United States District Court, W.D. Arkansas, Fayetteville Division
DAVID F. LAIRD PLAINTIFF
NANCY A. BERRYHILL,  Acting Commissioner, Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.
David F. Laird, 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 a period of disability
and disability insurance benefits (DIB) under the provision
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.
protectively filed his current application for DIB on July 1,
2014, alleging an inability to work since February 2, 2011,
to the following conditions: ulcerative colitis, Crohn's
disease, depression, degenerative disc disease, spondylosis,
ileostomy bag, social anxiety, and cholecystitis
(inflammation of the gallbladder). (Tr. 134-135, 152-153).
For DIB purposes, Plaintiff maintained insured status through
December 31, 2016. (Tr. 134, 152). An administrative hearing
was held on December 8, 2015, at which Plaintiff appeared
with counsel and testified. (Tr. 68-109).
written opinion dated February 22, 2016, the ALJ found that
since the amended alleged onset date of disability, October
5, 2012, the Plaintiff had the following severe impairments:
ulcerative colitis, obesity, depression, and anxiety. (Tr.
47-48). The ALJ said he met insured status requirements
through December 31, 2016. (Tr. 47). However, after reviewing
the evidence in its entirety, the ALJ determined that since
the amended alleged onset date of disability, the
Plaintiff's impairments did not meet or equal the level
of severity of any listed impairments described in Appendix 1
of the Regulations (20 CFR, Subpart P, Appendix 1). (Tr.
49-51). The ALJ found Plaintiff retained the residual
functional capacity (RFC) to perform sedentary work as
defined in 20 CFR 404.1567(a) except as follows:
[T]he claimant can occasionally climb, balance, crawl, kneel,
stoop, [and] crouch. In addition, the claimant can perform
simple, routine, repetitive tasks in a setting where
interpersonal contact is incidental to the work performed.
The claimant can respond to supervision that is simple,
direct, and concrete.
(Tr. 51-58). With the help of a vocational expert (VE), the
ALJ determined that since October 5, 2012, Plaintiff was
unable to perform his past relevant work as an order filler.
(Tr. 59). The ALJ also determined that the Plaintiff - born
October 17, 1965 - was categorized as younger individual, age
45-49, prior to the established disability onset date of
October 5, 2012; but that on October 16, 2015, the
Plaintiff's age category changed to an individual closely
approaching advanced age. (Tr. 59). Ultimately, the ALJ
determined that prior to October 16, 2015, the date the
Plaintiff's age category changed, there were jobs that
existed in significant numbers in the national economy that
the Plaintiff could have performed, such as: ordinance check
weigher, motor polarizer, and paper label assembler. (Tr.
59-60). Therefore, the ALJ determined that Plaintiff was not
disabled prior to October 16, 2015. (Tr. 60). However,
beginning on October 16, 2015, the date Plaintiff's age
category changed, there were no longer any jobs that existed
in significant numbers in the national economy that Plaintiff
could perform. (Tr. 60). Therefore, the ALJ ultimately
concluded that while Plaintiff was not disabled prior to
October 16, 2015, he became disabled on that date and
continued to be disabled through February 22, 2016, the date
of his decision. (Tr. 60).
on April 12, 2016, Plaintiff requested a review of the
hearing decision by the Appeals Council. (Tr. 15). After
reviewing additional evidence submitted by Plaintiff, the
Appeals Council denied the request on July 28, 2016. (Tr.
1-4). Plaintiff filed a Petition for Judicial Review of the
matter on September 30, 2016. (Doc. 1). Both parties have
submitted briefs, and this case is before the undersigned for
report and recommendation. (Docs. 12, 13).
Court has reviewed the transcript in its entirety. The
complete set of facts and arguments are presented in the
parties' briefs and are repeated here only to the extent
hearing before the ALJ on December 8, 2015, Plaintiff
testified that he was born in 1965. (Tr. 71). Plaintiff
testified that he had a high school education. (Tr. 71).
Plaintiff's past relevant work consisted of work as an
order filler, also known as a warehouse order selector. (Tr.
to the relevant time period, in 1990, Plaintiff was diagnosed
with ulcerative colitis. (Tr. 445). In December of 1990,
Plaintiff underwent a total abdominal colectomy and
proctectomy with ileostomy formation. (Tr. 466). In 1997 and
1998, Plaintiff was treated for reflux and continued to be
treated for complications from his abdominal surgeries,
including hernia repair. In 2010, Plaintiff was treated for
low back pain, which improved with back exercises. (Tr. 593).
