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Hall v. Berryhill

United States District Court, E.D. Arkansas, Western Division

February 28, 2018

JEFFREY HALL PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT

          MEMORANDUM OPINION AND ORDER

         Plaintiff Jeffrey Hall (“Hall”) began this case by filing a complaint pursuant to 42 U.S.C. 405(g). In the complaint, he challenged the final decision of the Acting Commissioner of the Social Security Administration (“Commissioner”), a decision based upon the findings of an Administrative Law Judge (“ALJ”).

         Hall maintains that the ALJ's findings are not supported by substantial evidence on the record as a whole and offers two reasons why.[1] Hall first maintains that his depression and obesity are severe impairments, and the ALJ erred when he failed to so find. Second, Hall maintains that his residual functional capacity was erroneously assessed for the following reasons: there is no opinion from a treating physician addressing Hall's residual functional capacity, inadequate consideration was given to a prior disability rating, and inadequate consideration was given to Hall's work history.

         The record reflects that Hall was born on May 13, 1966, and was forty-three years old on August 19, 2009, i.e., the day he allegedly became disabled. He last met the insured status requirements of the Social Security Act on December 31, 2013. Thus, the relevant period in this case is from August 19, 2009, to December 31, 2013. He alleged in his application for disability insurance benefits that he became disabled and unable to work because of impairments that included degenerative disc disease, sleep apnea, carpal tunnel syndrome, and depression.

         Hall has ably summarized the evidence in the record, and the Commissioner has not challenged the summary. It will not be reproduced, except to note several matters germane to the issues raised in the parties' briefs.

         Hall served in the United States Navy from September of 1984 until September of 2004 and has been treated for his impairments exclusively at medical facilities operated by the Department of Veterans Affairs (“VA”). On November 14, 2008, he presented to a VA facility for complaints that included intermittent back pain, sleep apnea, and carpal tunnel syndrome. See Transcript at 586-590. Dr. Steven Strode, M.D., (“Strode”) ordered testing of Hall's back, and the results revealed mild loss of space height at ¶ 5-S1. See Transcript at 626-627. Strode prescribed cyclobenzaprine and Etodolac for Hall's back pain. With regard to Hall's sleep apnea, Strode noted that Hall was using a CPAP machine. The mask did not fit well, though, and Hall had difficulty sleeping. Strode ordered a consultation with a VA sleep section. With regard to Hall's carpal tunnel syndrome, Hall reported that it affected both his hands and caused intermittent numbness in several of his fingers. The pain was worse in his right hand. Strobe prescribed bilateral wrist splints to be worn during sleep.

         Hall was seen at VA facilities for his continued complaints of back pain on several occasions between November 14, 2008, and March 25, 2011. See Transcript at 573-576 (03/26/2009); 479-483, 621 (06/10/2010); 475-478 (07/07/210); 406-409 (09/12/2010); 401-406 (09/27/2010); 391-395 (10/12/2010); 314-315 (10/29/2010); 373-376 (12/14/2010); 366-372 (01/07/2011).[2] Testing was performed on June 10, 2010, and the results revealed the following:

Very mild spurring is seen along the lower thoracic and lumbar vertebrae. Slight posterior disc space narrowing at ¶ 5/S1 is seen. The visualized pedicles and the sacroiliac joints are unremarkable. Findings appear relatively stable since the previous of 11/14/08. Arthritic changes are noted involving the right-sided facet joint at ¶ 5/S1 and left-sided facet joint at ¶ 4/5.

         See Transcript at 621. Hall continued to experience back pain and sought emergency room care for his pain on September 12, 2010. Testing was performed, and the results revealed “[m]ild disc space narrowing at ¶ 5/S1” and “very small anterior osteophytes at a few levels” but no “acute compression deformities.” See Transcript at 409. He was given an injection of Toradol and continued on prescription medication. An MRI of his lumbar spine was performed on October 29, 2010, and the attending physician interpreted the results as follows:

1. No evidence of spinal canal stenosis throughout the lumbar spine. 2. No evidence for neuroforaminal stenosis throughout the lumbar spine. However, the hypertrophied superior facets of S1 contact the existing L5 nerve roots bilaterally. 3. Degenerative disc disease from L3-L1 ...

