United States District Court, M.D. Tennessee, Nashville Division
TIMOTHY J. SANDERS, Plaintiff,
CAROLYN W. COLVIN, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
JOE B. BROWN, Magistrate Judge.
For the reasons explained herein, the Magistrate Judge RECOMMENDS that the Plaintiff's Motion for Judgment on the Administrative Record (the record) (Docket Entry (DE) 16) be DENIED, and the Commissioner's decision be AFFIRMED.
I. Procedural History
The Plaintiff originally filed for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on June 18, 2009. (DE 12, pp. 69-70). The Commissioner denied the claim on November 10, 2009 and the Plaintiff appealed no further. (DE 12, p. 75). The Plaintiff filed for DIB and SSI one year later on June 08, 2010. (DE 12, pp. 148; 155). He claimed an onset date of May 19, 2010 and disability due to: arthritis in his knees, back pain, and a speech impairment. (DE 12, pp. 155; 201). The Commissioner denied the claim twice. (DE 12, pp. 86; 96). The Plaintiff requested a hearing before an Administrative Law Judge (ALJ) and, on July 10, 2012, appeared before the ALJ, Elizabeth Neuhoff. (DE 12, pp. 31; 102). Also appearing were Lisa Courtney (Ms. Courtney), the vocational expert (VE) and Robert Parker (Mr. Parker), the Plaintiff's attorney. (DE 12, p. 31). At the hearing, the Plaintiff amended his onset date to August 10, 2010, the last day that he worked. (DE 12, p. 37). On July 18, 2012, the ALJ decided that the Plaintiff was not disabled under the Social Security Act (the Act). (DE 12, p. 10). The Plaintiff's request that the Appeals Council review the decision was denied. (DE 12, pp. 1; 7).
On November 21, 2013, the Plaintiff timely brought the instant action and filed a Motion to Proceed in forma pauperis, which the Court granted. (DE 1-3). On March 05, 2014, the Defendant filed the Answer and the record. (DE 11-12). On May 05, 2014, the Plaintiff filed the Motion for Judgment on the Record and Memorandum in Support of the Motion pursuant to 42 U.S.C. §§ 405(g) and 1383(c), seeking judicial review of the final decision of the Social Security Administration (the SSA), as set out by the ALJ. (DE 16). On July 23, 2014, the Defendant filed a Response in Opposition. (DE 23). The Plaintiff filed a Reply and the Court granted, in part, the Defendant's Motion for Leave to file a Sur-reply, which she did on August 20, 2014 (DE 26-29). Therefore, the matter is now properly before the Court.
II. Review of the Record
A. Relevant Medical Evidence
Relevant evidence begins on August 10, 2010. See 20 C.F.R. §§ 404.1512(d)(2) and 416.912(d)(2). Several reports slightly predate this, presumably because of the May 19, 2010 filing date, and are included here. Reports from the Plaintiff's 2009 application are not.
On July 19, 2010, the Plaintiff presented to Matthew Walker Comprehensive Health Center (MWCHC) and was prescribed medication for knee pain. On August 06, 2010, the Plaintiff presented to MWCHC with reports of right shoulder pain after falling at work and underwent an x-ray. (DE 12, p. 463). On August 18, 2010, the Plaintiff presented to Nashville General Hospital with knee and right shoulder pain. (DE 12, p. 476). The provider reported that the Plaintiff was a low fall risk and an x-ray showed osteoarthritis of the knees and shoulder, narrowing at the shoulder joints, and no dislocation. (DE 12, pp. 480; 548). A later MRI showed a fracture that was healing. (DE 12, p. 521). The Plaintiff continued to see providers at MWCHC for knee pain, shoulder pain, and management of his hypothyroidism. (DE 12, pp. 513-35; 586). On October 14, 2010, a provider at MWCHC noted that the Plaintiff had "the symptoms of a major depressive episode." (DE 12, p. 524). In December of 2010, the Plaintiff began a grief counseling program. (DE 12, p. 590).
On March 10, 2011, the Plaintiff was treated at the Nashville General Emergency Room for a hernia and was diagnosed with hypertension. (DE 12, p. 540). On September 16, 2011, Richard White, M.D. (Dr. White) completed a Treating Source Statement in which he reported that the Plaintiff could lift or carry up to 49 pounds occasionally, rarely bend, squat, crawl or climb, and that his obesity limited his activities. (DE 12, p. 583). Throughout 2011, the Plaintiff continued to see providers at Nashville General Hospital. (DE 12, pp. 630-87). On December 15, 2011, Thomas Limbird, M.D. (Dr. Limbird) also completed a Treating Source Statement in which he reported that the Plaintiff could lift or carry up to 19 pounds occasionally, and never bend, squat, crawl or climb. (DE 12, p. 585).
