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Isbell v. Berryhill

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

July 30, 2019

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



         Plaintiff Terry Isbell (“Plaintiff”) brings this action pursuant to § 205(g) of the Social Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security (“Commissioner”) denying his claims for a period of disability and disability insurance benefits (“DIB”). See 42 U.S.C. § 405(g). Based on the court's review of the record and the documents submitted by the parties, the court finds the decision of the Commissioner is due to be affirmed.

         I. Proceedings Below

         On June 26, 2014, Plaintiff protectively applied for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging disability as of March 13, 2014. (R. 81). The Social Security Administration ("SSA") initially denied Plaintiff's application. (R. 92). On November 18, 2014, Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"). (R. 98). That request was granted (R. 100), and Plaintiff received a hearing before ALJ Bruce W. MacKenzie on August 2, 2016. (R. 110). On November 4, 2016, the ALJ issued an unfavorable decision, finding Plaintiff “has not been under a disability within the meaning of the Social Security Act from March 13, 2014, through the date of this decision.” (R. 10). After the Appeals Council ("AC") denied Plaintiff's request for review of the ALJ's decision (R. 1), the ALJ's decision became the final decision of the Commissioner, and, therefore, a proper subject for this court's review.

         II. Statement of Facts

         Plaintiff's application alleges disability due to injuries received in two car accidents. Plaintiff was 34 years old on the alleged onset date and 36 years old at the time of the ALJ's decision. (R. 21, 147). He completed two years of college and has work experience as a boat salesman, machine shop technician, warehouse worker, and restoration technician in water and fire damage. (R. 47, 168, 184). He alleges disability due to knee arthritis, knee pain, a back and neck injury, depression, anxiety, and hip numbness. (R. 167).

         On July 11, 2013, Plaintiff was involved in a motor vehicle accident. (R. 264). He sought treatment in the emergency room for acute lumbar strain, right knee contusion, and chest wall contusion. (Id.). A month later, Plaintiff underwent abrasion arthroplasty[1] of the patella with chondroplasty of the trochlear groove[2] and partial medial meniscectomy.[3] (R. 260). Dr. Stephen Cowley diagnosed Plaintiff with severe chondromalacia of the patellofemoral joint with grade-4 lesion, infrapatellar spur, and tear of the medial meniscus. (R. 260).

         On March 14, 2014, Plaintiff was injured in a second motor vehicle accident. (R. 269). He was admitted to the hospital for evaluation and pain control in his head, neck, back, and knee. (Id.). Plaintiff was released the next day with a prescription for Norco. (Id.).

         Later in March 2014, Plaintiff sought treatment with Dr. Donald H. Slappey, Jr., an orthopedic surgeon at OrthoUSA. (R. 342, 344). Dr. Slappey listed Plaintiff's active problems as low back pain, cervicalgia, [4] and arthralgia[5] (knee, patella, tibia, and fibula). (R. 351). Roughly a week later, Dr. Slappey noted that an MRI of Plaintiff's cervical spine showed a protrusion at ¶ 6-7, an MRI of the lumbar spine showed a protrusion at ¶ 5-S1, and an MRI of the right knee showed a torn medial meniscus. (R. 349).

         On May 7, 2014, Plaintiff underwent a right knee arthroscopic partial medial meniscectomy, patellofemoral chondroplasty, and removal of loose bodies at OrthoUSA. (R. 353). A week later, Plaintiff followed-up with Dr. Slappey. During that visit, Dr. Slappey noted the right knee had a good range of motion. (R. 363). On June 4, 2014, during another post-surgery visit, Dr. Slappey reported Plaintiff's knee was gradually improving with therapy. (R. 361). Dr. Slappey also indicated that Plaintiff's cervical spine was limited in rotation and the lumbar spine was tender to palpation. (Id.).

         On July 4, 2014, Plaintiff indicated that a typical day involved taking a shower, doing light housework, and completing therapy exercises. (R. 174). He stated he needs assistance getting into and out of the bathtub, getting in and out of a vehicle, and putting on his socks. (Id.). He listed his housework chores as laundry and light cleaning, venturing outside once or twice a day, and shopping for groceries, household items, and medicine roughly once a week. (R. 175-76). Social activities were listed as talking and visiting, playing board games, and going out to eat approximately once a week. (R. 178). Plaintiff's wife Amanda Isbell indicated on a separate form that Plaintiff's main chores consist of daily trash and laundry. (R. 196).

