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Ogg v. Colvin

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

March 30, 2015

SAMMY STEPHEN OGG, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

REPORT AND RECOMMENDATION

JOE B. BROWN, Magistrate Judge.

For the reasons explained below, the Magistrate Judge RECOMMENDS that Plaintiff's Motion (Docket Entry 14) be DENIED, and that the Commissioner's decision be AFFIRMED.

I. Procedural History

Plaintiff protectively filed for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on September 20, 2010.[1] (Docket Entry 8, pp. 162-74).[2] He claimed an onset date of December 31, 2009 and disability due to back problems and a pinched nerve in his left arm. (Docket Entry 8, pp. 191; 195). The Commissioner denied his claims on initial review and reconsideration. (Docket Entry 8, pp. 101; 112-15). Plaintiff requested a hearing before an Administrative Law Judge (ALJ) after the 60 day deadline to do so and explained that the delay was due to his recovering from surgery. (Docket Entry 8, p. 116). On October 02, 2012, Plaintiff appeared before ALJ, Michelle Thompson. (Docket Entry 8, p. 34). Also appearing were William Underhill (Mr. Underhill), Plaintiff's attorney and Tyra Watts (Ms. Watts), the vocational expert (VE). (Docket Entry 8, p. 34). On October 26, 2012, the ALJ determined that Plaintiff was not disabled under sections 216(i), 223(d), or 1614(a)(3)(A) of the Social Security Act (the Act). (Docket Entry 8, p. 29). On January 30, 2014, the Appeals Council denied Plaintiff's request for review. (Docket Entry 8, p. 1).

On March 28, 2014, Plaintiff timely brought the instant action. (Docket Entry 1). Defendant has filed its Answer and the Administrative Record (the record). (Docket Entry 7 and 8). On July 07, 2014, Plaintiff filed a Brief in Support of a Motion for Judgment on the Administrative Record without an accompanying Motion. (Docket Entry 11). Nonetheless, Defendant filed a Response in Opposition. (Docket Entry 12). Plaintiff was given 14 days to file an appropriate Motion and timely did so. (Docket Entry 13 and 14). Therefore, the matter is properly before the Court.

II. Review of the Record

A. Relevant Medical Evidence

Relevant medical evidence includes evidence from "at least the 12 months preceding the month in which [the plaintiff] file[s] [his] application unless there is a reason to believe that development of an earlier period is necessary or unless [the plaintiff] say[s] that [his] disability began less than 12 months before [he] filed...." See 20 C.F.R. ยงยง 404.1512(d)(2) and 416.912(d)(2). Here, Plaintiff's alleged onset date was December 31, 2009, less than one year before he filed. (Docket Entry 8, p. 191). However, since the ALJ reviewed Plaintiff's remote history from before the alleged onset date, the Magistrate Judge includes that history.

Treatment notes indicate that Plaintiff had back surgery at the lumbar levels of L4-L5 at some time between 2001 and 2004, although the record reflects different dates. (Docket Entry 8, pp. 245; 267; 270; 300; 369; 376; 404). Between 2004 and 2006, Plaintiff presented to various providers with complaints of degenerative disc disease, back pain that radiated into his legs, left elbow pain, and problems sleeping. (Docket Entry 8, pp. 242-67). He was prescribed physical therapy and pain medication. (Docket Entry 8, pp. 246; 337-56).

Between 2002 and 2011, Plaintiff presented to Northcrest Medical Center Emergency Room (Northcrest ER). On March 12, 2002, Plaintiff presented after falling off of a ladder. (Docket Entry 8, pp. 410-15). On January 21, 2004, Plaintiff presented with lower back pain radiating down his right leg. (Docket Entry 8, p. 404). On March 12 and 26, 2005, Plaintiff presented with back pain. (Docket Entry 8, p. 376). He reported pain when bending and that his work required him to "bend over a lot...." (Docket Entry 8, p. 376; 381). On May 27, 2006, Plaintiff presented again with back pain radiating down his right leg. (Docket Entry 8, p. 371). On June 22, 2008 Plaintiff was treated for depression and anxiety. (Docket Entry 8, pp. 365-66). On December 03, 2008, Plaintiff was treated for a right ankle injury. (Docket Entry 8, p. 292). On August 12, 2009, he was treated for an apparent allergic reaction to morphine. (Docket Entry 8, p. 285). On May 31, 2010, Plaintiff was treated for a dog bite and reported no back pain or other problems. (Docket Entry 8, pp. 275; 278-80). On July 29, 2010, Plaintiff presented with lower back pain. (Docket Entry 8, p. 269). He reported that his "pain resolved" after his back surgery in 2004 but that he began experiencing back pain while working in a tobacco field on the previous day. (Docket Entry 8, p. 270). He was treated with pain medication and discharged. (Docket Entry 8, p. 273).

