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Rash v. Berryhill

United States District Court, W.D. Arkansas, Harrison Division

January 30, 2018

NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT



         Plaintiff, William V. Rash, brings[1] 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 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. 34-82).

         By 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.

(Tr. 18-19).

         With 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).

         Plaintiff 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).

         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 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.

         On 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).

         On May 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).

         On 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).

         The 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).

         On May 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).

         On May 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).

         On May 11, 2013, Plaintiff was diagnosed with knee sprain and referred to physical therapy (PT). (Tr. 498-503, 529).

         On May 21, 2013, Plaintiff was initially evaluated for PT services at HealthSouth due to a right knee sprain. (Tr. 879-882, 896-897, 901-903).

         From 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).

         On June 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).

         On June 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).

         On June 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).

         On July 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).

         On July 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).

         On 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).

         On 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).

         On 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).

         On 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. (Tr. 763).

         On 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).

         On 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).

         On 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. 596-614, 618-621).

         On June 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).

         On June 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).

         On July 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).

         On July 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).

         On July 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 ...

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