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Unsworth v. Berryhill

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

January 16, 2018

RODNEY E. UNSWORTH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          LAWRENCE R. LEONARD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Rodney E. Unsworth ("Plaintiff) filed a complaint, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), that seeks judicial review of the final decision of the Defendant, Nancy A. Berryhill, Acting Commissioner of the Social Security Administration ("the Commissioner"), which denied Plaintiffs claim for Disability Insurance Benefits ("DIB") pursuant to Title II, and his claim for Supplemental Social Security Income ("SSI") pursuant to Title XVI, of the Social Security Act. On April 5, 2017, Plaintiff filed his Motion for Summary Judgment and brief in support. ECF Nos. 13-14. On May 4, 2017, the Commissioner filed her Motion for Summary Judgment and brief in support (ECF Nos. 15-16), to which Plaintiff filed a Reply on May 16, 2017 (ECF No. 17) because according to Plaintiff "[i]n her Opposition Memorandum, the Commissioner made several assertions which require a response." ECF No. 17 at 2. The parties' Motions for Summary Judgment are now ripe and ready for disposition.

         This action was referred to the undersigned United States Magistrate Judge ("the undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b), Local Civil Rule 72, and the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate Judges. For the following reasons, the undersigned RECOMMENDS Plaintiffs Motion for Summary Judgment, ECF No. 13, be GRANTED to the extent it seeks reversal and remand of the Commissioner's decision and DENIED to the extent that it seeks entry of an order directing the award of benefits; the Commissioner's Motion for Summary Judgment, ECF No. 15, be DENIED; and the Commissioner's decision be VACATED and REMANDED

         I. PROCEDURAL BACKGROUND

         Plaintiff filed a protective application for DIB on August 1, 2012 and an application for a period of disability on August 4, 2012. R. at 59.[1] In both applications, Plaintiff alleged a disability onset date of October 15, 2010. R. at 59. This application was initially denied on February 12, 2013, R. at 59, and denied again upon reconsideration on November 26, 2013, R. at 158. On December 31, 2013, Plaintiff requested a hearing in front of an Administrative Law Judge, R. at 59, which was held before Administrative Law Judge William T. Vest, Jr. ("the ALJ") on May 14, 2015, R. at 59. The ALJ issued his decision on May 29, 2015, denying Plaintiffs application. R. at 66. On October 11, 2016, the Appeals Council for the Office of Disability and Adjudication ("Appeals Council") denied Plaintiffs December request for review of the ALJ's decision. R. at 1, 6. After exhausting his administrative remedies, Plaintiff filed his complaint for judicial review of the Commissioner's final decision on December 5, 2016. ECF No. 1. The Commissioner filed an answer on February 27, 2017. ECF No. 7. Both parties filed motions for summary judgment, ECF Nos. 13 and 15, and the matter is now ripe for recommended adjudication.

         II. RELEVANT FACTUAL BACKGROUND

         In his applications, filed August 1, 2012 and August 4, 2012, Plaintiff alleged a disability onset date of October 15, 2010. R. at 59. At the time of the ALJ's decision, Plaintiff was a forty-five year old man with a high school education, who had completed two years of college, with previous employment as a dock maintenance worker and an electrician. R. at 66, 74, 95. At the May 14, 2015 hearing, Plaintiff supplemented his medical records by providing additional information via testimony. The record included the following factual background for the ALJ to review:

         Plaintiff is divorced and has no children. R. at 196. Since 2010, he has lived alone in Chesapeake, Virginia in a house owned by his parents and his parents live next-door. R. at 93, 205. Plaintiff worked as a ship repair electrician from September 2010 until October 15, 2010, at which time Plaintiff sustained a back injury while assembling a cabinet at work. R. at 75. However, prior to this date, Plaintiff has an extensive record of complaints and alleged symptoms stemming from psoriasis, from which he has suffered since he was a teenager. R. at 413-38. At the hearing, Plaintiff testified that he takes prescription medication for his psoriasis, but no pain medication for his back. R. at 63, 79. Plaintiff reported that immediately prior to his October 15, 2010 work injury, he had been prescribed methotrexate, which Plaintiff describes as a "miracle drug" for his psoriasis, and also helps with the inflammation of his back. R. at 84, 93.