         Hall was seen at VA facilities for his sleep apnea on a few occasions between November 14, 2008, and March 25, 2011. See Transcript at 582-585 (12/09/2008), 573-576 (03/26/2009), 511-515 (02/01/2010). When he was seen on December 9, 2008, he acknowledged that he had not been using his CPAP machine as recommended. He was counseled on the importance of using the machine. When he was seen again on March 26, 2009, he reported that he was doing “ok” with the machine. See Transcript at 575.

         Hall was seen at VA facilities for his carpal tunnel syndrome on several occasions between November 14, 2008, and March 25, 2011. See Transcript at 573-576 (03/26/2009); 566-567, 624-625 (07/22/2009); 562-564 (08/20/2009); 533-534 (12/21/2009); 552-553 (12/28/2009); 527-528 (01/15/2010); 518-522 (01/21/2010); 516-517 (01/25/2010); 504-505 (03/11/2010); 495-496 (03/17/2010); 488-489 (03/29/2010); 391-395 (10/12/2010); 366, 379 (01/11/2011). He was initially treated conservatively for his pain, but he eventually underwent a left carpal tunnel release on January 15, 2010. The physician who performed the procedure prepared a letter in which he represented that Hall was entitled to a one hundred percent temporary disability rating but could resume normal activities of daily living after four weeks of recovery. Hall initially reported good results from the surgery but reported that pain and swelling eventually returned to his left hand. At the March 17, 2010, presentation, he was observed to have decreased grip and pinch strength in his left hand. He was given a TheraBall, a cock-up splint, a strip of silicone gel and dressing, and a mini-vibrator for the pain. On January 11, 2011, a nerve conduction study was performed. The results of the testing revealed normal conduction on his left but “slowing on the [right] wrist consistent with carpal tunnel [syndrome].” See Transcript at 379.

         Hall also occasionally sought treatment for depression between November 14, 2008, and March 25, 2011. See Transcript at 511-515 (02/01/2010), 496-504 (03/17/2010), 484-487 (05/17/2010), 391-395 (10/12/2010), 387-391 (10/14/2010). His depression appeared to have been caused primarily by situational concerns. For instance, he expressed concerns about his inability to work and problems with his family and finances. He reported sleeping a great deal and being inactive. An adjustment disorder with mixed anxiety and depression related to a general medical condition were diagnosed, and he was prescribed medication.

         During the period between November 14, 2008, and March 25, 2011, Hall also struggled with his weight. When he was seen on March 10, 2011, he had a Body Mass. Index of 34.1. See Transcript at 351-355. He was encouraged to lose weight and was prescribed an exercise program.

         On March 25, 2011, the VA granted Hall a “total service-connected evaluation for individual unemployability benefits ... as a result of [his] service-connected disability, ” which was evaluated at “ninety percent disabling.” See Transcript at 299. A twenty percent evaluation was assigned for “degenerative disc disease lumbosacral spine, ” a fifty percent evaluation was assigned for sleep apnea, a ten percent evaluation was assigned for “right knee patellofemoral syndrome, ” a ten percent evaluation was assigned for “left knee patellofemoral syndrome, ” a twenty percent evaluation was assigned for carpal tunnel syndrome in his left hand, and a thirty percent evaluation was assigned for an adjustment disorder with depressed mood. See Transcript at 299-300. His entitlement to benefits was granted effective September 2, 2009, and was considered to be permanent in nature.

