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Oates v. Berryhill

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

March 30, 2018

ALFRED OATES, 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), 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. 23 & 25 (“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, and the Commissioner's brief, [1] it is determined that the Commissioner's decision denying benefits should be affirmed.[2]

         I. Procedural Background

         Plaintiff protectively filed an application for a period of disability and disability insurance benefits on February 18, 2014, alleging disability beginning on April 26, 2013. (Compare Tr. 154 with Tr. 282-88.) Oates' claim was initially denied on March 19, 2014 (Tr. 210) and, following Plaintiff's June 6, 2014 written request for a hearing before an Administrative Law Judge (“ALJ”) (see Tr. 220-21), a hearing was conducted before an ALJ on June 24, 2015 (Tr. 170-96).[3] On August 13, 2015, the ALJ issued a decision finding that the claimant was not disabled and, therefore, not entitled to disability insurance benefits. (Tr. 154-66.) More specifically, the ALJ proceeded to the fifth step of the five-step sequential evaluation process and determined that Oates retains the residual functional capacity to perform those light jobs identified by the vocational expert (“VE”) during the administrative hearing (compare Id. at 165 with Tr. 193-94). On October 12, 2015, the Plaintiff appealed the ALJ's unfavorable decision to the Appeals Council (Tr. 149); the Appeals Council denied Oates' request for review on January 24, 2017 (Tr. 1-4). Thus, the hearing decision became the final decision of the Commissioner of Social Security.

         Plaintiff alleges disability due to right shoulder pain, depression, right arm pain, hypertension, anxiety, right hand pain (including fingers), back pain, morbid obesity, chronic bronchitis/asthma/COPD, and diabetes. The Administrative Law Judge (ALJ) made the following relevant findings:

3. The claimant has the following severe impairments: obesity, hypertension, diabetes, depression, degenerative changes of the spine, and degenerative joint disease and impingement of the right shoulder (20 CFR 404.1520(c)). Additionally, the claimant has a non-severe impairment of mild ulnar entrapment of the right elbow.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with the following exceptions and considerations: no pushing or pulling with the right upper extremity, no overhead reaching with the right upper extremity, no lifting over five pounds with the right upper extremity, use of the right (non-dominant) upper extremity to assist; no climbing ladders, ropes, or scaffolds; avoid concentrated exposure to extreme heat and extreme humidity; avoid all exposure to vibration, unprotected heights, and hazardous machinery; and no driving. Additionally, he is limited to unskilled work.
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 SSRs 96-4p and 96-7p. The undersigned has also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 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.
In his Disability Report, the claimant alleged impairments of lower back [pain], crushed elbow, right shoulder [pain], high blood pressure, depression, and nervous condition. He reported being six feet in height and weighing 294 pounds. He reported that he stopped working on April 26, 2013, due to his conditions. He reported completing the tenth grade and denied attending special education classes. He reported taking medications for high blood pressure, pain, obesity, muscle relaxer, depression, and nervous condition prescribed by Dr. FitzGerald.
The claimant completed a Function Report on March 19, 2014, in which he reported living with family. He reported daily activities including preparing his breakfast, walking around the block, watching television, napping, and sitting on the porch. He reported preparing simple meals such as sandwiches. He denied doing any household chores. He reported driving. He reported shopping for cigarettes and household cleaning items. He reported that he is able to pay bills, count change, handle a savings account, and use a checkbook or money orders. He reported no change in his ability to handle money since his conditions began. He reported that his interest is watching television. He reported spending time with others sitting and talking, playing cards, and barbecuing every home game. He reported regularly going to football games. He denied having any problems getting along with others. He reported problems with all physical functioning. He reported that he can pay attention as long as needed, finish what he starts, follow written and spoken instructions very well, but does not handle stress or changes in routine well. He reported using a hand and elbow brace daily, and the elbow brace was prescribed in December 2013.
In a Disability Appeals Report, the claimant reported side effects of drowsiness from his pain medications and frequent urination from another medication. He reported sleeping during the day due to side effects of the medications, and sitting at home most of the time.
The claimant provided the following testimony at the hearing. He has a driver's license and drives occasionally. He is six feet in height and weighs 290 pounds, having intentionally lost 50 pounds by cutting back on bread. He is left handed. His biggest problem is his right arm, which he injured in August 2013. He had a worker's compensation claim that was settled in October or November 2014. His right arm constantly swells, and his fingers, joints, elbow, and shoulder lock and ache. His pain is a level eight or nine (on a 10 point scale) and goes to level ten with change of weather. He takes multiple pain medications for it. He is also unable to work due to back pain with inability to stand more than 10 to 15 minutes, sit more than 30 to 45 minutes, and walk more than 30 to 40 yards. He returned to his regular job three weeks to a month following his motor vehicle accident; he drove the truck, and the other employee performed the heavy work. He is able to bathe; cook simple items; vacuum a little; and drive about three times a week to the store, to pay bills, and to his sister's house. He can lift five to six pounds with his right arm, and he cannot reach his right arm over his head, behind his back, or to shoulder level. He is diabetic; he does not have insurance; it is hard to get his medications; and he is given samples at the doctor's office. He has high blood pressure with headaches. He has had problems with depression since 2013 and takes antidepressants, which have been helpful. He started drinking a pint every day for about a year; he is no longer drinking. He also has anxiety and trouble sleeping. He uses a brace for his arm, wrist, and back.
In terms of the claimant's alleged obesity, in treatment at MedCenter Demopolis on August 29, 2013, the claimant weighed 301 pounds at six feet in height. In examination with Dr. Maurice FitzGerald on October 18, 2013, the claimant's body mass index was 41. Admitting diagnoses at Whitfield Memorial Hospital on September 23, 2014, included morbid obesity. At the hearing, the claimant testified that he weighs 290 pounds. The claimant's records reveal obesity throughout; however, records provided by Dr. FitzGerald dated August 5, 2014, revealed the claimant exhibited a normal gait and station, ability to stand on toes and heels, and a negative straight leg raising. The claimant's records do not reveal his obesity to be incapacitating to him, but it has been given due consideration in his residual functional capacity assessment.
Regarding the claimant's alleged hypertension, in treatment at MedCenter Demopolis on August 29, 2013, the claimant's blood pressure was 166/101. Examination by Dr. FitzGerald on June 3, 2014, revealed blood pressure of 151/82. Smoking cessation was discussed. On August 7, 2014, he was seen by Dr. FitzGerald on referral from physical therapy due to increased heart rate. Blood pressure was 116/65. Chest x-ray was normal with no cardiomegaly. Diagnoses included tachycardia, not otherwise specified. He reported that he had been out of medication since February. On August 11, 2014, chronic obstructive pulmonary disease was added to his diagnoses, and he continued to smoke. Chest x-rays on September 2, 2014 and September 23, 2014, at Bryan W. Whitfield Memorial Hospital were negative. He was treated for chest pain with acute exacerbation of bronchitis and remained in the hospital overnight on September 23, 2014. His admitting diagnoses included tobacco abuse and hypertension. Dr. FitzGerald's records dated November 5, 2014, revealed normal chest x-ray and electrocardiogram, and blood pressure of 172/82. The claimant's hypertension is somewhat controlled despite medication non-compliance issues, and continued smoking with many admonitions for cessation[, ] but it has not resulted in any end organ damage[, ] and it is not found to be incapacitating to him. However, it has been given due consideration in his residual functional capacity assessment.
Regarding the claimant's alleged diabetes, Dr. FitzGerald's records dated June 3, 2014, reveal diagnoses including type II controlled diabetes. Dr. FitzGerald's diagnoses on November 5, 2014, continue to list uncomplicated, controlled, type II diabetes mellitus. The claimant's diabetes has not resulted in any complications or end organ damage, and it is not found to be debilitating to him. It is controlled with medication and diet despite non-compliance issues. However, it has been given due consideration in his residual functional capacity assessment.
Regarding the claimant's alleged depression, Dr. FitzGerald's records dated July 9, 2013, show depression was added to his diagnoses. Donald W. Blanton, Ph.D., performed [a] consultative psychological evaluation of the claimant on May 7, 2014. The claimant reported that he is tense and depressed much of the time and smokes and eats too much but cannot afford his medications. He denied any mental health treatment but reported Zoloft has helped some, which is prescribed by Dr. FitzGerald. Mental evaluation revealed the claimant to be alert and fully oriented with depressed mood and flat affect. He reported nervous trouble and depression two to three days a week depending on his pain level. He denied housework or cooking and reported rarely driving. He related that he plays video games, and is able to shop and handle money. He reported having many friends. Dr. Blanton diagnosed depressive disorder due to orthopedic problems and chronic pain. In examination with Dr. FitzGerald on July 18, 2014, the claimant was oriented and in no acute distress, but diagnoses included unspecified anxiety, and he was prescribed Xanax.
In his Function Report, the claimant reported preparing simple meals, watching television, shopping, driving, and spending time with others talking, playing cards, and barbecuing. He reported regularly going to football games, and he denied having problems getting along with others. He reported that he can pay attention as long as needed, finishes what he starts, can follow written and oral instructions very well. At the hearing, he testified that he lives alone, drives occasionally, performs his own personal care, cooks simple items, does a little cleaning, drives to pay bills, and drives to his sister's house.
Although the claimant's records reveal a diagnosis of depression, he denies any Mental Health treatment and has received only conservative treatment of medication from Dr. FitzGerald. The claimant[‘]s subjective reports of functioning, socialization with friends and family, and ability to concentrate to drive, pay bills, play cards, play video games, and watch television, are not convincing of a debilitating impairment when considered together with his minimal treatment. However, his depression has been given due consideration in his residual functional capacity assessment.
Regarding the claimant's alleged degenerative changes of the spine, Maurice J. FitzGerald, M.D., examined the claimant on May 1, 2013, following a motor vehicle accident with complaints of low back and right arm pain. Examination revealed paravertebral muscle spasms and marked tenderness in the shoulder and back. He was diagnosed with strains and sprains from a recent motor vehicle accident with joint pain at multiple sites. He received an injection and pain medications. In return on May 30, 2013, he had no spinal tenderness or spasms, and straight leg raising was negative bilaterally. He was diagnosed with lumbago. He has consistent treatment records with injections provided and prescriptions for pain medications. MedCenter Demopolis records dated August 29, 2013, reveal full range of motion of the back, with no tenderness to palpation, and negative straight leg raising.
Dr. FitzGerald's consistent treatment records continue, and on October 18, 2013, he noted that the claimant would have to see Pain Management for any more narcotics. In examination with Dr. FitzGerald on June 3, 2014, the claimant's diagnosis was lumbago. On July 3, 2014, he complained of back pain, and examination revealed tenderness on palpation and muscle spasm. He was diagnosed with lumbago and backache and received an injection. In return on August 5, 2014, examination revealed lumbosacral spine pain with motion, limited range of motion, no tenderness on palpation, no spasms, and negative straight leg raising. He exhibited a normal gait and station and was able to stand on toes and heels. He received another injection for lumbago. He received another injection for lumbago on September 4, 2014. On October 6, 2014, x-ray revealed arthritic changes with degeneration. He received an ...

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