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James v. Colvin

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

August 25, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


DAVID J. NOVAK, Magistrate Judge.

John Reed James ("Plaintiff) is 54 years old and previously worked as a floor technician and maintenance attendant. On March 15, 2011, Plaintiff applied for Social Security Disability Benefits ("DIB") stemming from degenerative disc disease and osteoarthritis with an alleged onset date of October 27, 2010. His claim was denied both initially and upon reconsideration. Plaintiff appeared before an Administrative Law Judge ("ALJ") on April 16, 2013, and his claim was again denied. The Appeals Council denied Plaintiffs request for further administrative review, rendering the ALJ's decision the final decision for the Commissioner of Social Security.

Plaintiff now appeals the ALJ's decision in this Court pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred in assessing Plaintiffs credibility and incorrectly determined Plaintiffs residual functioning capacity ("RFC"). The parties have submitted cross-motions for summary judgment, which are now ripefor review. Having reviewed the parties' submissions and the entire record[1] in this case, the Court is prepared to issue a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Because the ALJ made a factual error in assessing Plaintiffs medical records when determining Plaintiffs RFC, the Court recommends that Plaintiffs Motion for Summary Judgment (ECF No. 9) be GRANTED; that Defendant's Motion for Summary Judgment (ECF No. 13) be DENIED; and that the final decision of the Commissioner be VACATED and REMANDED for further administrative proceedings in accordance with this report and recommendation.


Because Plaintiff alleges that the ALJ erred in assessing Plaintiffs credibility and determining that Plaintiff maintained the ability to perform limited, light work, Plaintiffs work and medical histories, Plaintiffs hearing testimony, Plaintiffs function report, third-party testimony and a non-treating physician's opinion are summarized below.

A. Education and Work History

Plaintiff was 51 years old when he applied for DIB and completed school through the ninth grade. (R. at 24, 338.) During high school, Plaintiff attended regular classes and he could read, write basic sentences and add and subtract at a rudimentary level. (R. at 24-25.) Plaintiff previously worked as a janitor, patient services assistant, road technician, restaurant cook, and most recently as a floor technician at Walmart and Healthcare Services Group, Inc. (R. at 25-26, 80-81.) He quit Health Care Services in 2011 after one month of work due to pain. (R. at 26.)

B. Medical Records

On March 19, 2009, Michael J. Miller, M.D. treated Plaintiff. (R. at 280.) Plaintiff complained of leg pain in his thighs through his feet, which occurred after periods of immobility. (R. at 280.) Dr. Miller found no swelling in Plaintiffs hands, wrists, elbows, shoulders, hips, knees, ankles and feet. (R. at 281.) Muscle strength measured at 5/5. (R. at 281.) Dr. Miller reported mild crepitus on flexion and extension of the knees and myalgias in the lower extremities, but Dr. Miller noted that the cause was not entirely clear. (R. at 281.) Dr. Miller encouraged Plaintiff to follow a weight normalizing diet and recommended that Plaintiff perform general range of motion exercises to upper and lower extremities every day. (R. at 281.)

On March 25, 2009, Plaintiff underwent a CT scan of his abdomen and lumbar spine, and x-rays of his lumbar spine and pelvis. (R. at 271-78.) After reviewing the results of these tests, Ronald E. Robinson, M.D. diagnosed Plaintiff with degenerative joint disease in the lumbar spine, mild fatty infiltration of the liver and bilateral renal cysts. (R. at 270, 278.) In April 2009, Plaintiff had fairly good joint space remaining and no evidence of muscle disease, lumbar stenosis or retroperitoneal fibrosis existed. (R. at 270.) Dr. Miller recommended that Plaintiff follow a weight normalizing diet and exercise regularly, focusing on general range of motion to upper and lower extremities daily. (R. at 270.) Dr. Miller prescribed an anti-inflammatory for Plaintiff to treat his osteoarthritis. (R. at 270.)

On June 10, 2010, Peter VanDerMeid, M.D. provided Plaintiff with an excuse from work, because Plaintiff could not walk or stand for more than five minutes at a time. (R. at 295-96.) Dr. VanDerMeid estimated that Plaintiffs condition would last seven days and noted the unlikelihood of any future episodic flare-ups. (R. at 296-97.)

On August 5, 2010, Plaintiff sought treatment from Dr. VanDerMeid, complaining of pain and aches in his left hand, right knee, hips, lower back and right elbow. (R. at 293.) Dr. VanDerMeid diagnosed Plaintiff with early onset carpal tunnel syndrome in the left hand, right elbow tendonitis and right knee osteoarthritis. (R. at 294.) Dr. VanDerMeid recommended physical therapy and home exercise. (R. at 294.)