         Plaintiffs alleged onset date, October 15, 2010, stems from a work injury he sustained when lifting a cabinet. R. at 75. According to Plaintiff, he was squatting down to move the position of the cabinet when the weight of the cabinet shifted and Plaintiff moved to catch it. R. at 75. On October 26, 2010, Plaintiff was diagnosed with left sacroiliac joint sprain and referred for physical therapy. R. at 311-12. On November 23, 2010, Plaintiff returned for a follow-up and reported that he was making no progress in physical therapy. R. at 310. At that time, Dr. Richard D. Guinand cleared Plaintiff for light duty with a restriction on lifting more than ten pounds, arranged for an MRI to be performed, and directed Plaintiff to continue with physical therapy. R. at 310. In August 2011, after failed conservative treatment, including physical therapy, epidural steroid injections, and lumbar facet injections, R. at 354, Dr. David G. Goss ("Dr. Goss") performed a laminectomy and decompression, R. at 63. Post-surgery, Plaintiff continued to experience lower back pain and it was recommended that he have a second surgery to "re-do" the first surgical intervention. R. at 283. At the May 14, 2015 hearing, Plaintiff indicated his intention to return to Dr. Goss "next week" to discuss a second surgery. R. at 78.

         Plaintiff reported that he can walk approximately fifty (50) feet before experiencing significant pain and can only sit or stand for a couple of minutes. For the majority of his day, Plaintiff has to lie on the couch with his legs in an upright position to achieve relief from his back pain. R. at 63, 82. Plaintiff experiences additional minimal relief from soaking in the shower for approximately one hour, at least three times a day, beginning first thing in the morning. R. at 91. In response to questioning by the ALJ, Plaintiff stated that he has good days where he is "okay", but has approximately twenty bad days in a thirty day month, during which time he is "dependent totally 100 percent" on his mother for dressing and bathing himself. R. at 83, 92. He also stated that he relies on his mother for chores and housework such as doing laundry and grocery shopping because he "can't carry a gallon of milk." R. at 82. Plaintiffs mother also buys his groceries. R. at 93, 205. Plaintiff reports that at least once or twice a month, Plaintiff has to be taken to the emergency room in an ambulance because his back pain renders him incapable of moving. R. at 92.

         In addition to physical ailments, Plaintiff alleges that he suffers from anxiety disorder. Beginning in September 2011 Plaintiffs medical records are significant for references to this disorder. On September 27, 2011, Plaintiff reported feeling anxious to Dr. Goss. R. at 291. On July 26, 2012, Plaintiff again informed Dr. Goss that he is experiencing anxiety. On August 2, 2013, Plaintiff again stated to Dr. Goss that he is experiencing anxiety. R. at 275. Plaintiff similarly reported his anxiety to Dr. Tracey Pennington, M.D. ("Dr. Pennington") on three separate occasions: June 3, 2013 (R. at 349), July 1, 2013 (R. at 356), and September 16, 2013 (R. at 363). Plaintiffs records from Dr. Ran Vijai Singh's ("Dr. Singh") office also include historical diagnoses of depressive disorder, not elsewhere classified, panic disorder without agoraphobia, and substance abuse, as well as a past suicide attempt when Plaintiff was eighteen. R. at 399, 401.

