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Ragland v. Colvin

United States District Court, M.D. Pennsylvania

March 3, 2017

GARY RAGLAND, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          MEMORANDUM

          WILLIAM J. NEALON UNITED STATES DISTRICT JUDGE.

         On October 1, 2015, Plaintiff, Gary Ragland, filed this instant appeal[1] under 42 U.S.C. § 405(g) for review of the decision of the Commissioner of the Social Security Administration (“SSA”) denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 1461, et seq. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiff's application for DIB will be affirmed.

         BACKGROUND

         Plaintiff protectively filed[2] his application for DIB on August 4, 2012, alleging disability beginning on November 29, 2011, due to a combination of sleep apnea, restless legs syndrome, blindness in his right eye, limited reading and writing skills, glaucoma, constant pain in his back and legs, and shortness of breath. (Tr. 10, 140, 143).[3] The claim was initially denied by the Bureau of Disability Determination (“BDD”)[4] on March 28, 2013. (Tr. 10). On April 10, 2013, Plaintiff filed a written request for a hearing before an administrative law judge. (Tr. 10). A hearing was held on August 15, 2014, before administrative law judge Patrick Cutter, (“ALJ”), at which Plaintiff and an impartial vocational expert Paul Anderson, (“VE”), testified. (Tr. 10). On August 29, 2014, the ALJ issued an unfavorable decision denying Plaintiff's application for DIB. (Tr. 10). On October 22, 2014, Plaintiff filed a request for review with the Appeals Council. (Tr. 6). On August 21, 2015, the Appeals Council concluded that there was no basis upon which to grant Plaintiff's request for review. (Tr. 1-3). Thus, the ALJ's decision stood as the final decision of the Commissioner.

         Plaintiff filed the instant complaint on October 1, 2015. (Doc. 1). On December 21, 2015, Defendant filed an answer and transcript from the SSA proceedings. (Docs. 8 and 9). Plaintiff filed a brief in support of his complaint on January 29, 2016. (Doc. 11). Defendant filed a brief in opposition on March 3, 2016. (Doc. 15). Plaintiff filed a reply brief on March 9, 2016. (Doc. 16).

         Plaintiff was born in the United States on October 30, 1961, and at all times relevant to this matter was considered an “individual closely approaching advanced age.”[5] (Tr. 140). Plaintiff did not graduate from high school or obtain his GED, but can communicate in English. (Tr. 142, 144). His employment records indicate that he previously worked as a manufacturing assembler, laborer, and roofer. (Tr. 145).

         In a document entitled “Function Report - Adult” filed with the SSA on August 23, 2012, Plaintiff indicated that he lived in a house with family. (Tr. 158). When asked how his injuries, illnesses, or conditions limited his ability to work, Plaintiff stated, “have trouble standing or walking with legs, feet, trouble breathing.” (Tr. 158). From the time he woke up until he went to bed, Plaintiff watched television. (Tr. 159). Plaintiff had no problems with personal care, prepared meals such as sandwiches daily for five (5) minutes, did not perform chores in his house or yard, and shopped for groceries when necessary for five (5) minutes. (Tr. 159-161). He went outside two (2) times a week, was able to drive a car, and was able to go out alone. (Tr. 160). His hobbies included watching television, and he did not spend time with others. (Tr. 162). He could walk for fifty (50) feet before needing to rest for five (5) minutes. (Tr. 163). When asked to check what activities his illnesses, injuries, or conditions affected, Plaintiff did not check squatting, bending, reaching, sitting, kneeling, talking, hearing, seeing, memory, concentration, understanding, following instructions, using hands, or getting along with others. (Tr. 163).

         Regarding his concentration and memory, Plaintiff did not need special reminders to take care of his personal needs, take his medicine, or go places. (Tr. 159, 162). He could count change and handle a savings account, but could not pay bills or use a checkbook due to trouble reading and keeping track of his checkbook. (Tr. 161). He could not pay attention for long, was not able to finish what he started, did not follow written instructions well due to trouble reading and writing, followed spoken instructions “good, ” handled stress “fairly, ” and handled changes in routine “not very good.” (Tr. 163-164).

