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Duncan v. Berryhill

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

January 31, 2018

RANDELL LEE DUNCAN PLAINTIFF
v.
NANCY A. BERRYHILL, [1] Commissioner Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Randell L. Duncan, 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 May 9, 2013, alleging an inability to work since October 1, 2011, due to macular degeneration, blindness, arthritis, seizures, diabetes, hypertension, obesity, anxiety, depression, and carpal tunnel syndrome. (Tr. 136, 411-414, 439, 478, 481, 490). For DIB purposes, Plaintiff maintained insured status through March 31, 2014. (Tr. 402-403). An administrative hearing was held on April 23, 2015, at which Plaintiff appeared with counsel and testified. (Tr. 125-161).

         By written decision dated November 2, 2015, the ALJ found that during the relevant time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 91). Specifically, the ALJ found Plaintiff had the following severe impairments: lumbar degenerative joint disease (DJD), bilateral macular degeneration, diabetes mellitus, hypertension, obesity, panic disorder with agoraphobia, depressive disorder, not otherwise specified (NOS), and personality disorder. (Tr. 91). 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. (Doc. 13, p. 19). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:

perform medium work as defined in 20 CFR 404.1567(c) except he had to avoid work where excellent depth perception is required. In addition, he was limited to work with simple, routine and repetitive tasks, involving only simple, work-related decisions, with few, if any, workplace changes. He could have no more than incidental contact with coworkers, supervisors, and the general public.

(Tr. 94-95). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as a hand packer, industrial cleaner, and machine packager. (Tr. 101).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which initially denied that request on September 27, 2016. (Tr. 9-13). Next, the Appeals Council on October 18, 2016, set aside their September 27, 2016 denial in order to consider additional information. (Tr. 1-8). After considering the additional information, the Appeals Council found no reason under the rules to review the hearing decision because the new information provided was about a later time subsequent to the date last insured. (Tr. 1-8). 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. 11, 12).

         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 administrative hearing held on April 23, 2015, Plaintiff was fifty-three years of age. (Tr. 129). Plaintiff had a limited education. (Tr. 100, 1122, 1256). The ALJ determined that Plaintiff's work experience did not constitute past relevant work. (Tr. 100).

         A review of the pertinent medical evidence reflects the following. On December 22, 2008, Plaintiff presented himself to the emergency department of Mercy Hospital, and he complained of ongoing right hip pain for two weeks. (Tr. 541-571, 890-915). Right hip and pelvis X-Rays showed no acute osseous processes. (Tr. 543-544). Upon exam, the right lateral hip exhibited tenderness, a decreased active range of motion due to pain was exhibited, and he walked with a limp. (Tr. 557). Plaintiff was diagnosed with right hip pain. (Tr. 557).

         On January 8, 2009, Plaintiff went to the emergency department of Mercy Hospital, and he reported left wrist and bilateral hip pain. (Tr. 572-602, 916-946). Dr. Jeff Audibert, M.D. noted that Plaintiff was referred to Dr. Michael Griffey, M.D. an orthopedic surgeon, during the December 22, 2008 visit, but he had not been seen nor made an appointment. (Tr. 573). Plaintiff was diagnosed with right lumbar radiculopathy and carpal tunnel syndrome (CTS) with the left worse than the right. (Tr. 575).

         On March 11, 2011, Plaintiff reported increased stress and anxiety to Ms. Stacey Enlow, A.P.N. (Tr. 757-758, 829-830). Plaintiff was diagnosed with anxiety and restarted on Xanax. (Tr. 757-758).

         On May 25, 2011, Plaintiff returned to Ms. Enlow and reported increased anxiety due to his father's passing. (Tr. 755-756, 827-828). Ms. Enlow refilled Xanax. (Tr. 755).

         The medical evidence continues after the alleged onset date of October 1, 2011. On October 24, 2011, Plaintiff reported to Ms. Enlow that he had hand and joint pain along with fatigue. (Tr. 752-754, 824-826). Plaintiff reported the onset of his symptoms was due to painting Wal-Mart stores, and his hand and feet hurt. (Tr. 754). Ms. Enlow diagnosed him with anxiety, joint pain, fatigue, and diabetes, and she conducted a prostate-specific antigen (PSA) screening. (Tr. 752, 761-765, 834-838). Ms. Enlow noted she would have a conversation with Plaintiff about whether he wanted to start Metformin or try diet changes to control the diabetes. (Tr. 753). Plaintiff was prescribed Meloxicam and Xanax. (Tr. 752).

         On November 21, 2011, Plaintiff presented himself to WW Hastings Primary Care (Hastings) and reported a fall two months prior that resulted in a left shoulder injury with pain. (Tr. 1212-1219). Plaintiff reported Naproxen and Percocet helped the pain. (Tr. 1215). An X-ray of the left shoulder showed no acute defect and a healed clavicle fracture. (Tr. 1216). Plaintiff received a flu vaccine, tetanus shot, methylprednisolone injection, and dexamethasone injection. (Tr. 1216).

         On December 14, 2011, Plaintiff presented himself to Hastings and complained of left shoulder pain with overhead activity or sleeping on the affected side. (Tr. 1208-1211). Plaintiff also reported hip pain. (Tr. 1208). Plaintiff was diagnosed with left shoulder pain, and he was prescribed Meloxicam along with a physical therapy referral. (Tr. 1209).

