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Barefoot v. Berryhill

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

February 2, 2018

RAYMOND DENNIS BAREFOOT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Douglas E. Miller United States Magistrate Judge.

         Plaintiff Raymond Barefoot seeks judicial review of the Commissioner of Social Security's denial of his claim for disability insurance benefits ("DIB"). Specifically, Barefoot claims that the Administrative Law Judge ("ALJ") failed to properly consider his claim under the criteria for amputation, one of the Listing of Impairments; that the ALJ failed to properly weigh the evidence in the record when evaluating opinions from Barefoot's treating physician, a state consultative examiner, and Barefoot's own testimony; and that, because the RFC was improperly formed, issued a finding not supported by vocational expert testimony. Barefoot claims correcting for these alleged errors could result in his being found disabled and therefore seeks remand of his claim. This action was referred to the undersigned United States Magistrate Judge pursuant to provisions of 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72(b) of the Federal Rules of Civil Procedure.

         After reviewing the parties' briefs and the administrative record of the Agency's findings, this Report concludes that the ALJ complied with the law and regulations governing disability benefits under the Social Security Act. Accordingly, for the reasons stated in detail 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. 14) and DENYING Barefoot's Motion for Summary Judgment (ECF No. 12).

         I. PROCEDURAL BACKGROUND

         On January 11, 2013, Barefoot filed an application for DIB. R. at 156-57, 168. He alleged that he was disabled as of September 29, 2012, due to a crush injury to his left foot and the subsequent amputation of his left leg below the knee. R. at 168, 171. The state agency denied his application initially and again upon reconsideration. R. at 93, 101. Barefoot then requested an administrative hearing, which was conducted October 14, 2015. R. at 41-82.

         The ALJ determined Barefoot was last eligible for DIB under the Social Security Act on March 31, 2013, identifying this as Barefoot's Date Last Insured ("DLI"). R. at 25. The ALJ denied Barefoot's claim for DIB, finding he was not disabled between September 29, 2012, and March 31, 2013. R. at 33. The Appeals Council denied Plaintiffs request for review on December 14, 2016. R. at 1-3. Barefoot then filed the Complaint in the present action seeking review of the administrative proceedings. Compl. (ECF No. 1).

         II. FACTUAL BACKGROUND

         Barefoot was born in 1970. R. at 46. On his DLI, he was 43 years old; at the time of the ALJ's decision, he was 45 years old. He completed a GED, and has worked in construction. R. at 63. Although he was primarily occupied prior to the accident caring for his young son, he had previously worked in construction as recently 2011. R. at 48, 52. The relevant portions of Barefoot's medical history are summarized here, as are the portions of the administrative proceedings below that are relevant to her arguments in this court.

         a. History of Treatment.

         On October 14, 2012, [1]Barefoot was in a motor vehicle accident. R. at 45. He sustained crush trauma to his left foot. After efforts to treat the injured feet were unsuccessful, [2] Barefoot allowed his doctors to amputate the foot below his left knee on January 28, 2013. R. at 261-62, 246-47.

         During a follow-up examination ten days after the amputation, the orthopedic specialist who performed the surgery, Dr. Michael Campbell, noted that Barefoot was doing well. He had "some phantom sensations but no severe phantom pain. He has been intermittently using pain medication at this point . . . There is an outstanding appearance to the stump. The staples are removed. A soft dressing is applied. He has full range of motion of the knee. He has full range of motion of the hip." R. at 258. Dr. Campbell prescribed stump shrinkers and referred him to Coastal Orthotics for a prosthesis.

         On February 6, 2013, Barefoot visited Coastal Orthotics to be fitted for a prosthesis. R. at 282. The Certified Prosthetics Orthotist who assisted him, Steve Siverd, observed Barefoot had a well-healing suture line with dog ears.[3] Id. A week later, Siverd noted Barefoot's stump had decreased in circumference. Id. Barefoot told the orthotist his phantom pains were increasing, but he was managing them with massage. Id.

         During a follow-up examination with Dr. Campbell on March 8, 2013, Barefoot reported having fallen several weeks previous and that he was still in pain from that fall, though the pain was decreasing in intensity. R. at 256. Dr. Campbell observed, "Well-healed incision. Healing scab. Mild ecchymosis in the stump. Full range of motion of the knee and hip. No. dog ears. Moderate swelling. No. evidence of infection." Id. Dr. Campbell directed him to physical therapy once his prosthesis was fitted and prescribed Percocet for pain management. R. at 256.

         Barefoot returned to Coastal Orthotics on March 14, 2013, for a trial fitting of his prosthetic leg. R. at 280. Although Barefoot required an "inner socket" and an extra sock to account for volume loss on his stump, he was able to use the prosthesis to walk in the parallel bars with the use of his right hand. Id. Siverd did record that Barefoot reported discomfort using the prosthesis, but Siverd also offered the opinion that the discomfort would decrease as Barefoot desensitized the residual limb to using the prosthesis. Id.

         A week later, Siverd saw Barefoot again, noting he was "doing very well." R. at 279. Barefoot could walk with a walker and "bear[] slight pressure as he is ambulating." Id. Barefoot demonstrated "a good heel strike, mid stance and toe off and good weight shifting." Id. Barefoot did "not show any signs of discomfort in his gait pattern with his body motions or facial expressions." Id. Barefoot reported the overall fit of the prosthesis was comfortable. Id.

