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Case v. Berryhill

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

January 16, 2018

NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration DEFENDANT



         Plaintiff, 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. § 405(g).

         I. Procedural Background:

         Plaintiff protectively filed his current application for DIB on November 5, 2013, alleging an inability to work since April 1, 2013, [2] 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).

         In a 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).

         Subsequently, 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).

         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 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).

         Prior 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).

         Medical 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).

         On 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).

         On 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).

         On 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. 342).

         On 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).

         On 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. (Tr. 428).

         At 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. 425).

         On 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. (Tr. 436).

         On 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 ...

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