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Abbott v. Colvin

United States District Court, S.D. West Virginia, Huntington Division

November 21, 2016

JAMES LEE ABBOTT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert, Judge

         This action seeks a review of the decision of the Commissioner of the Social Security Administration (hereinafter “Commissioner”) denying Plaintiff's applications for a period of disability and disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. The matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and was referred to the undersigned United States Magistrate Judge by standing order for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are Plaintiff's Brief in Support of Judgment on the Pleadings and the Commissioner's Brief in Support of Defendant's Decision, requesting judgment in her favor. (ECF Nos. 12, 13).

         The undersigned has thoroughly considered the evidence and the applicable law. For the following reasons, the undersigned RECOMMENDS that the final decision of the Commissioner be REVERSED; this matter be REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g); and this action be DISMISSED, with prejudice, and removed from the docket of the Court.

         I. Procedural History

         On January 3, 2011, Plaintiff James Lee Abbott (“Claimant”), completed applications for DIB and SSI, alleging a disability onset date of October 20, 2008, (Tr. at 283, 290), due to “Bipolar Disorder, Crushed Left Foot 2008, [and] Hx [history] of kidney stones.” (Tr. at 341). The Social Security Administration (“SSA”) denied Claimant's applications initially and upon reconsideration. (Tr. at 10). Claimant filed a request for an administrative hearing, which was held on July 10, 2012 before the Honorable Charlie Andrus, Administrative Law Judge (“ALJ Andrus”). (Tr. at 34-54). By written decision dated July 27, 2012, ALJ Andrus found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 85-97). On September 4, 2013, the Appeals Counsel remanded Claimant's case back to ALJ Andrus for further review;[1] however, ALJ Andrus had left the SSA by that time. (Tr. at 104-107). As a result, a second administrative hearing was held on December 10, 2014, before the Honorable Maria Hodges, Administrative Law Judge (the “ALJ”). (Tr. at 55-77). By written decision dated February 5, 2015, the ALJ found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 10-25). The ALJ's decision became the final decision of the Commissioner on June 29 2015, when the Appeals Council denied Claimant's request for review. (Tr. at 1-3).

         Claimant timely filed the present civil action seeking judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The Commissioner subsequently filed an Answer opposing Claimant's complaint and a Transcript of Proceedings. (ECF Nos. 9, 10). Claimant then filed a Brief in Support of Judgment on the Pleadings. (ECF No. 12). In response, the Commissioner filed a Brief in Support of Defendant's Decision. (ECF No. 13). Consequently, the matter is fully briefed and ready for resolution.

         II. Claimant's Background

         Claimant was 44 years old at the time of the alleged onset of disability, and 48 years old at the time of the ALJ's decision. (Tr. at 10, 58). He has at least a high school education and communicates in English. (Tr. at 340, 342). Claimant previously worked as a car painter and welder. (Tr. at 59-60, 342)

         III. Summary of ALJ's Decision

         Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable impairment which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Social Security regulations establish a five-step sequential evaluation process for the adjudication of disability claims. If an individual is found “not disabled” at any step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first step in the sequence is determining whether a claimant is currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). If the claimant is not, then the second step requires a determination of whether the claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” Id. If severe impairment is present, the third inquiry is whether this impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4 (the “Listing”). Id. §§ 404.1520(d), 416.920(d). If so, then the claimant is found disabled and awarded benefits.

