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Baker v. Berryhill

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

November 9, 2017

ROBERT D. BAKER PLAINTIFF
v.
NANCY A. BERRYHILL, [1] Commissioner Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Robert D. Baker, 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 supplemental security income (SSI) benefits under the provision of Title 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 protectively filed his current application for SSI on October 28, 2013, alleging an inability to work due to Type II diabetes, back pain, leg and feet pain, depression, shortness of breath, learning problems, sleep apnea, unspecified hyperlipidemia and an abnormal pulse. (Tr. 73, 166). An administrative video hearing was held on December 17, 2014, at which Plaintiff appeared with counsel and testified. (Tr. 31-71). Plaintiff's brother and a vocational expert also testified as this hearing.

         By written decision dated April 15, 2015, the ALJ found that during the relevant time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 14). Specifically, the ALJ found Plaintiff had the following severe impairments: obstructive sleep apnea (OSA), diabetes mellitus, lumbago, obesity, generalized anxiety disorder, major depressive disorder, an intellectual disability and a personality disorder. 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. 14). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:

perform light work as defined in 20 CFR 416.967(b) except he cannot climb ropes or ladders, and he can occasionally climb ramps and stairs, balance, stoop, crouch, crawl and kneel. He must avoid hazards, including unprotected heights and moving machinery. He can read only very simple words. The claimant can perform simple, routine and repetitive tasks in a setting where interpersonal contact is incidental to the work performed. He can respond to supervision that is simple, direct and concrete.

(Tr. 17). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as a silver wrapper; a cleaner, housekeeping; and a casing splitter. (Tr. 24, 282-291).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on August 2, 2016. (Tr. 1-6). 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. 11, 12, 16, 17).

         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 administrative video hearing held on December 17, 2014, Plaintiff was fifty-two years of age and had obtained an eighth grade education that included special education courses. (Tr. 34, 37). Plaintiff's past relevant work consists of work as a construction worker. (Tr. 63).

         Prior to the relevant time period, Plaintiff sought treatment for various medical conditions. The medical records for the time period in questions reflect the following. On November 5, 2013, Plaintiff underwent a polysomnography after being diagnosed with unspecified sleep apnea. (320-323, 392, 452-460). Plaintiff was diagnosed with sleep apnea and it was recommended that he follow-up in the sleep disorders center.

         On November 7, 2013, Plaintiff was seen by Dr. Janelle Potts for a follow-up for his chronic medical problems which included diabetes, hyperlipidemia, degenerative disc disease and tobacco use. (Tr. 352-355, 398). Plaintiff reported that he was taking his medications as prescribed and was not experiencing side effects. Plaintiff reported he underwent a sleep study but did not have the results. Dr. Potts noted that there had been a great improvement in Plaintiff's A1C. Plaintiff denied experiencing fatigue, shortness of breath or polyuria but indicated that he did have back pain and arthralgias. Dr. Potts recommended Plaintiff continue with his medications and encouraged him to stop smoking.

         On December 5, 2013, Dr. Clarence Ballard, 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 for a total of about six hours in an eight-hour workday; could sit for a total of 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. (Tr. 79-81).

         On December 19, 2013, Plaintiff had a follow-up appointment with Dr. Dimitry A. Fomin subsequent to his polysomnography. (Tr. 320-323, 356-359). Upon examination, Dr. Fomin noted Plaintiff's recent and remote memory were intact; his attention and concentration were normal; and his fund of knowledge was appropriate. Dr. Fomin noted Plaintiff displayed a full range of active motion and normal functional strength. Plaintiff ambulated with a normal gait and stance. Dr. Fomin discussed treatment options and that Plaintiff chose to try CPAP therapy.

         On December 23, 2013, Plaintiff underwent a mental diagnostic evaluation performed by Dr. Terry L. Efird. (Tr. 325-329). Plaintiff reported that his lungs and back were “shot.” Plaintiff reported that he did not care most of the time. Plaintiff also reported experiencing depression and excessive worry. Plaintiff reported that he lived with and took care of his elderly mother. Plaintiff reported difficulty getting into and out of the shower. Plaintiff indicated that he could perform household chores adequately. Dr. Efird noted that Plaintiff's fund of general information placed him in the borderline to low average range of intellectual functioning. With respect to adaptive functioning, Plaintiff endorsed the ability to shop independently, to handle personal finances with cash, and to perform most activities of daily living adequately. Dr. Efird opined that Plaintiff had the capacity to perform basic cognitive tasks required for basic work-like activities.

         On December 31, 2013, Dr. Christal Janssen, a non-examining medical consultant, completed a Mental RFC Assessment opining that Plaintiff was moderately limited in some areas of functioning. (Tr. 81-83). On the same date, Dr. Janssen completed a Psychiatric Review Technique form opining that Plaintiff had mild restriction of activities of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence and pace; and no episodes of decompensation, each of an extended duration. (Tr. 78).

         On January 7, 2014, Plaintiff underwent a full nighttime polysomnography. (Tr. 393, 461-469). Plaintiff was diagnosed with moderate ...


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