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Turbeville v. Colvin

United States District Court, M.D. Tennessee, Columbia Division

November 3, 2014

JOHN SCOTT TURBEVILLE
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security[1]

REPORT AND RECOMMENDATION

JULIET GRIFFIN, Magistrate Judge.

To: The Honorable John T. Nixon, Senior District Judge

The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's claim for Disability Insurance Benefits ("DIB"), as provided by the Social Security Act.

Upon review of the Administrative Record as a whole, the Court finds that the Commissioner's determination that the plaintiff is not disabled under the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g), and that the plaintiff's motion for judgment on the administrative record (Docket Entry No. 14) should be DENIED.

I. INTRODUCTION

In May 2008, the plaintiff protectively filed for DIB, alleging a disability onset date of May 29, 2006, due to herniated discs in his back and neck; arthritis in his knees, back, and neck; a hole in his esophagus; a kidney cyst; "missing parts of knees;" a hernia operation; and pain in his hip. (Tr. 23, 122-28, 134, 139.) His application was denied initially and upon reconsideration. (Tr. 62-65, 67-69.) On June 4, 2010, the plaintiff appeared and testified at a hearing before Administrative Law Judge William Churchill ("ALJ") (tr. 35-58), and on August 24, 2010, the ALJ entered an unfavorable decision. (Tr. 23-31.) On March 20, 2012, the Appeals Council denied the plaintiff's request for review, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 6-10.)

II. BACKGROUND

The plaintiff was born on June 22, 1959, and he was 46 years old as of his alleged disability onset date. (Tr. 122.) He completed two years of college and has worked as a manager for a landscaping company, a fork lift operator, a bank manager, a real estate agent, a wholesaler, and a paralegal. (Tr. 40-42, 130-33, 140-41, 156-63.)

A. Chronological Background: Procedural Developments and Medical Records

The plaintiff received treatment from Dr. Zandra Petway from January 2004 until February 2005 for a variety of conditions including pain in his back, neck, right knee, shoulder, and chest. (Tr. 188-229.) On January 5, 2004, he complained of right knee pain that was a six out of ten on the pain scale with swelling, limited range of motion, and "grinding and popping." (Tr. 226.) He returned on June 21, 2004, reporting that he had undergone right knee surgery in February 2004 and that his left knee was hurting as well. (Tr. 221.) Physical examination revealed diffuse edema in his right knee with no crepitus or tenderness to palpation, and he was treated with an injection. Id. On November 11, 2004, the plaintiff presented with chest pain, shoulder pain, back pain, left knee pain, shortness of breath, dizzy spells, and heart burn. (Tr. 215.) He said that his chest pain did not radiate but was like "muscle pain that never goes away, " and he reported having a history of gastroesophageal reflux disease ("GERD"). Id. Upon physical examination, the plaintiff had pain with palpation above his left patella but normal range of motion in his neck with intact reflexes, gait, and coordination. (Tr. 216.) He continued to present to Dr. Petway with chest pain from November 2004 until February 2005. (Tr. 188, 192, 202, 209-10.) In December 2004, he reported that a riding lawnmower had fallen on his chest about three months earlier. (Tr. 202.) A chest x-ray, CT scan, and treadmill stress test were within normal limits, and Dr. Petway variously diagnosed "chest discomfort, bruised sternum, " "chest wall musculoskeletal pain, " and GERD. (Tr. 192, 194, 202-04, 209-10.)

On July 5, 2005, the plaintiff underwent a lumbar spine x-ray, which revealed "spondylitic changes without fracture or subluxation." (Tr. 251.) On August 31, 2005, a renal ultrasound showed a 3 centimeter renal cyst on his left kidney. (Tr. 248.) When the plaintiff presented to Dr. Scott Jobe in October 2005 for a sprained ankle and poison ivy, Dr. Jobe diagnosed him with low back pain, neck pain, and a renal cyst. (Tr. 233.)

On March 27, 2006, the plaintiff presented to Dr. Chris Peterson with neck and back pain. (Tr. 256.) The plaintiff reported that his pain had started more than two years before after repeated automobile accidents and had since worsened. Id. On exam, he demonstrated decreased range of motion in his neck, decreased flexion in the low back, negative straight leg raises, no tenderness to palpation, and good sensation throughout. Id. Dr. Peterson ordered MRIs of the plaintiff's spine, which were taken on April 10, 2006. (Tr. 239-45.) The lumbar spine MRI showed a "[m]ild component of diffusely bulging annulus at L3-4, resulting in borderline relative spinal stenosis" and a "[m]ild component of diffusely bulging annulus at LS-SI." (Tr. 240-41.) The thoracic spine MRI showed "[m]ultiple levels of bulging annulus ranging from minimal to mild in extent" (tr. 242-43), and the cervical spine MRI showed a "mild component of degenerative disc disease at multiple levels." (Tr. 244-45.) None of the MRIs showed thecal sac compromise or nerve root displacement. (Tr. 240-45.) During an examination on May 31, 2006, Dr. Peterson observed that the plaintiff continued to have back pain with ambulation and movement of his upper extremities and that the pain increased with flexion, extension, and rotation of the neck. (Tr. 255.) Dr. Peterson diagnosed cervicalgia, back pain, reflux, and depression. Id.