         However, if the impairment does not meet or equal a listed impairment, the adjudicator must assess the claimant's residual functional capacity (“RFC”), which is the measure of the claimant's ability to engage in substantial gainful activity despite the limitations of his or her impairments. Id. §§ 404.1520(e), 416.920(e). After making this determination, the fourth step is to ascertain whether the claimant's impairments prevent the performance of past relevant work. Id. §§ 404.1520(f), 416.920(f). If the impairments do prevent the performance of past relevant work, then the claimant has established a prima facie case of disability, and the burden shifts to the Commissioner to demonstrate, in the fifth and final step of the process, that the claimant is able to perform other forms of substantial gainful activity, given the claimant's remaining physical and mental capacities, age, education, and prior work experiences. 20 C.F.R. §§ 404.1520(g), 416.920(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Commissioner must establish two things: (1) that the claimant, considering his or her age, education, skills, work experience, and physical shortcomings has the capacity to perform an alternative job, and (2) that this specific job exists in significant numbers in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         When a claimant alleges a mental impairment, the SSA “must follow a special technique at each level in the administrative review process, ” including the review performed by the ALJ. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). Under this technique, the ALJ first evaluates the claimant's pertinent signs, symptoms, and laboratory results to determine whether the claimant has a medically determinable mental impairment. Id. §§ 404.1520a(b), 416.920a(b). If an impairment exists, the ALJ documents her findings.

         Second, the ALJ rates and documents the degree of functional limitation resulting from the impairment according to criteria specified in Id. §§ 404.1520a(c), 416.920a(c). Third, after rating the degree of functional limitation from the claimant's impairment(s), the ALJ determines the severity of the limitation. Id. §§ 404.1520a(d), 416.920a(d). A rating of “none” or “mild” in the first three functional areas (activities of daily living, social functioning, and concentration, persistence or pace) and “none” in the fourth (episodes of decompensation of extended duration) will result in a finding that the impairment is not severe unless the evidence indicates that there is more than minimal limitation in the claimant's ability to do basic work activities. Id. §§ 404.1520a(d)(1), 416.920a(d)(1).

         Fourth, if the claimant's impairment is deemed severe, the ALJ compares the medical findings about the severe impairment and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment meets or is equal to a listed mental disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if the ALJ finds that the claimant has a severe mental impairment, which neither meets nor equals a listed mental disorder, the ALJ assesses the claimant's residual mental functional capacity. Id. §§ 404.1520a(d)(3), 416.920a(d)(3). The regulations further specify how the findings and conclusion reached in applying the technique must be documented by the ALJ, stating:

The decision must show the significant history, including examination and laboratory findings, the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each functional areas described in paragraph (c) of this section.

20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4).

         Here, the ALJ determined as a preliminary matter that Claimant met the insured status for disability insurance benefits through December 31, 2013. (Tr. at 13, Finding No. 1). At the first step of the sequential evaluation, the ALJ confirmed that Claimant had not engaged in substantial gainful activity since October 20, 2008, the alleged disability onset date. (Id. at No. 2). At the second step of the evaluation, the ALJ found that Claimant had the following severe impairments: “cannabis use, depression, anxiety, left foot injury, and coronary artery disease.” (Id. Finding No. 3). The ALJ also considered various physical ailments reflected in Claimant's medical records, but determined that they were non-severe. (Id.). Under the third inquiry, the ALJ found that Claimant did not have an impairment or combination of impairments that met or medically equaled any of the impairments contained in the Listing. (Tr. at 13-14, Finding No. 4). Accordingly, the ALJ determined that Claimant possessed:

[T]he residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except limited to standing/walking for four hours out of an eight-hour workday. He could occasionally use foot controls with the left foot. He could occasionally climb ramps/stairs, kneel, or crouch, but never climb ladders, ropes, or scaffolds, or crawl. He could frequently balance and stoop. He should avoid concentrated exposure to temperature extremes, wetness, humidity, pulmonary irritants (fumes, odors, dusts, gases, poor ventilation, etc.), and vibrations. He should avoid even occasional hazards, (dangerous moving machinery, unprotected heights, etc.). He could still perform simple, routine, repetitive tasks, in low stress work, defined as no production quotas or strict time limits. He should have no interaction with the general public and only occasional interaction with co-workers and supervisors. He could adapt to occasional changes in the work setting and perform jobs with minimal independent judgment required.

