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Sisco v. Berryhill

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

June 13, 2017

CHARLES MICHAEL SISCO, Plaintiff,
v.
NANCY BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM

          ALETAA.TRAUGER, United States District Judge

         Pending before the court is the plaintiff's Motion for Judgment on the Administrative Record (Docket Entry No. 15), to which the defendant Commissioner of Social Security (“Commissioner”) filed a response (Docket Entry No. 17). Upon consideration of the parties' filings and the transcript of the administrative record (Docket Entry No. 11), [2] and for the reasons given herein, the court finds that the plaintiff's motion for judgment be DENIED and that the decision of the Commissioner be AFFIRMED.

         I. INTRODUCTION

         The plaintiff, Charles Michael Sisco, filed an application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act on June 22, 2011, alleging disability onset as of July 31, 2009, due to diabetes, back and neck problems, high blood pressure, and high cholesterol. (Tr. 92, 196, 203, 261.) The plaintiff's claims were denied at the initial level on September 16, 2011, and on reconsideration on December 9, 2011. (Tr. 148-150, 154-57.) The plaintiff subsequently requested de novo review of his case by an administrative law judge (“ALJ”). (Tr. 140-41, 147.) The ALJ heard the case on April 1, 2013, when the plaintiff appeared with counsel and gave testimony. (Tr. 92, 106-137.) At the conclusion of the hearing, the matter was taken under advisement until June 17, 2013, when the ALJ issued a written decision finding the plaintiff not disabled. (Tr. 89-98.) That decision contains the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2015.
2. The claimant has not engaged in substantial gainful activity since July 31, 2009, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has a combination of impairments, which considered together, is “severe”.
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 CFR Part 404, Subpart P, Appendix 1(20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b).
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant is 48, which is defined as a younger individual (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 31, 2009, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 94-98.)

         On August 12, 2014, the Appeals Council denied the plaintiff's request for review of the ALJ's decision (Tr. 1-6), thereby rendering that decision the final decision of the Commissioner. This civil action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. § 405(g).

         II. REVIEW OF THE RECORD

         On April 24, 2009, the plaintiff presented to Dr. Tersa L. Lively for a follow-up on chronic pain syndrome and hypertension. (Tr. 460.) The plaintiff reported taking Percocet, which helped for the pain. Id. Dr. Lively noted that the plaintiff had a history of arthritis in his knees bilaterally, diabetes mellitus, hypertension, and ruptured discs of the cervical and lumbar spine. Id. Dr. Lively noted a history of alcohol use. Id. Dr. Lively also noted that the plaintiff was positive for back pain and bone/joint symptoms, but was negative for muscle weakness, myalgias, neck stiffness and rheumatologic manifestations. (Tr. 461.) The plaintiff's blood pressure was 162/102. Id. The plaintiff's physical examination revealed that the plaintiff was not in any apparent distress, was well nourished and well developed, and his extremities appeared normal. (Tr. 461-62.) The plaintiff was prescribed Percocet 10mg-325mg one to two tablets every eight hours, Gemfibrozil[3] 600mg one tablet twice daily, Lisinopril[4] 20mg one tablet daily, Lovastatin[5] 40mg one tablet daily and Novolin 70-30.[6] (Tr. 462.)

         On August 21, 2009, the plaintiff returned for a follow-up with Dr. Lively. (Tr. 457.) Dr. Lively noted that the plaintiff's diabetes was stable and that his chronic pain was stable with current dosing and that he “has had no problems.” Id. The plaintiff's blood pressure was 152/94. (Tr. 458.) On November 20, 2009, the plaintiff returned to see Dr. Lively. (Tr. 454.) As to his chronic pain, the plaintiff reported that he was doing well with his current medications and was not having any issues. Id. Dr. Lively prescribed the plaintiff Valium 5mg one tablet, three times daily to treat his anxiety. (Tr. 456.) Dr. Lively continued the plaintiff on his other medications. Id.

         On June 18, 2010, the plaintiff returned to see Dr. Lively for a follow-up visit concerning neck pain and hypertension. (Tr. 451.) The plaintiff's blood pressure was 152/94. (Tr. 452.) Dr. Lively continued the plaintiff on his current medications. (Tr. 453.) On April 14, 2011, the plaintiff saw Dr. Lively for a follow-up visit. (Tr. 449.) The plaintiff's blood pressure was 144/96. Id. The plaintiff's examination results were unremarkable. (Tr. 449-450.)

