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Kitchen v. Colvin

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

January 30, 2017

PAUL KITCHEN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Honorable Aleta A. Trauger, United States District Judge.

          REPORT AND RECOMMENDATION

          JOE B. BROWN United States Magistrate Judge.

         The Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of the Social Security Commissioner's denial of his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. For the following reasons, the Magistrate Judge RECOMMENDS that the Plaintiff's motion for judgment on the administrative record (Doc. 14) be DENIED and the Commissioner's decision be AFFIRMED.

         I. PROCEDURAL HISTORY

         In 2011, the Plaintiff applied for disability insurance benefits, alleging an onset date of March 1, 2011. (Doc. 10, pp. 79, 175).[1] His applications were denied on initial review and again upon reconsideration. (Doc. 10, pp. 79-80, 83, 90). Two administrative hearings were convened at the Plaintiff's request. (Doc. 10, pp. 25-78). The administrative law judge (“ALJ”) issued an unfavorable decision (Doc. 10, pp. 7-24) which the Appeals Council declined to review (Doc. 10, pp. 1-3). Thereafter, the Plaintiff filed a complaint seeking review of the ALJ's decision. (Doc. 1). This case was referred to the undersigned pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1)(A)-(B). (Doc. 3). Pending now is the Plaintiff's motion for judgment on the administration record (Doc. 14) to which the Defendant responded (Doc. 16) and the Plaintiff replied (Doc. 17).

         II. REVIEW OF THE RECORD

         A. Medical Evidence[2]

         1. Premier Orthopaedics & Sports Medicine, PLC, July 1999 through March 2005

         The Plaintiff presented to Premier Orthopaedics & Sports Medicine, PLC from July 1999 to March 2005. (Doc. 10, pp. 790-839). He underwent a rotator cuff surgery on his left shoulder in 2000 and was treated for right shoulder pain, left wrist pain, and left shoulder pain residual from repeat rotator cuff repair. (Doc. 10, pp. 790-839).

         2. Affiliated Internists, February 2008 through May 2013

         From 2008 to 2010, Dr. Travis Pardue, M.D., treated the Plaintiff for major depressive disorder, severe degenerative disc disease, lumbago of the lumbar and cervical spine, post-laminectomy syndrome, paraspinal muscle pain and tenderness, finger pain, inflammatory arthritis, joint pain, cervical spondylosis and radiculopathy, cervicalgia, and lumbar radiculopathy. (Doc. 10, pp. 332-523). Assessments of the Plaintiff during these visits generally showed normal muscular findings with a normal gait and station, normal neurological findings, and normal psychological findings. (Doc. 10, pp. 356-523). An MRI of the Plaintiff's cervical spine on March 10, 2010 revealed mild spinal stenosis on several levels, most pronounced at ¶ 3-C4, and foraminal stenosis at several levels, worse on the left at ¶ 6-C7. (Doc. 10, p. 586).

         The Plaintiff saw Dr. Pardue approximately once a month from 2011 to 2013. He generally denied depression. (Doc. 10, pp. 540, 542, 549, 553, 633, 635, 638, 644, 654, 664, 673, 682, 687, 701). Exam notes continued the trend of normal muscular findings with a normal gait and station, normal neurological findings, and normal psychological findings. (Doc. 10, pp. 533, 539, 542-543, 545-547, 550, 551-554, 634-636, 638-640, 642, 644, 652, 654, 656, 658, 660, 662, 664, 682, 685, 698). When assessed, the Plaintiff had full strength and normal bulk and tone in his right upper extremity, left upper extremity, right lower extremity, and left lower extremity. (Doc. 10, pp. 542-543, 551-554, 635-636, 698). On occasion, the Plaintiff presented with disturbed gait or station, spine deformity or tenderness, or decreased extension, flexion, lateral bending, and rotation. (Doc. 10, pp. 525, 541, 552, 634, 640, 660, 664, 698, 701, 703).

         The Plaintiff repeatedly reported that his medications effectively controlled his pain, produced no side effects, and permitted him to function better and perform activities of daily living. (Doc. 10, pp. 639, 641, 643, 653, 659, 661, 663, 665). On one occasion, the Plaintiff reported a new medication made him groggy and thereafter switched to his original medication. (Doc. 10, p. 653).

         A January 2013 cardiopulmonary exercise test indicated that the Plaintiff could sustain light activity, such as desk work, constantly during the day, and could perform various jobs, like bartending or driving a heavy truck, in an eight-hour workday. (Doc. 10, p. 690). The reviewer noted that the Plaintiff ended the test early because of complaints of back pain and fatigue and recommended the Plaintiff be placed in an exercise program. (Doc. 10, p. 689).

         3. Pinnacle Wellness Group, July 2013 through July 2014

         From July 2013 to July 2014, the Plaintiff attended Pinnacle Wellness Group on a monthly basis for chronic pain management after trying previous treatments, including a back brace, facet and epidural injections, medications, surgery, physical therapy, and a TENS unit. (Doc. 10, pp. 709-785, 840-972). He was treated by a board certified family nurse practitioner.

         Treatment records show reports of knee, neck, and back pain on a scale of 5 to 8 out of 10; normal gait, neurological findings, and psychological findings; tender spine, facet joints, and sacroiliac joints; decreased rotation; abnormal Schober's test; and positive straight leg raise. (Doc. 10, pp. 709- 716, 719-726, 729-736, 739-745, 748-755, 758-774, 776-780, 840-920).

         Routine drug testing showed the presence of medication that was not prescribed, including: Butalbital, Nordiazepam, Oxazepam, Temazepam, Fentanyl, and Norfentanyl. (Doc. 10, pp. 717-718, 727-728, 737-738, 746-747, 756-757).