(Tr. at 14-23, Finding No. 5). At the fourth step, the ALJ determined that Claimant was unable to perform any past relevant work. (Tr. at 23-24, Finding No. 6). Under the fifth and final inquiry, the ALJ reviewed Claimant's past work experience, age, and education in combination with his RFC to determine his ability to engage in substantial gainful activity. (Tr. at 24-25, Finding Nos. 7-10). The ALJ considered that (1) Claimant was born in 1967, and was defined as a younger individual age 18-49 on the alleged disability onset date; (2) he had at least a high school education and could communicate in English; and (3) transferability of job skills was not material to the disability determination because using the Medical-Vocational Rules as a framework, Claimant was “not disabled, ” regardless of his transferable job skills. (Tr. at 24, Finding Nos. 7-9). Given these factors, Claimant's RFC, and the testimony of a vocational expert, the ALJ determined that Claimant could perform jobs that existed in significant numbers in the national economy, including work as a machine tender or routing clerk at the unskilled light level, and inspector or security monitor at the sedentary unskilled level. (Tr. at 24-25, Finding No. 10). Therefore, the ALJ found that Claimant was not disabled as defined in the Social Security Act, and was not entitled to benefits. (Tr. at 25, Finding No. 11).

         IV. Claimant's Challenge to the Commissioner's Decision

         Claimant raises two challenges to the Commissioner's decision. (ECF No. 12 at 9-12). First, Claimant argues that the hypothetical question posed by the ALJ to the vocational expert did not fully reflect Claimant's limitations as determined by the ALJ in the RFC finding. Specifically, Claimant contends that the ALJ limited him to light exertional level work with only two hours of standing or walking in an eight-hour workday. However, when the ALJ provided the controlling hypothetical question to the vocational expert, the ALJ asked the expert to assume that the hypothetical individual could perform light level work with standing or walking limited to four hours in an eight-hour workday. Claimant asserts that the discrepancy between the RFC finding and the hypothetical question renders the vocational expert's testimony regarding available jobs unreliable.

         Second, Claimant alleges that the ALJ improperly weighed the opinion of Dr. Claire Belgrave, one of Claimant's treating psychiatrists. Claimant points out that the ALJ was mistaken regarding the number of visits Claimant had with Dr. Belgrave, and the ALJ failed to contact Dr. Belgrave to inquire about her opinions. According to Claimant, the Appeals Council tasked the ALJ with clarifying Dr. Belgrave's opinions on remand; however, the ALJ did not abide by this directive.

         In response, the Commissioner contends that Claimant has misinterpreted the ALJ's RFC finding given that the ALJ adopted a medical source opinion limiting Claimant to four hours of standing or walking, not two hours. (ECF No. 13 at 10-11). The Commissioner argues that the RFC finding and the hypothetical question were absolutely consistent; consequently, the vocational expert's testimony was reliable and provided substantial evidence in support of the final determination of non-disability.

         With respect to Dr. Belgrave's opinions, the Commissioner indicates that the ALJ was instructed on remand to clarify the weight given to Dr. Belgrave's opinions, and to contact Dr. Belgrave if necessary. (Id. at 11-14). However, based upon evidence suggesting that Claimant had a substance abuse problem that significantly affected his RFC assessment, the ALJ decided to send medical interrogatories to a psychiatrist specializing in substance abuse. The psychiatrist, Dr. Stuart Gitlow, opined that Claimant did not have a primary psychiatric illness that was unrelated to his substance abuse. In addition, Dr. Gitlow disputed Dr. Belgrave's opinions, because they were not supported by medical findings or by evidence of a negative toxicology screen. The Commissioner argues that the ALJ resolved any discrepancies in the prior decision and provided good reasons for the weight given to Dr. Belgrave's opinions. Accordingly, the decision of non-disability was supported by substantial evidence.

         V. Relevant Medical Evidence

         The undersigned has reviewed all of the evidence before the Court, including the records of Claimant's health care examinations, evaluations, and treatment. The relevant medical information is summarized as follows.