         In his Work Activity Report dated June 24, 2011, the plaintiff reported that he worked 10-15 hours per week, performing odd jobs such as mowing yards, repairing roofs or plumbing, and doing small construction tasks. (Tr. 242, 244.) The plaintiff stated that he avoided jobs that required heavy lifting. (Tr. 244.)

         On August 29, 2011, the plaintiff presented to Dr. Donita Keown for a consultative examination. (Tr. 369.) The plaintiff reported that his neck pain was constant, which radiated into his shoulders, more so on the right than the left, making it difficult for him to use his arms or turn his head. Id. The plaintiff reported of pain radiating into the mid thoracic spine and lower back, left buttock and right hip. Id. The plaintiff complained that his right leg would go numb at times. Id. The plaintiff attended a pain clinic where he received narcotic medications. Id. Dr. Keown reported that the plaintiff thought that his neck problems started in 1998 and that his back problems began when he was still working. Id. Dr. Keown noted that the plaintiff was “very vague regarding the onset and timing, ” and that he could not get the plaintiff “to commit to a particular time frame.” Id. The plaintiff's blood pressure was 116/60, a musculoskeletal examination showed that his range of motion was within normal limits, his cervical spine had a full range of motion, straight leg raises were negative, his strength was graded 5/5 in his left and right hands, arms and legs, and his gait and station were within normal limits. (Tr. 370-71.) Dr. Keown's impression was that he had type 2 diabetes, uncomplicated; chronic spinal complaints likely due to degenerative change with no physical evidence for herniated disc with neural foraminal impingement or stenosis; hypertension treated medically and dyslipidemia treated medically. (Tr. 371.) Dr. Keown essentially opined that the plaintiff could lift 51 to 100 pounds occasionally and 21 to 50 pounds frequently; stand and/or walk up to seven to eight hours in an eight hour workday; sit eight hours in an eight hour workday; that the plaintiff had no limitations as to the use of hands and feet; that the plaintiff could climb stairs, climb ladders and balance frequently; and that the plaintiff could stoop, kneel, crouch, and crawl frequently. (Tr. 97, 372-74.)

         In a Function Report dated October 7, 2011, the plaintiff reported that he could lift up to twenty pounds. (Tr. 217.) On October 10, 2011, the plaintiff was treated by Charles S. Clifton, a certified physician assistant, at Advanced Spine and Pain. (Tr. 322.) The plaintiff complained of moderate pain in his lower back and neck. Id. The plaintiff reported that he did yard work, that he worked, that he watched his granddaughter, and that he exercised daily. Id. The plaintiff returned on November 8, 2011, complaining of joint pain. (Tr. 319.) The plaintiff's physical examination reflected that the plaintiff had tenderness and experienced moderate pain with motion in his cervical and lumbar spine, right shoulder and both knees. (Tr. 320.)

         On November 21, 2011, Stephen Hardison, M. A., a licensed senior psychological examiner, completed a consultative psychological examination of the plaintiff. (Tr. 343.) Hardison observed that the plaintiff drove himself to the evaluation, he ambulated independently, he did not have difficulty providing information regarding his background and present situation, his thought content was clear, he did not appear in acute mental health distress, and he was cooperative. Id. The plaintiff stated that he “[got] along well with people in general.” Id. The plaintiff reported that he had not drank alcohol in almost one year and that he was a heavy drinker in his “younger days, ” but that he had not drunk heavily since the early 1990's. Id. The plaintiff, however, reported receiving a DUI two years earlier. Id.

         The plaintiff did not have health insurance and received medical care through the health department. (Tr. 344.) Hardison noted that the plaintiff suffered from diabetes, back and neck problems, hypertension, and high cholesterol. Id. The plaintiff also reported past incidents where he would “black out, ” but was not specific as to the cause. Id.

         The plaintiff did not report any treatment through a mental health clinic. Id. The plaintiff was prescribed Valium for anxiety, stating that it kept him calm. Id. The plaintiff reported having depressed mood only when he does not get to see his grandchild, stating that the longest he generally goes without seeing her was one week. Id. The plaintiff reported “feeling somewhat shaky at times” because of his back problems and that he had issues with being nervous for about two years because of him not having a job. Id. The plaintiff denied having significant problems in focusing or concentrating. Id.

