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Harris v. Berryhill

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

November 28, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Thomas Harris (“Plaintiff” or “Harris”) brings this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security (“Commissioner”) to deny his claim for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”). See 42 U.S.C. §§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

         Plaintiff filed his applications for DIB and SSI on January 24, 2014, alleging disability beginning March 24, 2012.[1] (Tr. 10, 77). The claim was initially denied on April 9, 2014. (Tr. 10, 99). After his application was denied, Plaintiff filed a written request for a hearing. (Tr. 10, 104). On July 22, 2015, Plaintiff received a hearing before Administrative Law Judge (“ALJ”) Patrick R. Digby. (Tr. 25-47). On November 4, 2015, the ALJ determined that Plaintiff was not disabled under Sections 216(i) and 223(d) of the Act. (Tr. 19).

         On September 17, 2016, the Appeals Council denied Plaintiff's request for review of the ALJ decision. (Tr. 1-3). Following that denial, the final decision of the Commissioner became a proper subject of this court's appellate review. See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) (finding the ALJ decision final for purposes of judicial review when the Appeals Council denied review).

         Plaintiff Thomas Harris was forty-four years old both at the time of his hearing before the ALJ, and when the ALJ's decision was rendered. (Tr. 18, 29, 150). Prior to his alleged injuries, Harris earned a GED and worked on an oil rig, on a cable pole crew, at a tire plant, and at a Wal-Mart. (Tr. 40-41). These jobs included work as a machine operator, material handler, construction worker, and welder. (Tr. 42). In July 2010, Harris underwent triple bypass surgery performed by Dr. Athanasuleas at Brookwood Medical Center. (Tr. 252). Despite being cleared by his doctor to return to work after the bypass, Plaintiff has not sought employment since his surgery. (Tr. 32- 33). During a neurologic exam in December 2013, Dr. Drummond of Vascular Associations of Birmingham found that Harris had no focal weakness.[2] (Tr. 304). He rated Harris' strength as a “B” and found minimal Internal Carotid Artery (“ICA”) stenosis.[3] (Id.) Dr. Drummond recommended annual carotid ultrasounds for Harris. (Id.)

         Plaintiff sought medical care from his current primary care physician, Dr. Martin, for the first time in January 2012, two years before filing the current request for SSI and DIB. (Tr. 309). In May 2012, Harris complained of back pain to Dr. Martin; however, Harris described his pain as being a “1” on a pain scale. (Tr. 327-28). Harris informed Dr. Martin that pain in the lower part of his back and neck had been going on “for a while” and was getting worse. (Tr. 327). Dr. Martin diagnosed Harris with chronic back pain in May 2012. (Tr. 330). To treat the chronic back pain, Dr. Martin prescribed physical therapy. (Tr. 331).

         After attending physical therapy, Harris returned to Dr. Martin in February 2013 with complaints of worsening back pain. (Tr. 342). In May 2013, Harris described “his back pain [as] getting unbearable.” (Tr. 348). Despite these and other complaints to Dr. Martin, upon examination Harris was found to be grossly intact, non-focal, and not in any acute distress. (Tr.342-44, 347- 50). Dr. Martin prescribed pain injections from Dr. Howell of North Alabama Bone & Joint for the back pain. (Tr. 342). SI joint injections were done in the fall of 2014. (Tr. 623). The injections gave Harris 40% to 50% relief for months and led Harris to believe he was better. (Id.)

         In April 2015, Harris visited Dr. Martin again. At this visit, Harris denied any muscle weakness, back pain, or joint pain. (Tr. 655). Dr. Martin did not find Harris to be in any acute distress, and found him to be neurologically intact and non-focal. (Id.) At another appointment in June 2015, Harris had 5/5 motor strength in his upper extremities, despite claims of muscle weakness in May 2015. (Tr. 660, 709).

         In addition to treatment by Dr. Martin and Dr. Howell, Harris was also seen by Dr. Kast of North Alabama Neuro Services during 2014 and 2015. (Tr. 483, 498). Dr. Martin referred Harris to Dr. Kast in April 2014. (Tr. 483). During an appointment with Harris in July of 2014, Dr. Kast stated that Harris' degenerative lumbar disc disease was “age appropriate” as there was no “evidence of gross bony abnormalities or alignment issues.” (Tr. 499-500). Harris was not in any obvious distress during the visit and his “neurologic exam [was] absolutely normal in both lower extremities.” (Tr. 499). After reviewing Harris' CT scan, Dr. Kast concluded that the “minimal amount of degenerative changes are absolutely typical for anyone over the age of 35.” (Tr. 500).

         A year later, in June 2015, Dr. Kast saw Harris again regarding Harris' complaints of back pain. The records from the appointment note that Harris had “no obvious cranial nerve deficits” and had a “normal motor, sensory and tendon reflex exam in both upper extremities.” (Tr. 679). There was also no Hoffman sign[4] and in the lower extremities there were no long tract findings.[5](Id.). Dr. Kast concluded that Harris' condition did not warrant surgery, and referred Harris back to Dr. Howell for injection therapies. (Tr. 678-680).

         II. ALJ Decision

         The Act uses a five-step sequential evaluation process to determine a claimant's disability. 20 C.F.R. §404.1520(a) and 416.920(a). First, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. §404.1520(b) and 416.920(b). Substantial gainful activity is work done for pay or profit that requires significant physical or mental activities. 20 C.F.R. §404.1572(a-b) and 416.972(a-b). If the claimant has employment earnings above a certain threshold, the ability to engage in substantial gainful activity is generally presumed. 20 C.F.R. §404.1574, 404.1575, 416.974, and 416.975. If the ALJ finds that the claimant engages in substantial gainful activity, then the claimant cannot claim disability, regardless of a medical condition or age, education, and work experience. 20 C.F.R. §414.1520(b) and 416.920(b).

         Second the ALJ must determine whether the claimant has a medically-determinable impairment that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. §404.1420(c) and 416.920(a)(4)(ii). Absent such impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether the claimant's impairment meets or functionally equals an impairment listed in 20 C.F.R. §404, Subpart P, Appendix 1. If the criteria for impairment is met or functionally equal, the claimant is disabled. 20 C.F.R. §404.1520(a)(4)(iii) and 416.920(a)(4)(iii).

         If the impairment is not met or is not functionally equivalent, the ALJ will assess the claimant's residual functional capacity (“RFC”) to perform, given their impairment, in a work setting. 20 C.F.R. §§404.15245(a)(1) and 416.920(a)(1). The RFC is based on medical and other evidence in the record. 20 C.F.R. §§404.1520(a)(4)(iv) and 416.920(a)(4)(iv). The ALJ makes an assessment about a claimant's RFC using a two-step process that determines: (1) whether there is an underlying medically-determinable impairment that could reasonably be expected to produce the claimant's pain; and (2) the extent to which the claimant's symptoms would limit claimant's functioning. 20 C.F.R. §§404.1545(e) and 416.920(e). To determine the ...

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