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Reeves v. Berryhill

United States District Court, W.D. Arkansas, Fort Smith Division

November 21, 2018

DALE D. REEVES PLAINTIFF
v.
NANCY A. BERRYHILL,[1] Acting Commissioner, Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Dale D. Reeves, 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 January 9, 2015, alleging an inability to work since February 21, 2014, due to degenerative disc disease and bipolar disorder. (Tr. 76, 90). For DIB purposes, Plaintiff maintained insured status through December 31, 2019. (Tr. 76, 90). An administrative hearing was held on May 24, 2016, at which Plaintiff appeared with counsel and testified. (Tr. 44-74). Deborah Steele, Vocational Expert (VE) also testified. (Tr. 44-74).

         In a written opinion dated July 27, 2016, the ALJ found that the Plaintiff had a severe impairment of degenerative disc disease. (Tr. 32). However, after reviewing the evidence in its entirety, the ALJ determined that the Plaintiff's impairments did not meet or equal the level of severity of any listed impairments described in Appendix 1 of the Regulations (20 CFR, Subpart P, Appendix 1). (Tr. 34). The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform light work, except that Plaintiff could occasionally stoop, crouch, kneel, climb and crawl. (Tr. 35-37). With the help of VE testimony, the ALJ determined that Plaintiff was unable to perform his past relevant work as a molder, molding and trim installer, automotive worker, automotive detailer, and car wash supervisor. (Tr. 37). However, based on the Plaintiff's age, education, work experience, and RFC, the ALJ determined that Plaintiff was capable of work as a bottling line attendant, a bindery machine feeder, and a plastic hospital products assembler. (Tr. 38). Ultimately, the ALJ concluded that the Plaintiff had not been under a disability within the meaning of the Social Security Act from February 21, 2014, through the date of the decision. (Tr. 38).

         Subsequently, Plaintiff requested a review of the hearing decision by the Appeals Council, which after reviewing additional evidence submitted by the Plaintiff, denied that request on August 25, 2017. (Tr. 1-6). Plaintiff filed a Petition for Judicial Review of the matter on October 5, 2017. (Doc. 1). Both parties have submitted briefs, and this case is before the undersigned for report and recommendation. (Docs. 14, 15).

         The Court has reviewed the transcript in its entirety. The complete set of facts and arguments are presented in the parties' briefs and are repeated here only to the extent necessary.

         II. Evidence Submitted:

         At the hearing before the ALJ on May 24, 2016, Plaintiff testified that he was born in 1964 and had obtained his GED. (Tr. 47). Plaintiff's past relevant work consisted of work as a molder, a molding and trim installer, an automotive worker, an automobile detailer, and a car wash supervisor. (Tr. 63).

         Prior to the relevant time period, from August 28, 2007, through January 30, 2008, Plaintiff was treated for anger issues by Dr. Richard Barrett, II, Ph.D. (Tr. 525-527, 529-530, 536-546). On October 29, 2007, Dr. Barrett, authored a letter, stating that Plaintiff was experiencing symptoms consistent with bipolar disorder with episodic psychotic features. (Tr. 524). Dr. Barrett recommended a mood stabilizer and that Plaintiff follow up with a psychiatrist. (Tr. 524). Moreover, between May of 2013 and January of 2014, Plaintiff was treated conservatively for low back pain and was diagnosed with an umbilical hernia. (Tr. 278-279, 296-297, 348, 350-351, 387, 397, 414, 418, 435, 452-453).

         Medical evidence during the relevant time period reflects that on March 31, 2014, Plaintiff visited UAMS Family Medical Center Fort Smith to establish care and with complaints of a ventral hernia. (Tr. 310). Dr. Lyndsey Kramp referred Plaintiff to surgery for the hernia. (Tr. 313).

         On April 23, 2014, Plaintiff presented at Mercy Surgery and Gastroenterology Clinic with complaints of an umbilical hernia. (Tr. 282). Dr. Nabil Akkad opined that Plaintiff would benefit from hernia repair with mesh placement. (Tr. 283). On that same date, Plaintiff also visited Arkansas Surgical Group, where Plaintiff was scheduled for surgery and pre-operative instructions were given. (Tr. 343-344).

         On July 3, 2014, Plaintiff underwent an open repair of his umbilical ventral hernia. (Tr. 317).

