United States District Court, W.D. Arkansas, Fort Smith Division
ROBERT R. HULL PLAINTIFF
ANDREW M. SAUL, Commissioner Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE
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).
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.
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
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).
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).
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 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).
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.
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
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).
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.
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.
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).
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.
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
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
19, 2016, Plaintiff underwent a MRI of the left knee that
revealed a complete ACL rupture. (Tr. 569-609).
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.
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.
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
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
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.
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
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
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.
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.
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.
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
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