A previous MRI showed multilevel degenerative disc disease
with possible neural foraminal encroachment at ¶ 4-5
consistent with possible S1 radiculopathy. (Tr. 593). An
additional MRI of the lumbar spine from April of 2010, showed
the following: 1) disc degeneration a L2-3 with minimal
diffuse disc bulging and very slight bilateral neural
foraminal encroachment but no central canal stenosis or focal
disc herniation; 2) focal central annular tear and L3-4 with
small focal central disc herniation encroaching on the thecal
sac slightly; 3) left posterior annular tear at ¶ 4-5
with a far lateral left-sided intraforaminal small disc
herniation suspected encroaching on the neural foramen on the
left; and 4) small focal central annular tear at ¶ 5-S1
with a small disc herniation encroaching on the anterior
epidural fat and possibly slightly encroaching on the right
S1 nerve root at this level. (Tr. 597-598). In September of
2010, Plaintiff was diagnosed with obstructive sleep apnea
and received CPAP therapy. During the month of January 2011,
Plaintiff was treated for nausea, vomiting, diarrhea and
dehydration; underwent an additional hernia repair procedure;
and was admitted to the hospital for observation. (Tr. 407,
562, 563, 573, 602-606).
the relevant time period, Plaintiff underwent hernia repair
on February 2, 2011. (Tr. 574). A pathology report from that
procedure showed parastomal hernia sac with mild fibrosis,
but no granuloma or malignancy. (Tr. 574). An abdomen x-ray
performed on February 4, 2011, showed dilated small bowel
loops with no significant colonic gas seen, which was
indicative of a small bowel obstruction. (Tr. 609). Plaintiff
saw Dr. Stephen Wood at Fayetteville Surgical Associates on
February 15, 2011, and February 25, 2011, for follow up
appointments. (Tr. 624-626). Dr. Wood completed an Attending
Physician Statement on February 17, 2011, where he opined
that Plaintiff was suffering from gallstones and recommended
treatment to surgically remove the gallbladder. (Tr. 638).
Dr. Wood further indicated that Plaintiff was unable to
perform his job duties because he was unable to lift more
than ten pounds and could not push or pull. He stated
Plaintiff was capable of returning to work on June 7, 2011.
March 2011, Plaintiff was seen by Dr. Michael Rogers. Dr.
Rogers' clinic notes indicated the following: that
Plaintiff was doing well following the hernia repair; that
Plaintiff had a recent hospital stay for diarrhea; that the
biopsies of the duodenum and small bowel showed acute
inflammation and presence of PMN in stool specimen; that
symptoms had resolved and were more consistent with acute
gastroenteritis; and that Plaintiff had lost his job due to
his restriction from any manual lifting. (Tr. 581).
April 5, 2011, Plaintiff was seen by Cheryl Walsh, APN with
complaints of abdomen pain, nausea, and vomiting. (Tr. 578).
After labs and a CT yielded normal results, Nurse Walsh
recommended an ultrasound of the gallbladder. (Tr. 578). On
April 8, 2011, Plaintiff had a follow-up visit with Dr. Wood,
where clinic notes indicated Plaintiff was feeling better,
that Plaintiff's stoma had improved, and that Plaintiff
had gallstones. (Tr. 630). An abdominal ultrasounds revealed
cholelithiasis (gallstones) and two hepatic cysts. (Tr. 566).
Following the ultrasound, Nurse Walsh referred Plaintiff to
Dr. Wood for a consult regarding a cholecystectomy
(gallbladder removal). (Tr. 577). On April 26, 2011,
Plaintiff saw Dr. Wood, who performed an open cholecystectomy
finding evidence of multiple multifaceted stones of the
gallbladder. (Tr. 621-622). Pathology reports confirmed
chronic cholecystitis (inflammation of the gallbladder),
cholesterolosis (accumulation of cholesterol in the cells
lining the gallbladder wall), and cholelithiasis
(gallstones). (Tr. 620). In May of 2011, Plaintiff saw Dr.
Wood again for a follow-up visit, and in June of 2011, Dr.
Wood completed an Attending Physician Statement. In that
statement, Dr. Wood noted the following: Plaintiff's
recent gallbladder removal surgery; that Plaintiff could not
lift anything over ten pounds, nor could he push or pull due
to the recurrence of his hernia; and that although Plaintiff
was released to return to work on June 7, 2011, Plaintiff had
been discharged from his job because of his restrictions on
lifting. (Tr. 638-639).