         A. Treatment Records

         Claimant presented to Cabell Huntington Hospital on November 11, 2008 as a result of a work injury to his left foot, which had occurred three weeks prior. (Tr. at 683-90). The injury was described as a direct blow to the foot from a steel beam. (Tr. at 689). Claimant indicated that the pain in his foot was moderate and impeded his ability to work. Upon examination, both the feet and toes demonstrated normal range of motion. Perfusion of the foot, as well as of the lower extremities, was noted to be within normal limits. All other systems were reviewed and found negative. A CT scan of the left foot revealed acute fractures involving the medial cuneiform and base of the second metatarsal. There did not appear to be any significant displacement; however, the fractures did appear minimally comminuted. There were no other dislocations or findings detected. (Tr. at 686). Claimant was provided a work excuse and was discharged in stable condition with a prescription for Lortab. (Tr. at 690). He was advised to follow up with Felix Cheung, M.D.

         Claimant returned to Cabell Huntington Hospital on February 19, 2009 for an MRI of his left foot ordered by Dr. Cheng. (Tr. at 691-92). The MRI revealed fractures to the medial cuneiform at the lateral plantar aspect and at the base of the second metatarsal. There appeared to be a small amount of fluid signal within these regions; however, the radiologist felt this could be attributed to changes of acute injury, or might simply be reactive. There was no definite significant bone marrow edema, which the radiologist felt might potentially rule-out acute osseous injury. The remaining osseous structure appeared unremarkable other than osteoarthritic changes at the first MTP. There was no definite soft tissue abnormality. (Id.).

         On August 19, 2009, Claimant presented to Dr. Ahmet Ozturk at Cabell Huntington Hospital's Regional Pain Management Center (“CHH Pain Management”) for treatment of the work-related injury to his left foot. (Tr. at 434-40, 1105-10). Claimant complained of anxiety and daily left foot pain, which he described as constant, dull, aching, burning, and stabbing. (Tr. at 434-35). He rated the pain as usually being six on a ten-point pain scale, with the most severe pain being nine out of ten. (Tr. at 435). Pain in the foot was triggered by bending forward or backward, standing, and walking. Claimant used ice packs, elevated his foot, and took Aleve for pain relief. Claimant relayed the history of his foot injury to Dr. Ozturk, reporting that x-rays taken at Teays Valley Hospital immediately after the accident in 2008 showed no evidence of fracture or dislocation. Claimant had returned to light duty work until November 10, 2008, when he resumed regular work status; however, he continued to have left foot problems. A CT scan taken in November 2008 showed several fractures to his left foot. Claimant was given pain medication, placed off work, and referred to Dr. Cheung. Claimant began physical therapy in March 2009, which was ongoing, and according to Claimant, his left foot was improving.

         A review of systems was positive for heartburn, hematuria, kidney stones, muscle pain, aches, weakness, and stiffness. Claimant also complained of depression/anxiety, explaining to Dr. Ozturk that he suffered from mild anger, stress, irritability, depression, and guilt. Claimant described additional symptoms such as trouble staying asleep and feeling tired and fatigued during the day. (Tr. at 436). Claimant denied use of alcohol or drugs. (Tr. at 437). He described his daily habits as staying in bed or in a recliner and watching television. He also did light housework and shopping, and he was independent in daily grooming activities. According to Claimant, he could stand for 30-60 minutes, walk for 30-60 minutes, sit for an unlimited period of time, and lift between 25-50 pounds. (Id.).

         On physical examination, Claimant was alert, oriented, and in no acute distress. He appeared well-developed and well-nourished. Claimant's left lower extremity was discolored, with edema and taunt skin. He had a lower temperature in the left foot than in the right foot, and the left foot had hypesthesia or hypalgesia. (Tr. at 438). Nevertheless, the movement of Claimant's lower extremities were unrestricted and non-painful, and there was no evidence of obvious muscle weakness, wasting, or reduced strength. His peripheral pulses were palpable bilaterally with no dystrophic changes. Dr. Ozturk assessed Claimant with complex regional pain syndrome of the left foot. (Tr. at 438). Dr. Ozturk offered Claimant a customized treatment plan, which included psychological and physical therapy assessments in the diagnostic phase; therapeutic blocks, physical therapy, and psychological counseling in the therapeutic phase; a return to work in the maintenance phase, and prescriptions for Lyrica, Clonidine, Cymbalta and Elavil. (Tr. at 438-39). Dr. Ozturk also ordered an x-ray of Claimant's left foot, which was performed at Cabell Huntington Hospital on August 26, 2009. (Tr. at 441, 679, 693). The x-ray was negative for acute displaced fracture or dislocation. The fractures of the medial cuneiform and base of the second metatarsal previously seen on the MRI in February 2009 were not appreciated on this x-ray; however, an apparent deformity of the mid aspect of the third metatarsal was seen, which the radiologist felt could be secondary to a prior injury. (Id.).

