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Willhite v. Berryhill

United States District Court, W.D. Arkansas, Fort Smith Division

December 4, 2017

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

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Timothy D. Willhite, 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 (SSI) benefits 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 protectively filed his current application for DIB on September 11, 2014, alleging an inability to work since April 25, 2014, due to degenerative disc disease (DDD) with pain in the lower back, no space in the vertebrae between L3-4, tiny central disc bulge or protrusion at ¶ 7-T1 spondylotic ridging with biforaminal spurring particularly from C5-6 and C6-7 and to a lesser extent at ¶ 4-5 and C3-4, periodic pain in right shoulder, anxiety, and depression. (Tr. 171, 217). For DIB purposes, Plaintiff maintained insured status through December 31, 2016. (Tr. 14, 147). An administrative hearing was held on July 23, 2015, at which Plaintiff appeared with counsel and testified. (Tr. 28-59).

         By written decision dated January 20, 2016, 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: hypertension, DDD of the lumbar spine at ¶ 4-5 and L5-S1, DDD of the cervical spine at ¶ 3-4, C4-5 and C6-T1 and depression. (Tr. 14). 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 404.1567(b) except the claimant is limited to work with simple tasks and simple instructions.

(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as a power screwdriver operator, a can filling and closing machine tender, and a labeler/stamper. (Tr. 22).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on January 18, 2017. (Tr. 1-4). 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. 13, 14).

         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 time of the administrative hearing held on July 23, 2015, Plaintiff was forty-five years of age and had obtained a limited education at the ninth or tenth grade level. (Tr. 35). Plaintiff's past relevant work consists of work as a forklift operator, a material handler, a tractor operator, and a grass farmer. (Tr. 21, 201-208, 226).

         A review of the pertinent medical evidence reflects the following. Plaintiff presented to the emergency department of St. Edward Mercy Medical Center on July 12, 2004, due to a motor vehicle accident (MVA) that occurred the week prior. (Tr. 237-247). He reported neck and middle back pain after being rear-ended. (Tr. 239). X-rays of his cervical and thoracic spine were negative for any fractures. (Tr. 244). Plaintiff was diagnosed with neck and upper back strain. (Tr. 244). Dr. Bruce Crabtree, M.D. recommended moist heat, medicated rubs, and massage, and he prescribed Plaintiff Flexeril and Lorcet. (Tr. 242, 245).

         Several years later, on November 16, 2010, Plaintiff reported having chronic pain in the lumbar spine. (Tr. 279). Plaintiff's primary care physician, Dr. Robert Baker, D.O., found upon exam that Plaintiff exhibited decreased range of motion, pain, and spasm. (Tr. 279). Plaintiff was diagnosed with DDD and was prescribed Lorcet. (Tr. 279). On July 7, 2013, Plaintiff returned to Dr. Baker reporting chronic lumbar spine pain. (Tr. 281). Upon exam, he again had a decreased range of motion, pain, and spasm. (Tr. 281). Dr. Baker diagnosed him with DDD and prescribed Lorcet and also Robaxin. (Tr. 281). On July 17, 2013, Plaintiff reported chronic pain and stiffness in the lumbar spine with his symptoms aggravated by certain positions, twisting, and bending. (Tr. 280). Dr. Baker continued the DDD diagnosis and refilled Lorcet. (Tr. 280). On November 7, 2013, he again reported lumbar spine pain. (Tr. 281). Dr. Baker diagnosed the Plaintiff with DDD and refilled Lorcet and Robaxin. (Tr. 281). On February 25, 2014, Plaintiff was again diagnosed with DDD by Dr. Baker and this time he was prescribed Norco. (Tr. 283).

         The medical evidence continues after the alleged onset date of April 25, 2014. On April 29, 2014, Plaintiff presented himself to Dr. Wallace Hays, D.C. for chiropractic care. (Tr. 342-344). He reported moderate neck, right shoulder, and right finger pain. (Tr. 342). A cervical spine X-ray showed misalignments at level 2-5, a thoracic spine X-ray revealed body heights within normal limits and misalignment at level 7, and a lumbar spine X-ray showed no congenital abnormalities. (Tr. 344). Dr. Hays projected he would need 20 treatments with an estimated duration of care to be less than 120 days. (Tr. 342).

         Plaintiff returned to Dr. Baker on June 17, 2014, with low back pain. (Tr. 285-286). Upon exam, his blood pressure was 133/82, and he exhibited a decreased range of motion and pain in his lumbar back. (Tr. 285). A lumbar spine X-ray revealed normal alignment, the vertebral body and disc heights were well maintained, no fractures or destructive lesions were seen, and the impression was that there was no abnormality found. (Tr. 278). Dr. Baker diagnosed him with DDD, hyperlipidemia, hypertension, and male hypogonadism. (Tr. 286). Dr. Baker refilled Norco. (Tr. 286).

         On September 14, 2014, Dr. Baker referred Plaintiff for a lumbar spine magnetic resonance imaging (MRI), and it showed mild degenerative changes in the facets, grossly stable vertebral body hemangiomas or lipomas, a small left renal cyst, and a mild diffuse disc bulge at ¶ 4- 5, but no significant disc protrusion was detected. (Tr. 271-272).

         On October 7, 2014, Plaintiff again reported chronic lumbar spine pain that ached, but did not radiate. (Tr. 287, 291). Upon exam, he exhibited decreased range of motion and pain. (Tr. 287, 291). Dr. Baker diagnosed him with DDD, but he decided to discontinue the Norco. (Tr. 287, 291-292).

         On October 23, 2014, non-examining consultant, Dr. Bill Payne, M.D., completed a Physical RFC Assessment. (Tr. 66-69). Dr. Payne found that the records ...


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