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Purnell v. Colvin

United States District Court, N.D. Alabama, Southern Division

March 27, 2015

HERMAN E. PURNELL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OF DECISION

R. DAVID PROCTOR, District Judge.

Plaintiff Herman Purnell brings this action pursuant to Title II of Section 205(g) and Title XVI of Section 1631(c)(3) of the Social Security Act (the "Act"), seeking review of the decision of the Administrative Law Judge ("ALJ"), denying his claims for disability, disability insurance benefits ("DIB"), and Supplemental Security Income ("SSI"). See 42 U.S.C. ยงยง 405(g) and 1383(c). Based on the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

I. Proceedings Below

This action arises from Plaintiff's application filed on August 31, 2009 for SSI under Title XVI, as well as an application filed on September 3, 2009, for disability and DIB under Title II. (Tr. 72-73, 127-32, 133-36). Both applications alleged disability beginning on December 31, 2005. (Tr. 129, 133). His claims were denied on September 15, 2010. (Tr. 78, 83). Plaintiff subsequently requested a hearing on November 15, 2010. (Tr. 90-92). A hearing was held on April 20, 2012, via video conference in St. Louis, Missouri. (Tr. 36-68). Plaintiff appeared in Birmingham, Alabama with his attorney. (Tr. 36). Also present at the hearing was a Vocation Expert ("VE"). (Id. ).

On May 30, 2012, the ALJ issued a decision, finding Plaintiff had not been under a disability as defined by the Act since his alleged onset date of December 31, 2005. (Tr. 20-30). After the ALJ rendered his decision, Plaintiff requested review by the Appeals Council. (Tr. 14-16). The Appeals Council denied Plaintiff's request and the ALJ's decision became the final decision of the Commissioner; therefore, a proper subject of this court's appellate review. (Tr. 1-3).

At the time of the hearing, Plaintiff was forty-four years old with a tenth[1] grade education, but cannot read or write. (Tr. 41-42, 48, 63). Notably, Plaintiff's intellectual quotient ("IQ") ranges from 72-78, and he was in special education classes while in school. (Tr. 185-90). Plaintiff previously worked as an assembler, grounds keeper, laborer, delivery helper, and maintenance helper. (Tr. 62-63, 165, 212). Plaintiff alleges he is unable to work due to limitations caused by a leg injury, high blood pressure, and pain when standing. (Tr. 161). Plaintiff also has dyslipidemia, glucose intolerance, chronic kidney disease secondary to high blood pressure, congestive heart failure, concentric hypertrophy (enlarged heart), erectile dysfunction, chronic pain, and degenerative arthritis in his knee. (Tr. 341, 350, 356, 372, 385, 388). The record shows that Plaintiff was involved in a motor vehicle crash in the past and underwent a surgical intervention leaving him with "plates in his spine."[2] (Tr. 372, 438).

Plaintiff's function report, filled out by Yteria Tolbert, a friend of Plaintiff's for twenty years, states that Plaintiff's conditions causes him problems with lifting, squatting, bending, standing, walking, sitting, kneeling, and climbing stairs. (Tr. 173). He has difficulty with his memory, completing tasks, concentration, understanding, following instructions, and getting along with others. (Tr. 170-73). He is capable of making himself sandwiches, but does not prepare meals anymore because he forgets he is cooking and burns the food, he does not finish projects that he starts because he "forget[s] where [he is] on written instruction, " and indicates that he "don't like to be told what to do so [he] don't take instruction good." (Id. ). He can cut the yard in two days, do laundry, and go outside to sit and to feed the dog, drive, shop for his clothes, watch TV, and garden. (Id. ). Plaintiff's report also states he attends church when "my sister get[s] me up, " can walk approximately two blocks without needing to rest, and is able to pay bills and count change. (Id. ).

Along with Plaintiff's own Function Report, an Adult Third Party Functional Report was submitted by Ms. Tolbert, on Plaintiff's behalf. (Tr. 201-08). Ms. Tolbert reported that: Plaintiff sleeps during the day, not at night; does not dress or bathe the way he has in the past; and does not eat often. (Tr. 202). Ms. Tolbert further reported Plaintiff can prepare frozen dinners, make his bed, and rinse the bathtub out. (Tr. 203). Contrary to Plaintiff's Function Report, Ms. Tolbert reported Plaintiff is unable to pay bills, count change, handle a savings account, or use a checkbook or money orders. (Tr. 204). Ms. Tolbert also reported that Plaintiff needs someone to accompany him to the doctor because "he does not thin[k] anything is wrong with him." (Tr. 205). Additionally, Ms. Tolbert reported that Plaintiff's back hurts him, and walking or sitting too long also hurts him. (Tr. 206). Additionally, in further contrast to Plaintiff's Function Report, Ms. Tolbert reported Plaintiff is able to walk only a half block before needing to stop for rest. (Id. ).

