United States District Court, W.D. Arkansas, Harrison Division
WILLIAM V. RASH PLAINTIFF
NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE
William V. Rash, 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. §
protectively filed his current applications for DIB and SSI
on June 17, 2014, alleging an inability to work since May 4,
2013, due to white matter brain disease, multiple sclerosis,
tremors, hypothyroidism, high blood pressure, depression,
migraine headaches, sleeping disorder, episodic respiratory
disease, chronic obstructive pulmonary disease (COPD),
asthma, neck damage, left elbow surgery with numbness in the
left shoulder and fingers, right knee surgery, and
osteoarthritis of the cervical and lumbar spine. (Tr. 343,
370, 412-413). For DIB purposes, Plaintiff maintained insured
status through June 30, 2017. (Tr. 15). An administrative
hearing was held on February 29, 2016 at which Plaintiff
appeared with counsel and testified. (Tr. 83-117). A
supplemental hearing was held on August 3, 2016 at which
Plaintiff appeared again with counsel and testified. (Tr.
written decision dated September 26, 2016, the ALJ found that
during the relevant time period, Plaintiff had an impairment
or combination of impairments that were severe. (Tr.16).
Specifically, the ALJ found Plaintiff had the following
severe impairments: multiple sclerosis/white matter disease
(MS), essential hypertension, hypothyroid disease, COPD,
disorder of the left shoulder, degenerative joint disease
(DJD) of the cervical spine, disorder of the right knee,
disorder of the left elbow status post left ulnar
decompression and epicondylectomy, obstructive sleep apnea,
headaches, essential tremor, a neurocognitive disorder, and a
depressive disorder. (Tr. 16). 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. 16-18). The ALJ found Plaintiff retained the residual
functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except he is able to occasionally climb ramps and
stairs; he can never climb ladders, ropes or scaffolds; he
can occasionally balance, stoop, kneel, crouch and crawl; and
he can occasionally reach and handle bilaterally. In
addition, he must avoid concentrated exposures to temperature
extremes, humidity, fumes, odors, dusts, gases, poor
ventilation and hazards. Further, the claimant is able to
perform work where interpersonal contact is routine but
superficial, tasks are no more complex than those learned by
experience, with several variables and use of judgment within
limits, and supervision required is little for routine tasks
but detailed for non-routine tasks.
the help of a vocational expert, the ALJ determined Plaintiff
could perform work as a blending tank tender, cotton classer
aid, and fruit distributor tender. (Tr. 26).
then requested a review of the hearing decision by the
Appeals Council, which denied that request on November 22,
2016. (Tr. 1-6). 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, 16).
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.
time of the initial administrative hearing held on February
29, 2016, Plaintiff was forty-six years of age and obtained a
high school diploma. (Tr. 87). A review of the pertinent
medical evidence reflects the following.
August 29, 2006, Plaintiff underwent a laparoscopic
appendectomy. (Tr. 1065). Post-surgery workup revealed
elevated thyroid-stimulating hormone (TSH), and he began
taking Synthroid. (Tr. 1065-1066).
22, 2012, a pulmonary function test showed Plaintiff had
normal lung volumes, mild diffuse defect, and
mild-to-moderate air flow obstruction. (Tr. 448-449). An
echocardiogram performed on the same date revealed borderline
diastolic function. (Tr. 449-450, 995-997).
March 14, 2013, Plaintiff presented himself to the emergency
department of Mercy Hospital, and he was diagnosed with
bilateral tennis elbow. (Tr. 554-569). He was prescribed
Norco and Mobic. (Tr. 558).
medical evidence continues after the alleged onset date of
May 4, 2013, which corresponds to the date Plaintiff fell
from a ladder at work. Plaintiff went to the emergency
department of Mercy Hospital after falling from a height of
about 12 feet with a reported brief loss of consciousness.
(Tr. 451-458, 570-595). He complained of moderate left rib,
chest, right knee, and head pain. (Tr. 451). His physical
exam was normal except for pulmonary or chest tenderness.
