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Moore v. Colvin

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

April 13, 2015

TERRY LEE MOORE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM

WILLIAM J. HAYNES, Jr., Senior District Judge.

Plaintiff, Terry Lee Moore, filed this action under 42 U.S.C. § 405(g) against the Defendant Carolyn Colvin, Acting Commissioner of Social Security, seeking judicial review of the Commissioner's denial of his application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act.

Before the Court is Plaintiff's motion for judgment on the record (Docket Entry No. 13) contending, in sum, that the Administrative Law Judge ("ALJ") erred by failing to list all of Plaintiff's impairments and specify why some were non-severe, by failing to consider Plaintiff's "medically necessary use of a cane, " and by failing to complete a function-by-function analysis in the RFC. The Commissioner contends that the ALJ's decision is supported by substantial evidence.

The ALJ evaluated Plaintiff's DIB claim using the sequential evaluation process set forth at 20 C.F.R. § 416.920. (Docket Entry No. 10, Administrative Record at 14-16). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 1, 2008, the alleged onset date of disability. Id. at 16. At step two, the ALJ determined that Plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine; chronic obstructive pulmonary disease (COPD); anxiety disorder; and bipolar disorder. Id. These impairments "impose more than a minimal restriction in the claimant's ability to perform basic work activities." Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 17-18. The ALJ considered Paragraph B mental impairments, but did not find that the requirements of Paragraph B were satisfied. Id. at 16-17. At step four, the ALJ determined that Plaintiff had the residual functional capacity to perform medium work with the following limitations: ability to lift and/or carry fifty pounds occasionally, and twenty-five pounds frequently; ability to sit, stand and/or walk for six hours in an eight hour workday; ability to understand, remember, and carry out simple instructions; ability to have occasional contact with the general public; and ability to adapt to infrequent change in the workplace. Id. at 18. At step five, the ALJ utilized the testimony of the vocational expert to conclude that although Plaintiff is not capable of performing past relevant work, he can perform certain other work. Id. at 25-27. The ALJ concluded that Plaintiff was not disabled within the meaning of the Act and was not entitled to disability benefits. Id. at 27. Following this decision, Plaintiff requested a review. Plaintiff's request for review was denied on May 20, 2014.

A. Review of the Record

Plaintiff's alleged onset date of disability is September 1, 2008. Plaintiff's earliest medical record is dated June 20, 2008, from the VA. Id. at 421-425. Plaintiff had complaints of lower back pain, pain between his shoulder blades, leg pain, sore ankles, and "teeth are breaking off like crazy." Id. at 422. Plaintiff said he was present for "management of cholesterol, tiredness, insomnia, " and "monitoring of labs and medications." Id. Regarding his back pain, tests revealed that Plaintiff's straight leg raise was negative bilaterally, he was "able to walk on tip toes, heels and tandem, able to stand on either leg with relaxation of paraspinous muscles, finger to floor distance 4 inches on forward flexion." Id. at 423. The physician reported that Plaintiff's COPD was "controlled, " without medication, and that he was "educated to quit smoking;" Plaintiff's eczema was "improved, " with Triamcinolone, a topical cream that the physician continued. Id. Plaintiff requested a TENS unit for his disjointed knee, claiming "he has used [it] in the past, says he wants to use it again." Id. This unit was requested and issued. Id. at 437-444. Plaintiff was screened for depression and suicidal ideation, and although further psychological intervention was recommended, he refused. Id. at 425.

Plaintiff returned to the VA on January 9, 2009. Id. at 417-420. Plaintiff complained of pain in his "lower back, legs, ankles, [and] knee, " and trouble sleeping, but reported that he was at the clinic for "management of cholesterol, tiredness, insomnia, " and "monitoring of labs and medications." Id. at 417. Plaintiff was counseled regarding tobacco use and was encouraged to quit. Id. at 419-420.

On June 9, 2009, Plaintiff returned to the VA. Id. at 411-417. Plaintiff complained of pain in his calves and his elbow, and stated that he had been gaining weight and "he [had] too much stress going on his life, " but did not report other issues. Id. at 412-413. The physician reported that Plaintiff's COPD was "controlled, " without medication, and that he was "educated to quit smoking;" Plaintiff's eczema was "improved, " so the physician continued Triamcinolone, a topical cream; and Plaintiff reported "partial relief with pain meds." for his disjointed knee. Id. at 414-415. On June 11, 2009, Plaintiff underwent a CT scan. Id. at 201. The results were read on July 30, 2009, in connection with "an investigational drug study, " and revealed "2 or 3 subpleural nodules, the largest being 1.5 cm." Id. It was recommended that Plaintiff obtain a repeat CT scan or a PET scan. Id.