In August 2010, Plaintiff was examined by Dr. Hirenhumar Jani, a consultative examiner for the Social Security Administration. (Tr. 258-62). The examination record shows that Plaintiff complained of pain in his chest, neck, left leg, and right hand. (Tr. 259). On a scale of zero to ten, Plaintiff described the pain in his chest as a three, his neck an eight, his left leg a ten, and his right hand an eight. (Tr. 259-60). Dr. Jani noted that Plaintiff could drive, do limited housework chores like cooking and making his bed, wash dishes, vacuum, and do yard work. (Tr. 260). Plaintiff denied smoking, alcohol, or substance abuse. (Id. ). Dr. Jani also noted Plaintiff had "several epidural injections and also underwent therapy for two weeks without any improvement." (Tr. 259). Plaintiff's examination was unremarkable except for his present complaints of pain. (Tr. 260). Based on Plaintiff's school record and psychological evaluation, Dr. Jani noted Plaintiff fell into the "slow learner of intellectual-function category." (Tr. 259). After examining Plaintiff and reviewing his records, Dr. Jani made the following functional assessment and medical source statement:

As far as walking and standing, [Plaintiff] can walk and stand at least six hours without any restrictions. No restrictions while sitting. He does not need any assistive device. He can lift and carry 100 pounds occasionally and 50 pounds frequently without any restrictions. Postural[l]y and manipulatively, there are no restrictions. Environmentally, he needs to be in an adaptive environment for a slow learner.

(Tr. 262).

Later in August 2010, Plaintiff was seen by Dr. John Neville, a licensed psychologist, at the request of the Social Security Administration. (Tr. 263-66). Dr. Neville noted that Plaintiff indicated his back and legs hurt, he was not sleeping well, and that he had lost twenty pounds in the last year. (Tr. 263). Dr. Neville further noted Plaintiff was easily fatigued and had poor energy and motivation. (Id. ). Additionally, Plaintiff had indicated he was suicidal, and said that he "feels tense all the time, " and has a bad temper. (Id. ). Additionally, Dr. Neville noted Plaintiff said that he gets physically aggressive at times, and "sees snakes all the time." (Id. ). When examining Plaintiff's mental status, Dr. Neville found Plaintiff did not appear depressed or psychotic, was not anxious or restless, and that he was alert and well-oriented. (Tr. 265). After being asked several addition, subtraction, multiplication and division questions, Plaintiff answered only the addition questions correctly. (Id. ). Plaintiff's judgment and insight were noted to be poor, and his intellectual functioning was in the borderline to mildly retarded range. (Id. ).

Dr. Neville's diagnostic impression showed Plaintiff had a mild, single episode of Major Depressive Disorder, and borderline intellectual functioning. (Tr. 266). Both psychiatric treatment and psychotherapy were recommended for Plaintiff, with Dr. Neville noting Plaintiff's prognosis "fair to good" if treatment was received. (Id. ). After the examination and review of the medical evidence of record, Dr. Neville found Plaintiff was cognitively able to manage his finances, as well as cognitively and emotionally capable of functioning independently. (Id. ). Plaintiff's short term memory was noted to be moderately to severely impaired, and his ability to carry out instructions also mildly to moderately impaired. (Id. ). Dr. Neville further noted Plaintiff's ability to cope with ordinary work pressures was moderately impaired, but he seemed willing to accept supervision. (Id. ).

In September 2010, Dr. Robert Estock, a non-examining medical consultant, reviewed Plaintiff's records upon request by the Social Security Administration, and completed a psychiatric review technique and a residual functional capability ("RFC") assessment. (Tr. 272-89). Dr. Estock noted Plaintiff had depression and borderline intellectual functioning. (Tr. 275-76). Dr. Estock further noted Plaintiff had moderate limitations in the following: activities of daily living; social functioning; and concentration, persistence, or pace. (Tr. 282). However, he found Plaintiff had no episodes of decompensation for an extended duration. (Id. ). In his mental RFC assessment, Dr. Estock noted Plaintiff was able to understand and remember simple, not detailed, tasks. (Tr. 288). Dr. Estock further noted that Plaintiff may miss a day of routine duties due to his psychological impairment, but that he was able to complete simple one to two step tasks for at least two hours, and thus was able to complete an eight hour work day without excessive breaks or frequent supervision. (Id. ). Dr. Estock's RFC assessment found Plaintiff was capable of interacting with co-workers and the public in a casual setting and could accept non-threatening supervision. (Id. ). Dr. Estock ended his assessment by noting Plaintiff's work demands should be mostly routine, with change being infrequent and, in any event, gradually introduced. (Id. ).

