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Salisbury v. Berryhill

United States District Court, N.D. West Virginia

November 15, 2017

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




         On December 28, 2016, Plaintiff Daniel Wayne Salisbury, Sr. (“Plaintiff”), by counsel Brian Bailey, Esq., filed a Complaint in this Court to obtain judicial review of the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security[1] (“Commissioner” or “Defendant”), pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g). (Compl., ECF No. 1). On March 7, 2017, the Commissioner, by counsel Helen Campbell Altmeyer, Assistant United States Attorney, filed an answer and the administrative record of the proceedings. (Answer, ECF No. 7; Admin. R., ECF No. 8). On April 4, 2017, and April 25, 2017, Plaintiff and the Commissioner filed their respective Motions for Summary Judgment. (Pl.'s Mot. for Summ. J. (“Pl.'s Mot.”), ECF No. 10; Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 12). Following review of the motions by the parties and the administrative record, the undersigned Magistrate Judge now issues this Report and Recommendation to the District Judge.


         On October 25, 2013, Plaintiff protectively filed his first application under Title II of the Social Security Act for a period of disability and disability insurance benefits (“DIB”) and widow's disability benefits (“WDIB”), and under Title XVI of the Social Security Act for Supplemental Security Income (“SSI”), alleging disability that began on October 14, 2008. (R. 264). Plaintiff's earnings record shows that he acquired sufficient quarters of coverage to remain insured through June 30, 2012 (R. 297); therefore, Plaintiff must establish disability on or before this date (R. 41). This claim was initially denied on January 21, 2014 (R. 189) and denied again upon reconsideration on April 15, 2014 (R. 210). On April 23, 2014, Plaintiff filed a written request for a hearing (R. 219), which was held before United States Administrative Law Judge (“ALJ”) Jeffrey P. La Vicka on November 17, 2015 in Morgantown, West Virginia. (R. 38). Plaintiff, represented by counsel Brian Bailey, Esq., appeared and testified, as did Casey Vass, an impartial vocational expert. Id. On November 23, 2015, the ALJ issued an unfavorable decision to Plaintiff, finding that he was not disabled within the meaning of the Social Security Act. (R. 16). On November 8, 2016, the Appeals Council denied Plaintiff's request for review (R. 1), making the ALJ's decision the final decision of the Commissioner.


         A. Personal History

         Plaintiff was born on May 19, 1963, and was 50 years old at the time he filed his claim. (R. 264). He obtained his GED (R. 51). Plaintiff's prior work experience included a boiler operator (2000-2006), laborer at a lumber company (2006-2007), and maintenance and stocking shelves at Wal-Mart (2007-2009). (R. 53). He was widowed at the time he filed his initial claim (R. 264) and was widowed at the time of the administrative hearing. (R. 38). He has two adult children, but no dependent children. (R. 43-44). Plaintiff alleges disability based on “depression, anxiety, suicidal, back problems, leg problems, PTSD, diabetic, oxygen use, COPD, [and] obese.” (R. 301).

         B. Relevant Medical History

         Plaintiff began care with Arbor Medical Associates in February of 2010. Physician's assistant Christie Shoemaker noted after an initial intake appointment on February 22, 2010 that Plaintiff had been going to Chestnut Ridge for mental health treatment “over the last couple of years” for post-traumatic stress disorder (“PTSD”) after witnessing his wife's suicide. (R. 432). PA-C Shoemaker also noted that “[Plaintiff] has been diagnosed as being bipolar and does take Buspar, Seroquel, Doxepin, and Zoloft.” Id. At that time, Plaintiff was having “significant issues” with his blood pressure, pain in his hand after amputation of his right ring finger, and back pain. Id. Plaintiff needed prescription refills, including Hydrocodone for pain. Id.

         Subsequently, Plaintiff returned to Arbor Medical to see Dr. Eric Anger on March 12, 2010. (R. 431). Dr. Anger noted obesity, and that Plaintiff's history also included a fall from a roof, and a suicide attempt two years ago. Id. Dr. Anger noted that Plaintiff had tried multiple medications and a TENS unit for his chronic back pain, none of which were effective. Id. Dr. Anger directed Plaintiff to continue to follow with Chestnut Ridge for treatment of his bipolar disorder. (R. 432). He also prescribed an increased dosage of Lortab for Plaintiff's low back pain and adjusted his blood pressure medications. Id.