         Claimant was scheduled for evaluations by Dr. Rehan Memon, an interventional pain management specialist at the CHH Pain Management, on October 12 and 27, 2009, but did not appear. (Tr. at 442, 446). However, on October 20, 2009, and again on November 3 and December 11, 2009, Claimant underwent lumbar sympathetic blocks administered by Dr. Ozturk. (Tr. at 443-45, 447-52). The blocks were given without complication, and Claimant tolerated them well.

         On December 23, 2009, Claimant was examined by Pamela Rice-Jacobs, a Certified Family Nurse Practitioner (“CFNP”) working with Dr. Ozturk. (Tr. at 453-56). Claimant complained of a sharp pain up and down his left leg. (Tr. at 453). Otherwise, he had no changes in the review of systems. Claimant reported the lumbar sympathetic block at left L4 received on December 11 provided little pain relief. He rated his pain level as averaging a six out of ten, with his worst pain being nine out of ten. Claimant did not provide a new list of medicines at this visit, and Nurse Rice-Jacobs documented that Claimant was not currently taking any medications. Claimant reported no change in his physical functioning, mood, family relationships, or overall functioning; however, he did note increased difficulty sleeping due to pain in the left leg and foot. (Tr. at 454). Nurse Rice-Jacobs performed a physical examination, describing Claimant's affect as flat, although he was alert and oriented. The temperature of Claimant's lower extremities was noted to be the same bilaterally. Both extremities were pink, warm, and dry, although Claimant's left leg appeared “slightly ruddier.” (Id.). His toes moved well, with a bit of “touchiness” on the lateral left foot. Claimant reported he worked previously in construction but due to his foot injury, he could not resume construction work. Nurse Rice-Jacobs indicated that Claimant might need a functional capacity evaluation in the near future. Nurse Rice-Jacobs commented that Claimant had three prior lumbar sympathetic injections, but was not consistently receiving the blocks, noting that he had missed three treatments. (Tr. at 454-55). Nurse Rice-Jacobs felt the blocks helped the circulation in Claimant's extremity, but by his report, did not seem to alleviate his pain. In discussion, Claimant explained that most of the medications prescribed to him by Dr. Ozturk were not approved by Workers Compensation, so he was not taking them. (Tr. at 455). After speaking with Dr. Ozturk, Nurse Rice-Jacobs provided Claimant with new prescriptions for Lyrica, Cymbalta, and Elavil, which she described as neuro-soothing medications. rather than narcotics. Claimant was told to return in one month to six weeks to see Dr. Ozturk.

         Claimant returned on February 25, 2010, reporting to Nurse Rice-Jacobs that he was having left foot, left hip, and low back pain; otherwise, there was no change in his review of systems. (Tr. at 457). Claimant's pain level on average had increased to eight out of ten, with the worst pain being ten out of ten. However, Claimant's quality of life, relationships, activities of daily living, and overall functioning were unchanged from his prior visit. (Tr. at 458). He was tolerating the medications well without significant side effects. On examination, Claimant's left foot was warm to the touch, without active signs of complex regional pain syndrome. Claimant complained of some difficulty walking, demonstrating a slightly abnormal gait that improved after a few steps. Claimant reported that he stopped taking Elavil as it made him feel disoriented; however, he had no problems with Cymbalta, Clonidine, and Lyrica. He was directed to continue with those medications, start physical therapy, and return in two months. (Tr. at 459). When Claimant returned on April 27, 2010, he reported continued low back and left leg pain, with an average pain level of seven out of ten. (Tr. at 461-64). Otherwise, his review of systems, reports of functioning, and findings on examination were unchanged.