         The plaintiff completed high school and reported being in special education for English. Id. The plaintiff's last job was in the summer of 2011 for two weeks, where he poured concrete for a construction company, and stopped working when he “got sick.” Id. Prior to that, the plaintiff, for approximately two years, worked for himself doing “odds and ends, ” such as mowing grass and power washing decks and siding for people. Id. The plaintiff reported working the previous winter at Wal-Mart, unloading trucks. Id. The plaintiff reported that he “got sick and blacked out.” Id.

         As to his daily activities, the plaintiff would occasionally drive to Wal-Mart or to the grocery store, but stated that his mother did most of the grocery shopping. Id. The plaintiff periodically visited friends and during the summer, they would “ride around and look for deer.” Id. The plaintiff performed daily chores, such as vacuuming, washing clothes, and washing dishes and putting them up. Id. The plaintiff stated that he cooked two or three days a week. Id. The plaintiff also stated that he mowed the grass, would fix anything around the house that needed repairing, and would take walks. Id. The plaintiff would occasionally drive his mother to the doctor in Knoxville. (Tr. 345.) The plaintiff reported that most days he would sit around and watch television or read “old books.” Id.

         The plaintiff's mental examination revealed an alert individual. Id. The plaintiff's thought content was clear. Id. Hardison opined that the plaintiff likely functioned in the low average range of intelligence. Id.

         As to the plaintiff's functional assessment and vocational implications, Hardison opined, as follows:

This evaluation indicated the ability to remember and carry out simple one-and two-step instructions without significant problems. His ability to remember and carry out somewhat more detailed instructions would not appear more than mildly limited. His ability to sustain concentration and attention in a structured routine job setting would not appear significantly limited. His ability to interact appropriately with co-workers, supervisors, or the general public consistently would not appear significantly limited.
The claimant's ability to respond appropriately to changes in a very structured routine job setting, including being aware of and take appropriate precautions regarding normal hazards would not appear significantly limited. This claimant's ability to make simple job-related decisions would not appear significantly limited. His ability to make more complex job-related decisions could be mildly limited. The degree of disability based on his reported medical-related issues would need assessment by a physician.

(Tr. 345-46.)

         On November 29, 2011, Norma Calway-Fagen, Ph. D., completed a Psychiatric Review Technique and marked the box “12.06 Anxiety-Related Disorders” as the category upon which the medical disposition was based. (Tr. 326.) Dr. Calway-Fagen assigned the plaintiff the following limitations: mild restriction of activities of daily living; mild difficulties in maintaining social functioning; and mild difficulties in maintaining concentration, persistence and pace. (Tr. 336.)

         In a follow-up visit with Charles Clifton on December 6, 2011, the plaintiff reported that his pain medications allowed him to be more active. (Tr. 325.) In another follow-up visit with Clifton on February 1, 2012, the plaintiff reported that his pain medications allowed him to take care of his grandchild and to walk outside. (Tr. 317-18.) The plaintiff was continued on Endocet and Percocet for his pain and an in house drug screen was ordered. (Tr. 318.) On April 2, 2012, Clifton noted “pain with range of motion in: neck extension and rotation; back extension and lateral flexion.” (Tr. 315.) The plaintiff was continued on his pain medication. Id. On May 31, 2012, the plaintiff returned for a follow-up visit with Clifton. (Tr. 628.) The plaintiff stated that “the more he mows the more he hurts” and that “he tries to be as active as he can.” (Tr. 629.) The plaintiff was continued on Percocet for his pain. Id.

         On June 28, 2012, the plaintiff was seen at Cumberland Medical System for altered mental state. (Tr. 279-282.) The plaintiff was reportedly disoriented and had speech problems. (Tr. 301.) Neuropathy and chronic pain were noted. (Tr. 281.) Bilateral carotid ultrasound revealed minimal narrowing of the right and left carotid system. (Tr. 289.) A CT scan of the brain was normal. (Tr. 290.) A chest x-ray showed mild degenerative bone changes, no acute infiltrates, effusions or pneumothoraces, and a normal size heart. (Tr. 291.) The plaintiff's altered mental status was determined resolved, and he was discharged home. (Tr. 303-04.)