         At followup on May 7, 2010, Plaintiff continued to have “moderate to severe” low back pain, for which pain medications “t[ook] the edge off.” (R. 430). At this visit, lower extremities were without edema (swelling), and Plaintiff's range of motion in his lumbar spine was decreased. Id. On July 9, 2010, Plaintiff's low back pain was “severe at times” and “not controlled with current pain med[ication dosage].” (R. 429). Dr. Anger increased Plaintiff's pain medication (Lorcet) for continued low back pain, and increased Plaintiff's Seroquel for anxiety/depression, noting Plaintiff's depression has been “slightly worse.” (R. 429-430). On October 12, 2010, Plaintiff's depression was “somewhat better, ” but back pain continued with additional pain in “both heels.” (R. 428). On December 13, 2010, Plaintiff continued to complain of “chronic low back [pain] radiating into [his] hips, ” reporting that his pain had been worse in the last few days. (R. 427). The pain was “achy, constant, ” and present upon waking, though clearing up after “about an hour.” Id. Diagnoses at that visit included chronic lower back pain, anxiety and depression (major), and claudication (pain and/or cramping in the lower leg due to inadequate blood flow to the muscles). Id.

         By March 14, 2011, Plaintiff reported that the Seroquel he had been taking for his anxiety and depression had side effects (“wiped [him] out” he could not tolerate, although he did “do ok[ay] on extended release medications.” (R. 426). It was unclear from Dr. Anger's notes whether these extended release medications were for depression and anxiety, or something else. In addition to existing circulation issues already diagnosed (claudication), Plaintiff also reported erectile dysfunction as well. (R. 425). On June 14, 2011, Plaintiff reported that Hydrocodone was giving “significant relief” of his lower back pain. (R. 424). His activities of daily living were “stable, but limited.” Id. Plaintiff was following a diet and had lost fifteen to twenty (15-20) pounds. Id.

         On August 5, 2011, Plaintiff reported to the Davis Memorial Hospital emergency room complaining, in part, that his calf had been painful, swollen, and tender for several days. (R. 368). On August 28, 2012, Plaintiff was again seen for right foot pain that had lasted over a week, described as feeling like “a knife is sticking him in [the] foot, ” and alternately, “like a Charlie horse.” (R. 408). The attending medical personnel noted that his right foot was swollen, especially below the joint of his big toe. Id. Plaintiff's uric acid levels were tested to rule out gout. (R. 412).

         On his next followup with Dr. Anger on September 2, 2011, Plaintiff reported that his breathing was better after a bout with pneumonia. (R. 422). His gastroesophageal reflux (GERD) was controlled with medication. Plaintiff's chronic low back pain continued, but he now had neck pain and numbness in his arms and legs that was worse with sitting. Id. A pop can test was positive on the right side (though Dr. Anger did not specify whether pain, weakness, or both), with accompanying positive Phalen's test and Tinel's sign. Id. Dr. Anger also noted that Plaintiff continued to smoke, though he had tried to quit (including calling the quitline) in the past. Id.

         On September 15, 2011, Plaintiff complained of numbness in his hand, stating that he had injured two fingers on his left hand and “did not feel it.” (R. 421). At his November 3, 2011 followup, Dr. Anger noted that Plaintiff needed to lose weight and discussed exercise with him, also noting that Plaintiff had lost thirty pounds at that point (R. 419-20). Plaintiff also complained that his Buspar was not working, reporting that he coughs until he passes out. (R. 419). Low back pain, frequent urination, and anxiety continued; COPD was also assessed. Id. By April 19, 2012, Plaintiff reported being “very anxious [and] nervous, ” with “continuous anxiety, ” without panic attacks. (R. 416). Plaintiff had “shaking of the knees.” (R. 417). His breathing was “worsening;” he had been smoking more recently due to his increased anxiety. Id. Plaintiff was started on Klonopin and Celexa for anxiety/depression. Id. At his next followup on June 7, 2012, Plaintiff reported that Klonopin was helping with his anxiety. (R. 415). Dr. Anger noted paraspinal lumbar tenderness, bilateral, lateral to L1 and L2, without spasms. Id. On December 19, 2012, Plaintiff complained of difficulty breathing, pain and tightness in his chest with cough, swelling in his feet and legs that was worse with standing, and fatigue. (R. 413).

