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Adair v. Berryhill

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

May 2, 2019

NEWTON ADAIR PLAINTIFF
v.
NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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. § 405(g).

         I. Procedural Background:

         Plaintiff 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).

         By 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 (RFC) to:

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. 28).

         Plaintiff 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. 11, 12).

         The 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.

         II. Evidence Presented:

         At the 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. (Tr. 65-66).

         The 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.

         On 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.

         On 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.

         On 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 sample.

         On November 30, 2015, Plaintiff underwent x-rays of the left shoulder that revealed moderate left acromioclavicular spurring. (Tr. 622-626).

         On 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.

         On 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.

         On 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 cortisone injection.

         On 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.

         On 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.

         On 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.

         On January 28 2016, Plaintiff reported his medication was working “fairly.” (Tr. 559-561). Dr. Wellman prescribed medication.

         In a 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 ...


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