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Sutton v. Berryhill

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

December 7, 2017

WILLIAM L. SUTTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff William L. Sutton seeks judicial review of the Commissioner of Social Security ("Commissioner")'s denial of his claim for Title II disability insurance benefits ("DIB"). Specifically, Sutton claims that the Administrative Law Judge ("ALJ")'s determination of residual functional capacity ("RFC") failed to account for his need for a cane, which Sutton claims undermines the evidence upon which the ALJ concluded he was not disabled. Sutton also claims the ALJ failed to properly consider his work history when evaluating his credibility and determining his RFC. For the reasons stated below, this report recommends that the court AFFIRM the final decision of the Commissioner by GRANTING the Commissioner's Motion for Summary Judgment (ECF No. 20) and DENYING Sutton's Motion for Summary Judgment (ECF No. 18).

         I. PROCEDURAL BACKGROUND

         On July 4, 2012, Sutton filed an application for Title II DIB. R. at 19. He alleged that he was disabled as of April 15, 2010. R. at 80. He alleged his disability was due to degenerative disc disease of the lumbar spine, carpal tunnel syndrome, and sensorineural hearing loss. R. at 21-22. The state agency denied his application initially. R. at 87-88. It did so again upon reconsideration. R. at 100. Sutton then requested an administrative hearing from the Social Security Administration ("SSA"). R. at 19. An ALJ conducted a hearing on October 15, 2015. R. at 31. Sutton was represented by an attorney. R. at 33.

         The ALJ determined Sutton was last eligible for benefits under the Social Security Act on September 30, 2015, identifying this as Sutton's Date Last Insured ("DLI"). R. at 21. On November 23, 2015, the ALJ denied Sutton's claims for DIB. R. at 26. The ALJ found Sutton was not disabled between his alleged onset date of April 15, 2010, and his DLI of September 30, 2015. R. at 19, 26. The Appeals Council denied Plaintiffs request for review on November 16, 2016. R. at 1-3. Sutton timely filed the Complaint in the present action seeking review of the administrative proceedings below on January 18, 2017. Compl. at 1 (ECF No. 5).

         II. FACTUAL BACKGROUND

         Sutton was born in 1961. See R. at 25. On his DLI, he was 54 years old and "closely approaching advanced age" as determined by the SSA's regulations. See 20 C.F.R. § 200-204. He completed high school and served in the U.S. Navy from 1979 to 1999. R. at 200, 206. After his retirement from military service, he worked a number of jobs in the construction, manufacturing, and trucking industries. Id. These jobs were skilled and unskilled and required medium or heavy exertion. R. at 55-56, 206. His last job was as a contract stocker, which he left in June 2011. R. at 206.

         The relevant portions of Sutton's medical history are summarized here, as are the portions of the administrative proceedings below that are relevant to his arguments in this court.

         a. History of Medical Treatment and Evaluation.

         Sutton's medical records show he consistently described a lengthy history of back pain to his treating physicians. See, e.g., R. at 267, 268, 273, 422.

         On June 21, 2010, during emergency room treatment for kidney stones, Sutton underwent a musculoskeletal evaluation; he was found to have a normal range of motion, exhibiting no edemas and no tenderness. R. at 343-44.

         On August 17, 2012, Sutton sought treatment for back pain as he prepared to fly to the Philippine Islands. R. at 267. He was prescribed pain medicine. Id. The treating physician found no weakness in Sutton's lower extremities. Id. In September of that year, he again sought treatment for back pain. R. at 268. His physician noted he was walking with a cane and that he had low-back tenderness during active forward flexion and dorsiflexion. Id.

         On October 9, 2012, Sutton sought treatment from Dr. Richard Guinand at The Spine Center at Chesapeake. R. at 275. Sutton had severe, sharp, and consistent lower back pain as well as left leg weakness. R. at 273. Sutton had no tenderness to palpation, intact sensation and symmetric reflexes, normal coordination and balance, full active and passive range of motion, and negative bilateral straight leg raising tests. R. at 75. An X-ray of his lumbar spine revealed good bony anatomy and alignment, lumbarization of SI, decreased disc space on LI-2 and L2-3, facet arthropathy[1] at L5-S1, and no instability on flexion and extension views. R. at 275. Although Sutton brought disability evaluation paperwork to the session, Dr. Guinand did not complete them, telling Sutton he did not perform those evaluations. R. at 275. Dr. Guinand made no reference to Sutton using a cane. See R. at 272-76. Dr. Guinand directed Sutton to physical therapy, which he would be undergoing for the first time, and prescribed tramadol, a pain-reliever. R. at 275-76.

