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Negron v. Berryhill

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

June 13, 2017

JULIO ENRIQUE NEGRON, Plaintiff,
v.
NANCY BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM

          ALETA A. TRAUGER United States District Judge.

         Pending before the Court is the plaintiff's Motion for Judgment on the Administrative Record (Docket Entry No. 12), to which the defendant Commissioner of Social Security (“Commissioner”) filed a response (Docket Entry No. 13). The plaintiff has filed his reply to the defendant's response. (Docket Entry No. 14.) Upon consideration of the parties' filings and the transcript of the administrative record (Docket Entry No. 10), [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, Julio Enrique Negron, filed an application for Disability Insurance Benefits (“DIB”) under Title II and an application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act on March 10, 2010, alleging disability onset as of June 30, 2009, due to “stroke, brain damage, forgetfulness, delusional, tumors on finger, and cysts on bottom of feet.” (Tr. 73-74, 83-84.) The plaintiff's claims were denied at the initial level on September 9, 2010, and on reconsideration on May 5, 2011. (Tr. 73-76, 79-84, 91-96.) The plaintiff subsequently requested de novo review of his case by an administrative law judge (“ALJ”). (Tr. 97-101.) The ALJ heard the case on September 20, 2012, when the plaintiff appeared with counsel and gave testimony. (Tr. 11, 31-72.) Testimony was also received by an impartial vocational expert. (Tr. 61-69.) At the conclusion of the hearing, the matter was taken under advisement until October 2, 2012, when the ALJ issued a written decision finding the plaintiff not disabled. (Tr. 8-25.) That decision contains the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2009.
2. The claimant has not engaged in substantial gainful activity since June 30, 2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).[3]
3. The claimant has the following severe impairments: leukopenia, hypertension, major depressive disorder, post-traumatic stress disorder, history of substance abuse in remission (20 CFR 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 CFR Part 404, Subpart P, Appendix 1(20 CFR 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 in20 CFR 404.1567(b) and 416.967(b). He can lift 20 pounds occasionally and ten pounds frequently. He can sit, stand, or walk for six hours total each. He can never climb ladders, ropes, or scaffolds. He can occasionally perform all other postural activities. He can perform no work around hazards in the workplace or unprotected heights. He is limited to unskilled work consisting of simple tasks and instructions. He can have occasional contact with the general public. He can have work-only related contact with co-workers and supervisors. He can perform no production pace or quota type work. He can handle occasional change in the workplace.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on May 28, 1965 and was 44 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the regional and national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from June 30, 2009, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 13-25.)

         On January 22, 2014, the Appeals Council denied the plaintiff's request for review of the ALJ's decision (Tr. 1-3), thereby rendering that decision the final decision of the 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 following summary of the medical record is taken from the ALJ's decision:

After careful consideration of all of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.
The claimant was admitted to Gateway Medical Center on December 27, 2009 due to dizziness and blurred vision he began experiencing the day before. He reported he almost passed out. His blood pressure was 179/106, he had a history of hypertension, and he had not been taking medication (1F at 8). His vision was “ok” at the time of his assessment, and no deficits were noted with his upper or lower extremities bilaterally. He denied numbness and tingling. He was able to ambulate independently, and admitted he could perform all activities of daily living without assistance. He reported he had not taken blood pressure medications for a few years (1F at 9). The severity of his symptoms was listed as mild (1F at 11). A CT of his head was normal except for a “well-defined hypodensity in the right basal ganglia” which “may represent a remote lacunar infarct or prominent perivascular space (1F at 17). His EKG was normal (1F at 19). He was discharged the same day in improved condition. His blood pressure at discharge was 148/86 (1F at 10). He was given prescriptions for Hydrochlorothiazide (HCTZ) and Meclizine (1F at 7). He was seen two days later at the Tennessee Department of Health complaining of high blood pressure and dizziness. His blood pressure was 150/100 (2F at 13). He was given a prescription of Lisinopril and Diphenhydramine (2F at 14).
On January 11, 2010, the claimant had a follow-up appointment at the Tennessee Department of Health. It was noted that he had a history of hepatitis C seven years ago and a history of anxiety for which he used to take Xanax (2F at 11). On January 13, 2010, the claimant reported to Gateway Medical Center that he blacked out the night before and was confused (1F at 22). His wife reported he experienced memory loss and slurred speech (2F at 9). He felt dizzy that morning. His blood pressure was 140/92 (1F at 22). He was told to stop Lisinopril by the Tennessee Department of Health on January 14, 2010 (2F at 8). His blood pressure was 120/80 (2F at 7). He was cleared to restart Lisinopril on January 22, 2010 (2F at 9).
The claimant had his initial assessment at Affiliated Neurologists with Dr. James Anderson on February 3, 2010. He reported that his primary problem was difficulty with his balance. He described some “true” vertiginous symptoms. He reported that he had significant loss of balance on Christmas Day of 2009. He reported this occurred occasionally and was of mild severity. He reported falls on three occasions, and reported some episodes of loss of consciousness. He noted that he had continuous dizziness that was magnified with valsalve maneuvers or rapid changes in body positioning. He described some visual changes with loss of peripheral vision and some blurred vision, which fluctuated over time. His anxiety and disorientation, for which he had been to the emergency room, were found to be related to hypertensive, for which he was taking Lisinopril and Hydrochlorothiazide (8F at 23). He described memory loss over the past year that had been gradually progressive. He reported low back pain that began many years ago and that occurred on a weekly basis, and for which pain medicines helped his pain. There was no clear radiation into the lower extremity. He reported drinking one to two drinks a week and not using recreational drugs (8F at 24). He reported difficulties with sleeping and scored a ten on the Epworth Sleepiness Scale, which indicated a moderate chance of dozing (8F at 24 and 31).
The claimant's physical examination showed he was alert and oriented with a normal focus of attention and concentration. He had a normal fund of knowledge. His affect was appropriate and his mood was level. There was no evidence of gross cognitive deficits or thought disorder. His cranial nerves II-XII were grossly intact. His blood pressure was 130/80. His heart examination was normal. His gait testing was normal. His Romberg test was negative. His motor examination revealed adequate fine motor facility and 5/5 strength throughout. There was no evidence of tremor, atrophy, fasciculations or tone changes. His sensory examination revealed intact sensation for all modalities throughout, except for diminution of pinprick sensation over the dorsal aspect of the right thumb. His deep tendon reflexes were 1-2 and bilaterally symmetric in both the upper and lower extremities with plantar responses downgoing bilaterally. His straight leg-raising tests were negative bilaterally (although the physical examination form indicates otherwise on 8F at 27) (8F at 25). He had mild to moderate tenderness in his cervical spine, lumbar spine, and both SI joints. He had tenderness over the occipital area (8F at 27).
Dr. Anderson's impression was that the claimant was having central vertiginous episodes. He had what sounded like anxiety attacks and could have been experiencing true panic attacks, and due to the number experienced, could qualify as having a panic disorder. He had some mild occipital neuralgia, as well as bilateral lumbosacral radiculopathy and sacroilitis. His encephalopathic episodes, which included problems with memory loss, could be related to anxiety. He started the claimant on Alprazolam, as well as a low dose of Gabaminergic at bedtime. He noted that the claimant's CT, which showed a basal ganglia lacune, was now symptomatic, and he may need to start on a daily Aspirin (8F at 26).
