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Ellis v. Colvin

United States District Court, E.D. Tennessee, Greeneville

September 10, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security.


DENNIS H. INMAN, Magistrate Judge.

This matter is before the United States Magistrate Judge, under the standing orders of the Court and 28 U.S.C. ยง 636 for a report and recommendation following the administrative denial of the plaintiff application for disability and disability insurance benefits under the Social Security Act after a hearing before an Administrative Law Judge ["ALJ"]. Both the plaintiff and the defendant Commissioner have filed Motions for Summary Judgment [Docs. 14 and 18].

The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir. 1988). "Substantial evidence" is defined as evidence that a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury. Consolo v. Federal Maritime Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Liestenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).

Plaintiff filed his application for benefits on August 24, 2010, and alleges a disability onset date of January 1, 2003. The plaintiff's "insured status" regarding his eligibility for disability insurance benefits expired on March 31, 2004, meaning that there is a six year gap between the expiration of his insured status and the beginning of the administrative process. At that time he was 51 years of age, or "closely approaching advanced age." He has a high school education. There is no dispute he cannot return to any past relevant job.

In order to establish eligibility for disability insurance benefits, the plaintiff must prove that he was disabled within the meaning of the Act on or before March 31, 2004, when his insured status expired.

Plaintiff's medical history is, with the exception of the omission of the opinions of state agency physicians and psychologists, summarized in his brief as follows:

Plaintiff has received medical treatment through the Veterans Administration Medical Center (VAMC) since at least September 9, 1997 (Tr. 258). On September 11, 1997 Plaintiff was given diagnoses of homeless, Bipolar Disorder, bilateral cataracts, dermatitis left hand, S/P extensor tendon surgery left hand, THC dependence, R/O PTSD from childhood (Tr. 256). Plaintiff returned on September 30, 1997 with reports of severe anxiety, paranoia, and panic (Tr. 251). On October 9, 1997, Plaintiff reported being evaluated at Duke University for his left hand (Tr. 246). The following day, Plaintiff reported auditory hallucinations (Tr. 242). Plaintiff continued treatment through this location (Tr. 220-246).
On May 19, 1998, Plaintiff was seen at the VAMC and reported a history of suicidal thoughts (Tr. 343). On May 25, 1998, it was reported that Plaintiff "isolates the majority of the time from others" (Tr. 338). From June 1998 through July 22, 1999 Plaintiff continued with regular psychiatric treatment for mental health issue and drug detoxification (Tr. 301-335).
On July 22, 1998, Plaintiff returned to the VAMC and was seen by the orthopedic clinic for reported chronic right elbow pain (Tr. 300-301). The impression was given as neuroma of the right elbow (Tr. 301). On October 1, 1998, Plaintiff underwent an imaging study of the right elbow (Tr. 707-708). The impression from this study noted very early degenerative changes of the elbow (Tr. 708).
On December 12, 2001, Plaintiff reported to Raleigh Orthopaedic Clinic, Dr. Sarah DeWitt (Tr. 354-356). The chief complaint was noted as right 1st MTP pain (Tr. 354). Plaintiff's history was noted to include a right Keller arthroplasty at the VA hospital three years prior, an attempt to fuse without bone graft in December 2000 and in March 2001 was treated with an iliac crest bone graft from his hip (Tr. 354). Reduced range of motion, tenderness, and mild swelling were noted on physical examination (Tr. 355). The impression was given as (1) Right MTP fusion failure post-Keller, status post three operations, (2) Smoker, (3) Bipolar Disorder (Tr. 355). The doctor recommended surgery with a "redo" iliac crest bone graft that would require either a plate or multiple pins and smoking cessation (Tr. 355). Plaintiff returned for pre-op appointment on December 19, 2001 (Tr. 357-359). Plaintiff was instructed by Dr. DeWitt that he would need to be completely off nicotine for 30 days prior to surgery (Tr. 357). Imaging studies revealed "... 1st MTP non-union with a radial lucent line where the joint is" (Tr. 359). On January 21, 2002, Plaintiff underwent surgery which included hardware removal from right first MTP and a redo fusion with interposition iliac crest bone graft and percutaneous pinning (Tr. 397-399). Plaintiff follow up with Dr. DeWitt on January 30, 2002 and indicated having some pain in the hip and foot, particularly when he puts the foot dependent, and was instructed to continue non-weight bearing for three more weeks (Tr. 363). Plaintiff followed up again on February 6, 2002, February 20, 2002, and February 27, 2002 (Tr. 364-366). On April 1, 2002 Plaintiff returned and report ankle pain (Tr. 368). The doctor's plan included gradually increasing patient's weight bearing. On April 24, 2002 Dr. DeWitt noted for Plaintiff to be weight bearing as tolerated (Tr. 370). The doctor noted that imaging study did not show that Plaintiff was completely healed (Tr. 370). Plaintiff returned again on July 24, 2002 with complaints of continued pain in the toe and swelling (Tr. 371). The impression was given as delayed union of the right MTP fusion (Tr. 371). On September 25, 2002, Plaintiff was noted as being "very dissatisfied and unhappy with his foot" (Tr. 372). The main complaint was swelling. Plaintiff was noted to have used a bone stimulator, but this resulted in significant swelling. The impression was given as left first MTP delayed union status post four prior surgeries, but stable and clinically improved and second MTP synovitis related to the shortened first ray and bearing weight on that side of his foot (Tr. 372).
Plaintiff returned to Dr. DeWitt's office on October 9, 2002 and reported a recent fall resulting in significant pain and swelling (Tr. 373). The doctor's impression was given as: 1) Concern over fracture though the fusion site, and 2) Preexisting delayed union "but that looked more healed than it does on today's x-rays on prior x-rays" (Tr. 373). On October 30, 2002 continuing pain was noted with a change in the range of motion in the MTP joint (Tr. 374). A CT scan indicated the fusion was not united (Tr. 374). The impression was given as Left first MTP nonunion of fusion complicated by a recent traumatic injury which seems to have increased the gross motion on examination and had dramatically increased the pain in the area (Tr. 374). Work restrictions were noted by the doctor as "The patient is limited to mostly sedentary work at this point with short distance walking allowed" (Tr. 374). The doctor concluded the report from this visit by stating "The injury with the increased motion at the nonunion site is of concern". Plaintiff again returned to Dr. DeWitt on November 27, 2002 and was reported to be "doing poorly" (Tr. 375). Following examination, Dr. DeWitt recommended Plaintiff go to a pain clinic due to being unable to control the discomfort (Tr. 375). Plaintiff was reported to have been terminated from his job. Dr. DeWitt further noted that Plaintiff work restrictions would be for unlimited sedentary work and walking for short distances and standing for only short periods (Tr. 375). Plaintiff returned for measurement of total contact orthotic and in-depth footwear on December 16, 2002 (Tr. 377). The diagnosis was given as first MTP nonunion with a secondary break (Tr. 377). Plaintiff received the orthotics/shoes on January 10, 2003 (Tr. 380).
Plaintiff returned to Dr. DeWitt on January 14, 2003 (Tr. 381). Plaintiff reported experiencing pain in his right foot that resulted in a fall with injury to the right elbow (Tr. 381). Physical examination resulted in pain. Imaging studies of the right elbow and right wrist were normal (Tr. 381). Plaintiff returned to Dr. DeWitt on January 29, 2003 with continued reports of pain (Tr.384-385). The doctor stated "He and I discussed at length today that his best option at this point is if we can get him comfortable with accommodative shoes and with pain management, that then he would require no further surgical intervention" (Tr. 384). The doctor follow up by indicating that if this did not occur, then a "re-do" surgery would be required, but the doctor noted that before this would happen, Plaintiff would need to get a second opinion (Tr. 384). Work restrictions were again noted as "mostly sedentary" (Tr. 385). On February 25, 2003 Plaintiff returned and report continuing pain in the right upper extremity (Tr. 386). Plaintiff was also noted as having an appointment for a second opinion, concerning the foot, with Dr. James Nunley at Duke (Tr. 386). Plaintiff was noted to have seen Dr. Nunley and that doctor had recommended a redo fusion with plate and/or external fixator (Tr. 387). Dr. DeWitt expressed concern over the history of skin necrosis and therefore personally called and spoke with Dr. Nunley (Tr. 388). After speaking with Dr. Nunley, Dr. DeWitt's plan was to redo the fusion and requested authorization from worker's compensation (Tr. 388).
On April 23, 2003 and May 14, 2003, Plaintiff returned to Dr. DeWitt with continued reports of right elbow pain (Tr. 389-391). Plaintiff was given injections and noted to have started physical therapy (Tr. 389-390). Work restrictions were given as lifting no more than five pounds on the right upper extremity and only being able walk and stand for short durations (Tr. 391).
On May 20, 2003, Plaintiff was evaluated by Dr. Joel Krakauer, also with Raleigh Orthopaedic Clinic, for the right elbow pain (Tr. 392). Tenderness, pain and minimal swelling were noted on physical examination. Dr. Krakauer's impression was of chronic lateral epicondylitis, right (Tr. 392). On July 1, 2003 Plaintiff reported continued pain in the right elbow (Tr. 394). Dr. Krakauer noted that Plaintiff has had extensive nonoperative treatment for the lateral epicondylitis, including injections, therapy, and rest, but continues to have marked pain (Tr. 394). Treatment options were discussed with ...

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