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Laird v. Berryhill

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

November 9, 2017

DAVID F. LAIRD PLAINTIFF
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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. § 405(g).

         I. Procedural Background:

         Plaintiff protectively filed his current application for DIB on July 1, 2014, alleging an inability to work since February 2, 2011, [2] due 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).

         In a 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).

         Subsequently, 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).

         The 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 necessary.

         II. Evidence Submitted:

         At the 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. 103).

         Prior 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).

         During 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. (Tr. 639).

         In 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).

         On 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).

         On July 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. 559).

         On 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).

         Plaintiff 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).

         On June 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. 652-655).

         Almost 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).

         Plaintiff 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 ...


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