On March 5, 2010, the claimant had a follow-up appointment with the Tennessee Department of Health. He was given Xanax for anxiety. His blood pressure was 130/80 (2F at 3). He was told to stay off HCTZ and Lisinopril and was put on Verapamil. He was encouraged to follow-up with a neurologist (2F at 4). On March 12, 2010, his blood pressure was 140/90 (2F at 1). On March 16, 2010, it was noted that his white blood counts were doing much better (11F at 4). He was seen at Gateway Medical Center on March 23, 2010 for chest and arm pain. His symptoms were described as mild (3F at 9). His laboratory results were normal (3F at 10). His chest x-ray was normal (3F at 11). He was given Motrin (3F at 8). On March 24, 2010, he had a follow-up appointment at Affiliated Neurologists. He reported he continued to have dizzy episodes associated with anxiety, decreased memory and concentration, and “weakness all over” lasting five to 30 minutes. He reported he felt his medications were helping. He stated he was unable to afford testing. He was given prescriptions for Xanax, Zoloft, and Neurontin. It appears he was diagnosed with encephalitis (8F at 15). He went back to Gateway Medical Center on March 28, 2010 with a fever, and complained he was vomiting blood (3F at 4-5). He was given 650mg Tylenol, and was to see an oncologist next month due to loss of bone marrow (3F at 1).
The claimant had a bone marrow biopsy on April 22, 2010 at Tennessee Oncology (9F at 5). The results showed hypocellular bone marrow, with no evidenced monoclonal population and no evidence of a myelophthisic process. There was no evidence of leukemia or lymphoma. The impression was either drug effect or immune effect secondary to previous IV drug use, which the doctor suspected was the answer. Most of his symptomatology was related to other issues, mostly neurologic. The doctor did not think it was related to his blood count. His physical examination showed significant eczema on his hands with some swelling in his hands. His neurological examination was normal. His blood pressure was 126/81 (9F at 3). The recommendation was for no active intervention (9F at 4). He was diagnosed with leukopenia. On May 17, 2010, the claimant's hemoglobin was high, at 17.3, but his other complete blood counts were normal, including his white blood count at 4.0 (11F at 5). His blood pressure was 130/90 (11F at 1). He continued to be assessed with chronic anxiety (11F at 2).
The claimant received a consultative psychological examination on June 10, 2010 by Kimberly Tartt-Godbolt, Psy.D. (4F). Dr. Tartt-Godbolt noted that he displayed a normal gait, and also displayed hand tremors. His rate of speech and clarity of speaking was normal (4F at 1). He reported being physically and mentally abused by his father, and bullied in school. He attended a facility for substance abuse rehabilitation in 2000 and 2007 for six months for alcohol and cannabis use. He stated that he currently drank socially, but had not used cannabis for three years (4F at 2). Dr. Tartt-Godbolt assessed him with a global assessment of functioning score of between 46 to 51, which could mean serious or moderate symptoms. However, her opinion indicated moderate symptoms. She reported the claimant appeared to fall into the low average range of intellectual functioning. She opined that he showed evidence of mild to moderate impairment in his short-term memory; evidence of moderate impairment in his ability to sustain concentration; no evidence of long-term and remote memory functioning; and moderate impairment in his social relating. He appeared moderately impaired in his ability to adapt to change. He appeared able to follow instructions, both written and spoken. She diagnosed him with post-traumatic stress disorder, major depressive disorder, and cannibus dependence in remission (4F at 4).
The claimant attended a physical consultative medical examination by Dr. Jerry Surber on June 16, 2010 (5F). The claimant apparently reported he had a stroke in December 2009 (note above that his medical records made no indication of CVA). He complained of memory problems, balance problems with dizziness, and intermittent tightness in his neck, shoulders, and lower back (5F at 1). His blood pressure was 140/104. His visual acuity without glasses was 20/50 in the right, and 20/30 in the left. No mention was made about problems with peripheral vision. His neck showed no mobility limitations (5F at 2). He had full range of motion in his dorsolumbar spine, shoulders, elbows, hips, knees, and ankles. He showed no edema. His peripheral pulses were strong and he was able to do a voluntary full squat and stand maneuver. His straight leg-raising tests were negative, both in the sitting and supine positions. It was noted that he appeared shaky whether standing on his right or his left leg. His neurological examination was normal. He was able to perform the straightaway, tandem, and heel-toe walks. He had a slight limping gait toward the left, and used no type of assistive device (5F at 3). He attributed his shakiness and limp to pain on weightbearing in his left foot. Apparently this pain was due to two small cysts on the plantar surface of his left foot (5F at 4).
