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Barrows v. Berryhill

United States District Court, M.D. Pennsylvania

June 28, 2018

STEPHEN M. BARROWS, Plaintiff
v.
NANCY A. BERRYHILL, [1] Defendant

          REPORT AND RECOMMENDATION

          KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE.

         This is an action brought under Section 205(g) of the Social Security Act, 42 U.S.C. §405(g), seeking judicial review of the final decision of the Deputy Commissioner for Operations of the Social Security Administration (“Deputy Commissioner”) denying the claim of Plaintiff Stephen M. Barrows (“Mr. Barrows”) for disability insurance benefits under Title II 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. 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 Deputy Commissioner's decision be AFFIRMED and that Mr. Barrows' request for the award of benefits or a new administrative hearing be DENIED.

         I. Background and Procedural History

         Mr. Barrows' disability claim relates to a history of back pain starting in 2005, in connection with a diagnosis of degenerative disc disease.[2] (Admin. Tr. 166; Doc. 9-6 p. 19). Mr. Barrows received his GED and took some college courses. (Admin. Tr. 154; Doc. 9-6 p. 7); (Admin. Tr. 63; Doc. 9-2 p. 64). His past relevant work consists of a variety of positions, including cable technician, railroad conductor, landscape laborer, and car sales representative. (Admin. Tr. 176; Doc. 9-6 p. 29).

         This is Mr. Barrows' second application for Social Security benefits. On November 14, 2011, Mr. Barrows protectively filed a claim for disability insurance benefits under Title II of the Social Security Act, alleging a disability onset date of April 9, 2009. (Admin. Tr. 86; Doc. 9-3 p. 5). This initial 2009 application was denied on January 20, 2012. (Id.) Mr. Barrows requested a hearing before an Administrative Law Judge (“ALJ”), which took place on December 6, 2012. (Id.) On February 13, 2013, the ALJ issued a decision, denying Mr. Barrows' application for disability insurance benefits. (Admin. Tr. 98; Doc. 9-3 p. 17). A little over one year later, on May 13, 2014, Mr. Barrows filed a second application for disability insurance benefits under Title II of the Social Security Act, alleging a disability onset date of April 9, 2009.[3] (Admin. Tr. 136-137; Doc. 9-5 p. 2-3). In his application, he alleged he is disabled due to the following conditions: displacement of lumbar intervertebral disc; sciatica; adult body mass index 45.0-49.9; osteoarthritis; post-traumatic stress disorder; paroxysmal supraventricular tachycardia; chronic pain; type 2 diabetes; bipolar type 2; and arthritis in hands, feet, and joints. (Admin. Tr. 53; Doc. 9-6 p. 6). Mr. Barrows was born on July 16, 1969 and was forty-years old on the alleged disability onset date.[4] (Admin. Tr. 136; Doc. 9-5 p. 2).

         Mr. Barrows has a history of medical ailments dating back to 2009, which is when he stopped working. In 2009, Mr. Barrows was attending physical therapy and also went through rounds of epidural injections for pain relief. (Admin. Tr. 223-233; Doc. 9-7 pp. 9-19); (Admin. Tr. 412; Doc. 9-9 p. 52). Several years later, on March 20, 2013, after complaining of back pain to his primary care physician, Mr. Barrows underwent a functional capacity evaluation to determine his current safe work limits. (Admin. Tr. 375-381; Doc. 9-9 pp. 15-21). Physical therapist Mary Ann Gimbel (“Ms. Gimbel”) conducted the evaluation in order to determine Mr. Barrows' current functional capacities, as well as to rule out symptom exaggeration. (Admin. Tr. 378; Doc. 9-9 p. 18). Ms. Gimbel opined that Mr. Barrows was limited to the following functional limitations: bending with hands below the knees or extending with hands overhead to rare exposure less than one time every 15 minutes or 15 minutes cumulative per day; standing/walking to occasional exposure to less than three hours per day; sitting to occasional exposure of three hours or less per day; limit stair climbing; restricted ladder climbing or work at unprotected heights; and limit lifting, carrying, pushing or pulling to 20 pounds occasionally, ten pounds frequently or five pounds repetitively. (Admin. Tr. 379; Doc. 9-2 p. 19). Ms. Gimbel opined that Mr. Barrows would only be capable of performing part time work of two to three hours per day. (Id.)