(Tr. 451-452). A computerized tomography (CT) scan of his
head was normal. (Tr. 457). A right knee X-ray was normal as
well. (Tr. 458). A thoracic spine X-ray showed mild curvature
with no evidence of acute fracture dislocation. (Tr. 458).
Plaintiff was diagnosed with a fall from ladder causing
accidental injury and contusion of chest wall. (Tr. 570).
Plaintiff was prescribed Lortab. (Tr. 570).
6, 2013, Plaintiff presented himself to the emergency
department of Washington Regional Medical Center, and he was
diagnosed with a minor closed head injury and internal
derangement of the knee. (Tr. 484-494). A head CT scan showed
no acute intracranial process. (Tr. 493). A cervical spine
X-ray revealed cervical spine straightening that may be due
to positioning or muscle spasm, but no acute fracture or
subluxation was observed. (Tr. 493-494).
10, 2013, a right knee magnetic resonance imaging (MRI) study
showed small joint effusion and small bone contusion of the
outer aspect of the lateral facet of the trochlea, intact
menisci, and intact ligaments. (Tr. 495, 530-531).
11, 2013, Plaintiff was diagnosed with knee sprain and
referred to physical therapy (PT). (Tr. 498-503, 529).
21, 2013, Plaintiff was initially evaluated for PT services
at HealthSouth due to a right knee sprain. (Tr. 879-882,
May 21, 2013 to June 10, 2013, Plaintiff attended eight PT
sessions at HealthSouth to improve the range of motion,
strength, and pain of his right knee. (Tr. 532, 865-882,
896-897, 901-903). The physical therapist, Ms. Samantha
Sullivan, opined that Plaintiff would benefit from an
orthopedic specialist reviewing the previous MRI study
results and a second study might be warranted. (Tr. 532,
865-866). Plaintiff attended PT sessions regularly until
September 27, 2013, but he cancelled some sessions due to a
lack of gas money. (Tr. 819-928).
19, 2013, Dr. Michael Westbrook provided a note stating
Plaintiff was unable to work at the time due to continued
knee pain. (Tr. 528). An orthopedic visit was scheduled on
June 19, 2013, and Plaintiff was to follow up with Dr.
Westbrook afterwards. (Tr. 528).
19, 2013, Plaintiff reported during his initial visit with
Dr. Brian G. Ogg, an orthopedic surgeon that he fell while on
a ladder at work by reaching up to reattach a rope to a door.
(Tr. 508-510, 778-780, 942-944). Bilateral knee X-rays were
negative for fracture and chondrocalcinosis. (Tr. 812-813).
Dr. Ogg suspected a symptomatic lateral meniscus tear of the
right knee. (Tr. 510).
25, 2013, Dr. Ogg performed a right knee arthroscopy;
synovectomy; resection of infrapatellar Hoffa fat pad, medial
plica, plica mucosa; and impinging anterior medial synovium.
(Tr. 459-466, 809-811). The surgery revealed no meniscus
tear, but abundant synovitis, prominent Hoffa's fat pad,
and medial plica were discovered. (Tr. 461, 809).
10, 2013, Plaintiff complained his knee was stiff and swollen
during a post-op appointment. (Tr. 511-512, 527, 781-782,
945-946). Upon examination, Plaintiff had mild joint
effusion; a knee range of motion of zero to 120 degrees; and
he was able to straight leg raise. (Tr. 511, 527). Dr. Ogg
explained to Plaintiff that he had no significant
degenerative findings or a meniscal tear. (Tr. 511, 527). Dr.
Ogg determined Plaintiff could return to work at light duty
with no bending, lifting, stopping, twisting, and etcetera.
(Tr. 511, 527). Plaintiff's Naproxen was refilled, and
Dr. Ogg ordered PT to help Plaintiff with gait training,
strengthening, range of motion, and work hardening attention.
(Tr. 511, 527). Dr. Ogg anticipated Plaintiff could return to
regular duties at work at the next follow up visit in four
weeks. (Tr. 512, 527).
19, 2013, Dr. Ogg noted Plaintiff had multiple call-ins to
the office about different issues he was having with physical
therapy and persistent pain. Dr. Ogg noted Plaintiff's
complaints were inconsistent with physical findings
discovered at the arthroscopy and in the MRI study. (Tr.
