United States District Court, E.D. Tennessee, Greeneville
TIMOTHY E. BUCHANAN
CAROLYN W. COLVIN, Acting Commissioner of Social Security.
REPORT AND RECOMMENDATION
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. § 636 for a report and recommendation. This is a judicial review of the Commissioner's final decision denying the plaintiff's application for disability insurance benefits under the Social Security Act following an administrative hearing before an Administrative Law Judge ["ALJ"]. Both the plaintiff and the defendant Commissioner have filed Motions for Summary Judgment [Docs. 13 and 17].
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 was 46 years of age, a "younger" individual under the Social Security regulations, on the date he alleges he became disabled, February 24, 2010, and is now 51 years of age, a person "closely approaching advanced age." He has a high school education. There is no dispute that he cannot perform his past relevant work as a truck driver, which required medium exertion.
The plaintiff suffers from a variety of serious conditions. The ALJ found that plaintiff has a combination of severe impairments, which include type 2 diabetes; gout; degenerative disc disease in the lower back; left shoulder pain; obesity; mood disorder; pain disorder; anxiety disorder, and Meniere's disease. The Court takes notice that Meniere's disease is an inner ear disorder that affects balance and hearing. Regarding plaintiff's obesity, he is morbidly obese, being five feet nine inches tall and weighing at times as much as 361 pounds.
The plaintiff's medical history, which goes back several years before his alleged disability onset date, is set forth in the defendant's brief as follows:
Plaintiff visited his primary care provider, Warren L. Jones, M.D., for treatment and mediation management related to a history of diabetes, high blood pressure, high cholesterol, gout, anxiety and depression, sleep apnea, and obesity, as well as urinary tract infections and upper respiratory infections (Tr. 331-880). Dr. Jones repeatedly stressed the importance of weight loss (Tr. 377, 731, 787, 797, 800, 809).
In February 2004, Plaintiff complained of "inner ear" episodes where he felt dizzy and off balance (Tr. 331). Plaintiff reported three to four episodes a day, lasting three to four minutes, with no sensation of spinning or tinnitus (Tr. 331). An audiometric test was normal and Dr. Jones suspected that Plaintiff's symptoms were related to anxiety or a recent change in medication rather than an inner ear problem (Tr. 332).
In March 2007, Plaintiff complained of back pain after lifting (Tr. 418). X-rays of his lumbar spine showed no significant abnormality (Tr. 419). Two month later, Plaintiff reported left knee pain after crawling around on the floor (Tr. 834). X-rays of his left knee showed minimal spurring of the patella (Tr. 412). In August 2007, Plaintiff complained of left arm pain and nausea (Tr. 821). An exercise stress test was normal (Tr. 821). In November 2007, Plaintiff complained of back pain which was assessed as prostatitis (Tr. 816).
In May 2008, a physical therapy evaluation showed a normal range of motion, normal balance and coordination, 5/5 strength in both upper and lower extremities, 105 pounds of grip strength on the right, and 95 pounds of grip strength on left (Tr. 801-02). Plaintiff exhibited normal heel/toe standing and walking, a normal gait, and good balance (Tr. 802). Plaintiff had no problems climbing stairs or lifting 25-30 pounds frequently (Tr. 802).
Plaintiff reported foot pain in September 2008 (Tr. 367). X-rays of the left foot showed some arthritis but no bony abnormalities (Tr. 367). X-rays of the right foot revealed some spurring but nothing to explain right foot pain (Tr. 379). A chest x-ray was unchanged (Tr. 382).
In April 2009, Plaintiff reported significant back pain (Tr. 775). Upon examination, he had negative straight leg raises and a normal range of motion (Tr. 776). A magnetic resonance imaging (MRI) scan of Plaintiff's lumbar spine showed a disc protrusion at T12-L1 (Tr. 364). Plaintiff could return to work with a lifting restriction of 10 pounds (Tr. 363). Plaintiff visited a chiropractor for back pain and bilateral numbness and spasms in his hands between April 2009 and June 2009 (Tr. 281-83). Plaintiff was released to return to work in May 2009 (Tr. 766).