On October 14, 2010, Plaintiff visited Brian C. Bittner, M.D., complaining of left shoulder, left forearm and right elbow pain. (R. at 311.) Dr. Bittner indicated that Plaintiff suffered lateral epicondylitis in his right elbow, a rotator cuff sprain, strain in the left shoulder and soft tissue pain in his legs. (R. at 311.) Dr. Bittner prescribed Solumedrol and Celebrex. (R. at 311.) On February 21, 2011, Plaintiff returned to Dr. Bittner, who increased Plaintiffs Glipizide dosing. (R. at 317.)

On August 18, 2011, Plaintiff visited the Lloyd F. Moss Free Clinic, complaining of pain in the lower back and right knee. (R. at 360.) On August 30, 2011, x-rays revealed normal alignment of the lumbar spine with no fracture or subluxation and intact pedicles. (R. at 323.) Images of the right knee demonstrated normal bone mineralization and no fracture. (R. at 324.) Plaintiff had spurs in his patell of emoral and lateral compartments with lateral joint space narrowing, but no erosive changes appeared. (R. at 324.)

On September 16, 2011, George Fish, M.D. conducted a bone mineral analysis, which revealed that Plaintiff had normal bone mineral density. (R. at 325.) Dr. Fish reported no conspicuous degenerate change and further indicated accentuated disc degeneration and intervertebral disc space narrowing in part of the lumbar spine and mild disc degeneration at other levels within the spine. (R. at 332.) The sacral iliac joints were unremarkable. (R. at 370.) Dr. Fish recommended regular exercise and maintaining adequate calcium and vitamin D intake. (R. at 325.)

On September 29, 2011, Plaintiff returned to the Lloyd F. Moss Free Clinic, complaining of left hip pain being greater than right hip pain and lower back pain. (R. at 358.) Plaintiff visited again on October 13, 2011, and had difficulty walking and could not bend or touch his toes. (R. at 357.) He complained of pain in his sacral region, buttocks and hips. (R. at 357.) He also noted that pain was constant in his back and intermittent in his hips. (R. at 357.)

On January 12, 2012, Plaintiff returned to the clinic, complaining of swelling in his right knee. (R. at 394.) An x-ray revealed tricompartmental osteoarthritic changes with osteophyte formation and joint space narrowing, greatest within the lateral compartment. (R. at 415.) No acute fracture appeared and only a small degree of supratellar joint effusion existed. (R. at 415.) Plaintiff followed up on January 26, 2012, and received medications for osteoarthritis in the right knee. (R. at 393.)

Plaintiff returned to the clinic on March 23, 2012, complaining of swelling and stiffness in his knees and buckling of the right knee. (R. at 391.) Plaintiff used a cane and received instructions on its proper use. (R. at 391-92.) On September 6, 2012, Plaintiff complained of pain in his right knee, left shoulder, back and both hips. (R. at 382.) The right knee appeared swollen and Plaintiff reported that it buckled at times. (R. at 382.) On September 13, 2012, Plaintiff returned to the Lloyd F. Moss Free Clinic after falling on a wet sidewalk and again complained of knee swelling. (R. at 390.) An x-ray of Plaintiffs knee revealed no fracture, subluxation or destructive lesion. (R. at 412.) However, moderate tricompartmental joint space narrowing and osteophyte formation in the lateral compartment appeared. (R. at 412.) A shoulder x-ray revealed minimal osteoarthritis of the left AC joint and no acute osseous abnormality. (R. at 413.)

On November 6, 2012, Plaintiff returned to the Lloyd F. Moss Free Clinic, complaining of shoulder aches, and the physician recommended physical therapy. (R. at 381.) On February 25, 2013, Plaintiff returned for a check-up, during which he was diagnosed with severe osteoarthritis in the right knee and type II diabetes. (R. at 380.) Plaintiffs right knee appeared chronically swollen and slightly warm. (R. at 380.) It was recommended that Plaintiff attend physical therapy and undergo a knee replacement. (R. at 380.)

C. Non-treating State Agency Opinion

On September 30, 2011, Victoria Grady, M.D. completed a consultative examination and opined that Plaintiff could stand for four hours, walk for four hours or sit for four hours in an eight-hour work day. (R. at 342.) Plaintiff would need to change positions due to pain and weakness in the lower extremities. (R. at 342.) Dr. Grady further determined that Plaintiff could lift or carry 10 pounds occasionally. (R. at 342.) She noted that Plaintiff needed a cane at all times. (R. at 342.) Plaintiff could reach, handle, feel, grasp or finger frequently, and could bend, stoop, crouch or squat occasionally due to back pain and weakness. (R. at 342.)

