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Reynolds v. Berryhill

United States District Court, M.D. Pennsylvania

July 24, 2018

Carl E. Reynolds, Plaintiff
v.
Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant

          MEMORANDUM

          RICHARD P. CONABOY UNITED STATES DISTRICT JUDGE

         1. Procedural background.

         We consider here Plaintiff's appeal from an adverse decision of the Social Security Administration (“SSA”) or (“Agency”) regarding his application for Disability Insurance Benefits (“DIB”) or Supplemental Security Income Benefits (“SSI”). Plaintiff's application was initially denied at the administrative level whereupon he requested a hearing before an Administrative Law Judge (“ALJ”). He received that hearing on March 3, 2016. The ALJ denied Plaintiff's application by written decision dated March 24, 2016. (Doc. 8-2 at 8-25). The Appeals Council denied Plaintiff's request for review by notice dated September 19, 2017. Plaintiff then appealed to this Court by Complaint (Doc. 1) dated October 4, 2017. This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405g.

         II. Testimony before the ALJ.

         A hearing was conducted before ALJ Michelle Wolfe in Wilkes-Barre, Pennsylvania on March 3, 2016. Testimony was taken from the Plaintiff and from Pat Tularey, a vocational expert (“VE”). Plaintiff was represented at the hearing by attorney Jonathon P. Foster. The testimony may be summarized as follows.

         Plaintiff resides in a two bedroom trailer in Wysox, Pennsylvania with a roommate. He was born on November 19, 1967 and was forty-eight years of age on the date of the hearing. He indicated that he became disabled effective January 29, 2012 but, due to the res judicata effect of the final decision on a previous claim, his attorney indicated that the onset date of Plaintiff's disability should be considered January 10, 2014. (R. at 64).[1]

         Plaintiff stated that he is five feet nine and one-half inches tall, weighs 181 pounds, and is right hand dominant. He has a current driver's license but stated that he has not driven in more than one year because of the effects of medication that he takes and his lack of access to a vehicle. He completed high school in a vocational/technical program with emphasis on building trade maintenance. He is divorced with a sixteen year old daughter of whom he has joint custody with his former spouse. His daughter's primary residence is with her mother. Plaintiff is in constant pain, experiences memory loss, and becomes “skittish” around other people. He last worked in 2012 as a laborer in the gas industry on a “frac site”. (R. 64-66).

         Plaintiff received injections in February and July of 2015 related to his back symptomology. He goes once each week to see a counselor and once each month to see a psychiatrist. He has had one hospital admission since 2012 which was caused by chest pains. He was prescribed nitroglycerine for these chest pains, continues to take it, and is on several other medications as well. He experiences side effects from these medications including weight loss, memory loss, fatigue, and trouble sleeping. (R. 67-69). Plaintiff usually goes to bed about 3:00 a.m. and rises at about 11:00 a.m. He does no chores at home unless his roommate is present to help him with his balance. His balance is compromised to the point that he has fallen out of the shower twice and into the stove once. He does no housework of any kind. He does no gardening or lawn work of any kind. His roommate does all shopping without assistance of any kind from him. He does not read nor does he use a computer. (R. 69-70).

         Plaintiff smokes approximately six cigarettes each day and is trying to quit smoking. He turns the television on during the day “just to hear other people's voices.” Other than paying casual attention to the television, Plaintiff does little else all day. He last went to physical therapy in December of 2014 but continues to try to perform stretching movements for his back pain. He estimates that he can walk ten to fifteen feet with the assistance of a cane. He reports that he can stand for five to ten minutes before needing to sit down due to tingling and burning in his feet, knees, and hips. When he sits he begins to experience the same sensations in his hands. He neither lifts nor carries anything. (R. 71-72).

         Upon examination by his attorney, Plaintiff stated that he was identified as a special education student from grades six through twelve. He stated that he spends most of the day laying on his side on a couch. His doctors have suggested to him that the only remaining alternative to afford him relief from his back and leg pain is another surgery. Toward that end, he is going to a consultation at Geisinger Medical Center. (R. 73-74).

         Plaintiff stated that he performs no household chores including vacuuming, sweeping, and taking out the trash. He never entertains friends or visitors, never attends social activities, and never goes out to eat. He stated that he has problems being around others and he feels the need to get away from them. He tries to deal with such situations but finds it difficult. (R. 75).

         Plaintiff worked at various jobs from 1984 through some date in 2012. He currently takes the medicine Norco four times daily and he finds that it impairs his ability to concentrate. He stated that he gets four to five hours sleep on average each night. He experiences a tingling and burning sensation constantly in his dominant (right) hand. (R. 76-77).

         A vocational expert (“VE”) also testified. The VE reviewed Plaintiff's work history in the preceding fifteen years and found that Plaintiff's work had all been classified as either medium or heavy exertional level and as unskilled or, in one instance, semi-skilled work. After that recitation, the ALJ asked the VE to assume a hypothetical claimant of the same age, educational level, and work history as the Plaintiff who has the residual functional capacity to work at a light exertional level with additional limitations including: frequent lifting/carrying up to ten pounds and occasional lifting/carrying up to twenty pounds; standing or walking no more than two hours in an eight hour workday; no pushing or pulling with the lower extremities; no exposure to cold, wetness, humidity, and hazards including moving machinery and unprotected heights; only occasional balancing, stooping, crouching, crawling, and kneeling; no use of ladders, stairs, or scaffolds; and limitation to a low-stress work environment confined to simple, routine tasks and only occasional interaction with the public, co-workers, and supervisors. Based on these assumptions, the VE stated that the hypothetical individual would be unable to perform any of Plaintiff's past relevant work. (R. 77-80).