Plaintiff then presented to the Robertson County Health Department for follow up care on August 02, 2010. (Docket Entry 8, p. 300). He reported that he "was bending over working on farm equipment when [he] got [a] stabbing pain." (Docket Entry 8, p. 300). He reported numbness and "shooting pain" radiating into his legs. (Docket Entry 8, p. 300). He continued to seek follow up care in September and December 2010 as well as February 2011 and reported persistent pain in his neck, back, and right shoulder. (Docket Entry 8, pp. 297-99; 518-19).

On April 13, 2011, Plaintiff presented to Northcrest ER with leg pain and an injury to his right knee. (Docket Entry 8, p. 327). He was admitted and treated by Dr. Mark Cutright (Dr. Cutright) for a fracture. (Docket Entry 8, pp. 327). Plaintiff continued to follow up with Dr. Cutright in May, July, and October 2011. (Docket Entry 8, p. 334; 419-34). On May 01, 2011, Plaintiff returned to Northcrest ER and reported continuing right leg pain. (Docket Entry 8, pp. 445-46).On July 19, 2011, Plaintiff reported that he was "unable to work." (Docket Entry 8, p. 424). On October 18, 2011, during a visit to Dr. Cutright, Plaintiff reported that he had returned to work "full duty" and was experiencing "complications with pain and swelling in his knee." (Docket Entry 8, p. 421).

Plaintiff returned to the Robertson County Health Department in March and October 2011 as well as January, March, and April 2012 for pain in his left hip, shoulders, back, and right leg. (Docket Entry 8, p. 507; 509; 511; 513). On April 13, 2012, the provider documented decreased range of motion in Plaintiff's right leg and hip. (Docket Entry 8, p. 508).

B. Consultative Examiner Assessments on behalf of Disability Determination Services

On December 17, 2010, Dr. Marvin Cohn (Dr. Cohn) completed a physical Residual Functional Capacity (RFC) assessment. (Docket Entry 8, p. 303). He found that Plaintiff could occasionally lift or carry fifty pounds, frequently lift or carry twenty-five pounds, stand, sit or walk for six hours in an eight hour day, and push or pull for an unlimited period. (Docket Entry 8, p. 304). He found no postural, manipulative, visual, communicative, or environmental limitations. (Docket Entry 8, pp. 305-08). He noted that Plaintiff "is only partially credible as his pain complaints and reported limitations exceed the medical evidence which shows minimal and conservative [treatment]. However, ... [Plaintiff] is given the benefit of the doubt and the RFC is reduced due to his complaints of pain." (Docket Entry 8, p. 310). Dr. Carolyn Parrish (Dr. Parrish) affirmed these findings on March 26, 2011. (Docket Entry 8, p. 312).