         A transthoracic echocardiogram on January 17, 2013 revealed mild left ventricular hypertrophy, normal ejection fraction (60-65%), mild diastolic dysfunction, mild dilation of the left atrium (R. 441), and trace mitral regurgitation (R. 435). Plaintiff returned to Dr. Anger on February 27, 2013, complaining about his anxiety. (R. 491). Dr. Anger noted that Plaintiff exhibited a flat affect, though alert and oriented. (R. 492). Plaintiff was “off his Celexa” at that point, and wanted to increase his Klonopin dosage per his anxiety. (R. 491). However, Dr. Anger did “not want to [increase Plaintiff's] Klonopin at this time, ” and instead started Plaintiff on Wellbutrin. (R. 492). He noted Plaintiff's history of suicide attempts and discussed possible side effect of suicidal ideation with Plaintiff. Id. Dr. Anger also addressed counseling with Plaintiff. Plaintiff's “most recent counseling was in Morgantown, ” but Plaintiff did not want to attend counseling at that point, noting that “he has trouble being around people.” (R. 491).

         Plaintiff completed a six-minute walk test on April 19, 2013. The technician noted that Plaintiff had to stop walking after two minutes and rest for seven seconds due to cramping in his legs. (R. 479). However, Plaintiff's oxygen saturation did not drop low enough to warrant oxygen on exertion. Id. Imaging of Plaintiff's chest that same day revealed mild lung hyperinflation, but no acute findings. (R. 480). Plaintiff saw Dr. Anger for followup on May 20, 2013, where he continued to complain of trouble breathing (dyspnea), swelling in his legs and feet (lower extremity edema, and low back pain. (R. 489). Dr. Anger noted that Plaintiff “had tried [] stockings [for the swelling in his legs and feet], but th[ey] increase [the swelling], ” and he “has trouble laying flat.” Id. A stress test was ordered, and completed on June 19, 2013, with normal results (R. 476). A spectral cardiac analysis done that same day was also normal. (R. 477). By July 10, 2013, Plaintiff was reporting that his nerves were “shot” and he could not sleep, as well as daily chest pain for the past six months. (R. 488). Dr. Anger observed venous stasis changes on Plaintiff's legs. Id.

         On August 5, 2013, Plaintiff's breathing problems were evaluated by Ronald Mudry, M.D. pursuant to referral by Dr. Anger. (R. 466). Pulse oximetry (spirometry) revealed “minimal obstructive lung defect, ” a “decrease in flow rate at peak flow and flow at 25%, 50%, and 75% of the flow volume curve, ” FEF 25-75 changed by 12%, and lung volumes within normal limits. (R. 471). Dr. Mudry noted that the “spirometry suggests restriction, [indecipherable], normal lung volume, [and] normal diffusion capacity.” Id. Dr. Mudry diagnosed Chronic Obstructive Pulmonary Disease (COPD) and prescribed nocturnal oxygen for Plaintiff. (R. 472-73).

         Plaintiff was seen by Dr. Anger again for follow-up on October 2, 2013, reporting trouble with his blood sugar. Dr. Anger diagnosed diabetes, and prescribed Metformin. (R. 484). On October 16, 2013, Dr. Anger noted that Plaintiff's anxiety had increased despite him being “compliant with medications” (R. 583):

Feels like nerves are shot. We were trying to limit his temazepam, however, he states once daily [i]s not cutting it. He feels like he is about [to snap]. He refuses to get Appalachian Mental Health. He states he has been to West Virginia University in past but cannot go there all the time.

(R. 584). On November 27, 2013, Dr. Anger informed Plaintiff that he “needs to get better control of his diabetes, ” and provided him with “some handouts on diet control.” (R. 577). At that visit, Plaintiff's lower extremity swelling was “under decent control, ” but was still having shortness of breath on exertion. (R. 580). Plaintiff advised that he had not gotten labs done because he lost the paperwork for them, but would get them taken care of. (R. 581).

         On January 27, 2014, Plaintiff was seen for follow-up with Jenny Cross, M.D., after a sleep study (polysomnography) on December 5, 2013. (R. 529). Plaintiff complained that he is “tired all of the time and has daytime sleepiness every day.” Id. Plaintiff scored 13 out of 24 on the Epworth Sleepiness Scale, and a 10 on the self-report Asthma Control Test. Id. Dr. Cross diagnosed obstructive sleep apnea (severe) based on Plaintiff's polysomnography results, and prescribed a PAP mask. (R. 530). Dr. Cross also assessed hypersomnolence, nocturnal hypoxia, fatigue, asthma, morbid obesity (with a BMI of 46.17), and snoring. Id. Dr. Cross also noted that “narcotic pain medication [which Plaintiff takes] increases the severity of untreated [obstructive sleep apnea] and contributes to respiratory control instability.” (R. 537).

