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Hull v. Saul

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

September 30, 2019

ROBERT R. HULL PLAINTIFF
v.
ANDREW M. SAUL,[1] Commissioner Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Robert R. Hull, 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 supplemental security income (SSI) benefits under the provisions of Title 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 application for SSI on January 13, 2016, alleging an inability to work due to insulin dependent diabetes, severe anxiety with agoraphobia, a panic disorder, major depression, bipolar II, left shoulder pain, carpal tunnel bilaterally and a left knee blow out. (Tr. 74, 189). An administrative hearing was held on May 2, 2018, at which Plaintiff appeared with counsel and testified. (Tr. 41-72).

         By written decision dated July 5, 2018, 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: left knee internal derangement, diabetes mellitus (DM), obesity, bilateral shoulder impingement, generalized anxiety disorder, major depressive disorder, panic disorder and a personality disorder with cluster B traits. 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 sedentary work as defined in 20 CFR 416.967(a) except occasional climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; occasional balancing, stooping, kneeling, crouching, or crawling; no overhead reaching bilaterally; and can perform simple, repetitive work, involving incidental personal contact, and requiring direct, concrete, and simple supervision.

(Tr. 19). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as a document preparer, an addresser and a table worker. (Tr. 27).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on August 24, 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 May 2, 2018, Plaintiff was forty-six years of age and had obtained an associate degree. (Tr. 919, 1334). The record reflects Plaintiff's past relevant work consists of work as a coding machine operator and a counter clerk/warehouse worker. (Tr. 68).

         Prior to the relevant time period Plaintiff sought treatment for various impairments including but not limited to depression, anxiety, substance abuse, diabetes mellitus, right shoulder pain, high blood pressure, allergies and back pain.

         The pertinent medical evidence for the time period in question reflects the following. On February 8, 2016, Plaintiff was seen by Dr. Von Phomakay for his anxiety, depression and diabetes. (Tr. 542-544). Plaintiff was noted as an everyday smoker. After examining Plaintiff, Dr. Phomakay assessed him with a depressive disorder, and diabetes mellitus. Dr. Phomakay refilled Plaintiff's medication. Plaintiff was informed that he would need to find a new primary care physician as the clinic doctors did not see patients on insulin.

         On February 18, 2016, Dr. Judith Forte, a non-examining medical consultant, completed a RFC assessment opining that Plaintiff could occasionally lift or carry fifty pounds, frequently lift or carry twenty-five 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; that Plaintiff could perform no overhead reaching, bilaterally; and that postural, visual, communicative and environmental limitations were not evident. (Tr. 85-87).

         On February 24, 2016, Plaintiff underwent a mental diagnostic evaluation performed by Patricia J. Walz, Ph.D. (Tr. 545-549). Dr. Walz noted a previous evaluation conducted by Robert Spray, Ph.D., on January 2, 2013. Plaintiff reported he applied for disability because he had panic attacks and a generalized anxiety disorder since an early age. Plaintiff reported his mood had not been good and he had some suicidal ideation and had been hospitalized for about one week. Plaintiff explained that he had been in a ministry and did not think he was getting a fair shake. He wanted to leave the ministry and they were going to drop him off at Walmart so he drank hand sanitizer. Dr. Walz noted Plaintiff had four psychiatric hospitalizations, the first at the age of thirty-four, but was not under current psychiatric care because he was having trouble finding someone who would take Medicaid. Plaintiff reported that he lived with his mother who needed constant care. Plaintiff reported he cooked for his mother and reminded her to take her medication. Plaintiff reported he did light housekeeping chores and yard work but was limited due to shoulder pain. Plaintiff reported having problems with concentration. Dr. Walz opined Plaintiff's intellectual functioning was above average. Plaintiff was assessed with a generalized anxiety disorder; a panic disorder; major depressive disorder, recurrent moderate; an alcohol use disorder, reportedly in remission; a stimulant use disorder, reportedly in remission; and a personality disorder with cluster B traits. Dr. Walz noted Plaintiff did not have a driver's license because it was suspended and Plaintiff had not paid the fee. Plaintiff reported he spent his day watching television, talking to his mother, writing and studying the Bible. Dr. Walz noted Plaintiff had trouble concentrating due to racing thoughts and that his anxiety interfered with his ability to complete tasks. Plaintiff's speed of information processing was noted as a bit slow.