In August 2009, Plaintiff received treatment for a urinary tract infection, chest pain, and back pain (Tr. 219, 753-55). Chest x-rays showed no acute pulmonary disease (Tr. 219, 753-55). The following month, Plaintiff complained of dizziness when bent over and difficulty hearing (Tr. 747). He was advised to increase his fluid intake (Tr. 750). In November 2009, Plaintiff reported that his back was much better and he was going on a camping trip (Tr. 738). The next month, Plaintiff told Dr. Jones that he had a meltdown at work and was fired (Tr. 736).
In January and February 2010, Plaintiff complained of an abdominal rash and a gout flare-up (Tr. 728). X-rays of Plaintiff's feet showed mild osteoarthritic changes (Tr. 727, 732).
On February 24, 2010, Plaintiff had a motor vehicle accident while working as a truck driver (Tr. 220). In the emergency room, Plaintiff complained of back pain and mid sternum pain, as well as left shoulder pain (Tr. 220, 222). X-rays of Plaintiff's chest and thoracic spine were negative (Tr. 227-28). X-rays of Plaintiff's lumbar spine showed degenerative changes and disc disease at L1-L2 with narrowing disk space (Tr. 230). X-rays of Plaintiff's shoulder showed no evidence of fracture or dislocation (Tr. 229).
The following month, Plaintiff attended a diabetes check-up with an endocrinologist (Tr. 719). He took his medication but was not compliant with his dietary restrictions (Tr. 719). Plaintiff was encouraged to exercise and consider weight loss surgery (Tr. 722).
In April 2010, Plaintiff reported continued left shoulder pain (Tr. 712). An MRI scan revealed edema, mild tendonitis, and osteoarthritis involving the AC joint (Tr. 231). Plaintiff also reported intermittent foot pain when walking for extended periods (Tr. 712). X-rays showed some arthritic changes in Plaintiff's feet (Tr. 712). Dr. Jones adjusted Plaintiff's medications and referred him to an orthopedic foot specialist (Tr. 712).
Plaintiff visited Dr. Jones in July 2010 with a urinary tract infection (Tr. 696-710). He reported continued left shoulder pain and frustration with worker's compensation (Tr. 696-97). The next month, Plaintiff reported hand tremors (Tr. 692). Plaintiff had difficulty using a mouse with his right hand due to spasms and numbness (Tr. 692). He has some vertigo earlier that month which had resolved (Tr. 692). Upon examination, Plaintiff had good flexion and extension of right arm, a good range of motion, and no appreciable numbness (Tr. 692).
At an appointment in August 2010 with H.W. Loveless, M.D., an ENT specialist, Plaintiff reported several episodes of spinning vertigo (Tr. 317). X-rays of his cervical spine showed mild levocurvature but no definite or significant degenerative changes (Tr. 341).
Plaintiff followed up with Dr. Jones in September 2010, reporting bilateral tremor in his hands and intermittent dizziness, vertigo type symptoms (Tr. 681). Dr. Jones referred Plaintiff to an ENT specialist and neurologist for further evaluation (Tr. 681).
On October 4, 2010, Plaintiff visited Douglass A. Wright M.D., a neurologist, with complaints of chronic left shoulder pain and numbness in his left hand (Tr. 270). Upon examination, Plaintiff had normal coordination, normal gait, and normal motor strength with some mild weakness in his left triceps (Tr. 271-72). Plaintiff had decreased sensation in fourth and fifth digit of left hand and a suppressed left triceps reflex (Tr. 273). Plaintiff could rise from a chair without difficulty (Tr. 272). An MRI scan of his cervical spine was normal with no evidence of spinal stenosis or cord contusion (Tr. 278).
In November 2010, Plaintiff received steroid medication for gout in his left foot (Tr. 677). Plaintiff told Dr. Wright that he experienced periodic dizziness when he turned to the left or lay in bed (Tr. 275). Dr. Wright suspected benign positional vertigo as Plaintiff did not have acute prolonged episodes of vertigo with hearing loss to suggest Meniere's disease (Tr. 275). A computed tomography (CT) scan of Plaintiff's chest showed no evidence of active disease ...