         Beginning May 3 and continuing through June 15, 2010, Claimant participated in ten sessions of physical therapy at CHH Pain Management. (Tr. at 465-74). On May 3, Claimant reported that he had experienced foot pain at the conclusion of the initial evaluation; however, the pain had somewhat subsided. Sam Litteral, DPT, initiated physical therapy treatment with Anodyne therapy to the left foot, followed by various exercises. Mr. Litteral noted that Claimant moved his left foot very cautiously. (Tr. at 465). On May 5 and May 7, Claimant reported some left foot pain after therapy although he tolerated treatment well. (Tr. at 466-67). On May 10, Claimant reported his pain was increasing with exercise, but he was not having any other issues with therapy. (Tr. at 468). On May 21, although Claimant had no significant changes, he did report pain located on the top of the left foot. Mr. Litteral also documented that Claimant required overall conditioning due to the nature of the foot injury. (Tr. at 469). On May 24, Claimant indicated that his foot was very slow to respond to treatment. He had increased pain following therapy, but he felt that exercising his upper body was beneficial. (Tr. at 470). At this visit, Claimant tolerated the addition of upper extremity conditioning well without new complaints. On May 26, Claimant reported no change to his left foot, and while he continued to complain of pain, he did report he was much improved. (Tr. at 471). The therapist opined that Claimant was doing better than Claimant realized, and was progressing and improving. Throughout his June treatments, Claimant continued to report pain following treatment; however, he completed the treatments without complaint and reported that his body was beginning to adapt to the program. By June 15, Claimant was noted to be “doing well...safe with all exercises…not having any unexpected problems, nor…complaining about anything.” (Tr. at 472-74).

         On June 25, 2010, Claimant presented to CHH Pain Management for examination by Dr. Memon. (Tr. at 475-78, 1094-97). Claimant complained of left foot, left leg, and low back pain, with the pain averaging seven out of ten. Claimant reported no change in any other systems. Claimant told Dr. Memon that lumbar sympathetic blocks followed by physical therapy provided fifty to seventy-five percent pain relief. (Tr. at 476). Regarding Claimant's activities of daily living and quality of life, his physical functioning was better; however, his mood, family relationships, sleep and overall function were unchanged. Dr. Memon examined Claimant, finding him to be alert and oriented with a “rather flat” affect, but in no distress. The skin temperature of Claimant's left leg was cooler than the right leg, but the only other abnormal finding was somewhat limited range of motion at the left ankle. (Tr. at 477). Dr. Memon documented that Claimant had received lumbar blocks and physical therapy, and he was currently participating in work rehabilitation and a conditioning program. Dr. Memon felt that once Claimant completed those therapies, he would need vocational rehabilitation. Dr. Memon was optimistic about Claimant's success at achieving his goal of returning to work with modified duties, observing that Claimant was “improving quite a bit.” (Id.).

         Claimant returned to Dr. Memon on July 15, 2010 with complaints of left leg and foot pain after having completed four weeks of vocational rehabilitation. Claimant stated that the pain averaged five and was eight at its worst. (Tr. at 479, 1090). He asked Dr. Memon to order an additional four weeks of work hardening. He reported that since his last visit, his activities of daily living and quality of life were the “same to better.” (Tr. at 480, 1091). Claimant's physical examination was unchanged. Dr. Memon documented that Claimant had reached at least 50% of his preinjury level and would probably reach his preinjury level of 100 pounds with additional work hardening. (Tr. at 481, 1092). Dr. Memon agreed that Claimant should participate in four more weeks of work hardening with the goal of obtaining preinjury levels and gradually increasing his weight bearing load. Dr. Memon also planned to write Claimant's workers compensation agent to explain Claimant's working diagnosis of Reflex Sympathetic Dystrophy (“RSD”).[2]