         The VE stated, however, that the hypothetical individual could perform other jobs that exist in significant numbers in the national economy including “bench worker” and “metal and plastics worker”; These jobs were categorized by the VE as “sedentary” and the hypothetical individual's need for a cane or need to transfer positions regularly from sitting to standing would have no effect on the hypothetical individual's ability to perform these jobs. However, if additionally limited such that the hypothetical individual would need additional breaks and be off task for than 20% of the workday, the vocational expert responded that the hypothetical individual could not maintain full time employment. (R. 81-82).

         The Plaintiff's attorney asked the VE whether, assuming the same hypothetical individual and further assuming he also had impairment in his dominant hand that precluded more than occasional gripping and fingering, that hypothetical individual would be able to perform as a “bench worker” or “plastics worker”. The VE responded that, given the hand limitations, the hypothetical individual would be unable to perform the jobs identified. The VE testified further that, if the hypothetical individual was limited to sitting four hours in a workday or that the use of narcotic medications would cause him to be off work 20% of a workday, that hypothetical individual would be unemployable. (R. 83-87).

         III. Medical evidence.

         a. Dr. Sweet.

         Dr. Constance M. Sweet has been Plaintiff's primary care physician throughout the relevant (post January 9, 2012) time period. The record reveals the Dr. Sweet saw him on at least twenty-three occasions between Plaintiff's alleged onset date and the time of his hearing. On each of these occasions Dr. Sweet diagnosed degenerative disc disease of the cervical and lumbar spine, depressive disorder, and gastroesophageal reflux disease (GERD). Dr. Sweet's progress notes uniformly assessed that Plaintiff was alert and in “no distress” and, on all but a few occasions (December 19, 2012; March 25, 2014; and May 8, 2015), that Plaintiff presented with “normal gait”. On a few occasions Dr. Sweet recorded extreme emotional distress and anxiety which caused her to refer Plaintiff to a psychiatrist. (Exhibits 8-10 through 8-13).

         By way of objective testing, Dr. Sweet referred Plaintiff for an MRI on May 15, 2014. The MRI disclosed bulging discs at ¶ 3-4, L4-5, and L5-S1 without focal herniation. Degenerative arthritis of the facet joints combined with a bulging disc was found to produce “a mild degree of central canal spinal stenosis at ¶ 4-5.” (R. 422).

         Dr. Sweet referred Plaintiff to Dr. Bruce H. Levin at Memorial Hospital in Towanda, Pennsylvania for cervical foraminal epidural steroid injections. These procedures were performed on July 8, 2015 at ¶ 4-5 and C6-7. (R. 499-5). Dr. Sweet's office note of August 7, 2015 (R. 572) reports that the injections had not helped much thus far. Her office note of November 8, 2015 (R. 578) reports that the injections had failed and that a spinal stimulator would be prescribed. Plaintiff indicated at his hearing that the spinal stimulator had proven unhelpful. (R. 73-74).

         On July 8, 2015 Dr. Sweet executed a Medical Source Statement (R. 49-493)in which she opined that Plaintiff: could never lift or carry any weight; could sit, stand and walk for a total of no more than six hours in a day; needs to lay down frequently; needs a cane to ambulate and can walk no more than fifty feet without one; could occasionally climb stairs and ramps but never climb ladders or scaffolds, balance, stoop, crawl, crouch, or crawl; could never be exposed to unprotected heights, moving machinery, humidity, dust, pulmonary irritants, extreme cold or heat, and vibrations; and only occasionally operate a motor vehicle. Dr. Sweet found further that these limitations would last for twelve months or longer.

         b. Dr. Magurno.

         Dr. Justine Magurno saw Plaintiff once in her capacity as a consulting/examining physician. Dr. Magurno performed a medical examination during which she took an oral history of Plaintiff's complaints. Plaintiff related that he cooks three times each week, cleans three times each week, and shops once each week, all with the help of his girlfriend. Plaintiff's chief physical complaint was back pain radiating down his left leg and producing numbness in both hands. Plaintiff described his pain as nine on a scale of ten.

         Dr. Magurno physically examined Plaintiff and found: that Plaintiff did not appear to be in any acute distress; that Plaintiff could stand on his heels and toes with difficulty; that he could perform a half squat while holding onto a counter top; that his gait was waddling, wide based, and ataxic; that he needed no help changing his clothes or getting on and off the examination table; and that he had moderate difficulty rising from a chair.

         Plaintiff's neurologic examination disclosed; equal deep tendon reflexes in all extremities; sensory loss in the left leg with sensation preserved in the left foot; strength in all extremities to the extent of 4/5 or 5/5; and no muscle atrophy evident. Dr. Magurno diagnosed: (1) disc disease and retrolisthesis in the cervical spine;[2](2) ataxic gait;[3](3) disc disease of the lower back; and (4) history of anxiety; attention deficit hyperactivity disorders; and anger issues. Dr. Magurno assigned Plaintiff a prognosis of “fair”.

         Dr. Magurno also executed a Medical Source Statement in which she indicated that Plaintiff: could occasionally lift and carry up to ten pounds but never lift and carry more that ten pounds; could sit for one hour at a time, stand for ten minutes at a time and walk for five minutes at a time; could sit for six hours, stand for one hour, and walk for forty-five minutes in total in the course of an eight hour workday; could walk no more than twenty feet without use of his cane; could use his free hand to carry small objects while ambulating with his cane; could continuously reach, finger, and feel bilaterally, frequently handle bilaterally, and occasionally push and pull bilaterally; could occasionally operate foot controls bilaterally; could frequently stoop, occasionally climb stairs and ramps, kneel and crouch, and never balance, climb ladders and scaffolds, or crawl; and could continuously be exposed to humidity, dust, odors, ...


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