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Bell v. Berryhill

United States District Court, S.D. Alabama, Northern Division

June 30, 2017

STANLEY BELL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability and disability insurance benefits. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Docs. 30 & 31 (“In accordance with provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States magistrate judge conduct any and all proceedings in this case, . . . order the entry of a final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of the administrative record, Plaintiff's brief, the Commissioner's brief, and the arguments of counsel at the May 10, 2017 hearing before the Court, it is determined that the Commissioner's decision denying benefits should be affirmed.[1]

         I. Procedural Background

         Plaintiff protectively filed an application for a period of disability and disability insurance benefits on January 3, 2013, alleging disability beginning on November 1, 2008. (See Tr. 123-29.) His claim was initially denied on February 21, 2013 (Tr. 76-79) and, following Plaintiff's written request for a hearing before an Administrative Law Judge (“ALJ”) (see Tr. 87-88), a hearing was conducted before an ALJ on May 29, 2014 (Tr. 35-66). During the hearing, Bell amended his disability onset date to November 9, 2012. (See Tr. 38.) On October 27, 2014, the ALJ issued a decision finding that the claimant was not disabled and, therefore, not entitled to disability insurance benefits. (Tr. 18-30.) More specifically, the ALJ went to the fifth step of the five-step sequential evaluation process and determined that Bell retains the residual functional capacity to perform those unskilled light jobs identified by the vocational expert (“VE”) during the administrative hearing (compare Id. at 29 with Tr. 60-62). On December 22, 2014, the Plaintiff appealed the ALJ's unfavorable decision to the Appeals Council (Tr. 12-14) and, the Appeals Council denied Bell's request for review on April 11, 2016 (Tr. 1-4).[2]Thus, the hearing decision became the final decision of the Commissioner of Social Security.

         Plaintiff alleges disability due to depressive disorder, degenerative changes in the knee, and shoulder tendonitis. In light of the issues raised by Plaintiff in her brief (see Doc. 18, at 3 & 7), the Court simply replicates most of the residual functional capacity portion of the ALJ's decision (Tr. 30-36), [3] as follows:

5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). He can lift and/or carry twenty pounds occasionally and ten pounds frequently; can stand and/or walk six hours in an eight-hour day; can sit for 6 hours out of an eight-hour workday; can push/pull up to twenty pounds; can frequently balance; occasionally stoop, kneel, and crouch; never crawl; can frequently climb ramps and stairs; occasionally climb ladders, ropes, or scaffolds; can perform fine and gross manipulation without limitation; can only occasionally engage in overhead reaching with right upper extremity; no visual or hearing limitations; avoid concentrated exposure to unprotected heights and hazardous moving machinery; avoid excessive vibrations; can understand, remember and carry out simple routine repetitive tasks continually; can occasionally perform detailed tasks; can occasionally perform complex tasks; can maintain attention and concentration for two[] hours across an 8-hour workday with normal breaks; interact appropriately with co-workers and supervisors; contact with the public should be no more than occasional; [and] changes in the work setting should be minimal.
There is no medical evidence of treatment after December 8, 2010, for almost two years, or until he was seen at Med Center Demopolis on November 9, 2012. The records show that his chief complaints at the time were right shoulder pain, both hips, and lower back pain for two years. He reported injuring himself two years before and that the pain was still constant. He reported being unable to sleep at night for the pain. He reported associated symptoms of frontal headache and joint pain with no swelling. He reported shoulder injury from a fall. He weighed 245 pounds and his blood pressure was 132/87. The findings on physical examination were normal and he was assessed with headache; arthralgia; and shoulder pain. He was prescribed Naprosyn and Norco with no refills. . . .
After filing for disability, a State Agency worksheet dated February 11, 2013, shows the doctor was contacted for clarification on the right shoulder x-ray. The record indicates the doctor stated the x-rays showed “AC separation old w/no acute fx”.
Records from Hale County Hospital Clinic show on May 3, 2013, the claimant reported his right knee had been swollen for two weeks with no pain and on/off bilateral shoulder pain for one year. He reported taking no medications. Physical examination findings show his right knee was slightly larger than the left but was non-tender. He weighed 225 pounds and his blood pressure was 150/90. He was given prednisone.
The records from West Alabama Mental Health Center (West Alabama) show the claimant was seen on May 13, 2013, as a self-referral. The record shows the claimant reported he was laid off five years before and was sad because he was not working. The record shows he reported he had not been looking for work and was trying to get on disability. He reported that he had shoulder problems and was being treated by different doctors for that condition. The records note that the clinician rated the claimant's reliability as questionable. The claimant reported that he was married and had no source of income. He reported that his wife was on disability and that his son is an artist and helped him pay bills. He reported that he spent his time watching television. He reported auditory hallucinations and that his increased energy level made him dizzy when walking. The intake evaluation noted the claimant complained of anhedonia and that he has no “get up and go” anymore. He was assessed with major depressive disorder single episode moderate. The record shows over the counter Advil but no other prescriptions at that time. When he returned on June 13, 2013, the record indicates minimal progress and that he had deficient activity involvement and the goal was to increase interest in activities. The therapist encouraged the claimant to exercise and [make] healthy food choices. The next visit on July 11, 2013, shows the claimant reported he had been having trouble with his family and reported he and his wife fight all the time over finances. The therapist encouraged better communication skills and a referral to a physician for an assessment as soon as possible was to be made. The record noted he had made moderate progress. His motor activity was calm and his perceptual disturbances were within normal limits. The record shows he was being prescribed pain medication for his knee. His visit of August 5, 2013, indicates he was still on no psychotropic medications. The claimant reported not being involved in activities because “he does not have a ride to get anywhere.” He reported good appetite and good sleep and his perceptual disturbances were within normal limits. When he returned on September 9, 2013, the claimant had made moderate progress and reported he had been eating and sleeping well. He reported that he had been feeling better because he had been focusing on watching football, which makes him happy. He was to be referred to the physician for an initial psychiatric assessment. On October 9, 2013, the record shows he was making good progress. He reported going fishing, cutting grass and spending time with his family. The claimant was seen by Swati Poddar, M.D. on his visit of November 8, 2013. Dr. Poddar noted the claimant's thoughts were within normal limits. The claimant reported feeling low in his mood for the past year. He reported that he was married and lived with his wife at his son's house. He reported drinking alcohol two times a week or 24 cans a week. He was prescribed Mirtazapine to be taken every night at bedtime. He was to return to the clinic in three months and to follow-up with psychotherapist for individual psychotherapy. Dr. Poddar assigned a global assessment of functioning at Axis V of 90-100[4]. The therapist noted the claimant reported a little trouble with his sleep. He reported that he was more interested and taking part in more activities and had been spending time with his brother daily.
Records from Hale County Hospital Clinic show on November 26, 2013, the claimant report right knee pain, right shoulder pain, and headache. He reported that his right knee had been giving away for a year. His blood pressure was elevated at 138/102. Physical examination findings were normal except for a hard nodule on the top of his right shoulder. His right knee was normal. He weighed 228 pounds. He was to return in 4 months. High blood pressure was entered as a clinical diagnosis, along with right shoulder pain.