         On March 26, 2014, Plaintiff had gotten his blood sugar (typically in the 100s) and hemoglobin levels down; “recent liver function tests [we]re still elevated but improved.” Id. Plaintiff was watching his diet and had lost a few pounds. (R. 568). He reported occasionally drinking alcohol, but Dr. Anger advised him that he could not drink any more with the medications he was on. Id. Plaintiff's anxiety issues continued. Id. An ultrasound on April 1, 2014 revealed “mild increased echogenicity of the liver which may represent fatty infiltration;” otherwise, results were unremarkable and there was no evidence of cholelithiasis (R. 543). A left knee imaging study on September 3, 2014 showed “mild early osteoarthritis without definite acute fracture of malalignment.” (R. 541). Lab results reviewed with Dr. Anger on October 22, 2014 showed that Plaintiff's cholesterol and hemoglobin levels had improved, though x-rays showed arthritis. (R. 559). On November 19, 2014, Plaintiff received an injection in his left knee (R. 549-551).

         On June 2, 2015 Plaintiff complained of heaviness in his left arm, right ear discomfort, and “occasional sharp chest pain.” (R. 598). His anxiety had been elevated. Id. Plaintiff reported that his pain was controlled “fairly well, ” though “some days [we]re better than others, ” and pain continued in his knees, back, shoulders, and all joints. Id. On July 14, 2015, Plaintiff continued to have back pain; Dr. Anger told him to “decrease activity” and continue pain medication to “help take the edge off, ” which Plaintiff said provided “moderate control.” (R. 593). Plaintiff reported that Benicar was ineffective at controlling his blood pressure and had stopped taking it, asking to be switched to something else. Id. On September 14, 2015, Plaintiff reported he was “doing okay, ” and medications helped “somewhat.” (R. 587). He was taking chronic pain medications for joint discomfort, his blood pressure was elevated, and he was experiencing “mood swings which range[d] from anger to sadness.” Id. Plaintiff had eliminated soda and was drinking more water; was exercising more and had lost weight, but continued to smoke. Id.

         1. Medical Reports/Opinions

         a. WV DHHR MRT Physical Form Completed by Treating Physician

         On January 19, 2011, Dr. Anger completed a Physical Examination for the West Virginia Department of Health and Human Resources' (DHHR) Medical Review Team (MRT) pursuant to Plaintiff's evaluation for adult Medicaid. (R. 450). Dr. Anger observed obesity, varicose veins and edema (swelling) in Plaintiff's legs; arteriosclerosis; bilateral pain in Plaintiff's lumbar area, and a flat affect and depressed mood. (R. 451). Dr. Anger diagnosed major depression and anxiety, and low back pain. Id. Dr. Anger opined that Plaintiff should avoid stressful work situations, and would be unable to work full time for at least one year “due to psychiatric and physical limitations.” (R. 451-52).

         b. Consultative Examination - Internal Medicine

         On December 19, 2013, Dr. Stephen Nutter completed a consultative examination of Plaintiff and reviewed medical records. (R. 512). Dr. Nutter's impressions included COPD, asthma, chronic cervical and lumbar strain, degenerative arthritis, and chest pain. (R. 516). A Ventilatory Function Form also dated December 19, 2013 and signed by Angie Henshaw (credentials unspecified) indicated “moderate restrictive pulmonary disease without improvement after bronchodilator.” (R. 521).

         c. Consultative Examination - Mental Assessment

         On January 14, 2014, Licensed Psychologist Morgan Morgan, M.A. completed a consultative examination and mental assessment consisting of a mental status examination and clinical interview. (R. 523). Plaintiff's sister drove him to the appointment. Id. Morgan observed that Plaintiff was “rather sullen, ” but cooperative; his clothing appeared “somewhat soiled, ” and his grooming was “minimal.” Id. Plaintiff reported that “he was admitted to Chestnut Ridge Hospital for approximately two weeks for depression and [suicide attempt by] overdose.” (R. 524). He subsequently continued to receive psychiatric services at Chestnut Ridge on an outpatient basis in 2010. Id. Morgan noted that “these services may have lasted for a period of time.” Id.

