United States District Court, W.D. Arkansas, Fayetteville Division
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.
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.
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).
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).
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).
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 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).
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.
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).
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.
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).
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.
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.
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).
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).
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).
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).
October 29, 2012, Plaintiff presented himself to Hastings
seeking a behavioral health referral, and he was in need of
medication refills. (Tr. 1205-1207).
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).
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.
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).
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).
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 ...