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Russell v. Colvin

United States District Court, E.D. Virginia, Richmond Division

August 11, 2014

JAMES M. RUSSELL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

DAVID J. NOVAK, Magistrate Judge.

James R. Russell ("Plaintiff') is 34 years old and previously worked as a landscaper, a floor technician, produce clerk, sales clerk and store laborer. On April 22, 2011, Plaintiff applied for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("Act"), claiming disability beginning March 31, 2011, due to gout, back spasms, heart palpitations, high blood pressure, anxiety and depression. After denial of his claim, Plaintiff appealed to an Administrative Law Judge ("ALJ") and Plaintiff for the first time claimed an intellectual disability. The ALJ found that Plaintiff was not disabled under the Act and thereafter the Appeals Council denied Plaintiff's request for review.

Plaintiff now challenges the ALJ's denial of benefits, arguing that the ALJ erred by finding that Plaintiff's major joint dysfunction and right knee injury were not severe impairments, by determining that Plaintiff's mental condition failed to meet listing § 12.05 and by determining that Plaintiff could perform limited work at all exertional levels, including his past relevant work. (Pl.'s Mem. in Supp. of Mot. for Summ. J. ("Pl.'s Mem.") (ECF. No. 14) at 15-25.)

Plaintiff seeks judicial review of the ALJ's decision in this Court pursuant to 42 U.S.C. § 405(g). The matter has been referred to this Court for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on Plaintiffs Motion for Summary Judgment (ECF No. 12), Plaintiffs Motion to Remand (ECF No. 13) and Defendant's Motion for Summary Judgment (ECF No. 15).[1] For the reasons set forth below, the Court recommends that Plaintiffs Motion for Summary Judgment (ECF No. 12) and Plaintiff's Motion to Remand (ECF No. 13) be DENIED; that Defendant's Motion for Summary Judgment (ECF No. 15) be GRANTED; and that the final decision of the Commissioner be AFFIRMED.

I. BACKGROUND

Because Plaintiff challenges whether the ALJ erred by finding that Plaintiffs major joint dysfunction and right knee injury were not severe impairments, by determining that Plaintiffs condition did not meet listing § 12.05, by finding that Plaintiff could perform his past relevant work and by determining Plaintiff's Residual Functioning Capacity ("RFC"), Plaintiffs education and work histories, Plaintiffs medical history, non-treating state agency physicians' opinions, Plaintiffs function report and hearing testimony, third party reports and Vocational Expert ("VE") testimony are summarized below.

A. Plaintiffs Education and Work History

Plaintiff is 34 years old. (R. at 38.) He enrolled in special education classes throughout his school career, but he never had an Individualized Education Program ("IEP"). (R. at 22.) Plaintiff repeated the first grade. (R. at 247.) In 1999, Plaintiff received a GED or special certificate rather than a diploma. (R. at 22.) Plaintiff took the written examination to obtain a driver's license and he passed on his sixth attempt. (R. at 22.) Plaintiff previously worked as a landscaper, a floor technician, a sales clerk, a store laborer and roadside clean-up crew member. (R. at 22.) Most recently, Plaintiff worked as a produce stock clerk at Walmart, but lost the job because he missed too much work. (R. at 22.)

B. Plaintiff's Medical History

On June 9, 2010, Plaintiff sought treatment from Christopher Mullins, D.O. and complained of dizziness, numbness in his heels and joint pain. (R. at 213.) Dr. Mullins diagnosed Plaintiff with gout and noted that Plaintiff had slight puffiness in his feet, but Plaintiff demonstrated no signs of a gout flare-up. (R. at 213.) Plaintiff followed-up with Dr. Mullins on June 30, 2010, and continued to complain of numbness in his right heel and dizziness. (R. at 211.) On December 2, 2010, Plaintiff described experiencing burning and weakness in his right thigh and leg after walking, but the sensation subsided after resting. (R. at 209.) Plaintiff complained of numbness in his right leg and left arm. (R. at 209.) During Plaintiffs January 6, 2011 appointment, Plaintiff only complained of intermittent dizziness. (R. at 207.)