         On July 29, 2010, Claimant went to the Emergency Department at Cabell Huntington Hospital with flu-like symptoms, including nausea and vomiting. (Tr. at 655-676, 695-702). His psychological condition, including affect and behavior, was noted to be “Appropriate, Calm, Cooperative.” (Tr. at 670). Claimant was interviewed by a nurse and admitted to drinking a six-pack of beer per week. (Tr. at 671-72). He denied recreational drug use, but reported smoking cigarettes. Laboratory studies were performed, and Claimant's physical examination was unremarkable. Claimant was diagnosed with vomiting and was offered a prescription for Phenergan. (Tr. at 664). Claimant declined the prescription, stating that he had only come to the hospital because he was at work hardening and the therapist felt he should come. (Tr. at 661). Claimant was given a slip excusing him from work hardening for a couple of days. (Tr. at 656).

         Claimant returned to Cabell Huntington Hospital's Emergency Department on August 13, 2o1o with a complaint of shortness of breath. (Tr. at 641-54, 703-13). His affect and behavior were noted to be appropriate, calm, and cooperative. (Tr. at 703). When asked about the use of alcohol and recreational drugs, Claimant admitted that he occasionally drank a six-pack of beer and had used marijuana approximately one month earlier. (Tr. at 705). He was discharged later that same day with a Proventil inhaler. (Tr. at 642).

         Claimant returned to the Emergency Department the following evening, on August 14, 2010, again complaining of difficulty breathing and shortness of breath, which had been ongoing for the past two days. (Tr. at 604-40, 710-24). Claimant reported that he had been seen in the Emergency Department the day prior with the same complaints and had been given an inhaler; however, his symptoms had not improved. Claimant also complained of non-radiating left chest pain, sweating, and labored breathing. Claimant told the Emergency Department physician he was beginning to feel better and believed he might have had a panic attack. Claimant's described his symptoms as transient over several days, lasting minutes, fluctuating in intensity, and exacerbated by exertion. (Tr. at 714). Claimant denied using alcohol at one point, (Tr. at 611, 715), but at another point, admitted that he occasionally drank a six-pack of beer, smoked cigarettes, and used marijuana. (Tr. at 623, 712). Claimant's physical examination and his EKG were unremarkable. (Tr. at 716, 723). A chest x-ray revealed the heart and lungs were within normal limits, while a CT scan revealed normal findings with no evidence of pulmonary embolism. (Tr. at 719, 721). Claimant's psychiatric condition was initially noted to be “anxious and restless” although he calmed down once he was placed in a room. (Tr. at 620). He advised the nurse that he occasionally took “Oxy” and “Xanax” or “Klonopin” for pain and anxiety, but had not had any medication for several days. Prior to discharging Claimant, the treating physician questioned him again about his statement to the nurse concerning his use of pain medication and Xanax. (Tr. at 612). Claimant admitted to using medications prescribed to his friends and then advised the physician that he felt better and would be going home. (Id.). Claimant was discharged home with a diagnosis of chest pain and given a prescription for Vistaril. (Tr. at 717).

         Claimant returned to CHH Pain Management on August 25, 2010 and was examined by Nurse Rice-Jacobs. (Tr. at 483-86). Claimant reported he had abruptly stopped taking Cymbalta because it was not approved, and he had “flipped out, ” resulting in a three-day hospitalization. (Tr. at 484). Claimant reported having depression and anxiety. During the hospital admission, Claimant was given medication for breathing issues and anxiety and once he starting taking Cymbalta again, he was much more stable.

         Claimant indicated his physical function and overall function were “same to better;” however, his mood since the last visit was worse. Claimant appeared alert and oriented with a flat affect. Claimant continued to have pain, but described it as averaging three out of ten, with the worst pain being four to five. (Id.). Nurse Rice-Jacobs performed a physical examination, finding Claimant's skin on his lower extremities to be warm, pink and dry. Claimant demonstrated a non-antalgic gait and showed no sign of active RSD. (Tr. at 485). Claimant indicated a desire for an appointment with a psychologist and wanted to restart work conditioning. Dr. Ozturk ...


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