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Born v. Berryhill

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

June 1, 2017

NANCY BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          Frensley Magistrate Judge


          ALETA A. TRAUGER United States District Judge.

         Before the court is plaintiff Frederick Lynn Born's Motion for Judgment on the Administrative Record (“Motion”) (Docket No. 13), filed with a Memorandum in Support (Docket No. 14). Defendant Commissioner of Social Security (“Commissioner”) filed a Response in Opposition to plaintiff's Motion. (Docket No. 15.) On January 13, 2017, this case was referred to a magistrate judge. (Docket No. 17.)

         To avoid further delay in the resolution of this matter, the court will vacate that referral. Upon consideration of the parties' filings and the transcript of the administrative record (Docket No. 11), [2] and for the reasons given below, the court will grant the plaintiff's Motion (Docket No. 13) to the extent that the case will be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum.

         I. Introduction

         Born filed an application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and for Supplemental Security Income (“SSI”) under Title XVI of the Act on February 2, 2012, alleging a disability onset date of December 31, 2010. (Tr. 26.) Born's claim was denied at the initial and reconsideration stages of state agency review. Born subsequently requested de novo review of his case by an Administrative Law Judge (“ALJ”). The ALJ conducted a hearing on December 3, 2013, at which Born appeared with a non-attorney representative and gave testimony. (Tr. 43-76.) An impartial vocational expert (“VE”) also testified. At the conclusion of the hearing, the matter was taken under advisement until March 26, 2014, when the ALJ issued a written decision finding Born not disabled. (Tr. 26-36.) That decision contains the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful activity since December 31, 2010, the alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: cervical and lumbar spine degenerative disc disease, sleep apnea, and restless leg syndrome (20 C.F.R. 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except that the claimant can lift and/or carry 20 pounds; stand and/or walk 6 hours in an 8-hour workday; sit for 6 hours in an 8-hour workday; frequently climb ramp/stairs, balance, stoop, kneel, crouch, and crawl; and occasionally climb ladder/rope/scaffolds.
6. The claimant is capable of performing past relevant work as an information technology consultant and supervisor. This does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. 404.1565 and 416.965).
7. The claimant has not been under a “disability” as defined in the Social Security Act, from December 31, 2010, through the date of this decision (20 C.F.R. 404.1520(f) and 416.920(f)).

         (Tr. 28, 30, 36.)

         On August 6, 2014, the Appeals Council denied Born's request for review of the ALJ's decision (Tr. 4-8), thereby rendering that decision the final decision of the Social Security Administration (“SSA”). This civil action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. § 405(g).

         II. Review of the Record

         The ALJ summarized the medical records pertaining to Born's physical impairments as follows:

The claimant has a history of lower back pain and imaging studies from July 2006 showed degenerative disc disease at ¶ 5-S1 with posterior disc bulge and mild posterior disc bulge at ¶ 4-5. Lumbar spine x-rays performed on May 17, 2011 revealed degenerative changes at ¶ 4-5 and L5-S1. Exhibits 3F and 5F.
On August 9, 2011, the claimant established care with Dr. Vern Bain and complained of chronic pain[, ] anxiety and sleep problems. The claimant reported pain in his neck and pain in his low back radiating into his left leg. He stated he was unable to sleep at night due to panic attacks. Physical examination was unremarkable with good pulses, normal range of motion, and no edema. Dr. Bain prescribed Celexa, Flexeril, Lortab, and Xanax. Medications were renewed on September 23, 2011. On October 21, 2011, the claimant complained of pain in his upper back. Lortab was refilled. Exhibit 10F.
A physical therapy evaluation was performed on December 5, 2011, upon the request of Dr. Bain, due to the claimant's complaints of pain in his neck and lower back. Physical therapy sessions were recommended two times per week for four weeks. The claimant was discharged on January 11, 2012 with instructions to continue home exercise program. The claimant indicated overall functional improvement of twenty percent since initiating physical therapy. Exhibit 7F.
William Huffman, M.D., performed a consultative physical examination for the Social Security Administration on March 29, 2012. The claimant reported degenerative disc disease since 2006, with neck and back pain and intermittent numbness in his legs. He also reported bilateral shoulder pain and bilateral knee pain since 2009 and a sleep disorder diagnosed in 2011. He denied surgery on his neck, back, shoulders, and knees. Current medications included Lisinopril, Fluoxetine, Hydrocodone, and Clonazepam. He stated he and his wife were separated and he lived with his children and sister. The claimant was five feet eight inches tall and weighed 243 pounds with blood pressure of 120/80. He was well developed, alert, cooperative, and in no acute distress. Examination of his cervical spine revealed normal range of motion with pain on range of motion of his neck. His lungs were clear to auscultation and percussion and his heart had regular rate and rhythm. His dorsolumbar spine had 90 degrees flexion, 25 degrees extension, 25 degrees right lateral flexion, and 25 degrees left lateral flexion with pain on palpation and range of motion in the lumbosacral paravertebral region of his back. His shoulders had normal range of motion with pain on range of motion of both shoulders. He had normal range of motion of his wrists, elbows, hips, and ankles without pain. His knees had 130 degrees flexion bilaterally, 0 degrees extension bilaterally with mild pain on palpation in range of motion of his knees and no effusions, no increased heart rate, erythema, or edema. His gait and station were normal. Cranial nerves were intact. Motor strength was 5/5 in his upper and lower extremities bilaterally. Romberg was negative. He had normal heel-to-toe walking and was able to stand on his heels and his toes without difficulty. He was able to stand on his right leg alone and on his left leg alone without difficulty. Deep tendon reflexes were 2 and equal bilaterally. Straight leg raising tests were negative bilaterally. He had no neurosensory deficits. Exhibit 9F.
Dr. Bain referred the claimant to Dr. Roxanne Valentino, a neurologist, on May 3, 2012, for evaluation of the claimant's back pain and weakness and intermittent tingling in his left arm and leg. Examination of his neck revealed decreased left rotation and his back revealed paraspinal tenderness to palpation. Straight leg raising test was normal bilaterally. Motor strength was normal except for giveaway weakness in his left hamstring that normalized with repeated testing. Sensation was normal in his legs. His gait was narrow-based and steady with normal arm swing. Tandem gait was performed independently. Romberg was negative. Dr. Valentino noted the exam was most suggestive of fibromyalgia, which she noted many positive fibromyalgia tender points. However, Dr. Valentino did not specify the fibromyalgia tender points. In addition, Dr. Valentino assessed the claimant with degenerative disc disease, but noted the examination revealed no evidence for myelopathy or radiculopathy. Also Dr. Valentino indicated the claimant has a skin sensation disturbance, restless leg syndrome, and lumbago. Dr. Valentino prescribed Gabapentin to treat fibromyalgia, skin sensation disturbance, and restless leg syndrome. Exhibit 11F.
The claimant complained of snoring, dry mouth in the morning, and excessive daytime sleepiness. A sleep study was performed on January 16, 2012; however, the claimant did not sleep. A subsequent sleep study was performed on August 3, 2012, revealed mild rapid eye movement (REM) predominant obstructive sleep apnea with severe associated hypoxia. Excessive periodic limb movement was noted during the study and a clinical assessment for restless leg syndrome was recommended. A Polysomnogram ...

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