On February 2, 2011, Rachel Huot, M.D. noted that Plaintiff reported heart palpations, which caused his feet to go numb when his heart raced. (R. at 205.) During Plaintiff's February 11, 2011 appointment, Plaintiff described bending a lot at work, which made him feel weak afterward. (R. at 203.) Plaintiff visited Dr. Huot on March 31, 2011, and complained of left shoulder pain following an emergency room visit. (R. at 201.) Dr. Hout excused Plaintiff from work for two weeks, because his job involved lifting heavy containers. (R. at 201-02.) Plaintiff returned to the emergency room on April 15, 2011 for left arm pain and visited Dr. Huot on April 20, 2011 for a follow-up appointment due to continued left arm pain. (R. at 198.) Dr. Huot also reported that Plaintiff had gout and prescribed allopurinol to treat the condition. (R. at 198.)

On February 16, 2012, Plaintiff sought treatment from Jibanananda Satpathy, M.D. and complained of right knee pain from a knee injury. (R. at 233.) Plaintiff described the pain as moderate and aching, but worsening. (R. at 233.) He began feeling the pain about a week earlier. (R. at 233.) Climbing stairs and walking long distances exacerbated the pain, but rest, heat and anti-inflammatories alleviated it. (R. at 233.) Dr. Satpathy diagnosed Plaintiff with a right buck-handle medial meniscus tear. (R. at 234.) After discussing treatment options, Plaintiff decided to proceed with arthroscopic intervention, and Dr. Satpahty recommended an MRI. (R. at 234.) Plaintiff returned for a follow-up appointment on February 29, 2012, following his MRI. (R. at 231.) The MRI revealed ACL and meniscus tears in the right knee. (R. at 231.) Plaintiff could "almost fully extend the knee, " but needed crutches for mobility. (R. at 231.) Dr. Satpathy noted moderate swelling, significant tenderness and discomfort with range of motion. (R. at 231.) Dr. Satpathy recommended a knee brace, ice, elevation and possible ACL reconstruction surgery. (R. at 231-32.)

Dr. Satpathy referred Plaintiff to Seth A. Cheatham, M.D. for further examination. (R. at 236.) Plaintiff's injury stemmed from Plaintiff twisting his knee while chasing pigs at his family farm. (R. at 236.) Dr. Cheatham indicated that Plaintiff's pain had subsided since the injury, but Plaintiff still experienced a restricted range of motion. (R. at 236.) Plaintiff rated his pain as a five on a scale of one to ten. (R. at 236.) He used one crutch to ambulate, but did not take any pain medication. (R. at 236.) Plaintiff's knee had no swelling. (R. at 236.) Dr. Cheatham and Plaintiff discussed surgical plans to mend the meniscus and ACL tears, and Plaintiff planned to undergo the procedure. (R. at 237.)

On May 25, 2012, Plaintiff underwent a psychological examination by Chris Cousins, Ph.D. (R. at 224.) During the examination, Plaintiff appeared to put forth a good effort and Dr. Cousins observed no abnormalities in mood or affect. (R. at 224.) Plaintiff's speech was clear and Plaintiff was articulate. (R. at 224.) Plaintiffs full scale IQ score measured at 59. (R. at 225.) Although Dr. Cousins indicated that Plaintiffs IQ score fell within the mild range for mental retardation, Plaintiffs work history suggested that Plaintiff could function at a "slightly higher level" than his score suggested. (R. at 226.) Therefore, Dr. Cousins diagnosed Plaintiff with borderline intellectual functioning. (R. at 226.) Dr. Cousins opined that Plaintiff could perform simple repetitive tasks and may require supervision when performing new tasks, but could perform the tasks independently once learned. (R. at 226.) Plaintiff would likely experience "no more than mild impairment" in completing a normal workday and workweek without interruptions. (R. at 226.) Dr. Cousins further determined that Plaintiff could accept instructions and interact appropriately with co-workers and the public, but he would likely have moderate difficulty coping with typical stressors brought on by competitive work. (R. at 227.)

