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Leith v. Berryhill

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

December 28, 2017

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



         This matter is before the Court on the parties' cross-motions for summary judgment. (Dkt. Nos. 20, 25). Pursuant to 42 U.S.C. § 405(g), Darrell Glen Leith ("Plaintiff) seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner" or "Defendant") denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401-34. For the reasons stated below, Plaintiffs Motion for Summary Judgment (Dkt. No. 20) is DENIED, and Defendant's Motion for Summary Judgment (Dkt. No. 25) is GRANTED.


         Plaintiff filed an application for DIB on October 11, 2012, alleging disability since January 1, 2007, due to degenerative disc disease, degenerative joint disease, coronary artery disease, and diabetes. (Administrative Record ("R.") 732-33, 773-77.) After the state agency twice denied Plaintiffs claim, Plaintiff requested an administrative hearing. (R. 660-70.) The ALJ held a hearing on June 24, 2015. (R. 122-57.) On July 30, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Act. (R. 31-50.)

         On October 13, 2016, the Appeals Council for the Office of Disability and Adjudication denied Plaintiffs request for review of the ALJ's decision, rendering the ALJ's decision the final decision of the Commissioner for purposes of review under 42 U.S.C. § 405(g). (R. 1-7.) Having exhausted his administrative remedies, Plaintiff filed the instant suit challenging the ALJ's decision on December 19, 2016. (Dkt. No. 1.) The parties filed cross-motions for summary judgment, and this matter is ripe for disposition. (Dkt. Nos. 20, 25.)


         Plaintiff was born on April 23, 1965, and was forty-one years old at his alleged onset date. (R. 638.) He has a bachelor's degree in accounting and previously worked as an accountant and assistant controller. (R. 129-31.)

         In his most recent function report, Plaintiff stated that he could perform limited household chores, go out by himself driving short distances, listen to music, watch television, care for his personal needs and his two young children, prepare simple meals, and shop for food. (R. 784-90.) Plaintiff reported not being able to drive long distances and difficulty with walking and sitting for long periods of time, sleeping soundly, exercising, and concentrating on tasks. (Id.)

         A. Medical Evidence

         1. Degenerative Disc Disease

         On July 2, 2007, Plaintiff was seen by Dr. Corbin Eissler for ongoing back pain in Plaintiffs lower back. (R. 928.) Dr. Eissler noted that Plaintiff suffered tenderness and tightness in his back and along the paraspinal muscles. (R. 929.) On August 2, 2012, Dr. Brian O. Stephens diagnosed Plaintiff with cervical disc degeneration. (R. 1042.) Dr. Stephens noted decreased disc space centered at Plaintiffs C4-C5 junction. (R. 1043.) Dr. Stephens also noted that Plaintiff was "now able to look over both shoulders ... touching chest with chin." (R. 1043.)

         2. Degenerative Joint Disease

         On November 16, 2007, Plaintiff was seen by Joan R. Ellmore, a nurse practitioner at Kaiser Permanente, in connection with complaints of knee pain. (R. 922.) Ms. Ellmore noted that Plaintiff has "always had knee problems from sports as a teenager. Knees used to buckle and surgery was recommended at one point due to swelling of the left knee." (Id.) Plaintiff represented to Ms. Ellmore that he fell when his right knee collapsed and that taking Motrin did not relieve Plaintiffs pain; however, Plaintiffs use of Toradol helped relieve some of his pain. (R. 922-23.) Plaintiff declined a knee immobilizer because keeping his knee straight caused more pain and decided instead to use crutches that he already owned. (R. 923)

         On February 7, 2008, Plaintiff was seen by Dr. David E. Page, who diagnosed Plaintiff with trochanteric bursitis and arthralgia of the knee. (R. 918.) Later, on February 19, 2008, Plaintiff visited Dr. Roberta A. Kasman, who diagnosed Plaintiff with osteoarthritis of the knee and hypertension, among other things. (R. 916.) Dr. Kasman noted that Plaintiff suffered intermittent knee pain, which was worse with activity to the point Plaintiff could not walk sometimes. (Id.) Dr. Kasman also noted that Plaintiff had occasional swelling, pain in his hips and fingers, and no significant relief from ibuprofen. (Id.) Plaintiff had not undergone physical therapy but "takes vicodin as needed." (Id.)