         Plaintiff also completed a Supplemental Function Questionnaire for pain. (Tr. 166). He stated that his pain began about five (5) years prior, and stated he had pain and burning sensation in his feet and legs. (Tr. 166). He stated standing and walking caused him to have pain, that his pain was worse at the end of the day and throughout the night, that it occurred every day, that it was not relieved by medication, and that he had never attended physical therapy. (Tr. 166-167).

         At the oral hearing on August 15, 2014, Plaintiff initially testified that what kept him from working were shortness of breath and pain in his legs. (Tr. 31). He stated that he was also blink in his right eye, had glaucoma, and smoked a pack of cigarettes a day. (Tr. 32). He testified that the pain in his legs and feet was a burning sensation that cause his legs to give out on him. (Tr. 35-36). He stated that he was able to drive a car, which he did about twice a week and did not need glasses to do. (Tr. 32-34). He testified that he was about to walk about twenty-five (25) feet before needing to rest to catch his breath and was able to stand up for ten (10) minutes before needing to sit because his legs and feet would swell. (Tr. 37-38).

         MEDICAL RECORDS

         Out of an abundance of caution, all medical records provided in the Transcript have been reviewed, even those past the date last insured of December 31, 2012.

         On August 20, 2012, Paul Heavner, OD, wrote a letter that Plaintiff had not been seen in his office, Bergman Eye Associates, since October 2008. (Tr. 190).

         On September 24, 2012, Plaintiff underwent a consultative examination performed by Amatul Khalid, MD. (Tr. 191). It was noted that Plaintiff had left-eye glaucoma diagnosed one (1) year prior for which he had not been using the drops prescribed, did not have blurry or double vision, was blind in his right eye, self-diagnosed himself with sleep apnea because he woke up gasping for air, had burning in his feet, experienced shortness of breath with minimal activity, and could “only walk through Wal-Mart for a half an hour before having to sit.” (Tr. 191). It was also noted that he smoked half a pack of cigarettes a day for the past thirty-five (35) years. (Tr. 191). His physical examination revealed the following: without glasses, his vision was 20/30; his bilateral lungs were clear to auscultation; a decreased range of motion in his lumbar spine; bilaterally increased deep tendon reflexes in his brachiradialis and knees; abnormal vibratory sensation that was impaired in his bilateral lower extremities from his ankle distally; and a normal affect, judgment, and mental status. (Tr. 192-194). Plaintiff was assessed as having peripheral neuropathy, glaucoma in his left eye with non-compliance with his eye drops, legal blindness in his right eye, and tobacco abuse. (Tr. 194). Dr. Khalid opined Plaintiff: could frequently lift up to fifty (50) pounds and carry up to ten (10) pounds; could stand for one (1) hour or less in an eight (8) hour workday; had no limitations with sitting; could engage in unlimited pushing and pulling within the aforementioned weight restrictions; could frequently bend, and occasionally kneel, stoop, crouch, balance, and climb; had limitations with reaching and seeing; and should avoid temperature extremes and humidity. (Tr. 195-196).

         On October 5, 2012, Plaintiff underwent an x-ray of his lumbar spine for back pain. (Tr. 199). The impression was that there was no fracture or dislocation seen in the lumbar spine. (Tr. 199).

         On November 27, 2012, Plaintiff had an appointment with Dr. Khalid for another consultative examination. (Tr. 200). Dr. Khalid reiterated what was noted during the first consultative examination, and added that Plaintiff had difficulty with reading, some math problems, writing, spelling, and managing his finances. (Tr. 200). His physical examination remained the same except for wheezing, and the assessment remained the same except for the addition of learning difficulties. (Tr. 202).