         On July 18, 2012, the plaintiff received treatment at Volunteer Behavioral Health Care System. (Tr. 523.) As the reasons for seeking treatment, the plaintiff reported that he began experiencing depression approximately three years earlier. Id. The plaintiff also reported having anxiety. (Tr. 524.) The plaintiff reported abusing alcohol from 1989 to 2009. Id. The plaintiff was assessed with panic disorder without agoraphobia, which was in partial remission because of medications, and depressive disorder. (Tr. 532.) The plaintiff was assigned a Global Assessment of Functioning Scale (“GAF”) of 45[7] and was placed on Prozac 40mg. (Tr. 549.) The plaintiff agreed to start therapy and case management. Id. On August 1, 2012, the plaintiff returned and reported that his pain level was a 4 out of 10 on pain medications and that he experienced depression 2 out of 7 days and panic attacks 1 out of 7 days. (Tr. 556.) On August 14, 2012, the plaintiff reported no depression and that he had panic attacks 2 out of 7 days and that his pain rated a 9 out of 10 with pain medications. (Tr. 558.)

         On August 27, 2012, the plaintiff returned to Dr. Lively with anxiety. (Tr. 602.) Dr. Lively noted that the plaintiff was oriented and demonstrated “the appropriate mood and affect.” (Tr. 603.) Dr. Lively listed Valium 10mg as a medication to be stopped that visit. (Tr. 604.) Dr. Lively also completed a Medical Source Statement on August 27, 2012, and opined that the plaintiff had the following limitations: lifting and/or carrying a maximum of less than ten pounds occasionally and less than ten pounds frequently; standing and/or walking less than two hours in an eight-hour workday; sitting about four hours in an eight-hour workday; occasional kneeling and crouching; and no climbing, balancing, and crawling. (Tr. 564-66.) Pushing and/or pulling was limited in the upper and lower extremities. (Tr. 565.) Dr. Lively opined that the plaintiff would periodically have to alternate sitting and standing to relieve pain or discomfort, explaining that these limitations were due to herniation at ¶ 4 and also in the cervical spine and that the plaintiff had nerve damage (neuropathy) that was affected in both the upper and lower extremities. Id. Dr. Lively stated that the plaintiff would often experience pain severe enough to interfere with attention and concentration. Id. Dr. Lively opined that the plaintiff was mentally capable of low stress jobs. Id. Reaching and feeling were limited to frequently. Id. Environmental restrictions included avoiding concentrated exposure to extreme cold, extreme heat and vibration, and avoiding all exposure to hazards (machinery, heights, etc.). (Tr. 567.)

         On August 28, 2012, the plaintiff returned for a follow-up visit with Charles Clifton at Advanced Spine and Pain. (Tr. 631.) The plaintiff was assessed with back pain, visit for current long term use of other drugs, degeneration of lumbar disc and cervical intervertebral disc, neuralgia, neuritis and radiculitis, unspecified. (Tr. 632.) The plaintiff stated that he felt better with the pain medication. Id.

         On September 12, 2012, the plaintiff returned to Volunteer Behavioral Health Care System. (Tr. 582.) The plaintiff was prescribed Hydroxyzine and Prozac to treat his anxiety. Id. The plaintiff stated that he did not have any side effects from his medications. Id. The plaintiff's mood was “dysphoric;” his thought process was “organized;” his thought content/perceptions were “normal;” and his sensorium/memory was “impaired memory.” (Tr. 582-83.) On September 29, 2012, the plaintiff returned and reported that ha had been looking for work and that he was walking everyday. (Tr. 589.) The plaintiff reported “depression 1/7, anxiety 2/7 days.” Id. On November 6, 2012, the plaintiff reported that he played with his granddaughter two to three times a week. (Tr. 580-81.) The plaintiff stated that he was struggling to do simple chores, but reported that he was trying to walk each day. (Tr. 581.) The plaintiff reported that he would black out for no reason at times. Id.

         On January 7, 2013, the plaintiff reported spending time with his family over the holidays, which made him the happiest. (Tr. 651-52.) On January 17, 2013, in a follow-up visit with Charles Clifton, the plaintiff stated that his pain medication “allowed him to fish and have a better life.” (Tr. 638.) Records from Volunteer Behavioral Health Care System reflect that on January 29, 2013, the plaintiff reported that he was very stressed about his disability claim, stating that he could not work but would try if it was the only way to keep his home. (Tr. 653-54). On February 15, 2013, the plaintiff spoke by telephone to case manager Brittany Brown at Volunteer Behavioral Health Care System, reporting that he was expelled from the pain clinic he was attending because illegal drugs were found in his system. (Tr. 655.) The plaintiff initially denied using illegal drugs, ...


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