C. Function Report

On May 26, 2011, Plaintiff completed a Function Report and indicated that he lived in a house with his family. (R. at 178.) Each day, Plaintiff woke up, brushed his teeth, ate breakfast, bathed, took medicine, watched television, socialized with his family, went outside, ate dinner and went to bed. (R. at 178.) Plaintiff took care of his child by doing whatever was needed. (R. at 179.) Though Plaintiffs condition affected his ability to sleep, he had no problem tending to his own personal care and could do so without needing reminders. (R. at 179-80.) However, he needed reminders to take his medications. (R. at 180.)

Plaintiff did not prepare any food for himself, perform household chores or do yard work, because he became dizzy from standing too long. (R. at 180-81.) Plaintiff sometimes went outside and would drive or ride in a car without needing anyone to accompany him. (R. at 181-82.) Plaintiff could go out alone. (R. at 181.) Although Plaintiff did not shop, he could pay bills, count change, handle a savings account and use a checkbook. (R. at 181.) Plaintiff indicated that he went fishing every once in a while, but had not recently. (R. at 182.) He spent time with others by talking with them and had no problem getting along with people. (R. at 182.) He did not need reminders to go places. (R. at 182.)

Plaintiff marked that his condition affected his ability to lift, walk, climb stairs, bend, stand and complete tasks. (R. at 183.) He had no difficulty squatting, sitting, kneeling, reaching, using his hands, seeing, following instructions, remembering, talking, hearing and concentrating. (R. at 183.) Plaintiff could lift about five to ten pounds and stand for about five to ten minutes. (R. at 183.) Standing caused him back pain and bending caused dizziness. (R. at 183.) Plaintiff sometimes finished what he started, but could not follow instructions or handle stress well. (R. at 183-84.) He was "okay" at handling changes in his routine. (R. at 184.) Plaintiff got along with authority figures "very well" and had never been fired from a job because of problems getting along with others. (R. at 184.)

D. Plaintiff's Testimony

On June 8, 2013, Plaintiff, represented by counsel, testified at a hearing in front of an ALJ. (R. at 238-39.) Plaintiff stated that he completed high school and attended special education classes. (R. at 247.) He repeated the first grade and had difficulty reading and writing. (R. at 247.) He attended special education during his entire time in school and graduated with his GED. (R. at 254.) After graduating, Plaintiff lived with his parents before moving to live with his wife at his wife's parents' home. (R. at 263-64.) For a time, Plaintiff and his wife lived in a hotel. (R. at 264.) At the time of the hearing, Plaintiff lived with his wife and four-year-old daughter. (R. at 265.) Plaintiff helped care for his daughter. (R. at 265.)

Plaintiff worked as a landscaper, at a cleaning company and as a floor technician, but he did not stay in these jobs long, because he missed too many days of work due to his gout. (R. at 249-50.) He could understand some of the tasks required of the job. (R. at 250.) He last worked as a produce stocker at Walmart, but previously worked as a retail salesmen there as well. (R. at 256, 273.) Plaintiff could drive, but only short distances due to problems staying awake. (R. at 253.) Typically, his wife drove him. (R. at 254.)

Plaintiff had his wife complete his social security forms, because he had difficulty understanding them. (R. at 267-68.) Plaintiff used to fish daily, but had not been fishing in three years. (R. at 267.) Plaintiff sometimes socialized with friends at his house on the weekend and would drink five or six beers. (R. at 270.)

During the hearing, Plaintiff walked with a crutch. (R. at 247-48.) He suffered from gout in his right foot and hypertension. (R. at 248.) Sometimes he could not wear a shoe because of the gout. (R. at 248.) He underwent treatment with cortisone shots in his feet, which helped the pain for a while. (R. at 248-49.) Plaintiff had difficulty walking, because his feet swelled and his right leg felt numb. (R. at 251.) He could not stand for too long before having to sit down and could walk about half a football field before becoming out of breath. (R. at 251-52.) Plaintiff did not perform any house work. (R. at 253.)