26, 2011, Dr. Winston Brown, Ph.D., performed a Psychiatric
Review Technique. (Tr. 539-551). In that review, he
determined that Plaintiff had only mild restriction of
activities of daily living, difficulties in maintaining
social functioning, and difficulties in maintaining
concentration, persistence or pace. (Tr. 549). Plaintiff was
found to have no repeated episodes of decompensation. (Tr.
549). The report also concluded that Plaintiff's mental
impairment was not severe. (Tr. 539-551). On that same day,
Dr. Jonathan Norcross, a non-examining medical consultant,
completed a Physical RFC, in which he determined that
Plaintiff was capable of performing sedentary work. (Tr.
September 14, 2011, Plaintiff saw Dr. Michael Rogers for a
follow up appointment. (Tr. 641). Dr. Rogers' notes
indicated that Plaintiff was doing well and that there was no
evidence of recurrence of his hernia. Dr. Rogers noted that
Plaintiff's obesity was becoming more of a health issue
for him, and as a result, Dr. Rogers recommended a dietary
and exercise program. (Tr. 641). On September 16, 2011,
Plaintiff saw Dr. James S. Salmon at the Fayetteville
Diagnostic Clinic for complaints of abdomen bloating. Dr.
Salmon prescribed medication and an increase in physical
activity, and recommended checking Plaintiff's thyroid
due to his inability to lose weight. (Tr. 642).
did not see Dr. Salmon, or any other doctor, again until
April of 2012. (Tr. 650). At that time, Dr. Salmon noted that
Plaintiff needed disability paperwork to be refiled and that
Plaintiff was experiencing symptoms of depression. (Tr. 650).
He recommended medication for the depression and an exercise
program. (Tr. 650). On May 4, 2012, Dr. Salmon's notes
indicated that Plaintiff's depression had improved with
medication and that he still needed more information on
Plaintiff's past surgeries in order to complete the
disability application. (Tr. 651). Dr. Salmon completed a
Physician Attending Statement on May 30, 2012, wherein he
recommended that Plaintiff not lift anything as a result of
his recurrent hernia and that he could sit, stand, and walk
for one hour intermittently. (Tr. 657-658). He also limited
Plaintiff to no twisting, bending, stooping, pushing or
pulling. (Tr. 658).
21, 2012, Plaintiff underwent a Mental Diagnostic Evaluation
by Dr. Gene Chambers, Ph.D. Dr. Chambers opined that
Plaintiff's depressed mood resulted in mild limitations
in his ability to communicate and interact in a socially
adequate manner, mild limitations on Plaintiff's capacity
to sustain persistence in completing tasks, and mild
limitations on Plaintiff's capacity to complete work-like
tasks within an acceptable time frame. (Tr. 652-656).
However, Dr. Chambers also opined that Plaintiff's
capacity to cope with typical cognitive demands of basic work
tasks, as well as Plaintiff's capacity to communicate in
an intelligent and effective manner, both appeared to be
within normal limits. (Tr. 652-656). Dr. Chambers diagnosed
Plaintiff with major depression, single episode, and
generalized anxiety disorder. (Tr. 652-655). He noted that
Plaintiff had seen improvement while taking Wellbutrin. (Tr.
one year later in April of 2013, Plaintiff saw Dr. Salmon for
abdomen discomfort. (Tr. 396). Plaintiff's weight at that
time was 250 pounds. (Tr. 396). In October of 2013, Plaintiff
saw Dr. Salmon for low back pain and pain down his left leg.
(Tr. 406). Dr. Salmon assessed Plaintiff with degenerative
disc disease and lumbar and cervical pain. (Tr. 406). Dr.
Salmon also completed an Attending Physicians Statement on
April 19, 2013, where Dr. Salmon opined that Plaintiff could
stand, walk, or sit for one hour total, intermittently; that
he was prohibited from lifting or carrying any weight; and
that he was prohibited from twisting, bending, stooping,
pushing or pulling due to his hernia. (Tr. 660-661). Dr.
Salmon also stated that Plaintiff could not work and was not
expected to improve. (Tr. 661).
did not see Dr. Salmon again for his low back pain until May
9, 2014. (Tr. 394). At that visit, Plaintiff reported that
his pain was not controlled by hydrocodone and that it was
interfering with his sleep. (Tr. 394). Dr. Salmon's notes
reflect that Plaintiff was still experiencing pain, nausea,
vomiting and some distension; that Plaintiff was still under
lifting restrictions; that ...