         During another follow-up visit on August 15, 2014, Dr. Slappey noted Plaintiff was doing better evidenced by full range of motion in the right knee. (R. 356, 357). Although Dr. Slappey released Plaintiff regarding his right knee, he noted Plaintiff was scheduled for a procedure on his back. (R. 356, 357).

         Plaintiff was examined by consultative examiner Dr. William Russell May on September 27, 2014. (R. 282). Plaintiff complained of arthritis and chronic pain in his right knee. (R. 282). Plaintiff also endorsed bulging disc in c-spine and lumbar spine with significant back pain, weakness in the neck, spasms down into the left arm, and some numbness and tingling in the right thigh to the back of the right knee. (R. 282). Plaintiff stated he did not use an ambulatory device to get around, could walk up to a mile on level ground, could dress himself, and could climb stairs without difficulty. (R. 283).

         Dr. May noted Plaintiff could ambulate without difficulty and assistive device. (R. 284). Plaintiff was able to get up and out of the chair and on and off the examination table without difficulty. (Id.). His gait was normal, and he could perform tandem heel walking. (Id.). However, Plaintiff was not able to walk on his toes or heels, and had difficulty squatting, bending over and touching his toes. (Id.). Based on the evidence, Dr. May found Plaintiff has limitations, including limitations in occasionally walking in an 8-hour workday (occasionally defined as very little up to one-third of an eight-hour workday). (R. 285).

         On November 12, 2014, Plaintiff underwent posterior disc decompression at ¶ 4-5 and L5-S1 and laser thermal ablation at ¶ 3, L4, and L5 on the right, performed by Dr. Robert W. Nesbitt. (R. 324, 325). Six days later, the Plaintiff reported that numbness and tingling in his legs had significantly improved. (R. 354).

         On September 1, 2015, Cooper Green Mercy clinic diagnosed Plaintiff with mitral valve prolapse and pain in the back and right knee. (R. 298). At the primary care clinic, Dr. Max Michael III noted Plaintiff's right knee and upper and lower back pain were not controlled with his current over-the-counter medications. (R. 298).

         On October 6, 2015 during a follow-up visit, Dr. Michael noted the Plaintiff felt better with symptoms well controlled with Norco 7.5 and Flexeril, with no side effects. (R. 297). Although Plaintiff returned to the clinic with complaints of right hip pain on December 8, 2015, Dr. Michael noted the pain was well controlled with the current medications, and Plaintiff was a bit more active. (R. 296). For almost six months, Dr. Michael noted Plaintiff's pain was controlled despite occasional flare-ups in the back and right knee. (R. 295, 302).

         In July 2016, Dr. Michael conducted a physical capacities evaluation. (R. 303). He found Plaintiff can stand and walk for a combined 2 hours and sit for 2 hours total in an entire 8-hour day; Plaintiff required a cane and a right knee brace to ambulate even minimally in a typical workday; and the most reasonable lifting and/or carrying expectations for Plaintiff was 5 pounds occasionally or less. (R. 303). Dr. Michael noted Plaintiff could never perform pushing and pulling movements, climbing, balancing, bending, and stooping. (R. 303). He also noted Plaintiff could occasionally perform gross manipulation, fine manipulation, and reaching (including overhead). (R. 303).

         In the clinical assessment of pain, Dr. Michael indicated Plaintiff's pain would be distracting to adequate performance of daily activities or work. (R. 304). The physical activity would increase pain to such an extent bedrest and/or medication would be necessary. (R. 304). Furthermore, the side effects of the prescribed medication would include distraction, inattention, and drowsiness. (R. 305). Additionally, Dr. Michael conducted a clinical assessment of fatigue and weakness. (R. 306). He found fatigue/weakness would negatively affect adequate performance of daily activities or work. (Id.). Physical activity greatly increased fatigue/weakness, and to such a degree as to cause total abandonment of tasks. (Id.).

         III. ALJ Decision

         Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520. First, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. §404, 1520(a)(4)(i). “Substantial work activity” is work activity involving significant physical and mental activities. 20 C.F.R. §404.1572(a). “Gainful work activity” is work done for pay or profit. 20 C.F.R. §404.1572(b). If the ALJ finds the claimant engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §404.1520(b).

         Second, the ALJ must determine whether the claimant has a medically determinable impairment or a combination of medical impairments which significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. §404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability. Id. If the impairment is not expected to ...

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