural Background

Plaintiff protectively filed his application for DIB on February 9, 2012, alleging an inability to work since November 1, 2006 due to post traumatic stress disorder (" PTSD") and osteoarthritis in his feet and knees. (Tr. 176). For DIB purposes, Plaintiff maintained insured status through June 30, 2009. (Tr. 13). His claim was initially denied on March 21, 2012, and denied upon reconsideration on April 23, 2012. (Tr. 13). An administrative hearing was held on November 30, 2012, at which Plaintiff appeared with counsel and testified. (Tr. 29-53). By a written decision dated February 8, 2013, the Administrative Law Judge (" ALJ") found that during the relevant time period Plaintiff had the following severe impairments: hypertension; degenerative joint disease of the knees; depression; and PTSD. (Tr. 15). After reviewing all of the evidence presented, however, the ALJ determined that Plaintiff's impairments did not meet or equal the level of severity of any impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 15). The ALJ found Plaintiff retained the residual functional capacity (" RFC") to " perform light work as defined in 20 CFR 404.1567(a) except he was limited to work involving simple tasks with simple instructions and only incidental contact with the public." (Tr. 17). With the help of a vocational expert (" VE"), the ALJ determined Plaintiff could not perform his past relevant work (" PRW"), but that Plaintiff retained the capacity to perform the requirements of representative occupations such as small product assembler, bottling line attendant, and inspector/checker, and was capable of making a successful adjustment to other work that exists in significant numbers in the national economy. (Tr. 23, Tr. 49-50). The ALJ then found that Plaintiff had not been under a disability as defined by the Act during the relevant time period. (Tr. 24).

Plaintiff next requested a review of the hearing decision by the Appeals Council, which denied that request on December 19, 2013. (Tr. 1-3). Subsequently, Plaintiff filed this action. (Doc. 1). Both parties have filed appeal briefs, and the case is before the undersigned for report and recommendation. (Doc. 5; Doc. 10; Doc. 11).

II. Evidence Presented

At the time of the administrative hearing, Plaintiff was forty-eight years of age and had a high school education. (Tr. 22, 36). The record reflects Plaintiff's PRW consisted of employment as a forklift driver, utility worker, deck hand, and diesel engine technician. (Tr. 22, 48-49).

The medical evidence before the relevant time period reflects the following. Plaintiff had a history of alcoholism and depression as well as housing and legal trouble. (Tr. 987, 1004-1009, 1019-1020). In October 2005, Plaintiff was treated by the Department of Veterans Affairs (" VA") after his right tibia shaft was fractured. (Tr. 914). Plaintiff was prescribed hydrocodone, abused his medication, and was referred to a psychiatrist who diagnosed alcohol dependence, marijuana dependence, and major depression. (Tr. 715-717, 964, 1024-1025). Plaintiff entered an intensive outpatient therapy program, but relapsed after completing the program and was incarcerated. (Tr. 990, 1000, 1016, 1020-1024). After his release, Plaintiff reestablished treatment with the VA, and was diagnosed with depression, a flat foot condition, and arthritis in his knee. (Tr. 977-979). He was prescribed medications for depression, insomnia, pain, and hypertension (Tr. 947, 958-959, 964-966, 970), and participated in VA transitional housing programs where he appeared to achieve sobriety and full time employment. (Tr. 944, 949-952, 954).

The evidence from the relevant time period is the following. On November 9, 2006, Plaintiff spoke with VA Social Worker Diane Collins over the phone to update her on his sobriety and mental health progress. He stated he was attending Alcoholics Anonymous (" AA") meetings, working and saving money, was " happy with how things are going, " and that he had no needs at the time. (Tr. 943).

On November 22, 2006, Plaintiff met with Dr. Ernest Emmerton, his primary care physician, to discuss the pain around his tibia fracture and his problems sleeping. (Tr. 937). Plaintiff was prescribed atenolol 25mg., capsaicin cream, Celexa 20mg., hydrocodone 5mg., salsalate 750 mg., Vicodin 500mg., and trazodone 100mg. (Tr. 937-938).

On December 14, 2006, Plaintiff attended a mental health session with Social Worker Brian Mcanally, who noted that Plaintiff was working full-time and receiving a lot of overtime while in the VA Grant and Per Diem Housing Program. (Tr. 936-937). Plaintiff was also compliant with attending all his counseling and AA sessions, and he was planning to attend college or re-embark on a career as a merchant seaman.

