United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE
Newton Adair, 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) 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. Â§
protectively filed his current application for DIB on January
7, 2016, alleging an inability to work since October 10,
2015, due to colon cancer in remission, back problems,
bilateral knee problems, left and right shoulder problems,
Type 1 diabetes, and heart problems. (Tr. 216). An
administrative hearing was held on August 23, 2017, at which
Plaintiff appeared with counsel and testified. (Tr. 37-69).
written decision dated September 15, 2017, the ALJ found that
during the relevant time period, Plaintiff had an impairment
or combination of impairments that were severe. (Tr. 17).
Specifically, the ALJ found Plaintiff had the following
severe impairments: hypertension, coronary artery disease
status post myocardial infarction in 2009, degenerative disc
disease at L 4-5 and L5-S1 status post fusion at L 5-S1,
degenerative joint disease of the knees, depression and
anxiety. 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. (Tr. 17). The ALJ
found Plaintiff retained the residual functional capacity
perform light work as defined in 20 CFR 404.1567(b) except
the claimant is able to perform work with simple tasks and
simple instructions and incidental contact with the public.
He can occasionally bend, stoop and squat.
(Tr. 19). With the help of a vocational expert, the ALJ
determined Plaintiff could perform work as a price marker, a
plastics molding machine tender and a routing clerk. (Tr.
then requested a review of the hearing decision by the
Appeals Council, which denied that request on May 10, 2018.
(Tr. 1-6). 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.
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 before the ALJ on
August 23, 2017, Plaintiff testified that he was fifty-four
years of age and had a tenth grade education. (Tr. 43-44). A
review of the record revealed Plaintiff's past relevant
work consists of work as a cement mason, a concrete form
builder, a framer carpenter and a carpenter labor supervisor.
pertinent medical evidence for the time period in question
reflects the following. On October 8, 2015, Dr. James H. Buie
noted Plaintiff complained of pain and discomfort involving
his knee. (Tr. 553-554). Dr. Buie noted he saw Plaintiff on
September 8th, and administered an injection to the knee.
Plaintiff reported no significant improvement in his pain.
Dr. Buie also noted Plaintiff had fallen and hurt his elbow.
Plaintiff was assessed with advanced degenerative arthritis
laterally. Dr. Buie noted Plaintiff wanted a total knee
arthroplasty, but Dr. Buie indicated other treatment options
should be explored first.
October 15, 2015, Plaintiff was seen by Gayle D, Johnson,
FNP, for a follow-up for coronary artery disease and
hypertension. (Tr. 535-537). Nurse Johnson indicated
Plaintiff was stable from a cardiology viewpoint.
October 15, 2015, Plaintiff was also seen by Dr. Beena Syed
for a follow-up appointment. (Tr. 506-510). Dr. Beena noted
Plaintiff had chronic right knee pain secondary to
degenerative disease. Plaintiff reported his pain was
localized to the right knee. Dr. Syed recommended OxyContin,
but Plaintiff's insurance would not pay for it and
Plaintiff could not pay for it on his own. Plaintiff
requested a different medication. Plaintiff was assessed with
a chronic pain disorder and right knee pain secondary to
arthritis of the right knee and prescribed medication. It was
recommended that Plaintiff exercise, lose weight and return
in four weeks.
November 12, 2015, Plaintiff was seen by Dr. Syed for a
follow-up appointment for his right knee. (Tr. 511-516, 697).
Plaintiff reported he fell one week ago after his right knee
buckled and he lost his balance. Dr. Syed noted Plaintiff was
not a suitable candidate for knee surgery at the time. Dr.
Syed noted Plaintiff's constant pain was localized to his
right knee. Dr. Syed opined Plaintiff's pain was causing
significant psychosocial dysfunction. Dr. Syed noted
Plaintiff's diabetes and hypertension were well
controlled. Plaintiff was to use Percocet for severe right
knee pain, to continue exercising and was given a pain patch
November 30, 2015, Plaintiff underwent x-rays of the left
shoulder that revealed moderate left acromioclavicular
spurring. (Tr. 622-626).
December 1, 2015, Plaintiff was seen by Dr. Syed for left
shoulder and arm pain and numbness in the fingers in his left
hand. (Tr. 517-522). Plaintiff reported the pain started a
couple of days ago. Dr. Syed noted Plaintiff went to the
emergency room earlier in the day, underwent testing and was
prescribed medication. (Tr. 627-661). Upon examination, Dr.
Syed noted Plaintiff was unable to raise his left arm above
shoulder level. Plaintiff's knee was positive for
crepitus. Plaintiff was assessed with left shoulder pain and
referred to an orthopedic doctor. Plaintiff was started on
controlled release morphine.
December 3, 2015, Plaintiff entered the Mercy Hospital Fort
Smith emergency room complaining of shoulder pain. (Tr.
467-472). Plaintiff reported three days of a marked increase
in left shoulder pain. Dr. James Cary Wilson noted Plaintiff
recently underwent a MRI of the shoulder that revealed a
possible focal tendon perforation and some fluid along the
tendon. Upon examination, Dr. Wilson noted Plaintiff
exhibited a normal range of motion with tenderness in the
left anterior/lateral shoulder area. Plaintiff was noted to
have normal muscle tone and coordination. Plaintiff was
assessed with acute, left shoulder pain and an appointment to
see an orthopedic doctor was set.
December 7, 2015, Dr. Clay Riley noted Plaintiff's chief
complaint was left shoulder pain. (Tr. 548-549). Plaintiff
reported constant pain. Plaintiff reported he felt a pop in
his shoulder and had a massage the next day. Plaintiff
reported experiencing severe pain the day after the massage.
Plaintiff reported shoulder surgery in 2011, and that he had
done great until one week ago. Dr. Riley assessed Plaintiff
with left shoulder pain and neck pain. Plaintiff received a
December 23, 2015, Plaintiff was seen by Dr. John B. Jacobs
to establish care. (Tr. 426-428). Plaintiff complained of
right knee and right shoulder pain. Plaintiff reported he was
working part-time. Plaintiff reported he was trying to stop
smoking. After examining Plaintiff, Dr. Jacobs assessed
Plaintiff with knee joint pain, shoulder joint pain,
atherosclerosis of the coronary artery with angina pectoris
and anxiety. Plaintiff was prescribed medication. Dr. Jacobs
also recommended Plaintiff seek pain management care.
January 15, 2016, Plaintiff was seen by Dr. John Wellman to
re-establish pain management care. (Tr. 562-563). Plaintiff
complained of chronic lower back pain, right knee pain and
right shoulder pain. Plaintiff was prescribed medication.
January 25, 2016, Plaintiff was seen by Dr. Jacobs for a
follow-up appointment for his knee pain. (Tr. 426). After
examining Plaintiff, Dr. Jacobs assessed Plaintiff with
anxiety, atherosclerosis of the coronary artery with angina
pectoris, shoulder joint pain and knee joint pain. Plaintiff
was prescribed medication.
January 28 2016, Plaintiff reported his medication was
working “fairly.” (Tr. 559-561). Dr. Wellman
letter dated February 1, 2016, Dr. Jacobs stated that while
he had only seen Plaintiff twice, he believed Plaintiff and
affirmed Plaintiff's decision to seek disability. (Tr.
431). Dr. Jacobs indicated Plaintiff had several health
issues that made continuing to try to hold a job a dangerous
proposition. Dr. Jacobs indicated Plaintiff had heart issues
and had been under the care of a cardiologist in the past.
Dr. Jacobs noted that Plaintiff's usual work was
strenuous and put a great strain on Plaintiff's
cardiovascular system. Dr. Jacobs also stated that