         Plaintiff reported a history of “recurrent depressive episodes” dating back to the 1980s, as well as PTSD beginning in 2006:

His current mood is described as depressed. He reported guilt feelings. He frustrates easily and displays irritability. His libido is diminished and he reported symptoms of anhedonia. The client reported being socially withdrawn and avoidant. He often ruminates over problems making it difficult to maintain attention and concentration. He is forgetful. The client reported a history of academic difficulties. The client stated that he has occasionally heard an unspecified individual "call his name, " although no one is in the home. He reported one time in the remote past, seeing a Confederate soldier pass through the ceiling onto the floor and then later disappear. He denied any current psychosis. The client reported that he has difficulty falling asleep due to ruminations over stressors. He has difficulty breathing, which causes awakenings in the night. He also reported being awakened by nightmares. He does not feel rested. The client's appetite is diminished. He denied significant weight fluctuations. The client reported infrequent crying spells, and often attempting to blunt his emotions. His energy level was reported to be low. He reported a past suicide attempt by overdose of drugs in 2009.
He also apparently had tried to asphyxiate himself in his 20s. The client indicated that he had once attempted to shoot himself, although the gun misfired. The client denied any current plan of suicide. He reported no history of homicidal ideations. The client reported that he came home to discover his wife had shot herself in the head, and since that time, he has been suffering nightmares and intrusive memories. He reported hypervigilance, avoidance to stimuli that remind him of this past issue, as well as triggers that remind him of these symptoms. He reported that these symptomatologies occur on a daily basis.

(R. 523-24). Plaintiff also reported a history of difficulty with others, including “a history of significant disciplinary problems” at school and being suspended “often” because of fighting; being fired from Coastal Lumber Company “after an issue arose and he threatened his employer;” a history of “problematic” relationships with coworkers and supervisors; and a history of troubled relationships with both of his ex-wives. (R. 525).

         As to the Mental Status Examination, Morgan wrote:

The client arrived wearing worn and somewhat soiled clothing, displaying minimal hygiene and grooming. He exhibited significant body odor. He is reported to be 6 feet 1 inch tall, and weighs 350 pounds. He was cooperative during the assessment, although thoroughly disgruntled at being here. His eye contact was adequate as the assessment progressed. His level of spontaneity was adequate. The length and depth of his verbal responses were within normal limits. His demeanor depicted a history of extroversion, although he was clearly tense and uncomfortable today. The client's speech was both relevant and coherent, but at a mildly slowed pace. He was oriented to time, name, place, and date. The client's mood was dysphoric and irritable, as well as anxious. He displayed a restricted affect. The client did not display signs or symptoms of psychosis. His statements of past socialization and presentation strongly suggest maladaptive personality features. His insights were deemed to be moderately deficient, based upon his statements and presentation. The client's judgments were deemed to be within normal limits, based upon his statements. He did not display signs or symptoms of suicidal or homicidal ideation. His immediate recall was observed to be within normal limits, as he was capable of immediate recall of four words. The client's recent recall was observed to be severely deficient, as he was later capable of producing one of the four words after a 15-minute delay. The client's remote recall was observed to be moderately deficient, based upon his ability to produce historic and personal facts. The client's concentration was observed to be mildly deficient, based upon a scaled score of 7 on the Digit Span subtest of the WAIS-IV. He displayed slow personal tempo.

(R. 524-25). Morgan described Plaintiff's demeanor as sullen and disgruntled; his mood as dysphoric, irritable, and anxious; his affect as restricted; and his tempo as slow. (R. 526). Plaintiff's “presentation and statements depicted a history of maladaptive personality features.” Id. Immediate memory was within normal limits, recent recall was severely deficient, and remote recall was moderately deficient. Id. Concentration was mildly deficient. Id. Below average intelligence was suggested. Id.

         Plaintiff reported limited daily activities, consisting of simple food preparation “occasionally, ” infrequent trips to the laundromat, grocery shopping once a week, and a “few” household chores, which he can do for about two minutes before needing to rest for half an hour. (R. 527). Plaintiff reported a “limited social network” (including a cousin, his ex-brother-in-law, and sister). Id. Plaintiff attended no social activities, did not speak on the telephone, and was not dating. Id. His interactions were limited to visits from his ex-brother-in-law and cousin “a couple times monthly.” Id.