On August 27, 2008, the plaintiff presented to Dr. Colin Looney at the Franklin Bone and Joint Clinic complaining of low back and left hip pain from automobile accidents and sports injuries. (Tr. 261-65.) The plaintiff described the pain as "constant and sharp" and a nine out of ten on the pain scale. (Tr. 261.) Physical examination of his back was essentially negative, with no tenderness and negative straight leg raises. (Tr. 262.) Examination of his hip revealed "a negative hip dial test, " "[a] mildly positive anterior impingement sign and a posterior impingement sign, " "[l]oss of internal rotation on examination but no significant pain with internal rotation in the groin, " and "significant" tenderness over the trochanteric region. Id. An x-ray of the left hip revealed "severe left hip osteoarthrosis." Id. Dr. Looney diagnosed the plaintiff with "[a]symptomatic left hip degenerative joint disease" and "[s]ymptomatic left hip trochanteric bursitis;" administered a steroid injection, which he observed "almost entirely relieved" the plaintiff's symptoms; and scheduled a followup visit for one year later. (Tr. 262-63.) Dr. Looney noted that he anticipated the plaintiff would "need a total hip replacement in regards to the severity of the arthritis in the left hip." (Tr. 263.)

The plaintiff returned to Dr. Jobe in October 2008, September 2009, January 2010, and March 2010, with complaints including GERD, palpitations, heartburn, arthralgias, anxiety, depression, elbow pain, and hip pain. (Tr. 280-83.) During these visits, Dr. Jobe diagnosed hypertension, depression, osteoarthritis, elbow bursitis, atrial fibrillation, and carpal tunnel syndrome. Id. The plaintiff was also treated during this time by Dr. John Maloof, a cardiologist, for palpitations and tachycardia. (Tr. 270-79.) Physical examinations performed by Dr. Maloof revealed no musculoskeletal abnormalities, with normal muscle strength and tone, stable gait and station, and no abnormalities in the back. (Tr. 271, 273, 275, 277, 279.)

B. Hearing Testimony

At the hearing on June 4, 2010, the plaintiff was represented by counsel, and the plaintiff and Calvin Turner, a vocational expert ("VE"), testified. (Tr. 35-58.) The plaintiff testified that he completed two years of post high school education, is married, and lives with his wife. (Tr. 39.) He said that he has a driver's license and drove to the hearing and that he worked as a manager in a landscaping company, a bank executive, a forklift operator, and a real estate agent. (Tr. 40-41.)

The plaintiff explained that he stopped working in 2006 due to back and knee pain. (Tr. 42.) He said that his doctors prescribe him pain medicine and muscle relaxers and that the medicines "take[] the edge off" but do "[n]ot totally" relieve his pain and cause drowsiness, nausea, and dizziness. (Tr. 42-43, 50.) He said that he had received injections in the past but that, although the injections relieved his pain for approximately three months, he stopped taking them because of the risk of paralysis. (Tr. 43.) He testified that he went to physical therapy "four or five times" for six to eight weeks at a time but that it did not help (tr. 50-51) and that he started using a cane approximately six months before the hearing. (Tr. 53.) He also testified that he has pain in his hip, groin, and knee as well as atrial fibrillations, shortness of breath, and chest pain. (Tr. 47-49, 52-53.) The plaintiff testified that on good days he can lift twenty pounds without "repercussions" but that on bad days he cannot stand up straight even after taking pain medicine. (Tr. 44.) He said that he is not comfortable sitting or walking but that lying down reduces his pain somewhat. (Tr. 45-46.) He related that his wife cleans, cooks, shops, and washes dishes and laundry and that he needs her help to cut his toenails because he cannot bend over to reach them. (Tr. 47.)

When asked by his attorney whether his pain "caused any problems as far as [his] mental... ability to focus [or] concentrate, " the plaintiff responded that:

It depends. If I, if I don't take pain medicine then I'm very short with people. I'm very edgy, agitated. I mean it's like somebody's poking me with a sharp stick all the time. I'm not a fun person to be around when I'm in pain. I mean I'm even short with my wife, and I realize it. I don't want to be, you know, but I am. It's just the way it is. So it's kind of, you know - it's a hard choice, because if I take the pain medicine of course, you know - I cant [ sic ] take a Lortab and I'm not in a lot of pain. But I don't know if you've ever seen anybody or taken one, but I mean you, you're not - there's not much you can do if you take Lortab except lay on the couch like a dead fish, you know?

(Tr. 49-50.) The plaintiff also testified that he suffers from depression and that he takes antidepressant medication. (Tr. 51.) He said that his depression stemmed from a ...


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