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Self v. Berryhill

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

December 3, 2018

DAVID M. SELF 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, David M. Self, 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 claims for a period of disability and disability insurance benefits (DIB) and supplemental security income (SSI) 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 October 22, 2015, alleging an inability to work since July 3, 2014, due to neck problems, including surgery; carpal tunnel in his left hand; enlarged prostate; numbness in his arms, hands and feet; a cyst on his left wrist; a pinched nerve that impacts both arms and both feet; and a spot on his left lung. (Tr. 203-204, 214-215, 227-228, 239-240). For DIB purposes, Plaintiff maintained insured status through December 31, 2019. (Tr. 203, 214, 227, 239). An administrative hearing was held on September 1, 2016, at which Plaintiff appeared and testified. (Tr. 172-200). Plaintiff's counsel was present, and Barbara Hubbard (VE), was also present and testified. (Tr. 172-200).

         In a written opinion dated November 23, 2016, the ALJ found that the Plaintiff had a severe impairment of residuals of injuries received in a four-wheeler accident and herniated nucleus pulposus at C3-4, C4-5, and C5-6 status post laminectomy and fusion. (Tr. 97). 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. 97-98). The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform light work, except that he was limited to occasional overhead reaching with his non-dominant hand. (Tr. 98-104). With the help of VE testimony, the ALJ determined that Plaintiff was unable to perform his past relevant work as a welding machine tender and pipefitter. (Tr. 104). However, based on the Plaintiff's age, education, work experience, and RFC, the ALJ determined that there were jobs that existed in significant numbers in the national economy that the Plaintiff could perform, such as a cashier, a marking clerk, and a routing clerk. (Tr. 105). Ultimately, the ALJ concluded that the Plaintiff had not been under a disability within the meaning of the Social Security Act from July 3, 2014, through the date of the decision. (Tr. 105).

         Plaintiff then requested review of the hearing decision by the Appeals Council, which after reviewing additional evidence submitted by Plaintiff, denied that request on October 18, 2017.[2] (Tr. 1-7). Plaintiff filed a Petition for Judicial Review of the matter on December 18, 2017. (Doc. 1). Both parties have submitted briefs, and this case is before the undersigned for report and recommendation. (Docs. 12, 13).

         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 September 1, 2016, Plaintiff testified that was born in 1963, and his past relevant work consisted of work as a welding machine tender, a material cutter, and a pipefitter. (Tr. 104, 177, 198).

         Prior to the relevant time period, Plaintiff was treated generally for right ear pain, hearing issues, a cyst of his earlobe, right hip pain, a groin abscess, and gastroenteritis. (Tr. 460, 463, 466, 468-469). Also prior to the relevant time period, in April 2014, Plaintiff was treated in the emergency room immediately following an All-Terrain Vehicle accident and then at Boston Mountain Rural Health Center for complications from that accident. (Tr. 457). Six weeks following the accident on June 3, 2014, Plaintiff's cervical spine x-ray showed moderate chronic degenerative disc disease and spondylosis at C5-6 without significant change; interval development of mild degenerative disc disease; and minimal spurring at C4-5. (Tr. 472). On June 6, 2014, Plaintiff visited Boston Mountain Rural Health Center for follow-up after his ATV accident. (Tr. 454). He was assessed with cervical pain, bilateral shoulder pain, and left wrist pain. (Tr. 455). Plaintiff refused a MRI of his cervical spine, and x-rays of his shoulders and left wrist were negative. (Tr. 454-456).

         A review of the medical evidence reflects that one year after the relevant time period began, Plaintiff was seen at Boston Mountain Rural Health Center on June 2, 2015, for complaints of not sleeping well, pain in his left wrist from his accident the previous year, and bumps on his head. (Tr. 451). Upon examination, his gait was steady, he had no edema, and he had normal sensation and strength. (Tr. 452). Plaintiff was assessed with sleep disturbance, erectile dysfunction, and chronic pain. (Tr. 453). Gina Dickey, APRN, noted that Plaintiff's medications were adjusted. (Tr. 453).

