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Litteral v. Colvin

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

December 10, 2014

DAVID WILLIAM LITTERAL, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

REPORT AND RECOMMENDATION

JOHN S. BRYANT, Magistrate Judge.

This is a civil action, pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Social Security Administration (SSA), through its Commissioner, as set out by the Administrative Law Judge (the ALJ), denying the plaintiff's application for disability insurance benefits (DIB). This case is currently pending on the plaintiff's motion for judgment on the administrative record (Docket Entry (DE) 12), to which the defendant has responded (DE 16). The plaintiff has filed a reply (DE 18). Upon consideration of these documents and the administrative record (DE 9), [1] and for the reasons stated below, the Magistrate Judge recommends that the plaintiff's motion for judgment be DENIED and that the decision of the SSA be AFFIRMED.

I. Introduction

The plaintiff protectively filed for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act) on April 29, 2011 (Tr. 219). He claimed an onset date of July 30, 1997 and disability due to ischemic heart disease and post-traumatic stress disorder (PTSD) (Tr. 355; 373). The plaintiff was last insured on December 31, 1997 (Tr. 219; 362).

On August 22, 2011 the Commissioner denied the DIB claim (Tr. 301). On October 10, 2011, the plaintiff timely filed for reconsideration (Tr. 310). On October 20, 2011, the Commissioner again denied the claim (Tr. 311). On November 11, 2011, the plaintiff timely requested a de novo hearing of his claim by an ALJ (Tr. 314). On August 31, 2012, through his counsel, the plaintiff filed an on the record request, which was not granted (Tr. 324).

On October 19, 2012, the plaintiff appeared before ALJ, Brian Dougherty (Tr. 233). Also appearing were: (1) Brenda Benson (Ms. Benson), the plaintiff's attorney; and (2) Michelle McBroom-Weiss, the vocational expert (VE) (Tr. 233). On November 30, 2012, the ALJ decided that the plaintiff was not disabled under Title II of the Act (Tr. 216). The decision of the ALJ contains the following enumerated findings of fact and conclusions of law:

1. The claimant last met the insured status requirements of the Act on December 31, 1997.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of July 30, 1997 through his date last insured of December 31, 1997 (20 CFR 404.1571 et seq.).
3. The claimant had the following severe impairments: coronary artery disease with myocardial infarction in July 1997, ischemic cardiomyopathy with five-vessel coronary artery bypass grafting (CABG) in August 1997, stable coronary artery disease, hypertension, colon polyp, and PTSD as diagnosed several years after the date last insured (20 CFR 404.1520(c)).
4. The claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the ALJ finds that, through the date last insured, the claimant had the residual functional capacity [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a); lift and/or carry 10 pounds occasionally; stand and/or walk 2 hours in an 8-hour workday; and sit 6 hours in an 8-hour workday; with the ability to understand, remember and carry out simple instructions and tasks with adequate concentration, persistence and pace, the ability to have occasional contact with the public, co-workers, and supervisors; and the ability to tolerate gradual and infrequent change.
6. The claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was 48 years old on the date last insured, which is defined as a younger individual age 45-49 (20 CFR 404.1563).
8. The claimant has a high school education with one year of college, and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Act, at any time from July 30, 1997, the alleged onset date, through December 31, 1997, the date last insured (20 CFR 404.1520(g)).

(Tr. 221; 223; 227-29).

On April 23, 2013, the Appeals Council (AC) denied the plaintiff's request for review of the ALJ's decision (Tr. 1-6). On June 10, 2013, the plaintiff timely brought the instant action (DE 1). The matter is now properly before the Court.

II. Review of the Record

A. Relevant Medical Evidence

The plaintiff claimed an onset date of July 30, 1997 and his date last insured was December 31, 1997 (Tr. 219; 221). This renders medical evidence prior to December 31, 1997 both relevant and necessary for establishing disability. See 42 U.S.C. §§ 423(a) and (c). This also presented a particularly "short window in which to prove disability." (Tr. 224).

The earliest medical evidence is one echocardiogram report from August 01, 1997 that was not actually entered or signed until December 11, 1999 (Tr. 676-77). The physician reporting the results of the echocardiogram described it as a "[t]echnically very difficult study of poor quality; normal sinus rhythm throughout." (Tr. 676). Nonetheless, the ALJ reviewed and discussed later records at length (Tr. 224-27). Those records span from 2009 to 2012 (Tr. 421-525; 545-754). Through those records, it is apparent that the plaintiff had coronary artery disease and suffered a heart attack in August 1997 (Tr. 440). He was treated with stent placement and then underwent a quintuple CABG (Tr. 440). The plaintiff reported being told that "he had a silent heart attack' prior to [August 1997]" as well (Tr. 440).