C. Medical Source Statements

Dr. Cutright completed a Medical Source Statement on July 29, 2011. (Docket Entry 8, p. 498). He found that Plaintiff could frequently lift or carry up to twenty pounds, but never more. (Docket Entry 8, p. 498). He found that Plaintiff could sit for one hour, stand for twenty minutes, or walk for ten minutes at any one time without interruption. (Docket Entry 8, p. 499). He found that Plaintiff could sit for six hours, stand for stand for one hour or walk for one hour total in an eight hour day. (Docket Entry 8, p. 499). He also found that Plaintiff could frequently reach, push or pull, could continuously handle, finger, or feel with both hands, and could frequently use both of his feet. (Docket Entry 8, p. 500). He found that Plaintiff could occasionally climb stairs or ramps, balance, stoop, or kneel but could never climb ladders or scaffolds, crouch, or crawl. (Docket Entry 8, p. 501). He found no hearing or vision impairments. (Docket Entry 8, p. 502). He found that Plaintiff could never work at unprotected heights, could occasionally move mechanical parts or be exposed to extreme heat, cold, and vibrations, and could frequently operate a vehicle or be exposed to humidity, wetness, dust, odors, fumes, and pulmonary irritants. (Docket Entry 8, p. 502). He found that Plaintiff would not be able to walk on rough or uneven surfaces. (Docket Entry 8, p. 503). Finally, in response to the question, "[h]ave the limitations you found above lasted or will they last for twelve consecutive months, " Dr. Cutright responded, "No." (Docket Entry 8, p. 503).

Mary Todd Linville, APRN (Ms. Linville) of the Robertson County Health Department completed a Medical Source Statement on April 13, 2012. (Docket Entry 8, p. 530). Dr. L.A. MacDonald (Dr. MacDonald) signed the Medical Source Statement below the signature of Ms. Linville. (Docket Entry 8, p. 537). Ms. Linville found that Plaintiff could occasionally lift or carry up to twenty pounds, but never more. (Docket Entry 8, p. 531). She found that Plaintiff could sit for ninety minutes, stand for ten minutes, or walk for one hour at any one time without interruption. (Docket Entry 8, p. 533). She found that Plaintiff could sit for four hours, stand for thirty minutes or walk for three hours total in an eight hour day, and found that Plaintiff required a cane to walk. (Docket Entry 8, p. 533). She found that Plaintiff could occasionally reach or handle with the right hand, could continuously feel, push or pull with the right hand, could occasionally reach overhead with the left hand, and could never handle, finger, feel, push or pull with the left hand. (Docket Entry 8, p. 500). She found that Plaintiff does not drive and could never use his left foot. (Docket Entry 8, p. 534). She found that Plaintiff could occasionally climb stairs or ramps, stoop, or crouch but could never climb ladders or scaffolds, balance, kneel, or crawl. (Docket Entry 8, p. 535). She wrote that Plaintiff "needs glasses" although she noted that she did not evaluate hearing or vision. (Docket Entry 8, p. 535). She found that Plaintiff could never work at unprotected heights, move mechanical parts, operate a vehicle or be exposed to vibrations, but could occasionally be exposed to humidity, wetness, dust, odors, fumes, pulmonary irritants, extreme heat or cold and at least moderate office noise. (Docket Entry 8, p. 536). She found that Plaintiff would not be able to shop, travel alone, walk for more than a short distance, or read. (Docket Entry 8, p. 537). Finally, in response to the question, "[h]ave the limitations you found above lasted or will they last for twelve consecutive months, " she responded, "Yes." (Docket Entry 8, p. 537).

D. Testimonial Evidence

1. Plaintiff and Witness Testimony

On October 02, 2012, Mr. Underhill presented an opening statement to the ALJ on behalf of Plaintiff. (Docket Entry 8, p. 38). He stated that Plaintiff had left school before completing the eighth grade, did not have a GED, and had a work history consisting of line assembly and farm work. (Docket Entry 8, p. 38). He described Plaintiff's problems and medical history, including: degenerative disc disease, back surgery, pain that radiates into his left leg, a right leg fracture that continues to cause difficulty, and a fracture in his left forearm at a young age that required "the insertion of several pieces of hardware." (Docket Entry 8, p. 39). He stated that Plaintiff requires a cane to walk, that he has little grip strength in his left hand, that he has situational depression, and that he has high blood pressure. (Docket Entry 8, p. 39).