         Morgan assessed Plaintiff's social functioning as “severely deficient.” (R. 527). His diagnostic impressions included 1) “Major Depressive Disorder, recurrent, severe, without psychotic features, without full interepisode recovery; 2) Posttraumatic Stress Disorder, and 3) Alcohol Use Disorder, moderate. (R. 526). Concentration was mildly deficient; persistence, pace, and recent memory were severely deficient; immediate memory was within normal limits. (R. 527). Insight was moderately deficient; judgment was within normal limits. (R. 525). Morgan noted that Plaintiff would “not be able to appropriately manage his own finances due to his history of alcohol consumption.” Id. Morgan opined that Plaintiff's prognosis was “poor.” (R. 526).

         d. Disability Determination at the Initial Level

         On January 2, 2014, SDM Steven Snow reviewed Plaintiff's records and completed a physical residual functional capacity (“PRFC”) assessment. (R. 94-95). Snow found the following exertional limitations: Plaintiff could occasionally lift and/or carry twenty (20) pounds; frequently lift and/or carry ten (10) pounds; stand, walk, and/or sit for about six (6) hours in an eight (8) hour workday; and unlimited pushing and/or pulling. (R. 94). As to postural limitations, Plaintiff could occasionally climb ramps, stairs, ladders, ropes, and scaffolds; occasionally balance, stoop, kneel, crouch, and crawl. (R. 94). No manipulative, visual, or communicative limitations were found. Id. As to environmental limitations, Plaintiff could have unlimited exposure to wetness, humidity, noise, and vibration, but was to avoid concentrated exposure to hazards, extreme cold and extreme heat; and avoid even moderate exposure to fumes, odors, dusts, gases, poor ventilations, etc. (R. 95).

         On January 20, 2014, agency reviewer Joseph Shaver, Ed.D. completed a psychiatric review technique (“PRT”) and mental residual functional capacity (“MRFC”) assessment. (R. 95-97). As to the B Criteria, Shaver found mild restriction of activities of daily living, moderate difficulties in maintaining social function, and moderate difficulties in maintaining concentration, persistence or pace. (R. 92). As to understanding and memory limitations, Shaver found moderate limitations in Plaintiff's ability to understand and remember detailed instructions. (R. 96). As to sustained concentration and persistence limitations, Plaintiff was moderately limited in his ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (R. 96). Plaintiff also had moderate limitations in his ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform as a consistent pace without an unreasonable number and length of rest periods. Id. As to social interaction limitations, Plaintiff was moderately limited in his ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, and moderately limited in his ability to accept instructions and respond appropriately to criticism from supervisors. (R. 96-97). As to adaption limitations, Plaintiff was moderately limited in his ability to respond appropriately to changes in the work setting. (R. 97). In the remaining areas, Shaver found no significant limitations.

         Shaver's explanation was as follows:

MSE (1I15/ 14) rated recent memory, pace and persistence as severely impaired while concentration was only mildly deficient. Although Clmt's social functioning was also reported to be severely impaired, he was cooperative during the evaluation process and maintained good eye contact. His level of spontaneity was adequate. Clmt is reported to have a network of people with whom he interacts. With regards to ADLs, Clmt fixes easy foods, grocery shops and handles personal finances. It is believed that Clmt retains the mental capacity to operate in work-like situations that do not require high levels of concentration, large amounts of social interaction or strict production quotas.

(R. 97).

         e. Disability Determination at the Reconsideration Level

         On April 8, 2014, agency reviewer A. Rafael Gomez, M.D. reviewed the prior PRFC Assessment and affirmed Snow's initial PRFC as written. (R. 143). Dr. Gomez then made an additional notation labeled “RFC - Additional Explanation” that stated “Patient has morbid obesity level III, back pain. Was reduced to light RFC prior to DLI.” (R. 145).

         On April 3, 2014, agency reviewer Jim Capage, Ph.D. completed a second PRT for the time period from May 3, 2011 to June 30, 2012, and found insufficient evidence to rate the B and C criteria of the listings. (R. 139). On the same day, Capage completed a third PRT for the current evaluation period, evaluating Plaintiff under listings 12.04, 12.06, and 12.09. As to the B Criteria, Capage found mild restriction of activities of daily living, moderate difficulties in maintaining social function, and moderate difficulties in maintaining concentration, persistence or pace. (R. 140).

         As to understanding and memory limitations, Capage found moderate limitations in Plaintiff's ability to understand and remember detailed instructions. (R. 145). As to sustained concentration and persistence limitations, Plaintiff was moderately limited in his ability to carry out detailed instructions, to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (R. 146). Plaintiff also had moderate limitations in his ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform as a consistent pace without an unreasonable number and length of rest periods. Id. As to social interaction limitations, Plaintiff was moderately limited in his ability to accept instructions and respond appropriately to criticism from supervisors, to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, and to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. (R. 146). As to adaption limitations, Plaintiff was moderately limited in his ability to respond appropriately to changes in the work setting. (R. 147). All other areas were not significantly limited or contained no evidence of limitation. Id.Capage's explanation was as follows:

“MRFC assessment indicates that the cl[aimant] can learn and perform at least routine 2-3 step work-related activities in a setting that keeps change to a minimum. Tasks should be low stress with no fast-paced production quotas, no complex decision making, and no supervisory responsibilities. He is best suited to work on his own in a setting that calls for no more than occasional and superficial social interaction.

