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Wheat v. Berryhill

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

January 23, 2018

KENNETH WHEAT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          P. BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security denying his claims for a period of disability, disability insurance benefits, and supplemental security income. 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. 21-22 (“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 November 8, 2017 hearing before the Court, it is determined that the Commissioner's decision denying benefits should be reversed and remanded for further proceedings not inconsistent with this decision.[1]

         I. Procedural Background

         Plaintiff protectively filed applications for a period of disability, disability insurance benefits, and supplemental security income on December 9, 2013, alleging disability beginning on October 1, 2008. (See Tr. 147-156.) His claims were initially denied on March 13, 2014 (Tr. 79-80) and, following Plaintiff's March 26, 2014 written request for a hearing before an Administrative Law Judge (see Tr. 90-91), a hearing was conducted before an ALJ on June 24, 2015 (Tr. 36-62).[2] On August 10, 2015, the ALJ issued a decision finding that the claimant was not disabled and, therefore, not entitled to disability insurance benefits or supplemental security income. (Tr. 22-31.) More specifically, the ALJ proceeded to the fifth step of the five-step sequential evaluation process and determined that Wheat retains the residual functional capacity to perform those medium jobs identified by the vocational expert (“VE”) during the administrative hearing (compare Id. at 30 with Tr. 59-61). On September 11, 2015, the Plaintiff appealed the ALJ's unfavorable decision to the Appeals Council (Tr. 18); the Appeals Council denied Wheat's request for review on July 27, 2016 (Tr. 1-3). Thus, the hearing decision became the final decision of the Commissioner of Social Security.

         Plaintiff alleges disability due to left shoulder arthritis, chondromalacia patellae on the left, degenerative disk disease and spinal stenosis of the lumbar spine, and bursitis of the hips. In light of the issues raised by Plaintiff in his brief (see Doc. 14, at 2-8), the Court's principle focus is on the ALJ's residual functional capacity assessment.

2. The claimant has not engaged in substantial gainful activity since March 13, 2013, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
The claimant testified that he is working part time approximately 30 hours a work and every other weekend. However, the amount of earnings posted to the claimant's earnings record fall well below the guidelines for substantial gainful activity. Therefore, the claimant's income after his alleged onset date is not substantial gainful activity.
3. The claimant has the following severe impairments: left shoulder arthritis, chondromalacia patellae on the left, degenerative disk disease and spinal stenosis of [the] lumbar spine, [and] bursitis of [the] hips (20 CFR 404.1520(c) and 416.920(c)).
. . .
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
. . .
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant can frequently reach in all directions, frequently push and/or pull using arm and leg controls and frequently stoop, kneel, crouch, crawl, balance and climb ramps or stairs. However, the claimant can only occasionally climb ladders, ropes or scaffolds.
In making this finding, the undersigned has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p. The undersigned has also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant's symptoms, the undersigned must follow a two-step process in which it must first be determined whether there is an underlying medically determinable physical or mental impairment(s)-i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown, the undersigned must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functioning. For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the undersigned must make a finding on the credibility of the statements based on a consideration of the entire case record.
The claimant alleges that he is unable to work due to stenosis, left eye injury, left leg nerve damage and PTSD. He stated that he is currently working but disabled.
The claimant indicated that he has problems lifting, squatting, bending, standing, reaching, walking, kneeling, and climbing stairs. He further indicated he has problems concentrating and completing tasks. The claimant stated that he does not handle stress well and has occasional nightmares, but can handle changes in routine. Despite his allegations, the claimant stated he is able to follow written and spoken directions without difficulty and take care of his personal needs. He reported that he does not shop, cook or do any household chores because of pain when standing. Despite this, he reported he is able to take care of his own finances and spends the day playing his guitar, reading the newspaper and visiting with friends. Although he does not drive, he will get rides to wherever he needs to go and stated he attends church regularly.
The claimant testified that he graduated from high school and is currently working part time. He stated that he makes less than $900 a month and only works approximately 30 hours a week. He further stated that his employer is working with him as they know his problems with his health. The claimant indicated he has called in on a few occasions because the pain was too severe to make it to work. However, he testified that he is unable to work full time because of the pain in his shoulder, left leg and knee. The claimant indicated that he has pain just in sitting and when standing for long periods. On a typical day he will go to work, come home and watch television then go to bed. He stated that he does not drive because his driver's license is suspended. The claimant testified that he has to do some walking on his job but he is able to sit and rest when needed. He testified he can walk approximately 20 minutes, lift about 11 pounds and uses his right hand more because it is hard to use the left arm due to the problems he has with the left shoulder. The claimant indicated that he does not feel he could work full time due to the pain in his leg and his shoulder.
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.
The medical records show that the claimant has been diagnosed with trochanteric bursitis in his hips bilaterally, chondromalacia left knee, lumbar stenosis, and pain in his left leg. The claimant presented with complaints of shocking pain across both hips and lower back, and stiffness in his legs. Physical examination revealed mild crepitation and pain on range of motion in the left knee, as well as tenderness to palpitation bilaterally over his hips. X-rays showed mild degenerative changes in the right hip and mild degenerative changes in the lumbar spine. The claimant was treated with narcotic and non-narcotic pain medication, which he stated, did not adequately relieve his pain. Treatment notes show the claimant continued to complain of pain in his back and hips and legs, x-rays were again obtained in October 2014, which showed degenerative disc disease and degenerative facet disease in the lumbar spine and mild degenerative arthritis in his left shoulder. Physical examination showed mild tenderness in the left shoulder but he was able to exhibit full range of motion with only mild pain on extension or reaching across chest. His treating physician noted he was able to lift overhead, rotate, etc. without problems and had no pain in his left knee. The claimant's medication dosage was adjusted to relieve the pain in his shoulder. Treatment notes further ...

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