         On February 25, 2016, Dr. Michael Hazlewood, a non-examining medical consultant, completed a Mental RFC Assessment opining that Plaintiff was moderately limited in some areas of functioning. (Tr. 88-90). On the same date, Dr. Hazelwood 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 one or two episodes of decompensation, each of an extended duration. (Tr. 83). Dr. Hazelwood opined Plaintiff was able to perform simple/repetitive work involving incidental interpersonal contact and direct, concrete and simple supervision (unskilled). On June 13, 2017, after reviewing the records, Dr. Kay M. Gale affirmed Dr. Hazelwood's opinion. (Tr. 113-115).

         On April 6, 2016, Plaintiff was seen for a glaucoma evaluation. Plaintiff underwent laser trabeculoplasty of the left eye performed by Dr. Randy Ennen, on April 12, 2016. (Tr. 565-566, 900-902). By May 16, 2016, Plaintiff reported he was doing well. (Tr. 899).

         On April 7, 2016, Plaintiff was seen at Valley Behavioral Health for a diagnostic evaluation. (Tr. 551-555). Plaintiff's symptoms consisted of a low mood, anhedonia, low energy, panic attacks and grief. Susan Smith, MS, LPC, NCC, noted Plaintiff was referred by his primary care physician. Ms. Smith noted Plaintiff's primary problems were depression, anxiety and panic attacks. Plaintiff was assessed with major depressive disorder recurrent moderate and a generalized anxiety disorder. It was recommended that Plaintiff start individual therapy along with medication management.

         On April 27, 2016, Plaintiff was seen for an initial outpatient psychiatric evaluation. (Tr. 917-922). Plaintiff was being seen for medication refills. Plaintiff reported that his anxiety had worsened since his mother had been sick. Plaintiff reported his medication had been working well. Plaintiff was noted to have no functional limitations. Plaintiff was assessed with depression and anxiety and prescribed medication.

         On May 11, 2016, Plaintiff was seen by Ms. Smith for individual therapy. (Tr. 620). Plaintiff reported increased medical problems that complicated his depression. Ms. Smith noted Plaintiff had several infected teeth, as well as shoulder and knee pain. Plaintiff reported he was reluctant to use pain medication out of fear of abuse. Ms. Smith recommended Plaintiff discuss the concerns with his primary care physician. Plaintiff reported he would try the relaxation exercises to help his mind. Plaintiff was to return in two weeks.

         On May 19, 2016, Plaintiff underwent a MRI of the left knee that revealed a complete ACL rupture. (Tr. 569-609).

         On June 6, 2016, Plaintiff was seen by Dr. Dale Wayne Asbury for a medication refill and a psychiatry referral. (Tr. 635-639). Upon examination, Dr. Asbury noted Plaintiff ambulated normally, had good judgment and a normal mood, affect and memory. Dr. Asbury assessed Plaintiff with anxiety, diabetes mellitus and pain and prescribed medication.

         A progress note dated June 17, 2016, revealed Plaintiff had been out of his medication for two weeks. (Tr. 615, 916). Plaintiff was noted to be living with his mother and step-dad. Plaintiff reported he helped his mother who was ill. Plaintiff reported being nervous about his mother being sick. Plaintiff's medication was adjusted and he was to return in three months for a follow-up.

         On June 23, 2016, Plaintiff was seen by Ms. Smith for individual therapy. (Tr. 618). Ms. Smith noted Plaintiff continued to struggle with health problems that impacted his mood and anxiety level. Plaintiff had teeth pulled and his arthritis was flaring up. Plaintiff also reported that his mother was in the hospital. Plaintiff agreed to focus on himself while his mother was in the hospital. Plaintiff was to follow-up in two weeks.