         From October to December 2012, Sutton underwent a course of physical therapy. See R. at 369-426. During his initial screening with the physical therapist, Sutton complained of chronic back pain. R. at 428. He said his pain worsened if he walked, stood, or sat for more than an hour. R. at 423. Notwithstanding his pain, he had a normal range of motion in his hips, knees, and ankles and a reduced range of motion in his lumbar spine. R. at 422-233. He used a single-point cane to walk. R. at 422. At this initial screening, his physical therapist made safe ambulation without a cane a goal of his therapy. R. at 424. During his treatment, he reported improvements and used his cane less as a result. R. at 388, 390, 378. At the conclusion of his treatment in December 2012, Sutton reported his strength and endurance for activity had improved over the course of his physical therapy. R. at 373. His physical therapist reported he had met the goal of being able to walk safely without the cane. Id.

         During treatment for back pain at a Veterans Administration Medical Center, Sutton was instructed to use his cane while walking, though he told the licensed practical nurse interviewing him that he only used the cane on unfamiliar terrain. R. at 489.

         In June 2013, Sutton sought treatment for lower back pain. R. at 281. His records reflect he was walking with a cane. Id. He was prescribed pain relievers again to manage his back pain. R. at 282. In August 2013, Sutton saw Dr. Maria Nguyen for pain management care. R. at 285. During the examination, he had negative bilateral leg raising, no range of motion pain in his hips, full range of motion in his legs, 5/5 leg strength, and intact sensation and symmetric reflexes. R. at 289. He had an antalgic gait, but could toe and heel walk without difficulty and did not struggle to mount the examination table. Id. He reported being able to take short exercise walks and perform personal care tasks like eating, bathing, dressing, and getting up from a chair or from bed. R. at 288. He did have diminished range of motion in his lumbar spine and pain with extension, flexion, and lateral rotation. R. at 289.

         b. Agency Consultative Examination and Physician Assessments.

         On February 9, 2014, Dr. Shawne Bryant examined Sutton at the request of the state agency in order to make a determination regarding Sutton's disability status. R. at 291. Dr. Bryant observed Sutton was able to walk with minimal difficulty when using a cane in his right hand. R. at 292. Without the cane, he could walk normally and heel-to-toe. Id. He could squat to 90 percent when bracing on a chair and mounted the examination table without difficulty. Id. Sutton complained of pain in his back when walking on his heels without the cane. Id. He limped on his left when walking on his toes without the cane. Id. Sutton had normal range of motion in his cervical spine and knees, and he had negative straight left raising tests. R. at 292-93. He showed diminished lumbar spine range of motion, and hip flexion caused him pain. R. at 291. Dr. Bryant, in the section of her report titled "Functional Status, " opined of Sutton: "It is felt the patient would benefit from the use of his assistive device due to his back pain." R. at 293.

         On May 3, 2013, and February 26, 2014, two different state agency physicians reviewed Sutton's records and each concluded Sutton could perform light work. R. at 85-88, 95-100. The 2013 assessment noted that Sutton had used a cane during an examination in September 2012, but it nonetheless concluded Sutton could still perform light tasks. R. at 83. The 2014 assessment also noted use of a cane during a visit to Sutton's primary care provider in June 2013. R. at 95. Based on Dr. Bryant's finding that Sutton could walk normally without the cane, the assessing physician concluded that "Use of a cane not entirely necessary per objective findings, but may be helpful for extended distance walking." R. at 96. The assessment went on to opine that Sutton was not disabled. R. at 100.

         c. Testimony Before the Administrative Law Judge.

         At the administrative hearing on October 15, 2015, Sutton testified before the ALJ. R. at 33. He told the ALJ his back was in pain "constantly" and that, at its worst, the pain was "like somebody putting a knife in there and turning it." R. at 41. He testified he was using tramadol and other pain-relievers.[2] R. at 41-42. He told the ALJ he had not continued with treatment for his back pain within the two years before the hearing because he could not afford the $16 insurance co-pay for each treatment session. R. at 42, 50. He told the ALJ he could only walk 15 minutes before his back became severely painful. R. at 45-46 Sutton also told the ALJ, while answering questions from counsel, he needed his cane anytime he left the house. R. at 51. Sutton also told the ALJ he could drive short distances, cook, and do limited housework. R. at 46-47.

         After hearing from Sutton, the ALJ heard testimony from a Vocational Expert ("VE"). R. at 54. The VE said a hypothetical person with limitations described by the ALJ, but not including the requirement of a cane, could perform three light exertional level jobs. R. at 57 (office helper, with 137, 000 positions in the national economy; clerical checker, 68, 000 positions; and inspector, 78, 000 positions). When Sutton's counsel asked about the impact of needing a cane on Sutton's employability, the VE said the office helper and clerical checker jobs would remain the same but that Sutton could not do the inspector job. R. at 59. This left 205, 000 positions in the national economy Sutton could perform. See id.

         d. Decision of the ...


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