         On April 11, Barefoot reported some "distal anterior tib pain" when using his prosthesis, but Siverd attributed this to Barefoot not using the correct thickness of sock lining. Id. Siverd directed Barefoot to return to Dr. Campbell to be prescribed a replacement socket because of how the stump's size changed as it healed. Id.

         Barefoot's insurance plan did not cover the replacement socket for his prosthesis. R. at 278. Nevertheless, he secured funds for a replacement. In July, during a casting session for a replacement socket, Siverd noted that Barefoot's gait was "fairly poor due to the ill-fitting socket." Id.

         On August 22, 2013, after several test fittings and modifications to the replacement socket, Barefoot reported that the fit was "greatly improved." R. at 277. At the session during which Barefoot would take delivery of the replacement socket, Siverd observed Barefoot could "ambulate in the office without any distal end pressure." Id.

         During another session at Coastal Orthotics On August 30, 2013, Barefoot reported the replacement socket's fit was "greatly improved" over the original socket. R. at 276. Siverd noted that Barefoot could walk without the use of a single point cane, though he would occasionally use the cane because walking long distances caused him pain. Id. Barefoot stated "that his limb pain is decreasing on a daily basis." Id.

         On September 25, 2013, Barefoot was able to walk in the Coastal Orthotics office without the use of any assistive device. R. at 290. Siverd made some modifications to the length of the prosthesis' pylon and ordered more socks to adjust the fit for the still-shrinking stump. Id. Barefoot asked about ordering a third socket, but opted to use socks to adjust the fit because of the cost of fabricating a new socket. Id.

         Dr. Campbell examined Barefoot again In December 2013. R. at 311. Campbell noted Barefoot "was having some pain with irritation around the proximal fibular from the peroneal nerve." Id. Campbell also observed that the "actual stump is doing quite well." Id. Barefoot was not experiencing any significant phantom pains but did have some phantom sensation. Id. Barefoot could walk with an antalgic gait. Id. He had full motion of the knee. He had some irritation of the skin of the lateral aspect of the leg. Id. Dr. Campbell noted that Barefoot's socket fit well and that his hip and knee strength were "excellent." Id. Dr. Campbell recorded that Barefoot would benefit from physical therapy but could not afford it. Id. He also noted his opinion that Barefoot could never return to manual labor and that Barefoot would consequently need retraining to a sedentary job. Id.

         In addition to his treatment related to the amputation of his left foot, Barefoot has also been diagnosed and treated for opioid dependence. R. at 316. From April 2012 to April 2013 and again from October 2014 to the date of the hearing, Barefoot was under care from an addiction specialist medical doctor named Robert Lowe. R. at 314-29. During his testimony at the hearing, Barefoot did not offer a coherent explanation for this 16-month gap in treatment for his addiction. See R. at 71.

         In May of 2015, more than two years after the amputation, Dr. Campbell first recorded that Barefoot was experiencing pain in his hip. R. at 309. This is the first indication of Barefoot's hip pain in the medical record. Previous examinations revealed full range of motion in his hips. See, e.g., R. at 258 (from Campbell in February 2013: "He has full range of motion of the hip."); R. at 256 (Mar. 7, 2013: Dr. Campbell observes full range of motion in hip); R. at 256 (Dr. Campbell on March 8, 2013: "Full range of motion of the knee and hip."). During Barefoot's alleged period of disability, there was no indication in the medical records of hip pain that would have limited his functioning and lasted for more than 12 months.[4]

         b. Evaluation Evidence.

         Dr. Campbell completed a "Physical Capacities Assessment" for Barefoot on January 9, 2014. Campbell opined Barefoot could not stand or walk without difficulty even for household distances and that he was in pain requiring daily medication. R. at 305-07. The doctor offered the opinion that Barefoot would need frequent breaks throughout a workday to remove his prosthesis to mitigate irritation from it. R. at 307. He also wrote that Barefoot could not "tolerate even sedentary work at this point." He estimated Barefoot would be off task 80% of a workday and would not be able to report to work 15 days per month on average due to pain. R. at 305.

         In October 2013, Dr. John Shane, a state medical consultant, reviewed Barefoot's treatment records. He determined Barefoot could lift 20 pounds occasionally and 10 pounds frequently; could stand or walk for about two hours out of an eight-hour workday; and could sit for five hours in an eight-hour workday. R. at 89. He noted limitations in operating foot pedals and in climbing, crawling, and in navigating hazards and heights in general. R. at 88-89. The consultative expert wrote, "Symptoms are exaggerated-at this point in time, his artificial prosthesis is expected top [sic] far advanced from his stated capability. Records reflect that he is more capable than he admits. Allegations are partly credible." R. at 89. Dr. Shane recommended a finding of "Not Disabled." Id.

         In March 2014, another state consultative expert, Dr. Robert Weisberg, reviewed Barefoot's records a second time and reached the same conclusion as Dr. Shane: "Not Disabled." R. at 96, 99.

         c. Testimony Before the ...


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