         In April of 2013, Mr. Barrows presented to Dr. Kozlowski, his primary care physician, for ongoing chronic disease management. (Admin. Tr. 849; Doc. 9-15 p. 2). He reported that he was doing okay. (Id.) Mr. Barrows' examination was normal, and Dr. Kozlowski recommended that he continue his same medications and treatment. (Admin. Tr. 850; Doc. 9-15 p. 3). At a follow up in August of 2013, Mr. Barrows reported that he had lost weight and that he was trying to exercise for an hour daily. (Admin. Tr. 862; Doc. 9-15 p. 15).

         Mr. Barrows followed up with Dr. Decolli of Marshall-Rismiller and Associates in relation to his diabetes on August 20, 2013. (Admin. Tr. 459; Doc. 9-10 p. 7). It was noted that Mr. Barrows had not been to this office for approximately two years. (Id.) Upon examination, Mr. Barrows had full range of motion and walked with a normal gait. (Id.) Dr. Decolli diagnosed Mr. Barrows with hypertension-unspecified, palpitations, and cardiac dysrhythmia-unspecified, and prescribed him new medication. (Id.) On November 23, 2013, Mr. Barrows presented to the Schuylkill Medical Center's emergency department, complaining of recurring palpitations. (Admin. Tr. 447; Doc. 9-9 p. 87). He explained that he has a history of supraventricular tachycardia, and that his symptoms previously improved but are now reoccurring. (Id.) After receiving the medication Adenocard and undergoing an EKG, Mr. Barrows was released and instructed to follow up with his family physician. (Admin. Tr. 448-449; Doc. 9-9 pp. 88-89).

         In August of 2013, Mr. Barrows presented to Dr. Ko of Comprehensive Pain Center, complaining of chronic back pain. (Admin. Tr. 490; Doc. 9-10 p. 38). Dr. Ko ordered an MRI of Mr. Barrows' cervical spine, which revealed mild uncovertebral joint arthropathy at ¶ 5-C6. (Admin. Tr. 551; Doc. 9-10 p. 99). On December 31, 2013, Mr. Barrows returned to his primary care physician's office complaining of neck pain. (Admin. Tr. 899; Doc. 9-15 p. 52). The attending physician noted that Mr. Barrows had mild cervical degenerative disc disease and that he revealed no signs of neuropathy on examination. (Admin. Tr. 902; Doc. 9-15 p. 55).

         On January 28, 2014, at a follow up appointment with Dr. Ko in relation to his back pain, Mr. Barrows revealed that the epidural injections he was receiving were greatly improving the pain in his lower back. (Admin. Tr. 481; Doc. 9-10 p. 29). Upon examination, Mr. Barrows had limited range of motion, a right side positive straight leg raising test, and cervical facet joint tenderness. (Admin. Tr. 482; Doc. 9-10 p. 30). Mr. Barrows received a cervical facet injection one month later. (Admin. Tr. 478; Doc. 9-10 p. 26).

         Mr. Barrows continued to follow up with Dr. Decolli. On February 14, 2014, Mr. Barrows reported that he was doing well and had no chest pain or shortness of breath. (Admin. Tr. 460; Doc. 9-10 p. 8). Six months later, at a regular follow up appointment, Mr. Barrows reported that he had no chest pain or shortness of breath and that any episodes in relation to his supraventricular tachycardia had greatly reduced in the past year. (Admin. Tr. 704; Doc. 9-12 p. 66).

