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Lynn v. Berryhill

United States District Court, E.D. Arkansas, Jonesboro Division

June 26, 2017

DEBRA LYNN, on behalf of Kerry Dale Lynn PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT

          MEMORANDUM OPINION AND ORDER

         Plaintiff Debra Lynn, on behalf of her late father Kerry Dale Lynn (“Lynn”), began this case by filing a complaint pursuant to 42 U.S.C. 405(g). In the complaint, plaintiff challenged the final decision of the Acting Commissioner of the Social Security Administration (“Commissioner”), a decision based upon findings made by an Administrative Law Judge (“ALJ”).

         Plaintiff maintains that the ALJ's findings are not supported by substantial evidence on the record as a whole and offers two reasons why.[1] Plaintiff first maintains that Lynn's residual functional capacity was erroneously assessed. Plaintiff so maintains because the record does not contain a physical residual functional capacity assessment from a treating or examining physician, Lynn's morbid obesity was not adequately considered, and there is no evidence he could sit for long periods.

         The ALJ is required to assess the claimant's residual functional capacity, which is a determination of “the most a person can do despite that person's limitations.” See Brown v. Barnhart, 390 F.3d 535, 538-39 (8th Cir. 2004). The assessment is made using all of the relevant evidence in the record, but the assessment must be supported by some medical evidence. See Wildman v. Astrue, 596 F.3d 959 (8th Cir. 2010). As a part of making the assessment, the ALJ must evaluate the claimant's subjective complaints. See Pearsall v. Massanari, 274 F.3d 1211 (8th Cir. 2001). The ALJ does so by considering the medical evidence and evidence of the claimant's daily activities; the duration, frequency, and intensity of his pain; the dosage and effectiveness of his medication; precipitating and aggravating factors; and functional restrictions. See Id. at 1218 [citing Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)].

         Lynn alleged in his application for disability insurance benefits that he became disabled on September 30, 2009. Although that date would typically denote the beginning of the relevant period, the ALJ found the following:

Claimant's alleged onset date is September 30, 2009. However, claimant has filed prior applications. The claimant filed a prior application that resulted in an unfavorable decision before an administrative law judge on September 27, 2013. There is no basis to reopen the prior application and administrative finality applies through September 27, 2013. Accordingly, any discussion of the evidence prior to that time is for historical and contextual purposes only and does not constitute reopening.

See Transcript at 21. Plaintiff does not challenge the finding, and it is supported by substantial evidence on the record as a whole. Thus, the relevant period is from September 28, 2013, through November 12, 2015, i.e., the date of the ALJ's decision. Evidence prior to September 28, 2013, will only be considered for historical purposes.

         Plaintiff has ably summarized the evidence in the record, see Document 19 at CM/ECF 3-17, and the Commissioner does not challenge the summary. The Court accepts the summary as a fair summation of the evidence. The summary will not be reproduced, save to note evidence germane to Lynn's morbid obesity and his ability to sit for long periods as those issues form the basis of plaintiff's challenge to the ALJ's assessment.

         On November 2, 2009, an MRI was taken of Lynn's cervical spine. See Transcript at 326-328. The results revealed mild degenerative disc changes in his cervical spine but no significant central canal narrowing. When Dr. Jeremy Swymn, M.D., (“Swymn”) saw Lynn one week later, Swymn observed that the MRI showed no nerve impingement. See Transcript at 330.

         Lynn sought medical attention on several occasions between September 2, 2009, and September 28, 2013, for complaints that included chest pain, shortness of breath, and pain and swelling in his lower extremities. See Transcript at 684-686, 688-690, 650-652, 642-646, 627-632, 615-620, 572-580, 581-583, 558-567, 543-552, 526-536, 892-293, 522-523, 507-515, 491-498, 436-446, 407-413, 404-405, 387-388. For instance, on March 19, 2010, he presented to a hospital complaining of pain and swelling in his lower extremities. See Transcript at 684-690. A history of Meniere's disease was noted, and he was diagnosed with leg edema and venous insufficiency. In August of 2012, he presented to the hospital complaining of chest pain and shortness of breath. The results of an EKG were normal, his troponins were negative, and a chest x-ray was unremarkable. See Transcript at 412. Obstructive sleep apnea syndrome was later diagnosed, and use of a CPAP was recommended.

         After September 28, 2013, the record reflects that Lynn continued to seek medical attention for complaints that included chest pain and shortness of breath. Lynn saw Dr. John House, M.D., (“House”) on January 16, 2014, for other impairments. See Transcript at 337-341, 770-774. While in the examination room, Lynn experienced a syncopal event. Lynn was transported to a local hospital and admitted for the syncope event and abdominal pain. He was released later that same day after test results were within normal limits. See Transcript at 344.

         House saw Lynn again on January 22, 2014. See Transcript at 766-770. House's progress notes contain the following notation:

... [Lynn] was seen here last week and had syncopal event. Was sent to the ER by ambulance. Was admitted for “severe dehydration.” Notes that they did ultrasound of heart, neck, and legs. No blood clots. Had two EKGs which were normal. Says that they did CT of head, neck, and low back. The only finding was chronic sinusitis. Says that they stopped lasix and spironolactone. Also stopped metformin due to CT. Has restarted metformin.

See Transcript at 768.

         Lynn continued to see House or his associates throughout 2014. See Transcript at 762-766 (03/11/2014), 759-762 (04/23/2014), 755-759 (05/22/2014), 751-755 (06/17/2014), 747-751 (07/31/2014), 743-747 (09/30/2014). The progress notes from the examinations are routine. For instance, when Lynn presented on May 22, 2014, he reported that he had been exercising but was sore from “trying to lift light weight.” See Transcript 757. Upon examination, he exhibited normal tone and motor strength and exhibited ...


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