E. Third-Party Function Report

On May 27, 2011, Plaintiff's aunt, Ellen Bernice Alexander, completed a third-party Function Report. (R. at 165-75.) Ms. Alexander knew Plaintiff for 31 years and saw him daily. (R. at 165.) She reported that she was unsure how Plaintiff spent his day, but indicated that Plaintiff took care of his children. (R. at 166.) Plaintiff's condition affected his ability to sleep. (R. at 167.) He had no difficulty dressing himself, bathing, shaving, caring for his hair, feeding himself or using the toilet, and did not need reminders to tend to his personal needs. (R. at 167-68.) However, he needed reminders to take his medicine. (R. at 168.)

Plaintiff did not cook for himself and performed no chores or yard work, because it caused shortness of breath along with leg and chest pain. (R. at 168.) Plaintiff spent time outside daily by sitting on the porch. (R. at 169.) Plaintiff could go out alone and could drive. (R. at 169.) He did not shop, but could pay bills and count change. (R. at 170.) Plaintiff did not use a checkbook or handle a savings account, because he did not have them. (R. at 170.) Ms. Alexander listed fishing as Plaintiff's hobby, but noted that Plaintiff did not fish often because of pain. (R. at 170.)

Plaintiff spent time socializing with others often and had no difficulty getting along with family, friends and neighbors. (R. at 171.) Ms. Alexander marked that Plaintiff's condition affected his ability to lift, stand, kneel, walk, squat, sit and climb stairs. (R. at 171.) However, he had no difficulty using his hands, bending, seeing, remembering, hearing, concentrating, reaching, talking, completing tasks, understanding and following instructions. (R. at 171.) Plaintiff could finish what he started and followed spoken instructions very well. (R. at 172.) Plaintiff also got along with authority figures very well. (R. at 172.) He handled changes in his routine "okay, " but did not handle stress well. (R. at 173.)

F. Non-treating State Agency Physicians

On June 13, 2001, James Darden, M.D. reviewed the record and opined that Plaintiff could lift twenty pounds occasionally and ten pounds frequently. (R. at 34-35.) Plaintiff could stand and/or walk for about six hours and sit for about six hours during an eight-hour day. (R. at 35.) He was unlimited in his ability to push and/or pull, and he experienced no postural, manipulative, visual, communicative or environmental limitations. (R. at 35.) Dr. Darden also opined that Plaintiff could not perform his past relevant work. (R. at 36.) Ralph Hellams, M.D. confirmed Dr. Darden's opinions. (R. at 54-56.)

On June 13, 2011, Alan Entin, Ph.D. reviewed the record and opined that Plaintiff suffered an impairment of major joint dysfunction and further indicated that Plaintiff's condition was severe. (R. at 33.) Dr. Entin analyzed Plaintiff's anxiety disorders under listing § 12.06 and opined that Plaintiff did not meet the criteria of the listing. (R. at 33.) Specifically, Dr. Entin determined that Plaintiff had no restrictions in his activities of daily living, no difficulties maintaining concentration, persistence or pace, and experienced no repeated, extended episodes of decompensation. (R. at 33.) Plaintiff had mild difficulties in maintaining social functioning. (R. at 33.) Dr. Entin did not analyze Plaintiffs condition under listing § 12.05. (R. at 33.) Eric Orritt, Ph.D. made the same determinations. (R. at 52.)

G. Vocational Expert Testimony

During a hearing on June 8, 2013, a VE testified. (R. at 271.) The VE indicated that Plaintiffs previous work experience included working as a produce clerk, a floor technician, landscaper, sales attendant and a store laborer. (R. at 273-74.) The VE classified the work of a sales attendant as light exertional, unskilled work and the remaining jobs as medium exertional, unskilled work. (R. at 272-74.) However, the VE noted that Plaintiff's actual work as a floor technician and a landscaper would be classified as light work. (R. at 273-74.) The ALJ asked the VE if a person, who could perform simple, repetitive, low stress, non-production rate work, could perform Plaintiffs past ...


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