(R. 147).

         C. Testimonial Evidence

         At the ALJ hearing held on November 17, 2015, Plaintiff testified that he was widowed, and has two adult children in their thirties who do not reside with him. (R. 43-44). Plaintiff testified that he had lived alone for “probably over a year” in a “leaky camper” belonging to a friend. (R. 44). The camper has two steps that Plaintiff had to use “maybe five or six times” per day to use the restroom outdoors. (R. 45).

         Plaintiff testified that he had obtained his GED, and had no other on-the-job training or education. (R. 51). Plaintiff had no income; he testified that he received food stamps and a medical card monthly. Id. Plaintiff had previously worked at a sawmill; he left that job to work at Walmart because it “paid a little more money [and] was easier.” (R. 54). Plaintiff last worked at Walmart where he started out in maintenance and eventually began stocking shelves. (R. 53). Plaintiff left that job because his wife committed suicide. Id. He did not recall whether he had looked for work after that. Id. Plaintiff alleged disability beginning October 14, 2008, when he attempted suicide (R. 52).

         At the hearing, Plaintiff testified as to his physical and mental conditions. When his attorney asked him to start with the condition he felt most interfered with his ability to work, Plaintiff responded:

A My whole body feels like it's asleep. My brain feels like it's -- I don't know how it feel.
Q Say again?
A I [sic] mental state -- I can't stand to be around people. Every joint and my body hurts. My legs -- I can't hardly walk. To walk from here to you, I would be out of breath [I'd] have to lean up against a wall or something.

(R. 54). In 2003, Plaintiff's hand was “crushed, ” requiring surgery and physical therapy after his finger had to be amputated. (R. 55). Plaintiff was taking Seroquel, Buspar, Benicar, Metoprolol, Symbicort, and “a bunch of others” whose names he could not recall. (R. 55). He was not aware of any side effects or problems from his medications. Id. Plaintiff's attorney questioned him regarding his alcohol consumption. Plaintiff had a DUI “at least 15 years ago.” (R 57). Presently, “it [had] been a few a months” since he had consumed any alcohol, the last occasion involving drinking “half a beer” when a friend stopped by his camper. (R. 56).

         Plaintiff also testified regarding his daily activities. Plaintiff goes out “once a week” to attend doctor's appointments and get food, but his activities were limited to that because he could not “stand to be around people.” (R. 46). Plaintiff's license was suspended “probably 20 years ago” after he got a speeding ticket. Id. Plaintiff estimated that he had not driven in at least “six months or so, ” though it had likely been “a lot longer.” (R. 46-47). When Plaintiff needs to go somewhere, he has to call his cousin Ronald or his ex-brother-in-law Victor to get a ride. (R. 48).

         The camper “ha[s] no water in [it], ” so Plaintiff cannot shower or do laundry at home. (R. 57). Rather, he had his “first shower . . . in probably over a month” the night before the hearing at his cousin's house. Id. He used to take his laundry to the Laundromat to wash, but no longer has a way to do that since he “quit driving [his] truck” “months ago.” (R. 58). Plaintiff makes himself a sandwich once or twice a day, because that does not take much preparation and he does not have to wash any dishes. (R. 57).

         Plaintiff's attorney asked him how he was feeling at the hearing. Plaintiff responded that he was feeling “frustrated, aggravated, nervous, nauseous” and “pissed off.” (R. 58). He testified that he was upset by “being around people” and “not being able to do nothing” [sic]. Id. Plaintiff dislikes authority figures, stating he “might tell them to kiss my ass” if told to do something or criticized. (R. 59). Plaintiff testified that he is easily aggravated and frustrated when things do not work the way they should. Id. He also gets “sad” daily, and experiences frequent crying spells. Id. Plaintiff explained “I think what it is is when I came home, found my wife laying in the bed where she blowed [sic] her brains out, I can't get that image out of my brain, and it's like watching TV. I look over at the wall, I can see her laying there on the bed with the - just - I just - can't take it.” Id. “It's hard to do anything whenever [inaudible] all you can see is your dead wife laying there on the bed.” Id.

