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Corley v. Commissioner of Social Security

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

May 7, 2018

DONALD FOSTER CORLEY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          HON. WILLIAM L. CAMPBELL, JR. U.S. District Judge

          REPORT AND RECOMMENDATION

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Donald Foster Corley (“Plaintiff”) brings this action under 42 U.S.C. §405(g), challenging a final decision of Defendant Commissioner denying his application for Supplemental Security Income under the Social Security Act. On February 20, 2017, Plaintiff filed a Motion for Judgment [Docket #17]. On January 30, 2018, the case was assigned to the undersigned pursuant to 28 U.S.C. § 636 for Report and Recommendation. For the reasons set forth below, I recommend that Plaintiff's Motion [Docket #17] be GRANTED to the extent that the case be REMANDED to the administrative level for further proceedings.

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for Supplemental Security Income (“SSI”) on February 26, 2013, alleging disability as of July 3, 2006 (Tr. 189). After the initial denial of the claim, Plaintiff requested an administrative hearing, held on July 16, 2015 (Tr. 30). Administrative Law Judge (“ALJ”) Elizabeth P. Neuhoff presided. Plaintiff, represented by attorney Carl Groves, Jr., testified (Tr. 36-58), as did Vocational Expert (“VE”) Rebecca Williams (Tr. 58-64). On September 4, 2015, ALJ Neuhoff found that Plaintiff was not disabled (Tr. 12-25). On August 31, 2016, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on October 20, 2016.

         II. BACKGROUND FACTS

         Plaintiff, born April 13, 1962, was 53 when ALJ Neuhoff issued her decision (Tr. 25, 189). He completed ninth grade and worked previously as a machine operator (Tr. 210). His application for benefits alleges disability resulting from depression, left eye blindness, and Hepatitis B and C (Tr. 209).

         A. Plaintiff's Testimony

         The ALJ noted that the amended onset of disability (“AOD”) was January 29, 2013 (Tr. 37).

         Plaintiff then offered the following testimony:

         He had not worked since 2005 or 2006 (Tr. 38). In his most recent job, he worked as a machine operator, requiring him to lift 50 pounds “all the time” and stand on his feet for most of the workday (Tr. 38-39). He was precluded from using motorized vehicles due to his vision problems (Tr. 39). He stopped working after breaking four toes and sustaining a hairline fracture of his leg bone in a workplace accident (Tr. 40-41). He had been offered accommodated work by his employer, but experienced difficulty keeping up with the modified position (Tr. 42).

         Plaintiff stood 5' 10" and weighed 161 pounds (Tr. 42). He was right-handed and lived with his wife of 18 years (Tr. 43). He declined to drive due to medication side effects (Tr. 43). He visited his aunt regularly prior to her death the previous year but was unable to offer her any assistance due to physical limitations (Tr. 44). He was unable to sit through an hour-long church service (Tr. 44). He used to fish but now did not have any hobbies (Tr. 45). He spent his day staying indoors and watching shows on broadcast television (Tr. 45). He did not use a computer and did not have a Facebook page (Tr. 45). He had cut back but had not quit smoking (Tr. 45-46).

         Plaintiff was unable to work due to “deteriorating bone disease” but was unable to obtain treatment due to financial limitation (Tr. 46-47). He saw a psychological counselor every two weeks and a psychiatrist every three months (Tr. 47). He took anti-psychotic medication (Tr. 48). He experienced the occasional medication side effects of auditory hallucinations (Tr. 48). He left school after eighth grade and was was able to read and write simple words (Tr. 48-49). His wife took care of the household finances (Tr. 50). Their income was limited to his wife's disability income, and he had not received unemployment benefits or Workers' Compensation (Tr. 51). Plaintiff's food preparation was limited to microwaving prepared food (Tr. 51). His wife took care of the housework and laundry chores (Tr. 51).