D. Function Reports

On July 25, 2011, Plaintiff completed a function report in which he indicated that he lived at home with his family. (R. at 225.) He spent his days lying or sitting around. (R. at 225.) Plaintiff rarely cooked and did not perform any yard work or household chores. (R. at 227.) His pain affected his ability to sleep at night or nap during the day. (R. at 226.)

Plaintiff reported difficulty putting on pants, washing his legs and feet in the bath, shaving and eating. (R. at 226.) He could drive by himself, but he could barely walk after driving for thirty minutes. (R. at 226.) Plaintiff shopped once a month, picking up a few light items, such as bread. (R. at 228.) He reported no difficulty paying bills, counting change, handling a savings account or using a checkbook/money order. (R. at 228.)

Plaintiffs hobbies included reading and watching television, which he did most of the time. (R. at 229.) He attended church and a bible study with his wife. (R. at 229.) He could not walk very far and needed 20-30 minutes before resuming walking. (R. at 230.) Plaintiff had no difficulty following written instructions, finishing what he started, handling stress and dealing with change. (R. at 230-31.) Plaintiff bought a cane, because he thought it would be helpful and he did not have insurance to visit a doctor. (R. at 231.) He used the cane after sitting or lying for long periods of time. (R. at 231.)

E. Plaintiffs Testimony

On April 16, 2013, Plaintiff, represented by counsel, appeared for a hearing in front of an ALJ. (R. at 19.) Plaintiff testified that he was 53 years old and lived with his wife and two children. (R. at 23-24.) Plaintiff was 5'6" and weighed approximately 230 pounds. (R. at 27.) He and his family used food stamps and his wife received supplemental security income. (R. at 46.) Plaintiff completed the ninth grade, could read and write, and could add and subtract "enough to not be cheated." (R. at 24-25.) He had a valid driver's license and could follow verbal and written instructions. (R. at 38, 45.) He could not use a computer, but completed a work application online with assistance. (R. at 38.) Plaintiff spent time in jail for unpaid fines related to a suspended driver's license. (R. at 36-37.)

Plaintiff took Crestor for cholesterol, Metformin and Glucotrol for diabetes, Diclofenac for osteoarthritis and Tramadol for pain. (R. at 31-33, 267.) The medications caused drowsiness, dizziness and sleepiness. (R. at 45.) Periodically, Plaintiff received cortisone injections for his pain, and they relieved his pain for about one month. (R. at 48.) Plaintiff previously underwent right foot surgery for bone repair in the 1980s, right ankle surgery for tendonitis in 2006 or 2007, and two right knee surgeries for cartilage and tendon repair in the 1980s and 1990s. (R. at 29-30, 43.)

Plaintiff described the pain in his legs as sharp, starting in both hips and going down through the knee. (R. at 51.) Plaintiff had to lie down three to four times a day for approximately one hour each time. (R. at 52.) Plaintiff laid in a recliner and elevated his feet three hours each day. (R. at 52.) He slept two hours each night. (R. at 52.) A typical day for Plaintiff included waking up at 8:00 a.m., brushing his teeth, washing his face, lying down for an hour, getting up at 10:30 a.m. to take medications, eating breakfast, drinking coffee, napping until 12:30 p.m., eating lunch, listening to the radio and lying back down around 1:00 p.m. until 4:00 p.m. (R. at 53-54.) Plaintiff went to bed at 9:00 p.m., but had difficulty sleeping at night once his medications wore off. (R. at 54.)

Plaintiff could sit for an hour at a time, stand for thirty minutes at a time and walk the distance of one low and level city block. (R. at 33.) He could lift a glass of water, but not a gallon of milk. (R. at 34.) Plaintiff used a cane, but it was not prescribed. (R. at 27-28.) However, he spoke with a physician at the Lloyd F. Moss Free Clinic about the use of a cane. (R. at 27-28.) Plaintiffs doctor recommended that he continue using the cane, because it helped with balance and took pressure off of the knee when walking. (R. at 47.) He used the cane "most of the time, " including when walking in the house, but he could walk from the bedroom to the kitchen and back without using it. (R. at 28, 33.)

Plaintiff had friends, but did not visit with them. (R. at 37.)He could bathe on his own, but could not take out the garbage, cook, vacuum, sweep, rake leaves or mow the lawn. (R. at 40-42.) He "probably could" load a dishwasheror wash dishes but ...

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