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Goppert v. Berryhill

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

January 23, 2018

DARYL JON GOPPERT, Plaintiff,
v.
NANCY BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          To The Honorable Waverly D. Crenshaw, Jr., Chief United States District Judge

          REPORT AND RECOMMENDATION

          JOE B. BROWN, United States Magistrate Judge

         Pending before the Court is Plaintiff's motion for judgment on the administrative record (Docket Entry No. 11), to which Defendant Commissioner of Social Security (“Commissioner”) filed a response (Docket Entry No. 16). Upon consideration of the parties' filings and the transcript of the administrative record (Docket Entry No. 9), [2] and for the reasons given herein, the Magistrate Judge RECOMMENDS that Plaintiff's motion for judgment be GRANTED and that the decision of the Commissioner be REVERSED.

         I. PROCEDURAL HISTORY

         Plaintiff, Daryl Jon Goppert, 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 August 5, 2013, alleging disability onset as of August 1, 2008, due to panic attacks, memory loss, depression, posttraumatic stress disorder (“PTSD”), anxiety and sleep problems. (Tr. 16, 70-73, 174, 181). Plaintiff's claim was denied at the initial level on November 6, 2013, and on reconsideration on January 30, 2014. (Tr. 16, 70-77, 88-98, 111, 120). Plaintiff subsequently requested de novo review of his case by an administrative law judge (“ALJ”). (Tr. 126-27). The ALJ heard the case on May 27, 2015, when Plaintiff appeared with counsel and gave testimony. (Tr. 16, 31-61). Testimony was also received by a vocational expert. (Tr. 61-67). At the conclusion of the hearing, the ALJ referred Plaintiff to undergo a physical consultative examination. (Tr. 67-68). On August 14, 2015, the ALJ issued a written decision finding Plaintiff not disabled. (Tr. 13-26). That decision contains the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2008.
2. The claimant has not engaged in substantial gainful activity since August 1, 2008, the alleged onset date (AOD) (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: obesity; degenerative disc disease (DDD); anxiety; and substance addiction disorders 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 medium work as defined in 20 CFR 404.1567(c) and 416.967(c), i.e., the lifting and/or carrying of 50 pounds occasionally and 20 pounds frequently; standing and/or walking of 6 hours in an 8-hour workday; and sitting of 6 hours in an 8 hour workday, except never climb ladders, ropes, and scaffolds; occasionally climb ramps and stairs; occasionally balance, stoop, kneel, crouch, and crawl; he is able to complete simple, detailed, and multi-step tasks, but not executive-level tasks; he is able to maintain concentration for 2 hours at a time with regularly scheduled breaks; no interaction with the general public; occasional interaction with coworkers and supervisors; he can tolerate gradual, infrequent workplace changes.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was 51years old (an individual closely approaching advanced age) on the alleged disability onset date. The claimant subsequently changed age category to advanced age (20 CFR 404.1563 and 416.963).
8. The claimant has a high school 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 Part 404, 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 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 August 1, 2008, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 18, 19, 20-21, 25, 26).

         On August 22, 2016, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-5), 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

         The following summary of the medical record is taken from the ALJ's decision:

In March 2015, it was reported that a 2013 x-ray showed mild to moderate lumbar degenerative changes with spurring. The claimant complained of back pain without radiation and stated that an increased dose of medication helped. He had normal movement in all extremities. Straight leg raising was negative bilaterally. In October, his back pain flared up, reportedly once a month for 5 days. The medical evidence also revealed that he had been walking 20 minutes, 3 times a day for exercise. (Exhibit 5F, pp 1, 2, 6, 7, 10, 45, 46)
In June 2015, William Robinson II, M.D., performed a CE, which showed all ranges of motion were normal, except for dorsolumbar motion. Straight leg raise test was positive to 60 degrees on the right and 70 degrees on the left. His upper extremity pinch, grip strength, and fine and gross motor manipulation were normal. Upper and lower extremities had full strength (5/5). There was no muscle spasm in the spine and no sensory loss. Due to back pain, he performed heel-to-toe walk with some difficulty. Even so, Dr. Robinson assessed him able to lift 50 pounds occasionally and 20 pounds continuously. This medical opinion strongly supports the RFC finding that he is able to perform lifting and/or carrying of weights consistent with medium work activity (50 pounds occasionally and 25 pounds frequently). (Exhibit 6F)
Regarding obesity, in March 2015, the claimant weighed 267 pounds and was five feet, eleven inches tall. (Exhibit 5F) In June 2015, weight was 262 pounds. (Exhibit 6F, p 2) The medical evidence shows that in 2012, he ambulated independently. (Exhibit 4F, p 11) In 2014, lumbar range of motion (ROM) was normal and straight leg raising (SLR) was negative. He arose from a chair “okay, ”' but appeared to walk with some stiffness. (Exhibit 5F) In March 2015, he had normal movement in all extremities and bilateral SLR tests were again negative. (Exhibit 5F) In 2015, he used no assistive walking device. Dr. Robinson reported that, “obesity does not affect very much” and that his standard walking was fairly normal. (Exhibit 6F) Dr. Robinson's clinical findings support a finding that the claimant could perform lifting and/or carrying of weights consistent with medium work activity (50 pounds occasionally and 25 pounds frequently); that he could stand and/or walk for 6 hours in an 8-hour workday; and that he could sit for at least 6 hours in an 8-hour workday. Furthermore, the factors listed in Social Security Ruling (SSR) 02-lp are considered, including the effects of obesity upon his ability to perform routine movement and the necessary physical activity of work and it is concluded that obesity does not prevent him from working. (For additional evidence as to how the claimant performs daily routine movement, see the listed daily activities in the body of this decision at pages 4 and 5.)
Regarding mental impairment severity:
There are no medical records of mental health treatment from August 1, 2007, to the present. He was apparently last seen on June 21, 2007. (Exhibit 2F, p 2) Evidence mentioned below is from his primary care providers (PCP), other medical sources, and/or the claimant's own reports.
In July 2013, treatment records showed he had panic attacks “in the past” and the claimant reported he had increasing anxiety symptoms. He said he had been yelling and was easily aggravated, that he shook, and felt chest pressure and short of breath. (Exhibit 5F)
In October 2013, E-Ling Cheah, Psy.D., performed a mental CE. Mr. Goppert reported 3 visits to Centerstone Mental Health Center some 5 years earlier; that he had medications prescribed by his PCP for panic attacks and depression. Legal entanglements included a charge regarding accessory to a drug deal 22 years earlier for which he served 3 months; a charge of theft 27 years earlier; and a couple of charges regarding non-payment of child care. He was not currently on probation. Diagnoses included anxiety disorder with mixed anxiety and depressive symptoms. Global assessment of functioning (GAF) scores were 56 to 61, (which are scores generally consistent with mild to moderate impairment). Dr. Cheah assessed mild limitations in every area of mental functioning, except for moderate limitation in the ability to adapt to changes. (Exhibit 3F) This moderate limitation assessed is incorporated into the RFC with the following restriction: he can tolerate gradual, infrequent workplace changes.
In July 2014, the claimant complained of dysthymia[3] and said medications, Vanlafaxine and Alprazolam, worked as far as his mood, but anhedonia[4] continued. (Exhibit 5F, p 16)
In March 2015, the claimant reported he had a panic attack at home. However, Robert Kasper, M.D. reported he had good judgment and normal mood. (Exhibit 5F, pp 1, 2)
In June 2015, the claimant reported panic attacks were “occasional.” An examination showed he had normal mood, affect, speech, and thought processes. (Exhibit 6F)
Regarding drug and alcohol issues, in July 2013, the claimant reported he stopped drinking 2 years earlier. (Exhibit 5F) In October 2013, he reported he drank a 12-pack of beer and 7 shots of whiskey every day for 20 years; that his last drink was 3 years earlier (in 2010). In the past, he had used cocaine and methamphetamine “a couple of times a week ...for about 20 years” with his last use being 11 years earlier. He reported he had never been in a rehabilitation program for substance abuse. (Exhibit 3F) Mr. Goppert has a significant history of substance abuse, including cocaine, meth, and alcohol, which left him homeless at times, the latest being in 2008, when he was first denied disability. At the hearing, he testified he last used alcohol 4 or 5 years earlier and quit smoking 3 years earlier. There is no evidence of more recent substance abuse. Therefore, it is determined his substance issues have been in remission and his other impairments are not disabling. Thus, he is not disabled, even considering a history of polysubstance abuse.
The claimant has no relevant medical evidence from the AOD of 2008 to 2013. He had been to the doctor for back pain, but had not received mental health treatment since 2007. His testimony was credible, as it pertained to his significant history of substance abuse and increased anxiety. However, there are many inconsistencies that weighed against his credibility regarding the severity of his symptoms. First, at the hearing, the claimant testified he could not leave his room, was scared to death of everything, and could not leave his house without his wife. However, the CE performed after the hearing indicated he lived alone, and there was no note that the claimant was accompanied to the CE. Despite his testimony of complete fear of everything, he had not had any mental health treatment since 2007. In 2007, he only went 3 times. When asked why he did not continue to go for mental health treatment, he said it was because he became irritated when someone asked for his autograph and because he had lost his insurance. He did not ask if he could continue going without insurance and never found another mental health treatment provider. The claimant was first diagnosed with panic attacks and depression in 1997 or 1998, and he was given Xanax and Zoloft at that time, but he did not receive treatment again until 2007. He was not on mental health medication between 1997 and 2007, and he testified that he self-medicated with alcohol during that time. The claimant testified he could not work because of fatigue, which was caused by the medication he took for panic attacks. However, he testified he spent hours a day on Facebook, reading, and watching British television. He testified he talked to his brother on the phone and was able to attend school meetings for his son. The claimant testified that he had difficulty bending, lifting, and turning, but when asked how much he could lift with pain versus how much he could lift without pain, he said that he could lift 200 pounds with pain and only 15 pounds without pain. Neve1theless, the claimant is able to do light household chores, including dishes, getting clothes out of the washer or dryer, and he testified that he can lift a gallon of milk and a case of soda. He also said ...

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