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Erickson v. Berryhill

United States District Court, M.D. Pennsylvania

February 14, 2018

FREDERICK ERICKSON, Plaintiff
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security Defendant

          CONNER, C.J.

          REPORT AND RECOMMENDATION

          KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE.

         This is an action brought under Section 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. §405(g) by reference), seeking judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff Frederick Erickson (“Mr. Erickson”) claim of supplemental security income(“SSI”) under Title XVI of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. (Doc. 15).

         For the reasons expressed herein, and upon detailed consideration of the arguments raised by the parties in their respective briefs, it is respectfully recommended that the Commissioner's decision be vacated and that the case be remanded to the Commissioner to conduct a new administrative hearing pursuant to sentence four of 42 U.S.C. §405(g).

         I. Procedural History and Background

         Mr. Erickson is a high school graduate and has work history as a drywall worker, scrap metal collector, and construction laborer. (Admin. Tr. 28; Doc. 12-2 p. 29). He reported that he stopped working on January 1, 2004 because of his disabling condition. (Admin. Tr. 137; Doc. 12-5 p. 2). On August 8, 2012, Mr. Erickson protectively filed a Title XVI application for SSI alleging a disability onset date of January 1, 2004.[2] (Admin. Tr. 137; Doc. 12-5 p. 2). In his application, he alleges he is disabled due to “shoulder problems on both sides and mental issues.” (Admin. Tr. 160; Doc.12-6 p.6). Mr. Erickson was born on August 17, 1952 and was fifty-two years old on the alleged disability onset date.[3] (Admin. Tr. 137; Doc. 12-5 p. 2).

         The Tennessee Disability Determination Section[4] referred Mr. Erickson to undergo a consultative examination with a psychologist. (Admin. Tr. 243; Doc. 12-7 p. 30). On September 18, 2012, Linda Blazina (“Dr. Blazina”) conducted a clinical interview and mental status examination. (Admin. Tr. 243-247; Doc. 12-7 pp. 30-34). Dr. Blazina observed that Mr. Erickson appeared older than his age and his gait was slow. (Admin. Tr. 243; Doc. 12-7 p. 30). Dr. Blazina noted that Mr. Erickson appeared depressed and his affect was mood congruent. (Admin. Tr. 244; Doc. 12-7 p. 31). Dr. Blazina reported that Mr. Erickson was able to recall three of three words immediately, but could not recall words after a five minute delay. Id. Dr. Blazina observed that Mr. Erickson's attention and concentration skills were somewhat below average and at times, he was briefly inattentive. Id. Dr. Blazina reported Mr. Erickson seemed preoccupied at times. Id. Dr. Blazina estimated that his intellectual functioning is in the low average range. Id. Ultimately, Dr. Blazina diagnosed Mr. Erickson with anxiety disorder, not otherwise specified, major depressive disorder, recurrent and moderate without psychotic symptoms, alcohol dependence, history of polysubstance dependence, personality disorder, not otherwise specified. (Admin. Tr. 246; Doc. 12-7 p. 35). She provided a global assessment of functioning (“GAF”)[5] score of 60. Id. In regards to Mr. Erickson's ability to engage in work-related activities, Dr. Blazina opined the following:

[Mr. Erickson]'s ability to understand, remember, and carry out short simple instructions does not appear impaired. However due to difficult noted in his ability to retain new information after a brief delay, he would likely have difficulty understanding, remembering, and carrying out complex detailed instructions and this impairment would seem to be moderate in nature. His ability to sustain his concentration and attention currently appears to be mildly impaired due to anxiety. His social interaction abilities do not appear to be noticeably impaired. His ability to adapt to change in a work routine and tolerate workplace stress is felt to be mildly to moderately impaired.

Id.