When he returned to West Alabama on December 23, 2013, he reported things were going well. He indicated he had no side effects from his medication and had been compliant. He reported that spending time with his family helped manage his depression and had some improvement with sleep. On January 24, 2014, the claimant reported auditory hallucinations, but reported making moderate progress on goals and plan to continue motivation to increase meaningful structured activity to occupy time and thoughts. He reported good appetite ad good sleep. The claimant saw Dr. Poddar on his next visit of February 3, 2014. He reported doing well and able to carry out his activities of daily living (ADLs). His perceptual disturbances were within normal limits and he reported good appetite and good sleep. He had some biological signs of depression. His dosage of Mirtazapine was increased and he was to return to see Dr. Poddar in 3 months. Progress notes from his visit to the therapist on February 20, 2014, show he was making moderate progress. He reported being involved in constructive activities and had been taking a walk every day. He was compliant with his medication and reported no side effects. When he returned on March 20, 2014, he was making good progress. He reported that he had been getting out more with friends and relatives. He reported being compliant with his medication but that it did not help. His perceptual disturbances were within normal limits and he reported good appetite and good sleep.
He returned to Hale County Hospital Clinic on March 31, 2014, for a follow-up of his blood pressure. He reported numbness in his left leg and burning in the sole of his left foot for months, along with chronic left knee pain. The record indicates that claimant probably has osteoarthritis in his shoulder and knee. His blood pressure was 132/90 and he weighed 236 pounds. Physical examination findings show he had no back pain. The clinical diagnoses were pain in his left knee, neuropathy, and headache.
When he returned to West Alabama on April 17, 2014, he reported having some trouble staying asleep. His perceptual disturbances were within normal limits and he reported good appetite.
Records show that the claimant's primary care physician at Hale County Hospital Clinic, Dr. Perry Timberlake, indicated on June 11, 2014, that he had ordered x-rays of the claimant's knees and right shoulder to be taken at the Good Samaritan Clinic before he could give an opinion as to the claimant's disability.
On June 23, 2014, the claimant underwent a medical examination by State agency orthopedic consultant R. Rex Harris, M.D. Physical examination findings show the claimant has full range of motion of the neck, shoulders, elbows, wrists, and fingers. His grip is 5 out of 5 bilaterally. Pinch is excellent. He was able to open and close doors and button and unbutton buttons, lace and unlace shoes, and pick up small objects. His reflexes are 1 and equal in the upper extremities with normal sensation. His lumbar flexion is normal. There is full range of motion of the hips, knees, and ankles. Toe extensors are normal. His reflexes are 1 and equal in the lower extremities with normal sensation. His gait is normal. Dr. Harris noted that the claimant can toe and heel walk and can squat and rise. He noted that the x-rays of the right knee, standing view, reveal well-preserved joint spaces with no evidence of arthritis, x-rays of the right shoulder show no evidence of arthritis and no evidence of AC joint arthritis. He opined that the claimant is capable of at least sedentary work in the workplace.
On June 25, 2014, the claimant underwent a mental examination by State agency consultant Donald W. Blanton, Ph.D. The claimant reported to Dr. Blanton that he began to have depression in his 30s and does not know why. The claimant described the depression as “I don't want to do anything and I'm angry all the time.” He also reported that the treatment he had received from the mental health center had not been helpful to him. He also reported that he had been separated from his wife for about a year and a half. Dr. Blanton noted that the claimant was obsessing about his health problems and did not appear to put forth good effort on cognitive testing. He opined that the claimant's performance brings all of his complaints into question.
Records from The Radiology Clinic at Good Samaritan show the claimant underwent knee x-rays ordered by Dr. Timberlake on July 24, 2014. The report of left knee x-rays show mid tri-compartmental degenerative changes but no discrete joint effusion and no acute abnormality. The report of right knee x-rays show the same findings. On August 4, 2014, report of an MRI of the right shoulder indicates the claimant has mild supraspinatus and subcapularis tendinosis; mild subacromial/subdeltoid bursitis; and elevation of the distal clavicle in relation to the acromion suggestive of an old AC joint separation injury.
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision.
There are no objective findings or physical examination findings to support the claimant's allegations that his right knee swells 3 to 4 times a week, and limits his ability to walk only 150 feet and stand 20 to 25 minutes. He stated Dr. Timberlake told him to elevate his right leg above his heart when he was swelling but the records do not indicate he was ever told that. In addition, the treatment records do not support his testimony regarding the frequency of knee swelling. X-rays of his knees only show mild degenerative changes.
The objective findings and physical examination findings also do not support that he has problems sitting due to shoulder pain, which cause him to have to lie down. X-rays of his shoulder indicate mild tendinitis and bursitis. All of the radiological and diagnostic studies indicate minimal abnormality.
Additional factors, which the undersigned must also consider when determining the claimant's credibility and residual functional capacity, are his daily activities and any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. The claimant has alleged he is very restricted in his activities of daily living, in that he spends most of his day lying around watching television, yet, he is independent in his personal care and grooming and his psychiatrist reported he is doing well and able to carry out his ADLs. Mental health records indicate he reported going fishing, cutting grass and spending time with his family. His mental health records do not support severe mental symptoms.
The claimant's medical records do not indicate any complaints of medication side effects, as he testified. No treating or examining physician has reported that the claimant has disabling pain or limitations and physician examinations are essentially unremarkable. The claimant's treatment has been conservative and he has not received the type of medical treatment one would expect for a totally disabled individual. Based on the foregoing, the claimant's symptoms and subjective complaints are found not to be fully ...

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