         On September 19, 2012, Plaintiff presented himself to the emergency department of Northwest Medical Center and complained of an anxiety attack. (Tr. 779-783). Dr. Shawn Brown, M.D. diagnosed Plaintiff with acute anxiety, and he was instructed to call Ozark Guidance Center (OGC) for mental health treatment, return to the emergency department if he had any suicidal thoughts, and prescribed Xanax. (Tr. 780).

         On September 20, 2012, Plaintiff presented himself to Ms. Nancy Ghormley, L.P.C. at the OGC for mental health services. (Tr. 1090-1096). Plaintiff was taking Xanax 1 mg, 3-4 times daily, and he had taken Klonopin, Wellbutrin and Prozac in the past. (Tr. 1092, 1094). He previously received rehabilitation services at Decision Point in 1989 for methamphetamine. (Tr. 1093). He reported no delusions, hallucinations, or risk of harm to self or others. (Tr. 1093-1094). His mood was anxious, affect was constricted, and his intelligence was average. (Tr. 1094). His Daily Living Activities (DLA-20) score was 95. (Tr. 1094-1095). Plaintiff's Axis I diagnosis was anxiety disorder NOS and past drug dependency; Axis II diagnosis was diagnosis deferred; Axis III diagnosis none known; Axis IV diagnosis was access to healthcare, no insurance, occupational, economic, and legal issues; and his GAF score was 48. (Tr. 1096). Ms. Ghormley recommended individual therapy/counseling, medication management, and psychiatric diagnostic assessment. (Tr. 1096).

         On October 29, 2012, Plaintiff presented himself to Dr. Suzanne Lakamp, O.D. at NSU Oklahoma College of Optometry (NSU), and complained of film over his left eye that was very blurry. (Tr. 813, 1252-1253, 1281-1282, 1299-1300). Plaintiff was positive for smoking, and his past medical history included borderline diabetes and hypertension. (Tr. 813). Plaintiff's visual acuity was 20/25-2 on the right and 20/200-1 on the left. (Tr. 813). Dr. Lakamp diagnosed him with macular degeneration, dry, right; macular degeneration, wet, left; and retinal hemorrhage, left. (Tr. 813). Plaintiff was referred to a retina specialist. (Tr. 813).

         On October 29, 2012, Plaintiff presented himself to Hastings seeking a behavioral health referral, and he was in need of medication refills. (Tr. 1205-1207).

         On November 5, 2012, Plaintiff reported being under a lot of stress lately, and Dr. Kenneth Poemoceah, M.D. restarted Xanax for anxiety. (Tr. 750-751, 822-823). Dr. Poemoceah noted that Plaintiff had borderline diabetes, but he was not taking any medications for it. (Tr. 750, 759-760, 832-833).

         On November 8, 2012, Ms. Ghormley at Ozark Guidance provided a Master Treatment Plan to treat Plaintiff's excessive anxiety/mood instability. (Tr. 1097-1099). Plaintiff reported his longest time to work at a company was three years. (Tr. 1098). The treatment plan target date was February 6, 2013. (Tr. 1098).

         On December 3, 2012, Plaintiff returned to NSU and reported that he could not see well out of his left eye. (Tr. 814, 1250-1251, 1298). Dr. Jamie Khan, D.O. noted that his left eye appeared stable when compared to photos from the October 29, 2012 office visit. (Tr. 814). Dr. Kahn wrote that Plaintiff had a blood hemorrhage in the left eye resulting in vision loss. (Tr. 814). Dr. Kahn discussed with Plaintiff that the only treatment for his condition besides monitoring was to have an Avastin or Kenalog injection. (Tr. 1251). Dr. Kahn found Plaintiff should not work due to a blood hemorrhage in the left eye resulting in loss of vision. (Tr. 1280). Dr. Kahn found Plaintiff should not drive or perform heavy lifting and should limit stress. (Tr. 1280).

         On December 10, 2012, Plaintiff reported to Dr. Poemoceah that he was doing okay on current medications. (Tr. 748-749, 820-821). Plaintiff reported his pain was 0/10. (Tr. 749). Dr. Poemoceah noted that Plaintiff's blood sugar results looked really good, and Plaintiff was diagnosed with anxiety and macular degeneration. (Tr. 748).

         On January 24, 2013, Plaintiff presented himself to Dr. Lakamp at NSU. (Tr. 1240-1249). Plaintiff was diagnosed with exudative senile macular degeneration on the left with large area of intraretinal swelling of the posterior pole and intraretinal hemorrhage in central macula. (Tr. 1244). Plaintiff was also diagnosed with senile macular degeneration on the right. (Tr. 1244). Dr. Lakamp noted that an appointment was made months prior with Northwest Eye, but Plaintiff did not want to pay for treatment and did not follow through. (Tr. 1244). Plaintiff was sent to obtain contract health approval to see Dr. Lars Freisburg, M.D. for retinal evaluation and injection. (Tr. 1244). Plaintiff was requested on multiple occasions to provide proof of residence. (Tr. 1244). Dr. Lakamp noted that during the visit Plaintiff requested documentation for court stating that he was unable ...


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