On January 31, 2012, an x-ray of the left elbow showed joint narrowing and osteoarthritis. (DE 12, p. 632). On February 06, 2012, Dr. Limbird performed left ulnar nerve surgery at the elbow to treat pain in the Plaintiff's left hand. (DE 12, p. 622). After the surgery, the Plaintiff continued to experience "some subjective loss of sensation which may improve or not." (DE 12, p. 602). The Plaintiff continued to experience knee problems and Dr. Limbird prescribed an anti-inflammatory medication on March 29, 2012. (DE 12, p. 602). On May 17, 2012, providers documented the Plaintiff's degenerative disc disease of the lower spine. (DE 12, p. 592).
B. Consultative Examiner Assessments on behalf of Disability Determination Services
On August 03, 2010, Lloyd Huang, M.D. (Dr. Huang) completed a medical consultative examination. (DE 12, p. 458). Dr. Huang reported that the Plaintiff had reduced lumbar spine extension and flexion, and normal range of motion at the hips, knees, and ankles. (DE 12, p. 458). He noted that the Plaintiff walked with a moderate limp, which "improved when [he was] observed leaving the office." (DE 12, p. 458). Dr. Huang reported that the Plaintiff could "occasionally lift 20 pounds, frequently lift 10 pounds, and stand and walk for 4 hours in an 8 hour day and sit for 5 to 6 hours in an 8 hour day." (DE 12, p. 459). He would preclude the Plaintiff from working with "heavy machinery and temperature extremes...." (DE 12, p. 459).
On August 09, 2010, Wanda Webb, Ph. D. (Ms. Webb) completed a physical Residual Functional Capacity (RFC) assessment. (DE 12, pp. 467; 537). She noted "slight" limitations from a speech impairment. (DE 12, p. 471).
On September 17, 2010, Alice Garland (Ms. Garland) completed a psychological consultative examination. (DE 12, p. 458). The Plaintiff reported that he gave up his driver's license after a car accident, that he is able to cook for himself to some extent, and that his sister may help him with laundry or shopping. (DE 12, p. 483). Ms. Garland noted that the Plaintiff stuttered and diagnosed the Plaintiff with dysthymia and "borderline to low average intellectual functioning." (DE 12, p. 484). She found that the Plaintiff "may have moderate if not marked limitation in ability to do complex and detailed work." (DE 12, p. 484). She also found that the Plaintiff's "[a]bility to persist and concentrate was moderately to markedly limited today but... the [Plaintiff] may have been trying to exaggerate [cognitive deficiencies]." (DE 12, p. 484).
On September 23, 2010, Jayne Dubois, Ph. D. (Dr. Dubois) completed a psychiatric review of the record and mental RFC assessment. (DE 12, pp. 486; 500; 536). She noted that the totality of the evidence suggested that the Plaintiff has moderate mental health limitations, and mild to moderate limitations in activities of daily living. (DE 12, p. 498). She noted that the Plaintiff's reports are "partially credible." (DE 12, p. 498). Moreover, she found that the Plaintiff can understand and remember simple and 1 to 3 step detailed tasks, that he can concentrate and persist for a 2 hour time period, can interact with people and coworkers, and can set limited goals and adapt to infrequent change. (DE 12, p. 502).
On October 28, 2010, James Gregory, M.D. (Dr. Gregory) completed a physical RFC assessment. (DE 12, p. 504; 580). He found that the medical evidence did not support Dr. Huang's restriction of walking and noted that even considering the Plaintiff's osteoarthritis and obesity, he could walk for 6 hours. (DE 12, p. 510).
C. Testimonial Evidence
1. Plaintiff and Witness Testimony
On July 10, 2012, the Plaintiff appeared before the ALJ. (DE 12, p. 31). When the ALJ asked the Plaintiff what caused him to leave his job in August of 2010, the Plaintiff testified, "I reinjured my right arm at the job... and when I went to the doctor, [he] x-rayed it and told me that... part of my rotator cuff had been removed and I could only lift 10 pounds." (DE 12, p. 38). The Plaintiff testified that he is unable to drive because he never obtained a driver's license. (DE 12, p. 40-41). The Plaintiff testified that when he attends church service over 2 to 3 hours, he experiences pain but testified, "I learn to try to deal with it." (DE 12, p. 41). He testified that his hobbies include reading and playing a computer game. (DE 12, p. 41). He testified, "I'm not good at a computer. I can just barely use it." (DE 12, p. 41). The ALJ asked the Plaintiff if he has a Facebook account, to which the Plaintiff testified that he does. (DE 12, p. 41). When asked to describe why he is disabled, the Plaintiff testified, "since my knees are not working no more, I'm unable, what am I able to do? Since I am unable to lift with my right shoulder and with all the other medical problems... I know that nobody will hire a person with a broken down body." (DE 12, p. 42). He testified that he applied for less physically demanding work at Goodwill and was put on a waiting list. (DE 12, p. 42).