         On July 17, 2014, Plaintiff visited Arkansas Surgical Group for a follow up from surgery. (Tr. 341). Plaintiff reported that he was doing well with minimal abdominal soreness, and he denied fever, chills, and pain. (Tr. 341). Plaintiff was instructed to keep the incision clean and dry and to notify the clinic of any problems. (Tr. 342).

         On August 7, 2014, Plaintiff returned to Arkansas Surgical Group for a follow up from surgery. (Tr. 339). Plaintiff was ordered to continue to follow lifting restrictions and that no further follow up was necessary. (Tr. 340).

         On September 3, 2014, imaging of Plaintiff's lumbar spine showed mild disc space narrowing at ¶ 4-5, marked disc space narrowing at ¶ 5-S1 compatible with degenerative disc disease, and degenerative facet changes in the lower lumbar segments. (Tr. 323). Plaintiff also visited UAMS Family Medical Center that day for low back pain. (Tr. 590). Clinic notes indicated that a lumbar x-ray would be ordered and that Plaintiff would start conservative management. (Tr. 591).

         On September 9, 2014, Plaintiff returned to UAMS Family Medical Center in Fort Smith with complaints of low back pain. (Tr. 319). Upon examination, Plaintiff had normal gait and station, no hot, red, or tender joints, and no obvious deformities, dislocation or fracture. (Tr. 320). Clinic notes indicated that Plaintiff would begin conservative treatment, including heat, medication, modified activity, stretching/strengthening exercises, and would have a repeat x-ray of his lumbar spine. (Tr. 321).

         On September 22, 2014, Plaintiff had a follow up visit at UAMS Family Medical Center in Fort Smith for back pain. Plaintiff reported that conservative treatment had not offered much relief and that his pain was impacting his job. (Tr. 324). Upon physical examination, Plaintiff had normal gait and station, no tenderness in his joints, and no obvious deformity, dislocation or fracture. (Tr. 325). Plaintiff had some positive findings on his lumbar exam and a MRI was ordered. He was assessed with degenerative disc disease, lumbar spine, and his medication was altered. (Tr. 326).

         On October 6, 2014, Plaintiff presented at UAMS Family Medical Center in Fort Smith for a follow up visit for his back pain. (Tr. 328). A re-order was made for a MRI on Plaintiff's spine. (Tr. 330).

         On November 20, 2014, Plaintiff presented at UAMS Family Medical Center in Fort Smith for a follow up visit for his back pain. (Tr. 331). Dr. Tabasum Imran recommended that Plaintiff continue to limit activity, continue heat or ice on his back, take his medication as instructed, and start physical therapy. (Tr. 334). Clinic notes indicated that “(90%) of patients with low back pain will improve with time (2-6 weeks).” (Tr. 334).

         On December 4, 2014, Plaintiff saw Dr. Thomas Cheyne for chronic low back pain, bilateral hip and bilateral thigh pain and numbness, which was worse on the right than the left. (Tr. 290). Plaintiff reported having undergone physical therapy and had taken naproxen and ibuprofen for weeks with no relief. (Tr. 290). Upon examination, Plaintiff's gait was normal; he had normal strength and muscle tone in his arms; he could walk on toes and heels without difficulty; he had good strength and muscle tone in his legs; his straight-leg raise was negative bilaterally; and he had full range of motion and no pain in his hips, knees, and ankles. (Tr. 289). Dr. Cheyne determined that Plaintiff had chronic sciatica bilaterally with underlying severe degenerative disc disease at ¶ 5-S1. (Tr. 289). Dr. Cheyne instructed him to take Mobic, stay at light activity, and use heat twice a day. He also ordered a MRI on his lumbar spine. (Tr. 289). An x-ray of Plaintiff's lumbar spine on that day showed severe degenerative disc disease at ¶ 5-S1, but was otherwise unremarkable. (Tr. 291). Plaintiff also underwent an x-ray of his pelvis that day, which yielded normal results. (Tr. 293).

         A January 13, 2015, patient appointment list showed that Plaintiff received physical therapy on the following dates: November 24, 2014, December 1, 2014, December 3, 2014, December 5, 2014, December 8, 2014, December 10, 2014, December 12, 2014, December 15, 2014, December 17, ...


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