United States District Court, W.D. Arkansas, Fayetteville Division
ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE
Richard Spear, 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) and supplemental
security income benefits (SSI) under the provisions of Titles
II and XVI 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.
filed his original application for DIB and SSI benefits in
2007, claiming disability beginning August 2, 2005. (Tr.
39-51, 303-304, 425-435). On July 21, 2010, the undersigned
entered a Report and Recommendation, which was adopted by
United States District Judge Jimm Larry Hendren on August 24,
2010, remanding the matter to the ALJ to conduct further
administrative proceedings. (Tr. 303, 323). Spear v.
Colvin, No. 09-5142 (Docs. 11, 12). After conducting a
hearing on July 23, 2013, by written decision dated October
24, 2013, the ALJ found that during the relevant time period,
Plaintiff had an impairment or combination of impairments
that were severe - degenerative disk disease of the lumbar
spine, bulging disks at ¶ 4-L5 and L5-S1 and mood
disorder. (Tr. 307). 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. (Tr. 307). The ALJ
found Plaintiff retained the residual functional capacity
Perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except that he can only do work with simple tasks
and simple instructions and can have only incidental contact
with the public.
(Tr. 309). With the help of the vocational expert (VE), the
ALJ determined that during the relevant time period,
Plaintiff would not be able to perform his past relevant
work, but there were jobs Plaintiff would be able to perform,
such as machine tender and assembler. (Tr. 318-319).
then requested a review of the hearing decision by the
Appeals Council, which denied that request on April 23, 2015.
(Tr. 281). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the
consent of the parties. (Doc. 6). Both parties have filed
appeal briefs, and the case is now ready for decision. (Docs.
Court refers to the “Evidence Presented” portion
of the Report and Recommendation in Spear, No.
09-5142 (pp. 2-12), which covers the period of time from 1999
to March 25, 2009, the date of the previous unfavorable ALJ
decision. In that Report and Recommendation, the undersigned
remanded the matter to the ALJ, with instructions to obtain
x-rays, MRIs or CT scans of Plaintiff's back, and to
obtain another RFC assessment from another examining
physician. The undersigned also remanded the matter to the
ALJ in order for him to obtain a Mental RFC assessment from
Dr. Ester Salvador at OGI, and to then re-evaluate
Plaintiff's impairments in light of the new mental and
physical RFC assessments.
to the March 25, 2009 decision, Plaintiff underwent a General
Physical Examination by Dr. Kenneth M. Poemoceah on June 11,
2009. (Tr. 676). Dr. Poemoceah found Plaintiff had normal
range of motion in his extremities and spine. (Tr. 679).
Plaintiff was also able to tandem walk, perform all limb
functions, and had 100% normal grip in both of his hands.
(Tr. 680-681). No limitations were imposed. (Tr. 681). On
June 15, 2009, non-examining physician, Dr. Jim Takach,
completed a Physical RFC Assessment, finding Plaintiff would
be able to perform light work with certain postural
limitations. (Tr. 686-697).
3, 2009, a Mental Diagnostic Evaluation was performed by
Terry L. Efird, Ph.D. (Tr. 694). Dr. Efird noted that
Plaintiff reported having received outpatient mental health
services from around 2006-2008, and denied being prescribed
psychiatric medication at the time of the evaluation. (Tr.
695). Plaintiff reported to Dr. Efird that he only bathed
about once or twice a week, and could perform household
chores adequately, although some degree of physical
difficulties was described. (Tr. 695). Plaintiff also
reported to Dr. Efird that he served in the military for
about six months in 1991, and went AWOL. (Tr. 695). Dr. Efird
concluded that the case presented a degree of difficulty
making a distinct differential diagnosis, as Plaintiff had
received a diagnosis of bipolar disorder, with psychosis,
based upon the records reviewed. (Tr. 697). Dr. Efird found
Plaintiff was unclear about periods of a manic episode, and a
diagnosis of psychotic disorder NOS was therefore offered.
Efird diagnosed Plaintiff as follows:
Axis I: Psychotic disorder, NOS
Axis II: deferred
Axis V: 45-55
(Tr. 697). Dr. Efird further found that Plaintiff
communicated and interacted in a fairly basic, but reasonably
socially adequate manner; communicated in a fairly basic, but
reasonably intelligible and effective manner; had the
capacity to perform basic cognitive tasks required for basic
work like activities; was able to track and respond
adequately for the purposes of the evaluation; generally
completed most tasks during the evaluation and completed most
tasks within probably a below average time frame. (Tr.
16, 2009, a Mental RFC Assessment was completed by
non-examining consultant, Brad F. Williams. (Tr. 716). Mr.
Williams concluded that Plaintiff was able to perform work
where interpersonal contact was incidental to work performed,
e.g. assembly work; where complexity of tasks was learned and
performed by rote, with few variables, and little judgment;
and where supervision required was simple, direct and
concrete (unskilled). (Tr. 718).
August 25 and 26, 2009, Case Analyses were completed by Kay
Cogbill and Dr. Bill F. Payne, respectively, wherein they
affirmed the assessments of July 16, 2009, and June 15, 2009.
March 8, 2010, Plaintiff saw his treating physician, Dr.
David J. Tucker, who reported that Plaintiff had diffuse
lower lumbar tenderness and lower thoracic tenderness, and
that there was markedly decreased range of motion, with
decreased flexion and extension of the spine. (Tr. 733). He
concluded that Plaintiff's x-rays showed marked
degenerative disc disease of the upper lumbar spine with less
disease at other levels, and that there was significant
degenerative joint disease of the facet joints in the lumbar
region, as well as anterior and posterior spurring. (Tr.
733). Dr. Tucker concluded that Plaintiff was “markedly
restricted” on his physical activities. (Tr. 733).
began seeing physicians at the Community Clinic on July 18,
2012, where he saw Dr. Leslie Stone. (Tr. 931). At that time,
he was reported as being obese, sedentary, and a smoker. (Tr.
931). He was diagnosed with chest pain, nos, obesity, nos,
lower back pain, and tobacco use disorder. (Tr. 931).
Plaintiff saw Dr. Stone again on August 8, 2012, for
follow-up, and it was noted that he smoked 31 or more
cigarettes per day, and was thinking about quitting. (Tr.
929). Plaintiff was then assessed with hypercholesterolemia,
obesity, nos, tobacco use disorder, impaired fasting glucose,
and leukocytosis, nos. (Tr. 930).
September 19, 2012, Dr. Tucker recommended Plaintiff have a
MRI, as he was complaining of low back pain, radiating into
both legs at times. (Tr. 1002). The MRI was ...