513-514, 521, 783-784, 947-948). Plaintiff's wife
reported that her husband returned to janitorial work, and
the work included squatting and other tasks she felt were
prohibited in the return to work letter. (Tr. 513). Dr. Ogg
found Plaintiff had no ligamentous instability when examined.
(Tr. 514). Bilateral knee X-rays and a right ankle X-ray were
negative. (Tr. 978). Dr. Ogg found that he did not have any
reason to alter Plaintiff's work restrictions. (Tr. 514).
Dr. Ogg determined Plaintiff would benefit from a
patellofemoral tracking brace, prescribed Gabapentin, and
recommended additional exercises for quadriceps
strengthening. (Tr. 514).
August 12, 2013, Plaintiff complained of discomfort over the
medial joint line, and he reported the brace was
uncomfortable and cumbersome. (Tr. 515-517, 525-526, 785-787,
949-951). Dr. Ogg administered a Cortisone injection as
treatment, and he recommended Plaintiff continue with PT,
work restrictions, and he had no exercise restrictions. (Tr.
515-517, 525-526). Dr. Ogg also prescribed Gabapentin and
Meloxicam. (Tr. 515-517, 525-526).
September 9, 2013, Plaintiff reported that he did not feel he
could return to work at all. (Tr. 518-519, 523-524, 788-789,
952-953). Dr. Ogg wrote he was “curious as to why this
gentleman cannot return to work.” (Tr. 519, 523). Dr.
Ogg did not find objective explanation for Plaintiff's
continued complaints. (Tr. 523). Dr. Ogg felt Plaintiff was
at maximum medical improvement. (Tr. 523). Plaintiff was
referred back to PT for impairment evaluation, but Dr. Ogg
was unsure Plaintiff was making progress in PT to warrant
continued participation. (Tr. 519, 523). Dr. Ogg noted that
Plaintiff was seeking a remaining evaluation from a
neurologist. (Tr. 519, 524). Dr. Ogg acknowledged Plaintiff
might have a degree of prolonged recuperation due to a period
of immobility and perhaps legitimate complaint of a contusion
knee injury. (Tr. 519, 524). However, Dr. Ogg found that by
this point he expected Plaintiff to be much improved and
generally stable for return to work. (Tr. 519, 524).
September 27, 2013, Ms. Sullivan completed a PT discharge
assessment and found Plaintiff met his goals and achieved
maximum functional potential. (Tr. 890). Plaintiff reported
to Ms. Sullivan that he felt capable of performing all work
duties and had no pain or problems. (Tr. 904).
September 30, 2013, Mr. James A. Honey, a physical therapist,
completed a physical therapy impairment evaluation. (Tr.
760-766). At the time of the ladder fall, Plaintiff was
employed as a tire technician at Terry's Tires. (Tr.
761). Mr. Honey noted that Plaintiff was referred to PT
because of a right knee arthroscopy. (Tr. 760). Mr.
Honey's assessment included residual quadriceps muscular
weakness, grade 4, and right knee extension, Table 39. (Tr.
763). Mr. Honey assessed a lower extremity impairment of 12
percent or 5 percent whole person impairment. (Tr. 763). Mr.
Honey planned to await Dr. Ogg's interval evaluation.
October 4, 2013, Plaintiff presented himself to a
neurologist, Dr. Reginald Rutherford. (Tr. 689). Dr.
Rutherford noted Plaintiff's abnormal brain MRI study
demonstrated moderate white matter disease that clearly was
in excess of what could be attributed to age. (Tr. 689).
Plaintiff complained of increasing headache and visual
disturbance, and visual blurring. (Tr. 689). Plaintiff was
referred to Dr. Andrew Lawton for a neuro-ophthalmological
evaluation to assess his optic nerve. (Tr. 689). Dr.
Rutherford determined blood work and a lumbar puncture for
spinal fluid analysis was required to differentiate between
trauma and other possible etiologies. (Tr. 689). Dr.