Plaintiff was questioned by Mr. Underhill. (Docket Entry 8, p. 40). He testified that he worked on an assembly line and a tobacco farm previously. (Docket Entry 8, p. 41). He testified that he had been in "special resources" classes since the fourth grade because of "some testing... at the school" and "a hearing impairment." (Docket Entry 8, p. 42). He testified that he left school in the eighth grade and that he is unable to read. (Docket Entry 8, p. 42). He testified that he needs a hearing aid but has been unable to afford one. (Docket Entry 8, p. 43). He testified that he is able to add and subtract "[j]ust very little, " that he cannot balance a checkbook, and that he cannot multiply or divide. (Docket Entry 8, p. 43). He testified that since his alleged onset date of December 31, 2009, he has worked "[j]ust very little" but not a full day in a tobacco field. (Docket Entry 8, p. 44). He testified that he had been to the emergency room several times for severe back pain and that he had been unable to operate a tractor for more than forty-five minutes because of pain in his legs. (Docket Entry 8, p. 46). He testified that he takes Motrin, muscle relaxers, antibiotics, and blood pressure medicine, and that the muscle relaxers make him drowsy while the blood pressure medicine causes him to "see little blue spots" and become dizzy. (Docket Entry 8, pp. 46; 50).

Plaintiff further testified that he had back surgery in 2001 but that his symptoms have worsened. (Docket Entry 8, p. 47). When asked to describe his symptoms, he testified that he has a stabbing pain in his lower back that shoots down his leg and can last for up to forty minutes. (Docket Entry 8, p. 47). He went on to state that the only thing he can do is take his medicine to relieve the pain. (Docket Entry 8, p. 47). He testified that he has problems in his right knee and right leg as a result of a fracture and a dog bite. (Docket Entry 8, pp. 48-49). Plaintiff testified that as a result of breaking his arm in the third grade, he has pain and difficulty with grip strength in his left hand. (Docket Entry 8, pp. 49-50). He testified that he is not able to use his left hand or arm to do anything. (Docket Entry 8, p. 50). He testified that he uses a cane and a knee brace. (Docket Entry 8, p. 50). He testified that he has difficulty seeing and that he needs to wear glasses but does not have any. (Docket Entry 8, p. 51). He testified that he can sit for about an hour, stand for about thirty minutes, and walk for about ten minutes. (Docket Entry 8, pp. 51-53).

Plaintiff testified that he lives with his parents, brother, and son and that he has difficulty sleeping at night. (Docket Entry 8, p. 53). He testified that during the day he sits on the porch or watches television. (Docket Entry 8, p. 54). He testified that his mother washes his clothes, cooks, and cleans and that he may take the trash out or sweep the floor. (Docket Entry 8, p. 55). He testified that he does not drive because he has difficulty sitting for long periods of time and that he uses home remedies such as Bengay or hot water. (Docket Entry 8, p. 56).

Plaintiff was also questioned by the ALJ. He testified that he has a valid driver's license. (Docket Entry 8, p. 57). The ALJ asked Plaintiff to clarify when he last worked because the record contains a medical note from July 29, 2010 indicating that Plaintiff became injured while working on farm equipment. (Docket Entry 8, pp. 57-58). Plaintiff testified that he worked during the summer and fall of 2010 on a farm, but that he did not work on a farm in 2011. (Docket Entry 8, p. 58). He testified that he stopped working because "[it is] hard manual labor." (Docket Entry 8, p. 58). The ALJ asked Plaintiff about his medical treatment and Plaintiff testified that he goes to Robertson County Health Department when he needs to and that a provider had prescribed him a cane. (Docket Entry 8, p. 59). Plaintiff also reiterated that his medication causes drowsiness and that he "[cannot] hear that good." (Docket Entry 8, p. 60).

2. Vocational Expert Testimony

The VE testified that Plaintiff previously worked as an assembler, which is unskilled[3] work with an SVP of 2, requiring a light level of strength[4] and also as a farm laborer, which is unskilled work with an SVP of 2, requiring a heavy level of strength. (Docket Entry 8, p. 61).

The ALJ then presented the VE with a hypothetical scenario, assuming someone of the same age, education, and work experience as Plaintiff "where such person can [frequently] lift, push, pull, or carry twenty-five pounds, occasionally up to fifty, sit, stand, and/or walk six hours in an eight-hour workday." (Docket Entry 8, pp. 62; 304). The VE testified that Plaintiff's past work as an assembler would still be available given these limitations and that other work would also be available. (Docket Entry 8, p. 62). The ALJ ...


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