         On June 15, 2015, Plaintiff saw Dr. Noel Henley at Ozark Orthopaedics for left wrist pain. (Tr. 482). Clinic notes indicated that the pain was from his ATV accident in 2014. (Tr. 482). Clinic notes also indicated that Plaintiff had so many complaints that “[i]t was almost impossible” to narrow them down. (Tr. 482). Dr. Henley noted that the four views of the left wrist that day revealed no fracture, dislocation, or other abnormality or sign of acute injury. (Tr. 482). He was diagnosed with possible carpal tunnel syndrome. Dr. Henley instructed Plaintiff to wear a splint on the wrist and to undergo nerve testing. (Tr. 483).

         On June 22, 2015, Plaintiff underwent an electrodiagnostic testing by Dr. Miles Johnson for his neck and left upper extremity pain, numbness, tingling and weakness. (Tr. 490). Dr. Johnson's notes indicated that plaintiff was a smoker. (Tr. 491). The testing was consistent with a diagnosis of cervical radiculopathy at C 6 and/or C7 (left); mild left median neuropathy at the level of the wrist consistent with a diagnosis of carpal tunnel syndrome; and history and physical examination was also suggestive of possible cervical myelopathy. (Tr. 491). Dr. Johnson recommended a MRI of the cervical spine to further evaluate the neck pain. (Tr. 492).

         On July 15, 2015, Plaintiff had a MRI of his cervical spine, which showed extensive multilevel cervical spondylosis, worse at the C3-4, C4-5, C5-6 levels with moderate canal stenosis at these levels and moderate to severe bilateral foraminal stenosis. (Tr. 488). It also showed T2 hyperintensity within the cord at the C4-5 and C5-6 levels compatible with edema or gliosis. (Tr. 488).

         On July 23, 2015, Plaintiff saw Dr. John Barr with complaints of arm contractures and hand weakness, greater on the left than the right, worsening gait and balance, burning pain over entire left arm, and difficulty holding his left arm straight especially with intended motion. (Tr. 546). Dr. Barr recommended a three-level anterior cervical discectomy and fusion procedure (ACDF) and emphasized smoking cessation for successful bone fusion. (Tr. 547).

         On August 6, 2015, Plaintiff saw Dr. Barr, who determined that based on Plaintiff's severe stenosis at C4-5 and moderate to severe at C3-4, Plaintiff should undergo ACDF for direct decompression of the cervical cord. (Tr. 150, 525). Plaintiff was admitted to Washington Regional Medical Center for an ACDF procedure at C3 through C6. (Tr. 147, 522). A MRI on that date showed C3 through C6 anterior cervical fusion with good anatomic alignment and hardware intact. (Tr. 151, 529). Plaintiff's chest x-ray was also normal. (Tr. 155, 533). Plaintiff was admitted to Washington Regional Medical Center after his evaluation and underwent a C3-4, C4-5 and C5-6 ACDF procedure. (Tr. 523, 526). Upon discharge from Washington Regional Medical Center on August 6, 2015, Plaintiff was instructed to do light work with no heavy lifting or straining and to wear his cervical collar at all times. (Tr. 522).

         On August 27, 2015, Dr. John Barr completed a Medical Source Statement, wherein he opined that Plaintiff could: frequently lift and/or carry less than ten pounds; occasionally lift and/or carry less than ten pounds; stand and/or walk a total of four to six hours; sit a total of eight hours; limited pushing and/or pulling in upper and lower extremities; five or more breaks in an eight-hour day; avoidance of exposure to extreme heat, wetness, fumes, odors, dusts, gases, poor ventilation, and hazards; and avoidance of concentrated exposure to humidity. (Tr. 499-501). Plaintiff also had an office visit with Dr. Barr that day and Dr. Barr noted that Plaintiff's left arm was no longer in the flexed position and had improved range of motion; he had improved strength; he had continued numbness but his dysphagia was resolving; he denied significant neck pain; and he was healing well. (Tr. 544).

         On September 30, 2015, an x-ray of Plaintiff's cervical spine showed cervical spine fixation from C3 through C6 anteriorly with plate and screws, and no hardware loosening or fracture. (Tr. 156, 521).

         On October 1, 2015, Plaintiff saw Dr. Barr for his first post-operative evaluation. Dr. Barr noted that Plaintiff had improved and was fully functioning up until two weeks prior when he was engaged in heavy lifting, which caused a setback with muscle aches and pains in his biceps. (Tr. 541). Dr. Barr ordered an ...


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