United States District Court, W.D. Arkansas, Fort Smith Division
DAVID B. CASE PLAINTIFF
NANCY A. BERRYHILL,  Acting Commissioner, Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN, UNITED STATES MAGISTRATE JUDGE.
David B. Case, 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 provisions
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
November 5, 2013, alleging an inability to work since April
1, 2013,  due to back and hip pain, alcoholism, and
issues from a previous injury to his right leg. (Tr. 63, 73).
For DIB purposes, Plaintiff maintained insured status through
December 31, 2017. (Tr. 63, 73). An administrative hearing
was held on July 20, 2015, at which Plaintiff appeared with
counsel and testified. (Tr. 31-51). Jim B. Spragins,
Vocational Expert (VE), and James Phillip Posey,
Plaintiff's friend, also testified. (Tr. 52-61).
written opinion dated September 24, 2015, the ALJ found that
the Plaintiff had the following severe impairments: lower
limb fracture and degenerative disc disease. (Tr. 13).
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. 13-14). The ALJ found Plaintiff retained
the residual functional capacity (RFC) to perform light work
as defined in 20 CFR 404.1567(b), except that Plaintiff may
occasionally climb, balance, crawl, kneel, stoop and crouch.
(Tr. 14-17). With the help of VE testimony, the ALJ
determined that Plaintiff was unable to perform his past
relevant work as a lumber stacker, a cutoff saw operator, a
saw operator-trim, or a trimmer saw operator. (Tr. 17-18).
However, based on the Plaintiff's age, education, work
experience, and RFC, the ALJ determined that Plaintiff was
capable of work as a fast food worker, a cashier II, and a
price marker. (Tr. 19). Ultimately, the ALJ concluded that
the Plaintiff had not been under a disability within the
meaning of the Social Security Act from April 1, 2013,
through the date of the decision. (Tr. 19).
on October 24, 2015, Plaintiff requested a review of the
hearing decision by the Appeals Council. (Tr. 7). His request
was denied on August 31, 2016. (Tr. 1-6). Plaintiff filed a
Petition for Judicial Review of the matter on November 1,
2016. (Doc. 1). Both parties have submitted briefs, and this
case is before the undersigned for report and recommendation.
(Docs. 9, 10).
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 July 20, 2015, Plaintiff testified
that he was born in 1965 and had a high school education.
(Tr. 32). Plaintiff's past relevant work consists of work
as a lumber stacker, a cutoff saw operator, a saw
operator-trim, and a trimmer saw operator. (Tr. 56).
to the relevant time period, Plaintiff was involved in a
motorcycle accident and sustained a femur fracture in his
right leg. (Tr. 374-376). As a result, Plaintiff underwent a
right femur irrigation and debridement with intramedullary
rodding. (Tr. 273-275).
evidence during the relevant time period reflects that on
November 12, 2013, Dr. Clifford Evans performed a General
Physical Examination, wherein he noted Plaintiff's
complaints from his 2004 motorcycle accident and his
subsequent surgery for the fracture to his femur. (Tr. 284).
Dr. Evans also noted Plaintiff's complaints of lower back
pain, a right shoulder injury, and hip pain. (Tr. 284). Dr.
Evans' exam revealed normal extremities and spine, no
muscle spasm, negative straight leg raise, no muscle weakness
or atrophy, no sensory abnormalities, and normal limb
function. (Tr. 286-287).
December 26, 2013, non-examining medical consultant, Dr.
Robert Redd completed a Physical RFC Assessment, where he
determined that Plaintiff was capable of light work. (Tr.
69). On February 28, 2014, Dr. Jim Takach, also a
non-examining medical consultant, completed a Physical RFC
Assessment upon reconsideration, where he affirmed Dr.
Redd's assessment and determined that Plaintiff was
capable of light work. (Tr. 79).
January 24, 2015, Plaintiff presented at the Mercy Hospital
Emergency Room with complaints of an injury to his lower
right leg after falling into a hole. (Tr. 297). Imaging of
Plaintiff's right leg revealed a distal tibia and fibula
metaphyseal fracture with some lateral displacement, distal
fragments, and soft tissue swelling. (Tr. 293).
Plaintiff's physical examination showed enema and
tenderness in the musculoskeletal area; an obvious deformity
to the right tibia, fibula, and ankle; ecchymosis and
discoloration; and decreased range of motion due to pain.
(Tr. 301). A splint was placed on Plaintiff's leg for
stabilization. (Tr. 304). Plaintiff was given pain and nausea
medication and instructed to use crutches, to avoid
weight-bearing activity, to ice and elevate as much as
possible, and to follow up with Dr. Stephen Heim, an
orthopaedic surgery specialist. (Tr. 298-299). Emergency room
records also indicated that Plaintiff reported that he had
been smoking and using smokeless tobacco. (Tr. 301).
January 27, 2015, Plaintiff underwent a pre-operative
examination and blood work. (Tr. 324-326). Clinic notes from
Cooper Clinic, where Plaintiff saw Dr. Jeffrey Evans,
indicated that Plaintiff elected to proceed with surgery for
his displaced right distal tibia and fibula fracture. (Tr.
January 30, 2015, Plaintiff underwent an open reduction
internal fixation for the right distal and fibula fracture.
(Tr. 344). Dr. Evans' notes indicate Plaintiff tolerated
the procedure well and that there were no complications. (Tr.
347). Plaintiff was discharged the same day with instructions
to ice, elevate, and keep the surgical dressing dry. (Tr.
351). Clinic notes indicate Plaintiff was using smokeless
tobacco and that he refused outpatient counseling for tobacco
cessation. (Tr. 352).
February 2, 2015, Plaintiff saw Dr. Evans for a follow up
appointment after surgery. (Tr. 431). Dr. Evans' notes
indicate Plaintiff was “doing better, ” his
wounds were healing nicely, and his swelling had decreased.
(Tr. 431). Plaintiff's second follow up appointment with
Dr. Evans was on February 13, 2015, where Dr. Evans'
notes also show that Plaintiff was “doing better,
” his wounds were healing nicely, his sutures were
removed, his staples were intact, his swelling had decreased,
and his ecchymosis was resolving. (Tr. 428). He was ordered
to refrain from any weight-bearing activity on his right leg.
Plaintiff's third follow up appointment with Dr. Evans on
February 20, 2015, clinic notes indicate Plaintiff was
“doing well, ” wounds were healing, staples were
discontinued, and distal neurovascular exam was normal. (Tr.
March 17, 2015, Plaintiff had a six-week post-operative check
up with Dr. Evans. Dr. Evans' notes indicate Plaintiff
was “doing well;” had normal gait; had normal
inspection of bilateral ankles, had full range of motion in
bilateral ankles; had a normal stability exam at bilateral
ankles; and had normal motor coordination, sensation and
cardio at bilateral lower extremities. (Tr. 422).
Plaintiff's x-ray showed healed fractures with hardware
in place and intact. (Tr. 422). Plaintiff was instructed to
place weight on the leg as tolerated, to perform range of
motion exercises, and to discontinue his surgical boot. (Tr.
422). X-rays also showed good alignment at the fracture site.
April 29, 2015, Plaintiff presented at the Good Samaritan
Clinic with complaints of numbness in his fingers at night,
and right knee, hip and back pain. (Tr. 442). A physical exam
performed by Dr. Leslie Ziegler revealed chronic swelling in
the right lower extremity, crepitus in the ...