         The Tennessee Disability Determination Section also referred Mr. Erickson to undergo a consultative examination with a physician. On September 22, 2012, Matthew Higgins (“Dr. Higgins”) conducted a physical examination in conjunction with Mr. Erickson's disability application. (Admin. Tr. 249-252; Doc. 12-7 pp. 36-39). Mr. Erickson reported to Dr. Higgins that he could lift thirty pounds once and fifteen pounds repetitively. (Admin. Tr. 250; Doc. 12-7 p. 37). After conducting a physical examination, Dr. Higgins assessed that Mr. Erickson has tenderness to palpation of his AC joint and his anterior glenohumeral joint. (Admin. Tr. 251; Doc. 12-7 p. 38). Dr. Higgins opined that Mr. Erickson would have difficulty with overhead activities and difficulty lifting and carrying objects. (Admin. Tr. 252; Doc. 12-7 p. 39). Dr. Higgins determined Mr. Erickson can hear and speak appropriately and carry out and remember instructions. Id. Dr. Higgins assessed that Mr. Erickson can stoop, crawl, and crouch without any difficulty. Id. Dr. Higgins suggested that though he believes Mr. Erickson's mental issues are not reported to be significantly limited issues at this time, he should be evaluated and managed by his primary care physician. Id.

         On October 5, 2012, Rebecca Sweeney (“Dr. Sweeney”) completed a psychiatric review technique (“PRT”) form and mental RFC assessment after reviewing the records available on that date. (Admin. Tr. 52-55, 57-58; Doc. 12-3 pp. 5-8, 10-11). Dr. Sweeney diagnosed Mr. Erickson with affective disorder. (Admin. Tr. 54; Doc. 12-3 p. 7). Dr. Sweeney determined that Mr. Erickson's mental impairment did not meet any of the Listings' criteria but she assessed that his mental impairments do result in a mild restriction of activities of daily living, no difficulties maintaining social functioning, moderate difficulties maintaining concentration, persistence, or pace, and no repeated episodes of decompensation. (Admin. Tr. 52-53; Doc. 12-3 pp. 5-6). In her mental RFC assessment, Dr. Sweeney assessed that Mr. Erickson's symptoms and impairments would not singlehandedly or in combination prevent him from completing work-like activities; however, his memory, concentration, persistence, pace, and adaptations are somewhat impacted by his diagnoses, causing moderate limitations in basic work-like duties. (Admin. Tr. 54; Doc. 12-3 p. 7). Therefore, Dr. Sweeney opined that Mr. Erickson has the ability to understand and remember simple and lower level of detailed tasks, but not detailed-tasks; does not have the ability to make independent decisions at an executive level; has the ability to maintain concentration, persistence, and pace with appropriate breaks for the normal work week under normal supervision; has the ability to relate appropriately to the general public, co-workers, and supervisors; and can adapt to infrequent change. (Admin. Tr. 58; Doc. 12-3 p. 11).

         On October 19, 2012, Mr. Erickson presented to Larry Turner (“Dr. Turner”), his primary care physician, and reported that he had pain in his shoulder and rated it a “10 out of 10.” (Admin. Tr. 236; Doc. 12-7 p. 23). After a physical examination, Dr. Turner noted Mr. Erickson's left shoulder had tenderness and pain with light touch, abnormal joint stability, and his range of motion was restricted. (Admin. Tr. 237; Doc. 12-7 p. 24).

         On November 12, 2012, Francis Yamamoto (“Dr. Yamamoto”) assessed Mr. Erickson's physical RFC after reviewing the medical evidence of record that was available to him. (Admin. Tr.55-56; Doc. 12-3 pp. 8-9). Dr. Yamamoto assessed that Mr. Erickson could: occasionally lift and/or carry (including upward pulling) fifty pounds; frequently lift and/or carry (including upward pulling) twenty-five pounds; stand and/or walk (with normal breaks) for a total of about six hours per eight-hour workday, sit (with normal breaks) for a total of about six hours per eight-hour workday; and no restrictions for push and/or pull (including operation of hand and/or foot controls). Id. Dr. Yamamoto determined that Mr. Erickson had postural limitations, noting the following: unlimited ability to climb ramp/stairs, balance, stoop, kneel, and crouch and frequent ability to climb ladders/ropes/scaffolds and crawl. (Admin. Tr. 56; Doc. 12-3 p. 9). Dr. Yamamoto also assessed that Mr. Erickson has no manipulative, visual, communicative, or environmental limitations. Id.