         On April 14, 2008, Plaintiff had an appointment with a physical therapist, Sheetal Y. Jhaveri.[1] (R. 912.) Plaintiff reported activities of recumbent biking and weight training with his legs. (Id.) Plaintiff also reported his only medication was Aleve. (Id.) Plaintiff described his knee pain level between 4 and 6 out of 10. (Id.) Mr. Jhaveri observed a mild patellar tilt bilaterally but noted that Plaintiffs gait was within functional limits. (Id.) Mr. Jhaveri instructed Plaintiff in a home exercise program and advised him to avoid strenuous weight training. (R. 913.)

         In October 2008, Plaintiff opted for lidocaine injections to his hips. (R. 898.) Then on December 30, 2009, Plaintiff was again seen by Dr. Eissler for continued hip and knee pain. (R. 1156.) Plaintiff continued to seek treatment for his knee pain, and on June 7, 2011, was examined by Dr. Narayanan, who found that Plaintiff had full range of motion in his left knee with no effusion, swelling, point tenderness, or drawer signs. (R. 1098.)

         On July 7, 2011, Dr. Kasman again examined Plaintiff for knee and hip pain. (R. 885.) Dr. Kasman concluded that Plaintiffs left knee was not tender and that Plaintiff had full range of motion. (R. 886.) Then on November 2, 2011, Plaintiff saw Dr. Narayanan for persistent knee pain. (R. 1083.) Plaintiff reported that his pain worsened with increased activity but that Percocet helps. (Id.)

         3. Coronary Artery Disease

         On October 29, 2008, Plaintiff was treated at the emergency room for atrial fibrillation. (R. 818.) Plaintiff reported dizziness and lightheadedness especially when active. (Id.) On June 6, 2010, and again on April 18, 2011, Plaintiff sought treatment for chest pains. (R. 871, 1103-04.) However, on November 2, 2011, Dr. Narayanan's examination of Plaintiff revealed that Plaintiffs lungs were clear to auscultation and that Plaintiffs heart rate was regular without rubs or murmurs. (R. 1083-84.)

         4. Diabetes

         At almost every medical appointment, Plaintiffs diabetes was noted as controlled. (R. 897-1202.)

         5. Opinion Evidence

         In August 2012, Dr. Narayanan opined that Plaintiffs knee pain limits Plaintiffs daily activities. (R. 896.) Specifically, Dr. Narayanan opined that Plaintiffs ability to pursue his usual occupation is limited and that Plaintiffs knee pain has severely impacted Plaintiffs quality of life. (Id.) In March 2013, Dr. Narayanan further opined that Plaintiffs knee and hip pain "are disabling and require medication for management, " and Plaintiffs "ability to be employed is severely restricted due to his problems." (R. 1203-04.)

         On December 26, 2013, Dr. Narayanan completed a Multiple Impairment Questionnaire in which he indicated he began treating Plaintiff in February 2011 and most recently had treated Plaintiff in February 2013. (R. 1240-47.) In the questionnaire, Dr. Narayanan listed Plaintiffs diagnoses as chronic pain, osteoarthritis of the knees, coronary artery disease, hip pain, and neck pain (R. 1240) but noted that Plaintiff could sit, stand, and walk for up to one hour in an eight-hour day. (R. 1042.) Dr. Narayanan also opined that Plaintiff needed to move around every thirty minutes and that Plaintiff could not stand or walk continuously in a work setting. (R. 1042-43.) Dr. Narayanan further noted that Plaintiff had significant limitations in doing repetitive reaching, handling, fingering, and lifting due to neck pain and was essentially precluded from using his hands and arms for all fine and gross manipulative activities. (R. 1243-45.) However, Dr. Narayanan opined that Plaintiff could frequently lift up to five pounds and occasionally carry up to 20 pounds. (R. 1243.) Overall, Dr. Narayanan opined that Plaintiff could not work full-time due to physical impairments and anxiety, that Plaintiffs impairments would last at least twelve months, and that Plaintiffs limitations dated back to July 2007. (R. 1246.)

         Dr. R.S. Kadian, a state agency physician, considered Plaintiffs case at the initial administrative level and concluded that Plaintiff was capable of performing light exertional work; could frequently climb ramps and stairs; could also balance, stoop, kneel, crouch, crawl, and occasionally climb ladders, ropes, and scaffolds. (R. 638-45.) Then at the reconsideration phase of the administrative process, Dr. Tony Constant considered Plaintiffs case. (R. 647-56.) Dr. Constant noted that Plaintiff has diabetes but also noted that the diabetes "has not resulted in organ ...

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