         On July 1, 2014, Mr. Barrows' claim was denied at the initial level of administrative review. (Admin. Tr. 115-119; Doc. 9-4 pp. 2-6). During the initial evaluation of Mr. Barrows' claim, the disability examiner determined that Mr. Barrows had the following severe impairments: cardiac dysrhythmias; diabetes mellitus; obesity; osteoarthrosis and allied disorders; and anxiety disorders. (Admin. Tr. 109; Doc. 9-3 p. 28). The disability examiner concluded that Mr. Barrows' impairments did not significantly limit his physical or mental ability to do basic work activities, and ultimately found that he was not disabled. (Admin. Tr. 113; Doc. 9-3 p. 32). Mr. Barrows filed a timely request for a hearing before an ALJ. (Admin. Tr. 120-121; Doc. 9-4 pp. 7-8).

         Mr. Barrows presented to Dr. Kaufman of Orthopedic Specialists on July 14, 2014, complaining of ongoing left foot pain. (Admin. Tr. 605; Doc. 9-11 p. 53). Dr. Kaufman diagnosed Mr. Barrows with plantar fasciitis, pain in lower limb, peroneus brevis tenosynovitis, and short Achilles tendon. (Admin. Tr. 606; Doc. 9-11 p. 54). Mr. Barrows continued to follow up with Dr. Kaufman in relation to his foot pain and on September 14, 2014, Dr. Kaufman recommended that Mr. Barrows undergo surgery on his left foot. (Admin. Tr. 591; Doc. 9-11 p. 39).

         Dr. Kozlowski conducted a pre-operation clearance examination on Mr. Barrows on October 3, 2014. (Admin. Tr. 943; Doc. 9-16 p. 40). Dr. Kozlowski noted that he was doing well and medically stable but she wanted to await his cardiology report before clearing him for surgery. (Admin. Tr. 946; Doc. 9-16 p. 43). Dr. Kozlowski cleared Mr. Barrows for surgery on October 26, 2014, after receiving Mr. Barrows' normal cardiac stress test results. (Admin. Tr. 947; Doc. 9-16 p. 44). Mr. Barrows underwent a successful left open plantar fasciectomy, left tenosynovectomy common peroneal tendon sheath, left repair of peroneus brevis tendon, and a steroid injection to the first metatarsophalangeal joint on October 27, 2014. (Admin. Tr. 634; Doc. 9-11 p. 82). At his post-operative appointment, he reported that he was doing well. (Admin. Tr. 582; Doc. 9-11 p. 30).

         On June 9, 2015, Mr. Barrows presented to the emergency department complaining of recurrent palpitations and rapid heart rate. (Admin. Tr. 813; Doc. 9-14 p. 2). After receiving the medication Adenocard and undergoing an EKG, Mr. Barrows was released and instructed to follow up with his family physician. (Admin. Tr. 814; Doc. 9-14 p. 3). Mr. Barrows followed up with Dr. Decolli one week later and reported that he felt well and had no further episodes since the last emergency department visit. (Admin. Tr. 705; Doc. 9-12 p. 67). At Dr. Decolli's suggestion, Mr. Barrows underwent an echocardiogram the following month, which revealed no structural heart disease and a 67% ejection fraction, which Dr. Decolli characterized as “good.” (Admin. Tr. 708; Doc. 9-12 p. 70).