         B. Opinion Evidence

         1. Reports from the Plaintiff and His Wife

         The Plaintiff alleged disability on account of degenerative disc disease, major depression, lumbar spinal stenosis, rheumatoid arthritis, and poor vision. (Doc. 10, p. 201). He takes care of a pet with help, must get up every thirty minutes which disrupts his sleep, prepares light meals two times a week, can fold laundry and dust in short periods with encouragement, goes outside five times a week, can ride in a car but cannot drive, can go out alone, has no trouble handling money, watches television and listens to online radio shows every day, talks on the phone for a limited time, and needs accompaniment for social activities. (Doc. 10, pp. 220-223). He indicated that his conditions affect his ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, concentrate, and follow instructions. (Doc. 10, p. 224). He stated he can walk 100 yards before needing to stop and rest for thirty minutes, can only pay attention for thirty minutes, follows instructions relatively well, gets along with authority figures, and does not handle changes in routine well. (Doc. 10, pp. 224-225). He uses prescription glasses, a cane, and a brace or splint while outside his home. (Doc. 10, p. 225).

         In July 2011, he claimed his back was more painful, he was more depressed, and his medication caused blurry vision and difficulty focusing. (Doc. 10, pp. 212-213). In December 2011, he stated that he can only stand twenty minutes, walk twenty minutes at a time, and stay on his feet no more than one hour per day. (Doc. 10, p. 234).

         The Plaintiff's wife also filled out a function report in December 2011. (Doc. 10, pp. 236-243). The report is generally consistent with the Plaintiff's except his wife stated he makes light meals weekly, only leaves the house once per month, cannot handle most monetary functions, has trouble seeing, with memory, completing tasks, and understanding, has trouble getting along with authority figures, and does not use a brace or splint. (Doc. 10, pp. 238-239, 241-242).

         2. Medical Source Statements from Dr. Pardue

         Dr. Pardue, an internal medicine specialist, filled out a medical source statement for the Plaintiff in May 2011. (Doc. 10, pp. 284-293). He opined that the Plaintiff can occasionally lift and carry up to 10 pounds due to lumbar back pain. (Doc. 10, p. 284). Because of the Plaintiff's multiple lumbar back surgeries, he can sit 30 minutes at a time, stand 15 minutes at a time, and walk fifteen minutes at a time; sit two hours in an eight hour day, stand 15 minutes in an eight hour day, and walk 15 minutes in an eight hour day; must use a cane to ambulate more than 100 yards; and can carry small objects with his hands when not using a cane. (Doc. 10, p. 285). He can only occasionally use his hands because of cervical degenerative disc disease and only occasionally use his feet because of osteoarthritis. (Doc. 10, p. 286). He can never climb ladders, balance, or crawl, and can occasionally climb stairs, stoop, kneel, and crouch. (Doc. 10, p. 287). The Plaintiff can never tolerate unprotected heights or moving mechanical parts and occasionally tolerate other environmental limitations. (Doc. 10, p. 288). The noise level should be akin to a library. (Doc. 10, p. 288). The Plaintiff cannot shop, travel without a companion, walk a block at a reasonable pace on rough or uneven surfaces, climb a few steps at a reasonable pace with the use of a single hand rail, or prepare simple meal and feed himself. (Doc. 10, p. 289). He can ambulate without using a wheelchair, walker, two canes, or two crutches; use standard public transportation, care for personal hygiene, and sort, handle, and use paper files. (Doc. 10, p. 289). Due to medication, the Plaintiff is markedly impaired in his ability to make judgments on complex work-related decisions, mildly impaired in his ability to understand and remember complex instructions, and moderately impaired in other memory and social interaction functions. (Doc. 10, pp. 291-292). According to Dr. Pardue, the Plaintiff has suffered from these physical and mental limitations since 1995. (Doc. 10, pp. 289, 292).

         Dr. Pardue completed a second medical source statement on January 7, 2014. (Doc. 10, pp. 705-708). He opined the Plaintiff can occasionally and frequently lift and carry less than ten pounds, stand or walk for less than two hours in an eight-hour workday, sit less than six hours in an eight hour workday, and has a limited ability to push and pull with upper and lower extremities. (Doc. 10, pp. 705-706). These opinions were supported by the Plaintiff's severe lumbar back pain, severe lumbar tenderness, positive straight leg raise, multiple lumbar surgeries, and MRI results. (Doc. 10, p. 706). He opined the Plaintiff can never climb stairs or stoop and can only occasionally balance, kneel, crouch, or crawl due to his severe lumbar back pain “that limits him from doing anything.” (Doc. 10, p. 706). Due to cervical spinal stenosis, foraminal stenosis, and osteoarthritis in his hand, the Plaintiff can constantly feel, but only occasionally reach, handle, and finger objects. (Doc. 10, p. 707). Dr. Pardue identified no visual, communicative, or environmental limitations. (Doc. 10, pp. 707-708).

         3. Reports from State Examiners

         Dr. Horace Edwards, Ph.D., completed a psychiatric review technique and mental residual functional capacity (“RFC”) assessment in September 2011. (Doc. 10, pp. 299-316). He found mild restriction in activities of daily living, moderate difficulty maintaining social functioning and maintaining concentration, persistence, and pace, and no episodes of decompensation. (Doc. 10, p. 309). Giving controlling weight to Dr. Pardue's opinion, Dr. Edwards concluded that the Plaintiff can understand and remember simple, detailed, and multi-step detailed tasks, but not at an executive level; concentrate and persist for simple, detailed, and multi-step detailed tasks without significant difficulty with appropriate breaks; interact appropriately with the public, ...


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