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Spear v. Colvin

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

January 12, 2017

RICHARD SPEAR PLAINTIFF
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration DEFENDANT

          MEMORANDUM OPINION

          HONORABLE ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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. §405(g).

         I. Procedural Background:

         Plaintiff filed his original application for DIB and SSI benefits in 2007, claiming disability beginning August 2, 2005. (Tr. 39-51, 303-304, 425-435).[1] 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 (RFC) to:

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).

         Plaintiff 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. 14, 16).

         The 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.

         Subsequent 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).

         On July 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. (Tr. 697). Dr. 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. 697-698).

         On July 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).

         On 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. (Tr. 726-727).

         On 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).

         Plaintiff 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).

         On 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 ...


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