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Yount v. Colvin

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

May 18, 2015

JOHNNY YOUNT, JR. on behalf of STEVEN R. YOUNT, Plaintiff.,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

JOE B. BROWN, Magistrate Judge.

This action was brought under 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the final decision of the Social Security Administration ("the SSA"), through its Commissioner ("the Commissioner"), denying plaintiff's applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 416(i) and 423(d), and Supplemental Security Income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq . For the reasons explained below, the undersigned RECOMMENDS that plaintiff's motion for judgment on the administrative record (Doc. 12) be DENIED and the Commissioner's decision AFFIRMED.

I. PROCEDURAL HISTORY

Plaintiff Steven Yount filed for DIB and SSI on May 5, 2010 alleging a disability onset date of August 30, 2009, amended later to September 2, 2010. (Doc. 10, pp. 54, 128, 135, 152, 194, 216)[1] Plaintiff claimed he was unable to work because of HIV, depression, anxiety, shoulder muscle, back and arthritis pain. (Doc. 10, pp. 76-77, 82, 85, 156) Plaintiff's application was denied initially on December 8, 2010, and upon reconsideration on April 20, 2011. (Doc. 10, pp. 67-71, )

Plaintiff requested a hearing before an administrative law judge (ALJ). (Doc. 10, pp. 86-87) A hearing was held on October 17, 2012 in Nashville before ALJ Shannon Smith. (Doc. 10, pp. 27-66) Vocational expert (VE) Chelsea Brown testified at the hearing. (Doc. 10, pp. 27, 45-47, 61-64) Plaintiff was represented by counsel at the hearing. (Doc. 10, p. 27)

The ALJ entered an unfavorable decision on November 16, 2012. (Doc. 10, pp. 6-21) A request was filed with the Appeals Council on January 11, 2013 to review the ALJ's decision. (Doc. 10, pp. 216-18) The Appeals Council denied plaintiff's request on February 11, 2014, whereupon the ALJ's decision became the final decision of the Commissioner. (Doc. 10, pp. 1-5)

Plaintiff brought this action through counsel on April 16, 2014. (Doc. 1) Plaintiff filed a motion for judgment on the administrative record on August 14, 2014. (Doc. 12) In September 2014, two motions were filed to substitute Johnny Yount, Jr. for his son, Steven, who died on February 1, 2014. (Docs. 13, 15) The motion to substitute was granted on September 15, 2014. (Doc. 17) Thereafter, the Commissioner responded to the motion for judgment on the administrative record on November 17, 2014 (Doc. 21), and plaintiff replied on December 1, 2014 (Doc. 22). This matter is now properly before the court.

II. REVIEW OF THE RECORD

A. Medical Evidence[2]

Plaintiff was treated by Dr. Lisa Laya, M.D., from January 2007 to September 2012. (Doc. 10, pp. 245-287, 388-428) On August 10, 2010, Dr. Laya made the following note in the treatment record for that date: "refill of his Xanax since he states he could not afford to go to Dr Gaston... and pay[] his copay." (Doc. 10, p. 413)

Doctor Laya wrote the following letter to Judge John Glenn on November 1, 2010 at plaintiff's request:

Please be advised that Mr. Steven Yount is under my care. He is currently under my care for treatment of HIV/AIDS, anxiety/depression, and chronic low back pain. He has multiple medical problems with a fair prognosis. He is unable to work and give child support.

(Doc. 10, pp. 389, 411) Doctor Laya wrote a second letter to Judge Glenn on May 1, 2012:

Please be advised that Mr. Steven Yount continues to be under my care for treatment of acquired immune deficiency syndrome. He continues to suffer from depression and anxiety and has chronic pain syndrome. He is unable to maintain a job and provide child support.

(Doc. 10, p. 388)

Doctor Laya reported on August 23, 2011 that plaintiff "separated from his girlfriend." (Doc. 10, p. 407) Doctor Laya noted following an office visit on December 15, 2011 that plaintiff had "a new girlfriend who is on disability as well." (Doc. 10, p. 405) Doctor Laya noted in a June 9, 2012 clinical note that plaintiff's "girlfriend goes [t]o a pain specialist." (Doc. 10, p. 399)

Plaintiff was treated at Summit Primary Care during the period March 2008 to May 2010. (Doc. 10, pp. 288-324, 429-39) Doctor Robert Gaston, M.D., wrote the following on September 28, 2009:

This patient... [s]tates that he had his medicines in glove compartment of his truck, and he states that he had it locked, and somebody broke into his truck and stole his medicine. States that he had his pain medicine as well as his nerve medicine in the truck, and it was stolen. He has a police report. He states that he went to the pain clinic... and they wouldn't refill his pain medicine, so he comes in to see if we would. I told him I can't refill the pain medicine since he goes to the pain clinic.... I told him I couldn't give him a refill on his Lortab since he had a contract with the pain clinic, so I advised him to go back to the pain clinic with his police report....