         Plaintiffs medical records reveal a history of narcotics abuse. R. at 399. Specifically, Plaintiffs treatment with Dr. Spear for pain management ended on July 17, 2012 when the physician discharged Plaintiff due to Plaintiffs noncompliance with the narcotics agreement. R. at 84. On or about October 17, 2013, Plaintiffs treatment with Dr. Pennington was similarly discontinued when Dr. Pennington discharged Plaintiff for noncompliance with the opioid medication agreement. R. at 386. Based on two separate urine screens and Plaintiffs self- reporting, Dr. Pennington determined that Plaintiff was not taking the narcotics on a daily basis as prescribed, namely, by stockpiling pills, which violated the pain management agreement executed by Plaintiff. R. at 390-91.

         Plaintiff received Worker's Compensation benefits from October 27, 2010 until July 18, 2012. R. at 86. Benefits were terminated due to noncompliance when Plaintiff was allegedly unable and unwilling to comply when directed to return to his previous employer as a security guard because he claimed that due to his back pain, he was unable to sit and stand as required by the job. R. at 86-91.

         At the hearing, Robin Stromberg, an impartial Vocational Expert ("VE") also testified. R. at 95. During her testimony, the VE recounted Plaintiffs prior employment history, which was significant for medium duty skilled employment as an electrician, as well as heavy duty semiskilled employment as a shift maintenance and dock maintenance worker. R. at 95. The ALJ presented the VE with a hypothetical assuming an individual with an RFC that would allow for sedentary work, with no climbing or crawling, and occasional stooping or squatting, and limited to simple, repetitive tasks, if such hypothetical individual had the same age, education, and work experience as Plaintiff. R. at 95. The VE testified that available jobs included an officer helper, of which there were approximately 99, 000 positions available, a general information clerk, of which there were approximately 86, 000 positions available, and an interviewer, of which there were approximately 33, 000 positions available, and that such jobs comported with the Dictionary of Occupational Titles. R. at 95-96. When Plaintiffs counsel was given an opportunity to question the VE regarding the availability of those same jobs if the hypothetical individual needed to miss three to four days of work per month due to back pain and if such individual needed to elevate his legs at least twenty inches, the VE testified that those jobs would not be available. R. at 96.

         III. THE ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

         A sequential evaluation of a claimant's work and medical history is required in order to determine if the claimant is eligible for benefits. 20 C.F.R. §§ 404.1520, 416.920; Mastro v. Apfel, 270 F.3d 171, 177 (4th Cir. 2001). The ALJ conducts a five-step sequential analysis for the Acting Commissioner, and it is this process that the Court examines on judicial review to determine whether the correct legal standards were applied and whether the resulting final decision of the Acting Commissioner is supported by substantial evidence in the record. Id. The ALJ must determine if "(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment." Strong v. Astrue, No. 8:10-cv-357-CMC-JDA, 2011 WL 2938084, at *3 (D.S.C. June 27, 2011) (citing 20 C.F.R. §§ 404.1520, 416.920); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (noting that substantial gainful activity is "work activity performed for pay or profit."); Underwood v. Ribicoff 298 F.2d 850, 851 (4th Cir. 1962) (noting that there are four elements of proof to make a finding of whether a claimant is able to engage in substantial gainful activity). "An affirmative answer to question one, or negative answers to questions two or four, result in a determination of no disability. Affirmative answers to questions three or five establish disability." Jackson v. Colvin, No. 2:13cv357, 2014 WL 2859149, at *10 (E.D. Va. June 23, 2014) (citing 20 C.F.R. § 404.1520).

         Under this five-step sequential analysis, the ALJ made the following findings of fact and conclusions of law. First, the ALJ determined that Plaintiff had not engaged in substantial gainful activity ("SGA") since October 15, 2010, the date of his work injury and the date of his alleged onset of disability. R. at 61.