         On July 21, 2016, Plaintiff was seen by Ms. Smith for individual therapy. (Tr. 617). Plaintiff reported his anxiety had increased for unknown reasons. Plaintiff's stressors included his mother being home from the hospital and his brother and father not doing well. Plaintiff reported he spent his time working around the house. Ms. Smith discussed the stress of being a caregiver for a parent and watching a parent's health decline. Plaintiff was to follow-up in two weeks.

         A progress note dated July 26, 2016, indicated Plaintiff was seen by Kellie Berry-Hert, APN, for a follow-up for his depression and anxiety. (Tr. 614, 915). Plaintiff reported his anxiety “was through the roof.” Plaintiff's medication was adjusted and he was to return in two months.

         On August 8, 2016, Plaintiff was seen by Ms. Smith for individual therapy. (Tr. 616). Plaintiff reported his anxiety continued to worsen. Plaintiff thought his medication change actually made his symptoms worse not better. Plaintiff reported he spent his time at home working around the house and yard. Plaintiff reported he had not been able to work on his relaxation exercises due to not having a computer or phone. Ms. Smith provided handouts for the exercises. Plaintiff was to return in two weeks for a follow-up appointment.

         On August 15, 2016, Plaintiff was seen by Dr. Asbury for a diabetes follow-up and medication refills. (Tr. 633-635). Upon examination, Dr. Asbury noted Plaintiff ambulated normally. Plaintiff was assessed with anxiety and prescribed medication.

         On September 23, 2016, Plaintiff was seen by Nurse Berry-Hert. (Tr. 914-). Nurse Berry-Hert noted Plaintiff had situational depression. Plaintiff reported that Klonopin was not helpful and requested that he be started back on Ativan. Plaintiff reported that his “meds are working.” Plaintiff's medication was changed and he was to return in three months.

         On November 10, 2016, Plaintiff was seen by Dr. Asbury for medication refills. (Tr. 629-633). Upon examination, Dr. Asbury noted Plaintiff ambulated normally, had good judgment and a normal mood, affect and memory. Plaintiff was found to have normal muscle strength and tone. Plaintiff had normal movement in all four extremities. Dr. Asbury assessed Plaintiff with anxiety, diabetes mellitus, a meniscus tear of the knee and a ruptured ACL of the left knee. Plaintiff was prescribed medication and referred to an orthopedic doctor.

         On December 30, 2016, Plaintiff was seen by Dr. Asbury for a one-month follow-up and mediation refill. (Tr. 626-629). Upon examination, Dr. Asbury noted Plaintiff ambulated normally, had good judgment and a normal mood, affect and memory. Plaintiff was found to have normal muscle strength and tone. Plaintiff had normal movement in all four extremities. Dr. Asbury assessed Plaintiff with anxiety and diabetes mellitus.

         On January 27, 2017, Plaintiff was seen by Dr. Asbury for a cough and a two-month follow-up appointment. (Tr. 623-626). Upon examination, Dr. Asbury noted Plaintiff ambulated normally. Plaintiff was noted to have good judgment and a normal mood and affect. After examining Plaintiff, Dr. Asbury assessed Plaintiff with a ruptured ACL of the left knee and diabetes mellitus.

         On January 27, 2017, Dr. Asbury also completed a Medical Source Statement opining Plaintiff could lift and carry ten pounds frequently, and twenty five pounds occasionally; could stand and walk three hours out of an eight-hour day; could sit for eight hours out of an eight-hour day; could push and/or pull unlimited; would need four or more breaks in an eight-hour day; and could perform five hours of work activities in an eight-hour day. (Tr. 621-622). Dr. Asbury opined Plaintiff could climb, balance, squat, kneel, crouch and stoop less than two hours in an eight-hour day. Dr. Asbury opined Plaintiff could reach in all directions, handle, finger, grip and ...


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