         In response to questioning by his attorney, Plaintiff reiterated that he heard voices, adding that he began hearing voices after receiving an increased dosage of Seroquel (Tr. 53). He experienced problems focusing (Tr. 53). He denied marijuana use for the past 10 years and alcohol use for the past 20 (Tr. 54). He was currently prescribed Morphine, adding that he was able to afford the medication due to a “Script Express card” at the local pharmacy (Tr. 55). Morphine caused the side effects of dizziness and blurred vision (Tr. 55). He experienced level “eight” pain on a scale of one to ten (Tr. 56). He had been prescribed a cane in 2005 and continued to use it due to back and leg pain (Tr. 57). Due to foot cramps, he was unable to walk for more than 10 minutes at a stretch (Tr. 57).

         B. Medical Evidence[1]

         1. Records Related to Plaintiff's Treatment

         On September 26, 2012, case manager/counselor Mark Blaylock listed going fishing once a month and caring for Plaintiff's grandchildren as “objectives” in pursuant of improved mental health (Tr. 558). October, 2012 records by Larry L. Turner, M.D. show that Plaintiff received a refill of Morphine (Tr. 491). Dr. Turner noted Plaintiff's report of “throbbing” lower back pain (Tr. 510). Plaintiff reported good results from medication (Tr. 510). A physical examination was wholly unremarkable (Tr. 512). He exhibited an appropriate mood and affect (Tr. 512). Mental health goals for November, 2012 included qualifying for disability, managing physical health problems, and managing anxiety and thought disorders (Tr. 565, 567). Plaintiff reported depression due to a recent denial of disability benefits (Tr. 566). Plaintiff canceled a psychological counseling session at the end of the following month because he and his wife had to babysit four of their six grandchildren (Tr. 576).

         January, 2013 records note prescriptions for Oxycodone, Xanax, Celexa, Morphine, and Seroquel (Tr. 492, 496). Notes from the same month note diagnoses of Hepatitis, low back pain, osteoarthritis, anxiety, depression, chronic pain syndrome, and degeneration of “thoracic or lumbar intervertebral disc; lumbar or lumbosacral intervertebral disc” (Tr. 496-497). A physical examination was unremarkable (Tr. 515). Notes from later the same month state that Plaintiff reported daily depression (Tr. 580). Mr. Blaylock noted that when he arrived for a home visit the same month, Plaintiff was fixing his car in the rain but “had to quit due to back and leg pain as well as fear of catching pneumonia” (Tr 583). Mr. Blaylock's notes from the appointment state that he brought Plaintiff “some food supplies . . . (potatoes) to make his food stamps stretch a little further [for the] month” (Tr. 585). February, 2013 counseling notes state that Plaintiff was forced to forego medical treatment so that he could fix his car (Tr. 585). Counseling notes from the next month state that Plaintiff experienced transportation limitations due to the inability to afford gas (Tr. 594). He reported that he had been so “depressed, worried, and sick” that he had not been able to “get out of bed” (Tr. 594). The same month, he missed an appointment due to visiting a sister who was dying of cancer (Tr. 605, 607). April, 2013 records state that he had missed several sessions because he had been “helping to take care of” his aunt who was dying of cancer (Tr. 597).

         The same month (January 2013), Dr. Turner re-prescribed pain medication (Tr. 616). A physical examination was once again unremarkable (Tr. 617-618). A July, 2013 physical examination by Dr. Turner was unremarkable (Tr. 622-623). August, 2013 mental health treatments note an abnormal mood and affect (Tr. 640). Plaintiff's condition was deemed stable (Tr. 641). He was assigned a GAF of 55 due to a combination of psychological, physical, and economic problems (Tr. 642). An October, 2013 physical examination was unremarkable (Tr. 645).

