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Cole v. Colvin

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

October 6, 2016

KEITH LAMAR COLE PLAINTIFF
v.
CAROLYN W. COLVIN, Commissioner Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Keith Lamar Cole, 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 claims 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 current application for DIB on March 24, 2012, alleging an inability to work since February 17, 2012, due to thumb problems, arthritis, osteoarthritis in the back, heart problems and knee problems. (Doc. 11, pp. 192, 228). An administrative video hearing was held on October 24, 2013, at which Plaintiff appeared with counsel and testified. (Doc. 11, pp. 102-133).

         By written decision dated April 4, 2014, the ALJ found that during the relevant time period, Plaintiff had an impairment or combination of impairments that were severe. (Doc. 11, p. 90). Specifically, the ALJ found Plaintiff had the following severe impairments: aortic stenosis and osteoarthritis. However, after reviewing all of the evidence presented, 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. (Doc. 11, p. 91). The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform a full range of light work as defined in 20 C.F.R. § 404.1567(b). (Doc. 11, p. 91). The ALJ, with the use of the Medical-Vocational Guidelines (Grids), found Plaintiff was not disabled. (Doc. 11, p. 97).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which after reviewing additional evidence submitted by Plaintiff, denied that request on July 6, 2015. (Doc. 11, pp. 5-11). Subsequently, Plaintiff filed this action. (Doc. 1). Both parties have filed appeal briefs, and the case is before the undersigned for report and recommendation. (Docs. 9, 10).

         The Court has reviewed the entire transcript. The complete set of facts and arguments are presented in the parties' briefs, and are repeated here only to the extent necessary.

         II. Evidence Presented:

         At the time of the administrative video hearing held before the ALJ on October 24, 2013, Plaintiff was forty-eight years of age and had a high school education and completed a computer drafting program. (Doc. 11, pp. 102, 229). Plaintiff testified that he last worked on February 17, 2012, when the business he was working for closed. (Doc. 11, p. 111).

         Prior to the alleged onset date of February 17, 2012, Plaintiff was treated for various issues which included an aortic valve disorder; hypertension; osteoarthritis; dental caries; a hernia repair; and neck, back, and knee pain. The medical evidence during the relevant time period reflects the following.

         On February 23, 2012, Plaintiff was noted to have a tiny spot on his lungs. (Doc. 11, p. 482, 679-681, 822). Dr. Maria Cristina M. Judit recommended monitoring the spot. On March 2 2012, Plaintiff was admitted into the hospital after complaining of wheezing, shortness of breath, and coughing. (Doc. 11, pp. 398-482, 678-679, 696-697, 710, 734-822, 888-893, 900, 921-922). A review of systems indicated Plaintiff denied chest pain, nausea, vomiting, weakness, numbness or headache. (Doc. 11, p. 475). Plaintiff was admitted with a clinical impression of pneumonia versus a viral syndrome with fever. Plaintiff tolerated respiratory treatments well. Plaintiff's aortic stenosis was noted as stable. Plaintiff was noted to ambulate without difficulty, and was able to sit on a bed and visit with other patients. Plaintiff was discharged on March 6, 2012. Plaintiff was asked to follow up with his primary care physician on March 23, 2012.

         On March 8, 2012, Ms. Robin D. Cowan, RN, BSN, called Plaintiff to check on his well-being following his hospital stay. (Doc. 11, pp. 735-737). Plaintiff reported that he was doing better than he was prior to admission, and that he was taking all medications as prescribed. Plaintiff voiced no questions or concerns.

         On March 20, 2012, Plaintiff called and spoke to Ms. Elizabeth S. Mick, RN. (Doc. 11, pp. 732-733). Plaintiff wanted to discuss the results from the cardiology consult that he underwent in September of 2011. The medical records for this September consult report the following:

He has mild aortic stenosis and enlargement of the ascending aorta which does not reach surgical significance. I would place him on low dose beta blocker, then Holter. He should have a yearly echo, and his aorta should be followed with serial CT scans.

(Doc. 11, p. 734). Nurse Mick told Plaintiff that he was scheduled for an appointment on March 23rd, and that his doctor would review the records at that time. Plaintiff denied chest pain, shortness of breath or dizziness.

         On March 23, 2012, Plaintiff underwent chest x-rays. (Doc. 11, p. 677). No acute cardiopulmonary process was identified. Plaintiff also underwent retinal image testing, and a Holter Monitor test in April of 2012. (Doc. 11, pp. 701, 722, 888, 898-899, 909-920).

         On May 18, 2012, Plaintiff underwent a pulmonary function test. (Doc. 11, pp. 104). The test results indicated a possible thoracic obstruction, and a clinical correlation was recommended to exclude extra-thoracic obstruction.

         On May 22, 2012, Plaintiff underwent a cardiac consultation for his aortic stenosis. (Doc. 11, pp. 1044-1047). Plaintiff reported little exercise due to his arthritis with instability of his left knee and lower back. With the exception of pain with coughing, Plaintiff denied any difficulty with chest pain. Plaintiff reported occasional lightheadedness when standing. Plaintiff's girlfriend reported Plaintiff snored and sometimes stopped breathing at night. Plaintiff was diagnosed with a bicuspid aortic valve with moderate stenosis and mild aortic regurgitation; ascending aortic ectasia; hyperlipidemia; chronic low back pain; and degenerative joint disease of the knees. Dr. James As Haisten recommended that Plaintiff maintain a low cholesterol diet; refrain from heavy manual labor or lifting; start simvastatin; and return for further bloodwork in one and three months. Plaintiff was also to undergo an echocardiogram in one year.

         On June 12, 2012, Dr. Jerry Thomas, a non-examining medical consultant, completed a RFC assessment stating that Plaintiff could occasionally lift or carry twenty pounds, frequently lift or carry ten pounds; could stand and/or walk about six hours in an eight-hour workday; could sit about six hours in an eight-hour workday; could push or pull unlimited, other than as shown for lift and/or carry; and that postural, manipulative, visual, communicative or environmental limitations were not evident. (Doc. 11, pp. 945-952). After reviewing all of the evidence of record, Dr. Sharon Keith affirmed Dr. Thomas's assessment on January 23, 2013. (Doc. 11, pp. 1160-1165).

         On June 13, 2012, Plaintiff presented to the emergency room with complaints of a three day history of dull left anterior chest pain. (Doc. 11, pp. 1025-1029, 1061-1071). Plaintiff denied any increase in pain with exertion, but noted that he did not do much due to his arthritis. Plaintiff underwent chest x-rays that revealed no significant changes from previous exams. Plaintiff was diagnosed with atypical chest pain.

         A telephone encounter note dated June 15, 2012, reveals Plaintiff's report that his pain was not as intense. (Doc. 11, pp. 1059-1060). Plaintiff denied pain associated with nausea or diaphoresis, denied shortness of breath, denied exercise induced pain, and denied radiation of pain. Plaintiff reported that he wanted to undergo the recommended sleep study, but indicated he did not have transportation.

         On August 21, 2012, Plaintiff underwent a CT scan of the thorax that revealed no significant change. A non-calcified nodule remained unchanged. (Doc. 11, pp. 1024-1025, 1057).

         A cardiology note dated August 23, 2012, reveals that Plaintiff reported being reasonably physically active up until February of 2012, but in the last six months he reported being less active. (Doc. 11, pp. 1051-1057). Plaintiff complained of lightheadedness with activity and standing. Plaintiff reported experiencing a dull and sharp midsternal chest pain in the past two months that would last from minutes ...


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