During Plaintiff's alleged period of disability, he received treatment from various healthcare providers. In December 2010, Plaintiff was referred to the Heart South Cardiovascular Group ("Heart South") by his primary care physician, Dr. Howard. At his initial visit, Plaintiff complained of chest pain and shortness of breath. (Tr. 345). Plaintiff also admitted "ongoing tobacco and [marijuana] usage, " and had a family history of heart disease. (Tr. 345). The physician advised Plaintiff to undergo a cardiac catheterization to evaluate his heart health. (Tr. 348). In January 2011, Plaintiff underwent a heart catheterization with selective left and right coronary angiography. (Tr. 340). The results of that procedure were negative, except for "very mild" atherosclerotic plaquing and mild peripheral arterial disease. (Tr. 341). The records show that at the follow-up appointment with Heart South, Plaintiff had no complaints except erectile dysfunction. (Tr. 350). Six months later, at another follow-up, Plaintiff stated his chest pain had resolved, but that he had muscle weakness due to his cholesterol medication, numbness, ringing in his ears, and arthritis. (Tr. 422). The record shows Plaintiff reported being in no pain during the visit. (Tr. 423). At Plaintiff's last visit to Heart South in January 2012, he complained of night sweats, back pain, and "falling down." (Tr. 429). The remainder of Plaintiff's assessment was negative for any abnormalities. (Id. ).

Plaintiff's visits to his primary care physician, Dr. Howard, are numerous. The week of Plaintiff's heart catheterization in January 2011, Plaintiff was seen by Dr. Howard for complaints of pain in his left leg and knee that had become so severe he was having difficulty walking. (Tr. 357). Dr. Howard suspected the pain was caused by arthritis and an x-ray was performed, the results of which showed significant degenerative arthritis. (Tr. 356-57). Plaintiff's examination showed he was attentive, with a stable mood and outlook. (Tr. 357). In April 2011, Plaintiff saw Dr. Howard again, complaining of left knee pain; an MRI was ordered and results showed "mild tendinosis." (Tr. 388, 401). On the same visit, other than complaints of back, neck and knee pain, Plaintiff's examination was normal. (Tr. 388-89). Dr. Howard further noted that Plaintiff had no sleeping problems, no sensory deficits, his mood and outlook was stable, and he was attentive. (Id. ).

On April 28, 2011, Plaintiff visited the Emergency Room at Baptist Shelby Medical Center ("Baptist Shelby") complaining of chest pressure and radiating pain in his left arm. After a few hours his pain had subsided. (Tr. 406-21). Plaintiff was discharged after his EKG and lab tests were completed and he was ordered to follow-up with his primary care physician, Dr. Howard. (Tr. 409). A few days later, Plaintiff visited Dr. Howard for an evaluation, complaining that he had pain when he raised or rotated his left arm. (Tr. 385). Dr. Howard noted Plaintiff's pain to be consistent with "chest wall syndrome, " and ordered a Medrol Dosepak and Mobic. (Tr. 385). Dr. Howard further noted that Plaintiff showed no focal musculoskeletal deficits, and that his muscles appeared normal and symmetric. (Tr. 385-86).

On June 13, 2011, Plaintiff saw Dr. Howard, and requested Lortab to manage his back pain until his pain management appointment on June 21, 2011.[3] (Tr. 382). Dr. Howard noted he had prescribed Plaintiff Indocin and Lortab in the past for his chronic pain. (Id. ). Dr. Howard prescribed Plaintiff twenty (20) Lortab tablets for his severe back pain, and ordered Plaintiff to hold his cholesterol medication for two weeks.[4] The following month, Plaintiff was evaluated by Dr. Howard for "significant cervical pain and pain down his arm." (Tr. 379). Dr. Howard noted that Plaintiff experienced a lot of leg pain and paresthesias, and ordered a nerve conduction study[5] as the symptoms were consistent with ...


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