On December 21, 2006, Plaintiff visited the VA Orthopedic clinic for a one-year follow up of his right tibia fracture and met with Nurse Judy Petermann, who noted that Plaintiff had full motion of his knee with no swelling, although his knee was tender at the medial joint space. (Tr. 934-935). Plaintiff noted that he was " much improved, " although he continued " to have knee pain but is able to do full activities as tolerated." (Tr. 934). An x-ray of Plaintiff's tibia showed that the tibia and fibula were in good alignment and healed. (Tr. 934). Nurse Petermann authorized his discharge from orthopedics. (Tr. 934). A separate exam the same day by Nurse Linda Thornbrough noted that Plaintiff was ambulatory and his pain had deceased/improved. (Tr. 935). Plaintiff rated his pain as a two out of ten, although Plaintiff noted that his main concern was his knees and that they had been bothering him a long time. (Tr. 934-936).

On January 1, 2007, Plaintiff met with Social Worker Mcanally to discuss his housing situation. (Tr. 933-934). It was noted during the visit that Plaintiff had completed his fourth month of the Grant and Per Diem housing program and was " on track to leave the program in April and return to his old job as a merchant seaman." (Tr. 934).

On January 26, 2007, Dr. Emmerton switched Plaintiff's prescription from Darvocet to more hydrocodone at Plaintiff's request that " hydrocodone works better for him." (Tr. 933).

On February 12, 2007, Plaintiff reported to the podiatry clinic and was seen by Nurse Linda Jones. Plaintiff complained of pain in the arches and the balls of his feet that had begun several months ago. (Tr. 923-932). He rated his pain as a six out of ten, which was an increase from December 21, 2006, when he rated his pain as a two. Plaintiff complained that his pain increased while lifting heavy objects and stated " I just lost my mobility, I have to pick up things sideways ... it is difficult to walk down stairs and it feels like my knees are going to give away." (Tr. 924, 929-930). Nurse Jones noted that Plaintiff claimed to be in pain while standing and walking from his toes to his ankles, but there was no objective evidence of painful motion, swelling, tenderness, instability, abnormal weight bearing, weakness, hospitalization, surgery, or joint trauma. (926-930). Plaintiff was able to stand for up to one hour and walk between a quarter of a mile and a mile. (Tr. 930). Plaintiff reported that salsalate provided some relief for the pain in his feet and knees, and Nurse Jones noted that Plaintiff did not need an assistive aid for walking. (Tr. 929-930). Plaintiff was diagnosed as having a mild limitation on chores, shopping, recreation and traveling as well as moderate limitation on exercise and sports from his fallen arches. (Tr. 931). Plaintiff was also diagnosed with osteoarthritis in his knees, which prevented exercise and sports, severely impacted chores, and moderately impacted shopping and traveling. (Tr. 932).

On February 27, 2007, Plaintiff met with Social Worker Mcanally to discuss his progress after completing the six month VA Grant and Per Diem homeless program. (Tr. 922). Plaintiff stated that he was working full time, had paid down his debts, and had saved money (Tr. 922). Plaintiff also indicated that he hoped to be living independently by April 2007 by working as a merchant seaman. (Tr. 922).

On March 13, 2007, Plaintiff called Dr. Emmerton and requested his hydrocodone be increased because he was taking two pills during the day and one at night. (Tr. 938). The next day Dr. Emmerton increased his hydrocodone prescription to ninety pills a month. (Tr. 938).

On April 6, 2007, Plaintiff had a final meeting with Social Worker Mcanally, and was discharged from the VA Grant and Per Diem program. (Tr. 920). It was noted that Plaintiff was still working full time, had moved into an apartment in Joplin, Missouri, and that Plaintiff considered his depression to be under control. (Tr. 920).

On May 23, 2007, Plaintiff met with his new primary care physician, Dr. Jose Fontanilla, at the Fayetteville, Arkansas, VA and complained of chronic pain in his knee. Dr. Fontanilla noted that Plaintiff was diagnosed with mild osteoarthritis, PTSD, hypertension, and had a history of depression. (Tr. 914-916). Dr. Fontanilla's impression was that Plaintiff had hypertension, depression, PTSD, insomnia, gastroesophageal reflux disease with some dyspepsia, mild hepatitis, and osteoarthritis of his knee. Dr. Fontanilla continued Plaintiff's atenolol, trazodone, salicylate, and hydrocodone prescriptions, increased his Celexa prescription to 40mg., and prescribed omeprazole. (Tr. 916). Plaintiff was also given a substance abuse questionnaire where he denied drinking or using tobacco within the past year. (Tr. 918-919). The same day, Plaintiff also had a follow up with Social Worker ...


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