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Byrum v. Berryhill

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

December 18, 2017

JAMES A. BYRUM PLAINTIFF
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, James A. Byrum, 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) 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 November 16, 2012, alleging an inability to work since November 1, 2011, due to arthritis, wrist problems, back problems, shoulder problems, and the fact that he could not read or write more than his own name. (Tr. 57, 70). An administrative hearing was held on November 13, 2013, at which Plaintiff appeared with counsel and testified. (Tr. 25-55). John Massey, a Vocational Expert (VE), also testified. (Tr. 48-54).

         In a written opinion dated March 20, 2014, the Administrative Law Judge (ALJ) found that Plaintiff was not disabled, as he was able to perform other work given his age, education, work experience, and residual functional capacity (RFC). (Tr. 20). Plaintiff appealed the decision, and on February 11, 2015, the Appeals Council denied review. (Tr. 1-3). Plaintiff then filed a complaint in Federal District Court on April 7, 2015. On November 17, 2015, the District Court remanded the case to the Commissioner for further review. The Appeals Counsel vacated the previous ALJ decision on March 15, 2016. (Tr. 337). The Appeals Council noted that on April 20, 2015, Plaintiff filed a subsequent application for SSI. (Tr. 339) The Appeals Council further noted that Plaintiff received a favorable determination and was found to be disabled as of April 20, 2015. (Tr. 339). A supplemental hearing was held on September 1, 2016.

         On December 14, 2016, the ALJ determined that Plaintiff had the following severe impairments: chronic obstructive pulmonary disorder, degenerative disc disease, disorder of the wrists, a learning disorder, and borderline intellectual functioning. (Tr. 274). However, after reviewing the evidence in its entirety, the ALJ determined that 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. 274-276). The ALJ found Plaintiff retained the RFC to perform light work with the following exceptions:

[c]laimant can frequently finger, handle and reach bilaterally and frequently operate foot controls. He can occasionally climb ropes and ladders. He can frequently climb stairs and ramps, balance, crawl, kneel, stoop, and crouch but should avoid moderate exposure to pulmonary irritants like dusts, odors and gases. He is limited to simple, routine, repetitive tasks in a setting where interpersonal contact is incidental to the work performed and can respond to supervision that is simple, direct, and concrete. He can read and write only very simple words.

(Tr. 276-281). The ALJ found that Plaintiff had no past relevant work; however, he determined that there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform. (Tr. 281-282). Ultimately, the ALJ concluded that Plaintiff had not been under a disability within the meaning of the Social Security Act from November 16, 2012, the date his application was filed, through April 20, 2015. (Tr. 282). Subsequently, Plaintiff filed a Petition for Judicial Review of the matter on March 15, 2017. (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:

         Plaintiff was born in 1965 and completed half of the ninth grade. (Tr. 293). A review of the medical evidence reflects that on January 14, 2013, Plaintiff underwent a Mental Diagnostic Evaluation and Psychometric Evaluation by Dr. Steve A. Shry, Ph.D. (Tr. 247-249). At the time of the evaluation, Plaintiff reported that one of his grade school teachers told him that he was dyslexic; that he had a long history of illiteracy; and that he had a thirteen-year history of chronic pain and physical problems. (Tr. 247). Dr. Shry observed that Plaintiff had no history of inpatient or outpatient mental health treatment; that he was not on psychiatric medication at the time of the evaluation; that he cited financial difficulties as an obstacle to treatment; that he had no spouse or children; that he had not held a job since 2000 due to back and wrist pain; and that he had “a couple DWI's” in previous years. (Tr. 247-248). Dr. Shry described Plaintiff as pleasant, cooperative, friendly, with normal mood and affect. (Tr. 247). Dr. Shry observed Plaintiff as having adequate fluency and simple sentence structure, with logical and relevant responses, and with associations that were well connected and goal oriented. (Tr. 248). On the Wechsler Adult Intelligent Scale Test, Plaintiff scored a 76 on the verbal portion, an 84 on the performance portion, and a full scale score of 78. (Tr. 248). Dr. Shry opined that Plaintiff seemed to meet the criteria for a learning disability and borderline intellectual functioning with a GAF of 50. (Tr. 247-248). Dr. Shry opined that Plaintiff was capable of handling personal hygiene, shopping, driving, managing funds, completing household chores, and participating in social groups. He further opined that Plaintiff had no impairment in his ability to communicate and interact in a socially adequate manner or to communicate in an intelligent and effective manner. (Tr. 249). Plaintiff appeared to have no impairment in his ability to carry out simple tasks; however, he had mild to moderate difficulty on more complex tasks. (Tr. 249). Dr. Shry opined that Plaintiff had no impairment in his ability to sustain concentration and persistence when completing tasks; he was capable of performing simple tasks within an adequate time frame, with mild to moderate impairment when completing complex tasks; and he was capable of performing basic calculations. (Tr. 249).