         Hall was seen for his complaints of back pain between March 25, 2011, and December 31, 2013. See Transcript at 343-347 (10/03/2011), 759-762 (07/06/2012), 731-735 (04/03/2013), 620-621 (09/11/2013). The progress notes reflect that he continued to be diagnosed with back pain and prescribed medication that included meloxicam and cyclobenzaprine. When he was seen on October 3, 2011, to re-establish care in Illinois after leaving Arkansas, he reported that his back pain was “mellow, ” but he had to be very careful about how he moved around. See Transcript at 343. He reported that he was not exercising but was nevertheless constantly on his feet. At a February 8, 2012, presentation primarily for wrist pain, he reported that his back pain had improved over the previous six months and only arose when he felt stressed. See Transcript at 333. He reported that cyclobenzaprine took care of any pain he might experience. On June 10, 2013, Hall was authorized to receive approximately five weeks of chiropractic care for the treatment of “chronic low back pain.” See Transcript at 722. On September 11, 2013, testing of his back was performed, and the attending physician interpreted the results as follows:

Cervical spine -- There is straightening of the cervical spinal lateral view. Disk spaces are mildly narrowed at ¶ 5-6, C6-7, and C7-T1. Anterior osteophytes are noted from C4 through C7. No compression deformity. No listhesis. No prevertebral soft tissue swelling.
Thoracic spine -- Alignment of the thoracic spine is maintained only AP and lateral view. Minimal anterior osteophyte formation is noted at multiple levels within the thoracic spine without evidence of compression deformity or listhesis.
Lumbar spine - Alignment of the lumbar spine is maintained on the AP and lateral view. Disk space narrowing at ¶ 5-S1. Mild anterior osteophyte formation is seen at ¶ 1-2, L3-4, and L5-S1. No compression deformity or listhesis.

See Transcript at 620. “Mild multilevel degenerative changes” were diagnosed. See Transcript at 620.

         Hall appears to have reported few difficulties with sleep apnea between March 25, 2011, and December 31, 2013. The only progress note of any real significance is from November 6, 2012, when he was seen for a CPAP Titration Study. See Transcript at 744-746. The attending physician opined that Hall probably had adequate CAPA-titration. The physician's recommendations included use of a CPAP machine at the appropriate setting and “[g]radual weight control towards an ideal weight of 70 Kg [i.e., approximately 154 pounds] using appropriate diet and exercise that is within safe limits of [Hall's] current medical condition.” See Transcript at 745.

         Hall continued to be seen for his carpal tunnel syndrome between March 25, 2011, and December 31, 2013. See Transcript at 343-347 (10/03/2011), 337-340 (10/14/2011), 333-337 (02/08/2012). The progress notes reflect that he continued to complain of pain in his wrists and hands, and he continued to be prescribed medication. When he was seen on October 14, 2011, he reported that the left carpal tunnel release had relieved some of the numbness, but his pain had increased. He reported that his pain was “mainly at the base of the middle three fingers and affect[ed] the thumb as well at times.” See Transcript at 337. He had wrist splints but admitted to spending a good deal of time on the computer. When Hall was seen on February 8, 2012, he again reported that his pain had increased since the surgery, but the pain was controlled with gabapentin. “He opted not to have his right [carpal tunnel] released and continued to have pain in the distribution of his median nerve.” See Transcript at 333. He showed no weakness, though, and his grip strength was 5/5 throughout.

         Hall continued to be seen for depression between March 25, 2011, and December 31, 2013. See Transcript at 745-751 (10/02/2012), 756 (10/23/2012), 737-740 (04/03/2013), 717-720 (06/20/2013), 426-430 (09/24/2013). He continued to be diagnosed with depression and/or an adjustment disorder and prescribed medication. On August 20, 2011, Dr. Kenneth Hobby, Ph.D., (“Hobby”) performed a mental diagnostic evaluation of Hall. See Transcript at 302-313. Hall's complaints were noted to be as follows: “[Hall's] depression is because of the physical problems. He states that the symptoms that have had the most effect on [his] ability to work have been his back pain, carpal tunnel, and with the depression he can't remember things.” See Transcript at 302. Hall was observed to be of a normal height but of slightly above normal weight. His mood was depressed but relaxed, his affect was ...


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