The plaintiff's medical records are briefly reviewed below to the extent that they make a reference to the plaintiff's 1997 heart attack or contemporaneous coronary artery disease, or to the plaintiff's PTSD.

In March 1999, the plaintiff presented to Physician's Assistant, Gary Ungar (Mr. Ungar) at Tennessee Valley Health Care System. Mr. Ungar documented that the plaintiff was "last seen [December 1998] for history of [heart attack], CABG, hypertension, and increased lipids... No new problems. Denies any chest pain or [shortness of breath on exertion]. Works out doors daily without problems." (Tr. 675).

In December 2006, the plaintiff presented to Mr. Ungar, who documented that the plaintiff had not been seen "in clinic for almost 2 years." (Tr. 590). He noted that the plaintiff's coronary artery disease was stable (Tr. 590).

In December 2009, the plaintiff presented to Dr. Andrew Lenneman (Dr. Lenneman) (Tr. 515). Dr. Lenneman diagnosed the plaintiff with stable ischemic cardiomyopathy, hypertension with well controlled blood pressure, and poorly controlled hyperlipidemia (Tr. 515).

The plaintiff presented to cardiologist, Dr. John Nadeau, M.D. (Dr. Nadeau) in August, October, and December 2010, September and December 2011, and March and June 2012 with complaints of, inter alia, "non-specific, severe pain if he does anything physical: arms, chest, stomach muscles, back." (Tr. 475; 486; 498; 697; 707; 724; 731). Dr. Nadeau documented the plaintiff's history of a knee operation in the 1970's and removal of a fibroma in 1987 (Tr. 502).

In March 2010, the plaintiff presented for a compensation and pension examination (Tr. 505). The medical records review therein documented the plaintiff's coronary artery disease beginning in 1997 that has been "progressively worse." (Tr. 506). The provider documented the plaintiff's hypertension, which required medication, and the plaintiff's heart disease, which did not require medication (Tr. 506). The plaintiff's date of retirement was listed as 1997, due to the heart attack the same year (Tr. 510). He was diagnosed with coronary artery disease and the provider documented that this had no "effect on usual occupation and resulting work, " although it did have a moderate effect on chores, exercise, and sports, as well as a mild effect on recreation and traveling (Tr. 510).

In October 2010, the plaintiff presented to Dr. Michael Propper, M.D. (Dr. Propper) for a psychiatric evaluation on referral from Dr. Nadeau (Tr. 488). Dr. Propper reported that he reviewed the records of Dr. Nadeau, in which Dr. Nadeau reported that the plaintiff has "untreated PTSD that has been exacerbated by his recent [A]gent [O]range disability evaluation. He had never been in treatment. He has [artherosclerotic heart disease] with an ischemic cardiomyopathy that is stable at present." (Tr. 488). Dr. Propper documented that the plaintiff had, inter alia, a "depressive [not otherwise specified]" diagnosis (Tr. 492). He prescribed medication and recommended support group counseling (Tr. 492).

In November 2010, the plaintiff reported that "irritability has been a major problem affecting his daily living including employment since returning from Vietnam." (Tr. 479). In May 2011, the plaintiff reported experiencing PTSD "since his return from Vietnam." (Tr. 432). The plaintiff was awarded Veteran's Affairs (VA) disability in August 2009 for "coronary artery disease with ischemic cardiomyopathy with history of [heart attack] and CABG associated with herbicide [Agent Orange] exposure" and in February 2010 for PTSD (Tr. 679; 681).

B. Other Medical and Psychiatric Assessments

On August 04, 2011, Rebecca Joslin, Ed.D. completed a psychiatric review (Tr. 526-38). She reported that there was "[n]o mental MER available for DIB timeframe. [I]nsufficient evidence to assess." (Tr. 538). On August 16, 2011, Dr. Reeta Misra, M.D. (Dr. Misra) completed a medical consultant analysis on behalf of Tennessee Disability Determination Services (DDS) (Tr. 540-44). Dr. Misra reported that the VA records before her were from December 15, 2009 through June 06, 2011 and were "technically insufficient." (Tr. 540; 544).

C. Testimonial ...


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