         Plaintiff noted that the only real social interaction he usually has is that his cousin will check on him “probably twice [a] week for about maybe half [an] hour each visit.” (R. 60). Plaintiff explained that when his cousin visits him, “part of [him] feels to have some company, and part of [him] feels wish to hell he [would] get out of there and leave me the hell alone.” Id. Plaintiff does not adapt to change very well. Id.

         Plaintiff testified that he cannot stand up for very long, because he gets “lightheaded and dizzy.” (R. 61). He also gets short of breath with activity, estimating that he could sweep a floor for “a couple minutes” before he would have to stop. Id. He also will sometimes become short of breath when he is just sitting. Id. When he is short of breath, he has an inhaler he uses, and also tries “sit[ing] down, lean[ing] up against a wall, [or] try to find something to hold onto.” (R. 62). Plaintiff has been told to stop smoking by his doctors, so he smokes less now than he used to, but has not been successful at quitting entirely. Plaintiff “wishe[s he] could quit, but it just ain't easy; [his] nerves are shot . . . [he] get[s] aggravated and fee[s] like ripping [his] head off or somebody else's head off[, and s]moking a cigarette helps calm [him].” (R. 62).

         Plaintiff also testified with regard to edema and swelling in his legs that his legs “hurt like hell, ” they “stay swoled [sic] up, ” and they also fall asleep. (R. 62). Plaintiff testified that as a result of these problems with his legs, he cannot stand up for more than ten (10) minutes at a time. Id.

         D. Vocational Evidence

         Also testifying at the hearing was Casey Vass, a vocational expert. Mr. Vass characterized Plaintiff's past work at the sawmill as a “lumber stocker, ” DOT code 922.687-070, which was heavy, semiskilled work with a specific vocational preparation (SVP) of 2. (R. 64). Plaintiffs past work at Walmart doing maintenance was characterized as a “janitor, ” DOT code 381.687-018, which was medium, unskilled work with an SVP of 2. Id With regards to Plaintiffs ability to return to his prior work, Mr. Vass gave the following responses to the ALJ's hypothetical:

Q: Mr. Vass, assume a hypothetical individual the same age, education, and work experience as the claimant, who retains the capacity to perform light work with allow us to alternate sitting and standing positions for up to two minutes at 30 minute intervals without going off task; who is limited to know for control operation bilaterally; occasional posturals except no climbing of ladders, ropes, or scaffolds; is limited -- whose right, upper extremity is limited to frequent handling and fingering, wouldn't require the use of the fifth digit or the pinky finger on the dominant hand; must avoid concentrated exposure to extreme cold and heat, concentrated exposure to witness and humidity, concentrated exposure to excessive vibration, all exposure to irritants and chemicals, all exposure to unprotected heights, hazardous machinery, and commercial driving; whose work is limited to simple, routine, and repetitive tasks requiring only simple decisions with no fast pace production requirements and few workplace changes; who is to have no interaction with the public and only occasional interaction with coworkers and supervisors.
It is my understanding such an individual would be incapable of performing the past work of the claimant, is that correct?
A: I agree.

(R. 65). Incorporating the above hypothetical, the ALJ then questioned Mr. Vass regarding Plaintiffs ability to perform other work:

Q Are there other jobs in the national economy that such an individual could perform?
A I would list the first job as a kitchen worker. Code is 316.684-014, 402, 000 jobs in the nation. Assembler. Code is 729.684-046, 180, 000 jobs in the nation. A mail clerk. Code is 209.687-026, 120, 000 jobs in the nation. These jobs are light with an SVP of 2, unskilled.
Q Regarding tolerances, what are the customary tolerances a typical employer would have us to an employee being [late] to work or having unexcused or unscheduled absences, and if that were exceeded, what would the result be?
A Frequency would be a day and a half a month. They would be terminated if it exceeded that.
Q What are the customary number and length of breaks that a typical employer permits during the workday?
A Usually morning, afternoon, 15 minutes, 30 minutes for lunch.
Q What are the customary tolerances for how much time during an eight-hour workday a typical employer would permit an employee to be off task in addition to regularly scheduled breaks, and if that were exceeded, what with the result be?
A Ten percent at the workstation. Termination if exceeded.
Q Has all your testimony today been consistent with and according to your experience at the DOT?
A Yes, your honor.
Q And if there's any deviation between your testimony at the DOT, for example, sit/stand option or the fingering, would those deviations based on your experience?
A Yes, sir.

(R. 65-66). Plaintiff's attorney questioned Mr. Vass when provided the chance:

Q Mr. Vass, sit/stand option, if a person was asked to do light work but can only stand for five minutes and then sit down for 10 minutes, how would that affect the ...

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