United States District Court, M.D. Tennessee, Nashville Division
Frensley Magistrate Judge
A. TRAUGER United States District Judge.
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
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),  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.
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
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
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)).
28, 30, 36.)
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).
Review of the Record
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.
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 ...