         Dr. Turner's January, 2014 treatment notes are essentially identically to his earlier records (Tr. 647-649). A January, 29, 2014 pill count showed under-use of Morphine and overuse of Oxycondone (Tr. 651). Psychiatric records from April, 2014 note Plaintiff's statement that he was “doing o.k.” (Tr. 807). April, 2014 medical records note spine tenderness and a decreased range of motion (Tr. 681). Counseling records note the death of three individuals (friends and family) in one week (Tr. 770). Plaintiff reported that he had “no money to put gas in his car” (Tr. 708). Blaylock noted that Plaintiff continued “to struggle with his behavioral goals due to his constant state of confusion and poor memory” (Tr. 714). In July, 2014 Dr. Turner made identical findings to those made in April, 2014 (Tr. 684-685). The same month, Plaintiff reported that he obtained help to pay the rent and get caught up on the utility bills (Tr. 729). September, 2014 counseling records state that Plaintiff attempted to mow grass but “was not able to stay on his feet because his legs gave out on him” and he was unable to finish (Tr. 741). In October, 2014, Plaintiff reported that his back pain was becoming worse (Tr. 687). November, 2014 counseling records note an improvement in Plaintiff's psychological condition but no progress in his physical condition (Tr. 752). Blaylock's notes from December, 2014 state that Plaintiff had problems managing his pain due to “no health care insurance and no income” (Tr. 789). In January, 2015, Plaintiff denied significant medication side effects (Tr. 691). The same month, psychiatrist Michael D. Hill, M.D. noted that Wellbutrin caused the side effect of dizziness (Tr. 825). He described Plaintiff's psychiatric conditions as neither improving nor worsening (Tr. 822). In March, 2015, Plaintiff was discharged from care by Blaylock because his goals were “partially met” (Tr. 798, 857). Plaintiff reported depression due to cancer diagnosis received by both a brother and sister (Tr. 798). Counseling records from the following month state that Plaintiff had “not met” his goal of going fishing once a month (Tr. 854). May, 2015 counseling records state that Plaintiff had “not been able to work on social support goals due to poor health, no money, and depression” (Tr. 843, 852). Records from later the same month state that Plaintiff had “not had any x-rays or medical attention on his back since 2000 due to no medical insurance” (Tr. 846).

         2. Non-Treating Records

         In April, 2013, Thomas Neilson, Psy.D. performed a non-examining psychological evaluation on behalf of the SSA, finding that Plaintiff experienced moderate limitation in activities of daily living, social functioning, and in concentration, persistence, or pace (Tr. 101-102). In May, 2013, Roy Johnson, M.D. reviewed Plaintiff's medical history on behalf of the SSA, noting that Plaintiff's depression was precipitated by the 2002 death of his daughter (Tr. 612). Plaintiff reported a prosthetic left eye, right knee pain due to an old injury, the use of a knee brace, and the need for a cane (Tr. 612). He also reported radiating lower back pain due to degenerative disc disease (Tr. 612). Dr. Johnson noted that Plaintiff was able to get on and off the examination table without assistance but walked with a limp and was unable to recover from a squat (Tr. 613-614). Dr. Johnson observed lumbar spine range of motion limitations (Tr. 614). He concluded that Plaintiff was limited to lifting 10 pounds occasionally and was unable to stand or walk for more than one to two hours in an eight-hour shift (Tr. 614).

         In June, 2013, Nathaniel Briggs, M.D. completed a non-examining assessment of Plaintiff's physical limitations on behalf of the SSA, finding that while Plaintiff experienced a prosthetic left eye, he did not experience any vision limitations (Tr. 105). He found that Plaintiff was capable of lifting 50 pounds on an occasional basis and 25 pounds frequently; could sit, stand, or walk for six hours in an eight-hour workday; and could push or pull without limitation (Tr. 104). He found that Plaintiff was limited to frequent postural activity (Tr. 104-105). In February, 2014, P. Jeffrey Wright, Ph.D. performed a non-examining psychological assessment, finding that Plaintiff experienced moderate limitation in activities of daily living, social functioning, and in concentration, persistence, or pace (Tr. 125-126). The following month, Thomas Thrush, M.D. made findings identical to Dr. Briggs' June, 2013 findings (Tr. 128-129).

         C. ...


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