On August 9, 2010, the claimant was seen at Affiliated Neurologists complaining that his hands were shaking “all the time, ” he had trouble sleeping even with medication, and he thought he had “some type of mild heart attack” (8F at 8). It was noted that his bone marrow biopsy was positive, but it could not be treated due to his lower white blood cell count. It was noted that his vertigo was improved. His blood pressure was 138/86. He was prescribed over-the-counter wrist splints, prescribed Zoloft, and his dosages of Neurontin and Xanax were increased (8F at 6). It was noted at his follow-up visit to Tennessee Oncology on August 2S, 2010, that he had been doing monthly blood counts, which had not varied, and he admitted he had been doing well with no complaints. His blood pressure was 140/94. His white blood cell count was 2.8 with an ANC of 1, 600 (9F at 1).
On November 8, 2010, the claimant went to the emergency room for what he thought was a stroke. His blood pressure was 192/120 at admittance and 160/114 on recheck (18F at 27). He reported that he experienced “lock jaw, ” felt dizzy, and thought he was going to pass out (18F at 28). His EKG was normal (18F at 37). His head CT was normal (18F at 36). His physical examination was normal, and the doctor noted that his complete blood cell count and chemistries results were normal (18F at 31). His blood pressure was 145/99 at discharge (18F at 29). At his follow-up visit at Affiliated Neurologists on November 10, 2010, it was noted that he had been out of Xanax for one week. It was noted that his vertigo was stable (8F at 2). The claimant apparently told the Affiliated Neurologists that he had had a stroke, but there was no indication from the emergency room treatment notes that what he suffered was a stroke (8F at 4).
On December 3, 2010, it was reported by Tennessee Oncology that his white blood cell count remained “about the same.” He had no issues with his leukopenia. His blood pressure was 139/95. It was noted that he had been seen in the emergency room for what sounded like a transient ischemic attack, but by the time he was actually seen, his symptoms had resolved (16F at 1).
On March 3, 2011, the claimant was seen at Affiliated Neurologists. His blood pressure was 122/88. His vertigo was stable and well controlled. His anxiety was “fairly well controlled” (20F at 30). On April 4, 2011, the claimant was seen for medication refill at the Te1messee Department of Health. He reported taking his medications daily. No problems were noted. His blood pressure was 120/80 and his physical examination was normal (17F at 14). On June 9, 2011, the claimant was seen at Affiliated Neurologists. It was reported that his dizziness was slowly improving, and his vertigo, tremors, and panic disorder were stable. He also reported lower back pain, shoulder, arm, and leg pain due to a moving vehicle accident (20F at 24). On September 12, 2011, he reported tremors in both hands. He also reported increased stress because he was moving to a new home. He reported that his lower back pain and neck pain had increased after he moved furniture into his new home (20F at 20). On October 13, 2011, his insomnia was reported as periodic and his tremor and lower back pain stable (20F at 14). He reported right subscapular pain, but no neck pain (20F at 17). He was prescribed Mobic and Ambien (20F at 14).
On November 7, 2011, the claimant was seen in the emergency after falling while getting out of his bathtub three days previously. However, he denied that it was related to dizziness, and he denied a loss of consciousness. He reported simply that he slipped and fell on his tile floor. His blood pressure was 161/106 on admittance (18F at 8-9). He reported that he had been out of his Verapamil for a week. His blood pressure was 146/92 at discharge (18F at 10). The doctor reported that his white blood cells in his urinalysis were 11-20, but all other laboratory results were within normal limits (18F at 12). The claimant followed up at the Tennessee Department of Health on November 8, 2011for a prescription for Verapamil. His blood pressure was 120/80 (17F at 10). It was noted that his EKG was abnormal and he was scheduled for a cardiology consultation (17F at 11). On January 9, 2012, it was reported that his tremor had improved, his lower back pain was stable, and he reported neck pain that “comes and goes” (20F at 10 and 13). He was satisfied with the level of control with his medications (20F at 10).
On April 12, 2012, the claimant was picked up by ambulance after his son called 911 and apparently reported a stroke. The claimant complained of numbness in his mouth and teeth, dizziness, and leg spasms (19F at 43). It was reported that he was delirious (19F at 3). He apparently told the nurse he had bone marrow cancer (19F at 12). His chest and head x-rays were nonnal (19F at 21-22). His EKG was normal except for incomplete RBBB (19F at 4). His extremities exhibited full range of motion. His neurological examination was normal, with no motor or sensory deficits and normal reflexes (19F at 4). He was diagnosed with dizziness, paresthesia, and hypertension (19F at 9). He reported that he had been off his ...

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