         On November 14, 2012, Mr. Erickson's application for SSI was denied at the initial level of administrative review. (Admin. Tr. 78-81; Doc. 12-4 pp. 2-5). During the initial review of Mr. Erickson's claim, the disability examiner found that Mr. Erickson had severe impairments due to major joint dysfunction and affective disorder. (Admin. Tr. 52; Doc. 12-3 p. 5). The disability examiner concluded that Mr. Erickson's impairments did not prevent him from engaging in a range of unskilled medium work, and concluded that Mr. Erickson could engage in other work that exists in significant numbers in the national economy. (Admin. Tr. 59; Doc. 12-3 p. 12).

         On January 14, 2013, Mr. Erickson filed for reconsideration. (Admin. Tr. 83; Doc. 12-4 p. 7). Mr. Erickson alleged his anxiety was increasing and causing him to self-medicate, and that he was afraid to do any work in his field out of fear he will damage his shoulder even more than it already is. (Admin. Tr. 184; Doc. 12-6 p. 30). He claimed it was hard to carry his groceries, and concentrate on things around him. He reported his memory and concentration had diminished due to anxiety issues. (Admin. Tr. 187; Doc. 12-6 p. 33).

         On January 21, 2013, Mr. Erickson followed up with Dr. Turner. (Admin. Tr. 241-242; Doc. 12-7 pp. 28-29). Mr. Erickson reported he was experiencing anxiety, which Dr. Turner noted as “Anxiety: taking care of wife after a heart attack: wife hallucinating, falling, memory changes.” (Admin. Tr. 241; Doc. 12-7 p. 28).

         In connection with Mr. Erickson's reconsideration request, another state agency psychologist reviewed his file. On March 12, 2013, Horace Edwards (“Dr. Edwards”) completed a PRT form and mental RFC assessment after reviewing the records available on that date. (Admin. Tr. 66-70, 72-73; Doc. 12-3 pp. 19-23, 25-26). Dr. Edwards affirmed Dr. Sweeney's findings, with the exception of determining Mr. Erickson had mild difficulties in social functioning, rather than no difficulties, as Dr. Sweeney had previously opined. (Admin. Tr. 67; Doc. 12-3 p. 20). Dr. Edwards noted that Mr. Erickson's reported changes did not rise to meet any Listings. Id.

         In connection with Mr. Erickson's reconsideration request, another state agency physician reviewed his file. On March 15, 2013, Thomas Thrush (“Dr. Thrush”) completed a physical RFC after reviewing the records available on that date. (Admin. Tr. 70-72; Doc. 12-3 pp. 23-25). Dr. Thrush affirmed Dr. Yamamoto's findings, noting that Mr. Erickson's reported changes did not produce any changes in his functional abilities. (Admin. Tr. 71; Doc. 12-3 p. 24).

         On March 15, 2013, the disability examiner again determined Mr. Erickson was not disabled. (Admin. Tr. 62-76; Doc. 12-3 pp. 15-29). The disability examiner found that Mr. Erickson had severe impairments due to major joint dysfunction, affective disorder, and substance addiction disorder, as well as a non-severe impairment of essential hypertension. (Admin. Tr. 67; Doc. 12-3 p. 20). Once again, the disability examiner concluded that Mr. Erickson's impairments did not prevent him from engaging in a range of unskilled medium work, and concluded that Mr. Erickson could engage in other work that exists in significant numbers in the national economy. (Admin. Tr. 74-75; Doc. 12-3 p. 27-28).

         On April 22, 2013, Mr. Erickson followed up with Dr. Turner and again reported that he was experiencing anxiety, which Dr. Turner noted as “Anxiety: situational-wife sick.” Dr. Turner diagnosed Mr. Erickson with generalized anxiety disorder. (Admin. Tr. 286; Doc. 12-7 p. 73). Dr. Turner prescribed Mr. Erickson anxiety medication. Id.