(Doc. 10, p. 307) Doctor Gaston, noted the following on May 14, 2010:

.... He has been going to a pain clinic but was dismissed from there because he was getting pain medicine from other doctors. I thought we had sent him a letter of dismissal several weeks ago, but apparently, it hasn't gone out. I had found out he was getting these medicines from other doctors, so he comes in for a check today. I tell him that we can't continue to prescribe pain medicine, that he'll need to get into a pain clinic for this or find another doctor who will....

(Doc. 10, p. 292)

Plaintiff was treated at Tennessee Physical Medicine and Pain Management from March 2006 to February 2010. (Doc. 10, pp. 228-44, 301-02) Nurse Practitioner Curry Dudley recorded the following on February 4, 2010: "Check[ed] with state Controlled Monitoring and he is already getting Percocet from another physician and going to different pharmacies. Patient was told that we would no longer treat with any controlled substances." (Doc. 10, p. 302)

Doctor Roy Johnson, M.D., consultively examined plaintiff on August 11, 2010. (Doc. 10, pp. 326-337) Doctor Johnson completed two separate reports related to the examination, one titled Medical Assessment of Ability to Do Work-Related Activities (Physical) dated "8/20/10" (Doc. 10, pp. 330, 334)(the first report), and the other a more detailed Medical Source Statement of Ability to Do Work Related Activities (Physical) dated "8/ [sic] /10" (Doc. 10, pp. 331, 332, 333, 335-37)(the second report). In the first report, Dr. Johnson determined that plaintiff could lift/carry 10 lbs. occasionally and 10 lbs. frequently, sit a total of 6 hrs. in an 8 hr. workday, stand and/or walk up to 2 hrs. in an 8 hr. workday. (Doc. 10, pp. 330, 334) In the second report, Dr. Johnson determined that plaintiff was able to lift/carry up to 10 lbs. occasionally, up to 20 lbs., also occasionally, sit 6 hrs. without interruption, stand and walk 30 mins. each without interruption, sit 6 hrs. total in an 8-hr. workday, stand and walk 1 hr. each in an 8 hr. workday. (Doc. 10, pp. 331, 335) Dr. Johnson also identified manipulative, postural, and environmental limitations in his second report, as well limitations on activities of daily living. (Doc. 10, pp. 332-33, 335)

Linda Blazina, Ph.D., conducted a psychological evaluation of plaintiff on September 8, 2010. (Doc. 10, pp. 338-41) She determined, among other things, that plaintiff had a Global Assessment of Functioning (GAF) Score of 60-65. (Doc. 10, p. 341)

Christopher Fletcher, M.D., conducted a physical residual functional capacity (RFC) assessment of plaintiff on December 7, 2010. (Doc. 10, pp. 367-75) Doctor Fletcher determined that plaintiff could perform medium work with postural and manipulative limitations. (Doc. 10, pp. 368-70) Doctor Fletcher also wrote:

MER SHOWS CLEAR EVIDENCE OF DOCTOR SHOPPING AND VIOLATION OF PAIN MGMT AGREEMENT. ALLEGED FUNCTIONAL IMPACT OF MDIs FAR EXCEEDS WHAT IS EXPLICABLE FROM OBJECTIVE DATA.

(Doc. 10, p. 374)

Doctor Carolyn M. Parrish, M.D., conducted a physical RFC assessment on April 16, 2011. (Doc. 10, pp. 378-86) Doctor Parrish also determined that plaintiff could perform medium work with postural and manipulative limitations. Doctor Parrish wrote twice in her report:

MER SHOWS CLEAR EVIDENCE OF DOCTOR SHOPPING AND VIOLATION OF PAIN MGMT AGREEMENT. ALLEGED FUNCTIONAL IMPACT OF MDIs FAR EXCEEDS WHAT IS EXPLICABLE FROM OBJECTIVE DATA.

(Doc. 10, pp. 383, 385)

B. Transcript of the ...


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