On December 7, 2009, the results of a radiology exam were discussed with Plaintiff. Id. at 426. The "[b]ilateral examinations of the knees demonstrate[d] no evidence of fracture or dislocation. Bones, joints, and soft tissues are intact. There [was] no significant degenerative changes or joint effusion" and "[b]ilateral examinations of the knees [were] radiographically normal." Id.

Plaintiff received a letter from the Department of Veterans' Affairs on March 17, 2010. Id. at 202-203. It indicated that Plaintiff had made a "claim for an increase in [his] service connected compensation" on December 28, 2009. Id. at 202. In this letter, the VA determined that Plaintiff's "service connected condition" of eczema had worsened from 30% to 60%, and that his "Spondylolisthesis or Segmental Instability" and "Traumatic arthritis of the right knee" remained the same; this produced a rating of 80%. Id. The letter specifically stated that the VA "denied entitlement to the 100% rate because it wasn't shown that [Plaintiff was] unable to work as a result of [his] service connected disability/disabilities." Id. Part of Plaintiff's VA compensation was withheld until his severance pay was repaid. Id. at 203.

On December 7, 2010, Plaintiff went to the VA's Tennessee Valley clinic. Id. at 393-397. Plaintiff complained of "back pain, " which he explained was "always, ongoing' but that sometimes it is worse than others... experienced as intense pelvic pressure. Muscle spasms." Id. at 395. Plaintiff had been taking Flexeril and Diclofenac, but his prescription had expired, and the doctor now prescribed Methocarb, Tramadol, and Ethodolac. Id. In January 2011, Plaintiff was seen several times for a left groin condyloma. Id. at 268-279. Plaintiff underwent a procedure to remove it, and no complications were reported. On January 5, 2011, Plaintiff filed his DIB claim. It was denied on March 27, 2011.

On March 31, 2011, Plaintiff was evaluated by Dr. Stephen Goewey. Id. at 204-207. Plaintiff complained of "[b]ack pain, right knee pain, skin disorder, COPD, and restless legs." Id. Plaintiff "report[ed] no specific injury, " and claimed his back pain dated to 1983, his right knee pain to 1971, his skin disorder to the 1980s, and COPD to 2006. Id. Plaintiff admitted to being a "two-pack-a-day smoker for 39 years, " but showed "no accessory muscle use" in chest, "[c]lear breath sounds ausucltated bilaterally. No wheezes. No rales. No rhonchi, " and was "not noted to be short of breath with examination." Id. at 205-206. Dr. Goewey noted "[s]uboptimal effort" by Plaintiff. Id. at 205. For instance, Plaintiff displayed "a right antalgic gait upon direct observation, " but [w]hen observed upon the patient's discharge, it [was] not apparent. Tandem walk was done unremarkably and successfully." Id. at 206.

On the same day, Dr. Goewey completed a Medical Source Statement for Plaintiff. Id. at 208-213. Dr. Goewey restricted Plaintiff to lifting and carrying up to 50lbs continuously, and 51-100lbs frequently. Id. at 208. He limited Plaintiff to sitting, standing and walking for one hour at a time, with a maximum of sitting for six hours, standing for five hours, and walking for three hours in an eight-hour workday. Id. at 209. Plaintiff did not, at the time, use a cane. Id. Dr. Goewey restricted Plaintiff to operating a right foot control frequently, and to frequent exposure to dust, odors, fumes and pulmonary irritants, and extreme cold and heat. Id. at 210, 212. Dr. Goewey indicated that these limitations have lasted, or will last, for twelve consecutive months. Id. at 213.

Dr. P. Stumb performed a review of Plaintiff's medical records on April 25, 2011. Id. at 214-218. Dr. Stumb found that the RFC should be reduced to lifting and carrying 50lbs occasionally and 25lbs frequently, and to sitting, standing, and walking up to 6 hours in a workday. Id. at 217. Dr. Stumb also opined that "[claimant's] statements of functional limitation are less than fully credible based of the VA [Medical Evidence of Record] and the ASE." Id. at 218. He also ...


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