         On May 1, 2013, Mr. Erickson filed a request for an administrative hearing. (Admin. Tr. 90; Doc. 12-4 p. 14). On October 28, 2014, Mr. Erickson appeared and testified during a video hearing before Administrative Law Judge James Dixon (“ALJ”). (Admin. Tr. 22-48; Doc. 12-2 pp. 23-49). Mr. Erickson appeared in Cookeville, Tennessee and the ALJ presided from Knoxville, Tennessee. (Admin. Tr. 9; Doc. 12-2 p. 10). Mr. Erickson was represented Dennis Oliver, a non-attorney representative. (Admin. Tr. 88; Doc. 12-4 p. 12). In addition, impartial vocational expert Ernest Sydney Brewer (“VE Brewer”) testified. (Admin. Tr. 40-45; Doc. 12-2 pp. 41-46).

         At the start of the hearing, Mr. Erickson requested to amend his alleged onset date of disability from January 1, 2004 to August 8, 2012, the date of his protective filing date for this claim, which the ALJ granted. (Admin. Tr. 24; Doc. 12-2 p. 25). Thus, at the time of Mr. Erickson's new alleged disability onset date, he was fifty-nine-years old.[6] Mr. Erickson testified that he is not able to work because after all of his years focusing on his trade, it is hard for him to adapt to other types of employment, and that his days of learning new tasks or trades are behind him. (Admin. Tr. 28-29; Doc. 12-2 pp. 29-30). He reported that his days of substance abuse are behind him, as the most recent time frame he received drug or alcohol treatment was approximately around 2003. (Admin. Tr. 29; Doc. 12-2 p. 30). He testified that he does enjoy a cold beer in the evenings, but not like he used to. Id. He alleged that his shoulder problem began in 2000, when he had an accident. (Admin. Tr. 34; Doc. 12-2 p. 35). In 2004, an MRI revealed that he had a significant tear in his rotator cuff. Id.Mr. Erickson categorized his left shoulder problem as “absolutely gravel, ” explaining that his shoulder crackles, snaps, pops, locks up, and causes him a great deal of pain. (Admin. Tr. 29; Doc. 12-2 p. 30). Mr. Erickson reported that his use of pain killers to deal with the shoulder pain heightened the situation because the pain killers masked the pain each time he re-injured his shoulder. (Admin. Tr. 34-35; Doc. 12-2 pp. 35-36). Mr. Erickson testified that he continued working with drywall, but that after reaching over his head and working for a couple hours, he was “done.” (Admin. Tr. 36; Doc. 12-2 p. 37). He reported that he could not work the full range of the job, but instead, could only perform a limited range. Id. Mr. Erickson testified that he could work five to six hours a day, but could not work a full eight hour day. (Admin. Tr. 37; Doc. 12-2 p. 38). He reported that he can lift over his head no more than ten pounds for twenty seconds before he starts hurting. Id. Mr. Erickson reported that he is able to pick something up from off the floor but he could not pick up anything more than twenty to twenty-five pounds. (Admin. Tr. 38; Doc. 12-2 p. 39). He reported that he lives with his disabled wife, who has Parkinson's disease, and he is her primary caregiver. (Admin. Tr. 31; Doc. 12-2 p. 32). Mr. Erickson testified that he does not have a driver's license. (Admin. Tr. 33; Doc. 12-2 p. 34). Mr. Erickson reported that he spends approximately two hours per day doing housework, ranging from laundry, washing dishes, and making the bed. Id. He visits with friends and neighbors on occasion. Id.

         On February 6, 2015, the ALJ denied Mr. Erickson's claim in a written decision. (Admin. Tr. 6-21; Doc. 12-2 pp. 7-22). In his decision, the ALJ concluded that Mr. Erickson was not disabled under the Social Security Act because he retained the capacity to engage in a range of unskilled medium work that did not preclude him from engaging in other work that exists in significant numbers in the national economy. Id.

         On April 13, 2015, upon receipt of the ALJ's decision, Mr. Erickson sought further review from the Appeals Council of the Office of Disability Adjudication and Review. (Admin. Tr. 4-5; Doc. 12-2 pp. 5-6). On May 20, 2016, the Appeals Council denied Mr. Erickson's request for review, making the ALJ's February 2016 decision the final decision of ...


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