Rutherford also found it was necessary for Plaintiff to
undergo a neuropsychological examination. (Tr. 689). Once the
diagnostic studies were completed, a follow up visit with Dr.
Rutherford was required. (Tr. 689).
October 8, 2013, Dr. Ogg agreed with the findings of Mr.
Honey's PT impairment evaluation. (Tr. 520, 790, 954).
Mr. Honey and Dr. Ogg both assessed that Plaintiff's
lower extremity impairment was 12 percent or was at 5 percent
for a whole person impairment. (Tr. 520).
December 9, 2013, Plaintiff went to the emergency department
of Mercy Hospital complaining of vomiting and headaches. (Tr.
596-614, 618-621). Plaintiff was diagnosed with headache and
white matter disease by history and prescribed Norco. (Tr.
9, 2014, Plaintiff presented himself to the emergency
department of Mercy Hospital complaining of left arm
tingling, extremity weakness, and resolved chest pain. (Tr.
465-479). An electrocardiogram (EKG), head CT, and chest
X-ray were negative. (Tr. 473-474). Plaintiff was diagnosed
with chest pain, weakness of the left arm, and paresthesia.
(Tr. 471-472). He was instructed to follow up with a
cardiologist and neurologist. (Tr. 471-472).
16, 2014, Plaintiff went to the emergency department of
Sparks Regional Medical Center complaining of paresthesia in
the left upper extremity. (Tr. 655-687, 693-721, 726-733,
748-755). A brain MRI study and CT scan revealed deep white
matter in the distribution of the centrum semiovale
demonstrated multiple areas of increased signal abnormality
primarily in a pericallosal distribution that was suggestive
of a primary demyelinating process such as MS. (Tr. 660, 673,
691). Dr. Jon Gustafson recommended Plaintiff have an
outpatient evaluation with a neurologist. (Tr. 660). Dr.
Michelle Horan diagnosed Plaintiff with paresthesia and white
matter disease in the brain. (Tr. 655).
9, 2014, Plaintiff presented himself to Dr. Nicola Sarohia to
establish care. (Tr. 734-742). Dr. Sarohia interpreted
Plaintiff's brain MRI study as revealing primary
demyelinating process of such that MS was a possibility. (Tr.
734). Dr. Sarohia also diagnosed Plaintiff with hypertension,
hypothyroidism, COPD, and depression. (Tr. 739-740).
Plaintiff's medications at the time included: Advair
Diskus, Levothyroxine Sodium, Ventolin HFA, Amlodipine
Besylate, Celexa, Neurontin, and Mobic. (Tr. 740). Plaintiff
reported he dipped tobacco since he was five years old and
smoked daily. (Tr. 738-739). Dr. Sarohia provided tobacco use
cessation counseling. (Tr. 740).
24, 2014, Plaintiff complained of left arm, left hand,
cervical, and upper back pain with difficulty lifting and
grasping items. (Tr. 743-746, 987-990). Plaintiff reported
Mobic and Gabapentin were not helping much, and unfortunately
he missed his neurology appointment because he was not
informed of it. (Tr. 743). Plaintiff also reported that he
was never a smoker. (Tr. 745). Upon exam, he had pain upon
palpation of C7/T1 vertebrate, stiffness with active range of
motion in all directions of the neck, 4/5 strength of left
hand grasp, and no focal pain in the left hand or forearm.
(Tr. 744). X-ray of the cervical spine showed some decreased
intervertebral space C7/T1. (Tr. 745, 985-986). Dr. Sarohia
ordered PT. (Tr. 745).
31, 2014, Plaintiff presented himself to Dr. Steve-Felix
Belinga, a neurologist, after a 2013 diagnosis of MS by the
late Dr. Rutherford. (Tr. 991-994, 1018-1022). Plaintiff
reported his fall history; weakness and numbness of the left
upper extremity; sharp, tingling neck pain; numbness of the
fourth and fifth digits of the left hand; low back pain;
headaches; and memory loss. (Tr. 991). Upon exam, Dr. Belinga
noted that Plaintiff had a brisk left knee reflex, but there
was no evidence of ...