         On October 29, 2015, Mr. Barrows appeared and testified at an administrative hearing before ALJ Timothy Wing. (Admin. Tr. 56-82; Doc. 9-2 pp. 57-83). At the start of the hearing, Mr. Barrows amended his disability onset date to March 20, 2013.[5] (Admin. Tr. 58; Doc. 9-2 p. 59). Mr. Barrows testified that he is unable to work because of back pain, drowsiness associated with the treatment of h is back pain, as well as a heart condition. (Admin. Tr. 66; Doc. 9-2 p. 67). Mr. Barrows explained that he tried to work since his amended disability onset date but he had to stop working because he was unable to maintain sitting at a computer for longer than four hours and his medication made him drowsy. (Admin. Tr. 64; Doc. 9-2 p. 65). He reported that on his best day, he can walk ten to fifteen minutes. (Admin. Tr. 67; Doc. 9-2 p. 68). Mr. Barrows testified that he cannot lift anything heavier than a gallon of milk because of arm and back problems. (Admin. Tr. 67-68; Doc. 9-2 pp. 68-69). He discussed his typical day, in which he awakens between 4:00 a.m. and 5:00 a.m. to get his sons up to get them ready for school and then he spends time surfing the internet or taking photographs before he is ready for a nap. (Admin. Tr. 71; Doc. 9-2 p. 72). Charlotte Carney Abraham, an impartial vocational expert, also testified at the hearing. (Admin. Tr. 56-82; Doc. 9-2 pp. 57-83).

         Two months after Mr. Barrows' hearing, on December 2, 2015, Dr. Kakodkar conducted an internal medical consultative examination in relation to Mr. Barrows' disability claim. (Admin. Tr. 1035-1049; Doc. 9-18 pp. 18-32). Dr. Kakodkar completed a Medical Source Statement of Ability to do Work-Related Activities (Physical) for Mr. Barrows and opined that he could frequently lift and carry twenty pounds; continuously lift up to ten pounds; sit for six hours per workday for forty minutes at a time; stand for five hours per workday for twenty minutes at a time; and walk three hours per workday up to one block at a time. (Admin. Tr. 1041-1042; Doc. 9-18 pp. 24-25). Dr. Kakodkar found that Mr. Barrows could continuously reach, handle, finger, and feel; frequently reach overhead with his right hand and continuously reach overhead with his left hand; occasionally push and pull with his right hand and continuously push and pull with his left hand; frequently operate foot controls; occasionally climb stairs and ramps, stoop, kneel, crouch, and crawl; frequently balance; and never climb ladders or scaffolds. (Admin. Tr. 1043-1044; Doc. 9-18 pp. 26-27). Finally, Dr. Kakodkar found that Mr. Barrows could never be exposed to unprotected heights, humidity, wetness, extreme cold, and vibrations; occasionally operate a motor vehicle; frequently be exposed to extreme heat; and continuously be exposed to dust, odors, fumes, pulmonary irritants. (Admin. Tr. 1045; Doc. 9-18 p. 28).

         The ALJ denied Mr. Barrows' claim in a written decision dated February 2, 2016 in which the ALJ concluded that Mr. Barrows was not disabled, as he possesses the RFC to perform the following jobs: bench worker, assembler; inspector; and information clerk.[6](Admin. Tr. 29; Doc. 9-2 p. 30). Mr. Barrows requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 135; Doc. 9-4 p. 22). The Appeals Council ultimately denied his request. (Admin. Tr. 1-5; Doc. 9-2 pp. 2-8).

         On August 4 2017, Mr. Barrows initiated this action by filing a complaint. (Doc. 1 pp. 1-4). In his complaint, Mr. Barrows alleges that the ALJ's decision was not based on applicable law, was not rational, and was not based on substantial evidence of record. (Id. at 3). As relief, he requests that this Court reverse the ALJ's decision and award benefits. (Id). On September 22, 2017, the Deputy Commissioner filed her answer. (Doc. 8 pp. 1-4). In her response, the Deputy Commissioner maintains that the ALJ's final decision denying Mr. Barrows' claim was made in accordance with the law and the regulations, and is supported by substantial evidence. (Id. at 2). Together with her answer, the Deputy Commissioner filed a certified transcript of the record of the administrative proceedings in this case. (Doc. 9). This matter has been fully briefed by the parties and is ripe for decision. (Doc.10; Doc. 19).

         II. Standard of Review

         To receive benefits under Title II of the Social Security Act, the claimant must demonstrate an inability to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To satisfy this requirement, the claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in significant number in the ...


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