         Second, the ALJ found that Plaintiff has the following severe impairments: degenerative disc disease ("DDD") and obesity. R. at 61. The ALJ concluded these physical impairments "significantly limit [Plaintiffs] ability to perform basic work activities" Plaintiffs DDD and obesity "represent severe impairments within the meaning of the Social Security Act. R. at 62. The ALJ found that Plaintiffs medical history was also significant for three other alleged impairments-substance abuse, psoriasis, and psoriatic arthritis-but found these impairments do not significantly limit Plaintiffs ability to perform work. R. at 62. The ALJ employed an extensive analysis before rejecting Plaintiffs other alleged impairments as not severe. First, with regard to substance abuse, the ALJ noted that in October 2013 Plaintiff was discharged by his pain management specialist for abusing his pain medication, but Plaintiff testified that he no longer takes narcotic pain medication. R. at 61-62. With regards to the psoriasis and psoriatic arthritis, the ALJ found that Plaintiffs symptoms were well-controlled with medication management and that any recent symptoms were attributed to noncompliance with treatment. R. at 62. Ultimately, the ALJ found that these three other impairments (substance abuse, psoriasis, and psoriatic arthritis), were not severe because they did not exist for any continuous period of at least twelve months, were responsive to medication, did not require any significant medical treatment, and did not result in any continuous exertional or non-exertional functional limitations. R. at 62. Inexplicably, and as discussed in greater detail in Part V, infra, the ALJ failed to consider Plaintiffs alleged mental health impairments, despite acknowledging at the beginning of the hearing that Plaintiffs disability application was based in part on his claimed "anxiety disorder." R. at 75.

         Third, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled on of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. at 62. Specifically, the ALJ found that Plaintiffs back disorder did not meet or equal Listing 1.04. R. at 62. In order to meet this listing, Plaintiffs spinal condition must have been established by findings on appropriate medically acceptable imaging, manifested by chronic non-radicular pain and weakness, and resulted in the inability to ambulate effectively, as defined by 1.00B2b. R. at 62. The ALJ noted that in July of 2014, Plaintiff reported to the emergency room with complaints of lower back pain. Upon examination, the emergency room doctor found no localized midline tenderness to the cervical, thoracic, lumbar or sacral bodies. Although Plaintiff reported pain with back movement, he had no bony tenderness to the hip, his sensation was intact to light touch, his motor strength was equal and symmetric, and Plaintiffs reflexes were intact. R. at 62. The emergency room physician concluded that Plaintiff suffered from sciatica. R. at 62. The ALJ also reviewed the treatment records of Dr. Goss, the Spine Center of Chesapeake, Dr. Pennington, Dr. Singh, and Plaintiffs dermatologist before concluding that nothing in said records indicated that Plaintiff was unable to walk effectively. R. at 62, 70. As for his obesity, the ALJ found that after considering the applicability of SSR-02-lp and its effect on Plaintiffs other impairments, nothing in the record shows complications satisfying those requirements. R. at 63.

         Fourth, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform unskilled, sedentary work as defined in 20 C.F.R. § 404.1567(a), provided the work only involved occasional stooping and squatting, but no climbing or crawling and only work involving simple, routine, and repetitive tasks, "due to his chronic pain complaints." R. at 63-64. The ALJ performed a credibility analysis, noting that "[Plaintiffs] testimony regarding significant limitations is not well supported by the medical evidence of record, " and found that Plaintiff "could not adequately explain the number of surgeries he had, the doctor who performed those surgeries or why he no longer took medication for symptom control." R. at 64. The ALJ found it significant that Plaintiff "has been discharged from pain management on two occasions due to abusing his narcotic medication." R. at 64. The ALJ concluded that after considering the evidence, Plaintiffs "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiffs] statements concerning the intensity, persistence and limiting effects of these symptoms are not fully credible, " and that Plaintiff can perform unskilled sedentary work. R. at 63-64. The ALJ determined that Plaintiff was unable to perform his relevant past work as an electrician and ship worker, which were medium skilled and heavy semi-skilled levels, respectively. R. at 65. Regardless, the ALJ found that sedentary, unskilled jobs existed in significant numbers in the national economy that Plaintiff could perform notwithstanding Plaintiffs ...


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