United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OF DECISION
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
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.
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.
Statement of Facts
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).
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 of the patella with chondroplasty of the
trochlear groove and partial medial
meniscectomy. (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).
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.).
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,  and arthralgia (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).
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
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).
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,
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).
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).
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).
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).
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.
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).
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.
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.
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 ...