         On December 3, 2012, Plaintiff underwent a Pulmonary Function Test. (Tr. 206). The impression was that Plaintiff had a normal spirometry, lung volumes, and diffusing capacity. (Tr. 206). In the section “PFT Quality Assurance Statement, ” it was noted that Plaintiff had a good ability to understand directions, was alert and oriented, and gave good cooperation and effort. (Tr. 215).

         On February 28, 2013, Plaintiff underwent a Clinical Psychological Disability Evaluation with Individual Intellectual Evaluation and Achievement Test performed by Joseph Levenstein, Ph.D. (Tr. 218). Dr. Levenstein noted Plaintiff: was cooperative and rapport was easily established; had well-paced speech that was difficulty to understand; gave short answers to his questions; had a flexible affect appropriate to thought content; was unkempt; had a slightly unsteady gait; and was well motivated, but required moderate amounts of praise and encouragement to maintain motivation. (Tr. 218). His Mental Status Examination noted Plaintiff: was alert and oriented in three spheres; had intact appetite; was occasionally irritable; and denied symptoms of mania and OCD. (Tr. 221). His intelligence testing revealed “functioning ranging from the Average range to the Mild range of intellectual disability. Overall, [Plaintiff] appears to be functioning within the Borderline range of intelligence.” (Tr. 221). Dr. Levenstein also noted that Plaintiff had: extremely limited verbal skills, working memory, and processing; and limited information memory, academic skills, and reading comprehension. (Tr. 222). Dr. Levenstein concluded that Plaintiff was not functionally illiterate, could understand, retain, and follow simple instructions, could sustain attention sufficiently to complete simple and repetitive tasks, had social skills that were sufficient to interact appropriately with supervisors and coworkers, and could perform activities of daily living on an independent basis with the exception of reading and writing. (Tr. 222). Dr. Levenstein diagnosed Plaintiff with a Reading Disorder, Disorder of written expression, and Borderline Intellectual Functioning. (Tr. 222). His prognosis was unlikely to improve much at all, especially in light of his physical problems. (Tr. 222). He also noted Plaintiff was not capable of managing his personal funds in a competent manner. (Tr. 223). Dr. Levenstein opined Plaintiff: (1) had slight limitations in understanding, remembering, and carrying out short and simple instructions; (2) had moderate limitations in making judgments on simple work-related decisions; (3) had extreme limitations in understanding, remembering, and carrying out detailed instructions; (4) had no limitations with responding appropriately to supervision, co-workers or work pressures in a work setting; and (5) had limitations with reading and writing with the effect of rendering him close to illiterate. (Tr. 225-226).

         On March 25, 2013, Monica Yeater, Psy.D., completed a Psychiatric Review Technique. (Tr. 52). She opined, based on the record, that for Listing 12.02, Organic Mental Disorders, Plaintiff had: (1) mild restriction of activities of daily living and in maintaining social functioning; (2) moderate difficulties in maintaining concentration, persistence, or pace; and (3) no repeated episodes of decompensation, each of extended duration. (Tr. 52). Dr. Yeater also completed a Mental Residual Functional Capacity Assessment, in which she opined Plaintiff was: (1) moderately limited in his ability to understand and remember detailed instructions, to carry out detailed instructions, to maintain attention and concentration for extended periods, to perform activities within a schedule, to maintain regular attendance, and to be punctual within customary tolerances; (2) was limited to unskilled work; and (3) had no social interaction or adaptive limitations. (Tr. 56-57).

         On March 27, 2013, Dilip S. Kar, M.D., completed a Physical Residual Functional Capacity assessment based on the record. (Tr. 54-56). He opined that Plaintiff: (1) could occasionally lift and/ or carry up to twenty (20) pounds and frequently lift and/ or carry up to ten (10) pounds; (2) could stand and/ or walk and sit for six (6) hours in an eight (8) hour workday; (3) should avoid concentrated exposure to extreme cold and heat, wetness, humidity, fumes, odors, dusts, gases, and poor ventilation; and (4) should avoid all exposure to hazards such as machinery and heights. (Tr. 54-55).