         On January 16, 2013, a General Physical Examination was performed by Dr. Michael Westbrook. Dr. Westbrook determined that while Plaintiff complained of pain in his low back, wrists, hands, and neck, he had normal grip, normal ROM in his extremities, could squat and arise from a squatting position, could stand and walk without assistive devices, and had normal straight leg raise tests. (Tr. 252-256). Dr. Westbrook diagnosed Plaintiff with back pain and an old wrist injury, and opined that he had only mild limitations. (Tr. 252-256). He also noted that Plaintiff smoked one pack of cigarettes per day. (Tr. 252-256).

         On January 18, 2013, non-examining physician, Dr. Bill Payne, completed a Physical RFC Assessment, where he determined that Plaintiff was capable of medium work. On that same day, non-examining physician, Dr. Christal Janssen, Ph.D., conducted a Psychiatric Review Technique. In that assessment, Dr. Janssen found that Plaintiff had mild restriction of activities of daily living; moderate difficulties in maintaining social functioning and difficulties in maintaining concentration, persistence or pace; and no repeated episodes of decompensation. (Tr. 62). Dr. Janssen also performed a Mental RFC Assessment, where she determined that Plaintiff was able to perform work where interpersonal contact was incidental to work performed; complexity of tasks was learned and performed by rote, few variables, little judgment; and supervision required was simple, direct, and concrete. (Tr. 67).

         In February and April of 2013, Nurse Laura Henson's progress notes indicated that Plaintiff was a daily smoker with complaints of trouble breathing, a cough, and pain between his shoulders. (Tr. 261). Nurse Henson assessed Plaintiff with reactive airway dysfunction, shortness of breath, upper respiratory infection, arthropathy of multiple sites, and lumbago. (Tr. 262). Plaintiff was prescribed medication and was encouraged to apply for Medicaid so that he could obtain a pulmonary consultation. (Tr. 262).

         On April 10, 2013, non-examining medical consultant, Dr. Valerie Malak, completed a Physical RFC Assessment where she found that Plaintiff was capable of medium work. (Tr. 79). On April 11, 2013, non-examining medical consultant, Dr. Dan Donahue, Ph.D. conducted a Psychiatric Review Technique, finding that Plaintiff had mild restriction of activities of daily living; moderate difficulties in maintaining social functioning and difficulties in maintaining concentration, persistence or pace; and no repeated episodes of decompensation. (Tr. 76). Dr. Donahue also performed a Mental RFC Assessment, where he determined that Plaintiff was able to perform work where interpersonal contact was incidental to work performed; complexity of tasks was learned and performed by rote, few variables, little judgment; and supervision required was simple, direct, and concrete. (Tr. 81).

         On November 18, 2013, Plaintiff underwent literacy testing through the Literacy Council of Western Arkansas, Inc. During testing, Plaintiff reported that he was in special education while in school and that he had a ninth grade education. (Tr. 268). Plaintiff's scores indicated that he was ...


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