The Plaintiff testified that he "can only sit for... 30 minutes to about an hour before [his] back starts hurting..." and that he can only stand for "about an hour before...[his] knees will start to buckle." (DE 12, p. 43). He testified that he can walk for 20 minutes. (DE 12, p. 44). He testified that he had been receiving medical treatment at Nashville General Hospital twice a month since April of 2012 and that prior to that he had been receiving treatment at the MWCHC. (DE 12, pp. 42-43). The Plaintiff testified that he takes Synthroid because he has had his thyroid removed and Meloxicam for osteoarthritis. (DE 12, p. 45). He testified that he recently started taking Diclofenac for osteoarthritis. (DE 12, p. 45). He testified that he does not have side effects from the medications. (DE 12, p. 46).
When the ALJ asked the Plaintiff to describe his pain, he testified that the worst pain is in his back, that he experiences tingling every time he lies down or walks, and that his medication relieves the pain "a little." (DE 12, p. 46). He testified that over the counter medications, heat and ice, physical therapy, and a TENS unit that "shoots electrical impulses into your muscles" have been unsuccessful. (DE 12, pp. 45-46). The Plaintiff testified that he lives with his sister, is unable to help with chores, and is unable to make breakfast or coffee. (DE 12, pp. 47-48). He testified that his sister cooks, does the laundry, takes out the trash, goes shopping, and helps him bathe. (DE 12, pp. 47-48; 54). He testified that he graduated from high school. (DE 12, p. 48).
Next, the Plaintiff testified on direct examination by Mr. Parker. He testified that he has had surgery on both knees, that he has pain in his knees and feet, that his right "big toe goes numb, " and that his knee "pops out." (DE 12, pp. 50-51). He testified that as a result of his knee problems, he must use a cane. (DE 12, p. 51). He testified that he had right shoulder surgery in 2008 and that he is unable to lift his right arm over his head. (DE 12, p. 52). He testified that on one occasion he was treated for back pain at the hospital. (DE 12, p. 52). He testified that after surgery on his left hand, he has experienced numbness in his left pinky and ring fingers and that, as a result, he has trouble gripping. (DE 12, p. 53). He testified that he is depressed daily as a result of his thyroid medication and "trying to find something to do." (DE 12, p. 54).
2. Vocational Expert Testimony
The ALJ presented the VE with a hypothetical scenario:
A person of the [Plaintiff's] age, educational background, and work experience.... This person can lift or carry 20 pounds on occasion and 10 frequently. Sit, stand, or walk 6 hours total each. Can occasionally climb ladders, ropes, or scaffolding. Can frequently perform all other postural activities. This person is further limited to simple work with simple instructions and occasional change in the workplace.
(DE 12, p. 57). The VE testified that the Plaintiff could perform his past work as "a floor tech." (DE 12, p. 58). The VE testified that the Plaintiff could also work as (1) a hand stemmer, with 1, 600 employed in Tennessee and 55, 000 employed nationally in this job; (2) a lamp tester, with 1, 800 employed in Tennessee and 65, 000 employed nationally in this job; or (3) an assembler, with 3, 000 employed in Tennessee and 100, 000 employed nationally in this job. (DE 12, p. 59).
The ALJ then presented the VE with a second hypothetical, "[t]his person can lift or carry 20 pounds on occasion and 10 frequently. Stand or walk 4 of 8 hours. Can sit 5 to 6 hours. This person can also have no exposure to hazards in the workplace or temperature extremes." (DE 12, p. 59). The VE testified that, under this hypothetical, the Plaintiff could perform work as (1) a sorter, with 1, 500 employed in Tennessee and 45, 000 employed nationally in this job. (DE 12, p. 60). The VE testified that the Plaintiff could work as a stemmer or assembler, and reduced the number of available jobs to account for the limitations in the hypothetical. (DE 12, p. 60).
The ALJ presented the VE with a third hypothetical that the VE and the ALJ referred to as "strange, " and under which the VE testified that there would be no jobs. (DE 12, pp. 60-63). The ALJ presented the VE with a final hypothetical, "[t]his person can sit 4 to 8 hours, stand or walk for 3 hours total, no pushing or pulling with the right hand, occasionally lift up to 19 pounds and occasionally carry up to 9 pounds. Never bend, squat, crawl, or climb, and no work around unprotected heights." (DE 12, p. 64). The VE testified that, under this hypothetical, the Plaintiff could not perform any jobs. (DE 12, p. 64). On examination by Mr. Parker, the VE testified that ...