         On May 3, 2013, Plaintiff had an appointment with James Owens, M.D. for hypertension, shortness of breath on exertion, and paresthesias in his feet. (Tr. 256). It was noted that Plaintiff had slightly limited cognitive function. (Tr. 257).

         On May 24, 2013, Plaintiff had an appointment with James Owens, M.D. for Chronic Obstructive Pulmonary Disease and hypertension. (Tr. 252). It was noted that his blood pressure had improved, and that it was strongly suspected that Plaintiff had COPD. (Tr. 252). He also reported that he had been experiencing paresthesias in his feet. (Tr. 252).

         On June 12, 2013, Plaintiff had an appointment with John Alencherry, M.D. for a cough and dyspnea. (Tr. 242). A chest x-ray and pulmonary function tests were ordered. (Tr. 243).

         On June 12, 2013, Plaintiff underwent a chest x-ray. (Tr. 241). The impression was that Plaintiff had mild hyperinflation in his lungs. (Tr. 241).

         On July 19, 2013, Plaintiff underwent a Pulmonary Function Test. (Tr. 245). The impression was that Plaintiff had mild obstructive airway disease with no significant component of reversible bronchospasms and decreased oxygenation. (Tr. 245). Plaintiff was advised to cease smoking and comply with his inhaler treatment. (Tr. 248).

         On July 29, 2013, Plaintiff had a follow-up appointment with Dr. Alencherry. (Tr. 247). He was diagnosed with chronic obstructive pulmonary disease, and it was noted that he was still smoking cigarettes and was in poor compliance with his inhalers. (Tr. 247).

         On September 30, 2013, Plaintiff had an appointment with James Owens, M.D. for bilateral leg and foot pain and hypertension. (Tr. 249). Plaintiff reported that he had some parethesias of his feet with burning at times and that he was still smoking cigarettes. (Tr. 249).

         On April 14, 2014, Plaintiff had an appointment with Dr. Alencherry for follow-up of COPD and cough and shortness of breath that Plaintiff described as worsening. (Tr. 264). It was also noted that Plaintiff was poorly compliant with treatment for his COPD. (Tr. 264). His physical examination was normal. (Tr. 264-265). Plaintiff was advised to quit smoking, and was scheduled for a follow-up in four (4) months. (Tr. 265). Plaintiff also underwent a chest x-ray which showed mild right pleural effusion and hyperinflation of the lungs. (Tr. 267).

         On April 16, 2014, Plaintiff underwent a venus Doppler of his bilateral lower extremities. (Tr. 263). The impression was that there was no evidence of a DVT in either lower extremity. (Tr. 263).

         On July 18, 2014, Anne Rowland, CRNP, completed a Pulmonary Residual Functional Capacity Questionnaire. (Tr. 270). She opined that due to his pulmonary symptoms, Plaintiff: had occasional interference with attention and concentration; was capable of low stress jobs; had an impairment that was stable on current treatment of ProAir inhaler and was expected to last at least twelve (12) months; could walk half a city block without rest or severe pain; could sit for more than two (2) hours at a time and more than four (4) hours in an eight (8) hour workday; could stand for ten (10) minutes at one time and for less than two (2) hours in an eight (8) hour workday; needed to take fifteen (15) to twenty (20) minute breaks during an eight (8) work shift; could occasionally lift and carry up to ten (10) pounds, rarely lift and carry twenty (20) pounds, and never lift and carry fifty (50) pounds; could frequently twist and stoop, occasionally crouch and squat, rarely climb stairs, and never climb ladders; should avoid all exposure to cigarette smoke, perfumes, soldering fluxes, solvents and cleaners, fumes, odors, gases and chemicals; and should avoid even moderate exposure to extreme cold and heat, high humidity, wetness, and dust; and would likely be absent from work for about four (4) days per month. (Tr. 270-273). She noted that the earliest date the symptoms and limitations from the questionnaire applied was June 12, 2013. (Tr. 273).

         STANDARD ...


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