Neal v. Saul

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, John A. Neal, 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) benefits 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 March 2, 2016, alleging an inability to work since January 27, 2016, due to heart attacks with stents and continued pain, uncontrolled diabetes, high blood pressure, high cholesterol, arthritis, shortness of breath, fatigue, panic attacks, depression and bilateral upper extremity pain. (Tr. 78, 232, 234). An administrative hearing was held on May 1, 2017, at which Plaintiff appeared with counsel and testified. (Tr. 29-67).

         By written decision dated December 28, 2017, the ALJ found that during the relevant time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 14). Specifically, the ALJ found Plaintiff had the following severe impairments: ischemic heart disease; diabetes mellitus; hypertension; osteoarthritis; bilateral shoulder pain; diabetic neuropathy; and obesity. 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. 15). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except he is able to lift and or carry 20 lbs. occasionally, lift and or carry 10 lbs. frequently, stand and/or walk 6 hours out of an eight hour workday, sit 6 hours out of an eight hour workday, push and pull pursuant to lift/carry limitations; reach on a bilateral basis frequently; handle and finger on a bilateral basis frequently; foot control operation on a bilateral basis frequently; able to perform work where interpersonal contact is incidental to the work performed; complexity of tasks is learned and performed by rote, with few variables and little judgment; supervision required is simple, direct and concrete.

(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as a deli cutter/slicer, a patch worker or an air purifier servicer. (Tr. 21).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on June 5, 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. 12, 13).

         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 Administrative hearing held before the ALJ on May 1, 2017, Plaintiff, who was fifty-three years of age, testified that he obtained a high school education. (Tr. 35). Plaintiff's past relevant work consists of work as a dispatcher, a telephone answering service operator, a truck dispatcher broker and an armed guard. (Tr. 61).

         Prior to the relevant time period Plaintiff sought treatment for various impairments including but not limited to coronary artery disease, hypertension, diabetes, hyperlipidemia, depression and anxiety.

         The pertinent medical evidence before the ALJ during the relevant time period reflects the following. On January 26, 2016, Plaintiff presented to the emergency room with complaints of lower abdominal cramping. (Tr. 459-464). Plaintiff reported nausea, vomiting, diarrhea and fever. Plaintiff indicated that he had been sick for the past week. Plaintiff noted his glucose fluctuated between 95 and 260. Plaintiff was diagnosed with abdominal pain and prescribed medication. Plaintiff was to follow-up with his primary care physician in one to two days.

         On March 14, 2016, Plaintiff was seen at the Good Samaritan Clinic complaining of sharp pain in his feet for the past two months. (Tr. 500-501). Plaintiff reported he recently lost his job. Treatment notes indicate Plaintiff's last primary care visit was October 2015, and his last cardiology visit was one and one-half years ago. After examining Plaintiff, the examiner diagnosed Plaintiff with Type 2 diabetes mellitus, hypertension, depression, coronary artery disease, hyperlipidemia, neuropathy and tobacco addiction. Plaintiff was continued on his medication with the addition of Neurontin. It was recommended that Plaintiff stop smoking.

         On April 4, 2016, Plaintiff was seen for a diagnostic evaluation at Western Arkansas Counseling and Guidance Center. (Tr. 503-506). Plaintiff presented with issues pertaining to anxiety and depression. Plaintiff reported he was very stressed and thought stress increased his blood pressure. Mr. Clay Connelly, LAC, recommended Plaintiff participate in individual therapy and medication management.

         On April 6, 2016, Plaintiff was seen at the Good Samaritan Clinic for a follow-up. (Tr. 509-510). Plaintiff complained of pain across his chest and down his legs. Plaintiff reported pain when he got up and moved around. After examining Plaintiff, the examiner assessed Plaintiff with diabetic neuropathy and opined that peripheral vascular disease was probably causing pain in Plaintiff's legs and feet. Plaintiff was to continue taking aspirin but stop taking Plavix. The examiner noted that it was much more important for Plaintiff to stop smoking.

         On April 19, 2016, Dr. Kristin Jarrard, a non-examining medical consultant, completed a RFC assessment opining that Plaintiff could occasionally lift or carry twenty pounds, frequently lift or carry ten pounds; could stand and/or walk for a total of six hours in an eight-hour workday; could sit about six hours in an eight-hour workday; could push or pull unlimited, other than as shown for lift and/or carry; and that postural, manipulative, visual, communicative and environmental limitations were not evident. (Tr. 85-86).

         On April 20, 2016, Plaintiff was seen at the Russellville Family Clinic for a follow-up visit. (Tr. 518-521). Dr. Ben Kriesel noted Plaintiff presented with Type 2 diabetes complicated by nephropathy. Plaintiff was not on insulin. Dr. Kriesel noted Plaintiff's compliance with treatment had been poor as Plaintiff did not follow a diet or exercise regimen. Plaintiff reported experiencing a mild degree of depression and that he was doing well on medication without any significant symptoms. Upon examination, Dr. Kriesel noted Plaintiff had a normal gait and normal tone and muscle strength. Plaintiff was assessed with Type 2 diabetes, depression, hypertension, gastrointestinal reflux disease and acute sinusitis. Medications were refilled and Plaintiff was to follow-up in three months.

         On April 21, 2016, Dr. Diane Kogut, a non-examining medical consultant, completed a Mental RFC Assessment opining that Plaintiff was moderately limited in some areas of functioning. (Tr. 86-89). On the same date, Dr. Kogut completed a Psychiatric Review Technique form opining that Plaintiff had mild restriction of activities of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence and pace; and no episodes of decompensation, each of an extended duration. (Tr. 84). Dr. Kogut opined Plaintiff was able to perform work where interpersonal contact is incidental to work performed; complexity of tasks is learned and performed by rote, few variables, little judgment; and supervision required is simple, direct and concrete (unskilled). On August 25, 2016, after reviewing the records, Dr. Laurie Clemens affirmed Dr. Kogut's opinion. (Tr. 124, 128-130).

         On May 2, 2016, Plaintiff was seen at Western Arkansas Counseling and Guidance Center for a psychiatric assessment by James Gattis, APRN. (Tr. 555-558). Plaintiff was self-referred for worrying. Plaintiff reported over the past year he had panic attacks with symptoms including shortness of breath, chest tightness, palpitations and nausea. Plaintiff also reported getting down on himself. Plaintiff reported he took medication for his depression and found the medication helpful at first. Plaintiff was assessed with major depressive disorder with melancholic features and a generalized anxiety disorder. Plaintiff was prescribed medication and the importance of CPAP use was discussed with Plaintiff. Plaintiff was to continue with therapy.

         On May 12, 2016, Plaintiff was seen in the Mercy Hospital Fort Smith emergency room complaining of high blood sugar. (Tr. 523-539, 553). Plaintiff reported difficulty controlling his blood sugars and that he had not been feeling well. Plaintiff complained of intermittent dizziness and chest pain and increased neuropathy and falling. Plaintiff reported recent emotional stress and a blood blister on his abdomen that was oozing and smelled. Plaintiff reported he continued to smoke. Plaintiff was assessed with uncontrolled blood glucose, an abscess of the abdominal wall and sleep disturbance.

         On July 10 2016, Plaintiff was seen in the Mercy Hospital Fort Smith emergency room complaining of high blood sugar. (Tr. 540-552). Plaintiff's blood sugar was noted to be 520. Plaintiff reported he had eaten a piece of apple pie earlier in the evening. Upon examination, Plaintiff was found to have normal range of motion in his neck and spine. Plaintiff was noted to have a normal mood and ...