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McCallister v. Berryhill

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

November 30, 2017

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


          Cheryl A. Eifert, United States Magistrate Judge.

         This action seeks a review of the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Plaintiff's application for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. 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 the parties' briefs wherein they both request judgment in their favor. (ECF Nos. 6, 7, 8).

         The undersigned has thoroughly considered the evidence, the applicable law, and the arguments of counsel. For the following reasons, the undersigned respectfully PROPOSES that that the presiding District Judge confirm and accept the findings herein and RECOMMENDS that the District Judge GRANT Plaintiff's request for judgment on the pleadings, (ECF Nos. 6, 8), to the extent that it requests remand of the Commissioner's decision; DENY Defendant's request to affirm the decision of the Commissioner, (ECF No. 7); REVERSE the final decision of the Commissioner; REMAND this matter pursuant to sentences four and six of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this PF&R; and DISMISS this action from the docket of the Court.

         I. Procedural History

         On July 30, 2013, Plaintiff Shawn D. McCallister (“Claimant”) protectively filed an application for DIB, alleging a disability onset date of December 18, 2012, due to “herniated disc, numbness in hands, muscle spasms, sciatica, and knee problems” (Tr. at 312-18, 360). The Social Security Administration (“SSA”) denied Claimant's application initially and upon reconsideration. (Tr. at 134, 163-65, 172-74). Claimant filed a request for an administrative hearing. He had an initial hearing on July 22, 2015 and a supplemental hearing on November 18, 2015 before the Honorable Robert M. Butler, Administrative Law Judge (“ALJ”). (Tr. at 34-124). By written decision dated January 26, 2016, the ALJ found that Claimant was not disabled as defined by the Social Security Act. (Tr. at 15-28). The ALJ's decision became the final decision of the Commissioner on December 13, 2016 when the Appeals Council denied Claimant's request for review. (Tr. at 1-6).

         Claimant timely filed the present civil action seeking judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 1). The Commissioner subsequently filed an Answer opposing Claimant's complaint and a Transcript of the Administrative Proceedings. (ECF Nos. 4, 5). Thereafter, Claimant filed a Brief in Support of Judgment on the Pleadings. (ECF No. 6.). Claimant argued, inter alia, that the Commissioner's decision should be reversed or remanded on the basis of a subsequent favorable disability determination that was effective on the day after the ALJ's decision presently under review. (Id. at 9).

         Claimant contended that the “subsequent decision [awarding him DIB benefits] constituted new and material evidence which ought to allow for reversal and/or remand in this matter.” (Id.). However, Claimant acknowledged a body of case law, including Baker v. Comm'r of Soc. Sec., 520 F. App'x 228, 229 n.1 (4th Cir. 2013), which provided that, in a situation like Claimant's, “new substantive evidence might constitute ‘new and material evidence' necessitating remand, but the underlying evidence, not the award, will determine the propriety of a remand.” (Id. at 10). Therefore, Claimant indicated that he would obtain a copy of the file from his successful application and “thereafter provide this Court with the basis/evidence underlying [his] subsequent award of disability insurance benefits.” (Id.). However, Plaintiff did not file such additional evidence by the time that the Commissioner filed her responsive brief. Consequently, the Commissioner argued that Claimant “failed to meet his burden of showing that the evidence relied on in reaching the subsequent favorable [decision pertained] to the period under consideration here.” (ECF No. 7 at 17).

         Claimant later supplemented the record with a copy of a form notice from the Social Security Administration confirming that Claimant was granted disability benefits beginning on January 27, 2016 based upon a primary diagnosis of “Malignant Neoplasm of Gallbladder and Extrahepatic Bile Ducts” and a secondary diagnosis of “[Osteoarthritis] and Allied Disorders.” (ECF No. 8-1 at 1). Claimant asserted that such form made “at least a general showing of the nature of the new evidence” and demonstrated that “such new evidence pertain[ed] to the period under consideration in this appeal.” (ECF No. 8 at 1-2).

         By Order entered October 26, 2017, the undersigned advised Claimant that while the form that he supplied demonstrated that he was granted DIB benefits beginning on the day after the ALJ's decision presently under review, it did not constitute “new and material evidence necessary for this Court to determine the propriety of remand.” (ECF No. 9 at 2); see Baker, supra. Therefore, the undersigned ordered Claimant to supply the Court with the evidence underlying Claimant's subsequent award of benefits. (Id. at 2-3).

         In response to the foregoing Order, Claimant responded that his file that formed the basis of his subsequent disability award contained “1, 000 plus pages of ‘new and material' medical records.” (ECF No. 10 at 1). Therefore, Claimant provided the Disability Case Document Index on which he annotated the number of pages, which he asserted, contained “new and material” evidence. (ECF No. 10-1 at 1-3). Claimant also provided a Disability Determination Explanation regarding his subsequent application, which contained the findings of an agency non-examining physician, Cindy Osborne, D.O., dated March 24, 2017. (ECF No. 10-2 at 1-10). Further, Claimant provided a record of his visit with Gerrit A. Kimmey, M.D., at Huntington Internal Medicine Group (HIMG) on February 14, 2017 and his visit with surgical oncologist Amanda K. Arrington, M.D., at the Edwards Comprehensive Cancer Center on February 15, 2017. (ECF Nos. 10-3 at 10-14, 10-4 at 4-8).

         II. Claimant's Background

         Claimant was 39 years old on his alleged disability onset date and 42 years old on the date of the ALJ's written decision. (Tr. at 15, 38, 312). He communicates in English and has a high school education. (Tr. at 359, 361). Claimant previously worked as a sales agent for a pest control service, electrician assistant, saw operator, and a machine operator and laborer at a concrete block plant. (Tr. at 79-80, 361).

         III. Summary of the 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, 774 (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. The first step in the sequence is determining whether a claimant is currently engaged in substantial gainful employment. Id. § 404.1520(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). 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). If the impairment does, then the claimant is found disabled and awarded benefits.

         However, if the impairment does not meet or equal a listed impairment, the adjudicator must determine 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). 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). 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, as the fifth and final step in the process, that the claimant is able to perform other forms of substantial gainful activity, when considering the claimant's remaining physical and mental capacities, age, education, and prior work experiences. 20 C.F.R. § 404.1520(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).

         Here, the ALJ determined as a preliminary matter that Claimant met the insured status requirements for disability insurance benefits through December 31, 2017. (Tr. at 17, Finding No. 1). At the first step of the sequential evaluation, the ALJ confirmed that Claimant had not engaged in substantial gainful activity since December 18, 2012, his alleged disability onset date. (Id., Finding No. 2). At the second step of the evaluation, the ALJ found that Claimant had the following severe impairments: “degenerative disc disease of the cervical spine with herniation, lumbar degenerative disc disease with radiculitis and disc protrusion, obesity, chronic pain syndrome, degenerative joint disease of both knees, and costochondritis.”[1] (Tr. at 17-18, Finding No. 3). The ALJ also considered Claimant's diabetes mellitus, mild left elbow degenerative joint disease, colon polyp, thyroid nodule, hyperlipidemia, migraines, sleep apnea status-post surgery, gastroesophageal reflux disease (GERD), small hiatal hernia, history of left hand crush injury, neuroma in the left foot and heel spur, bilateral hyperkeratosis of the feet, bilateral carpal tunnel syndrome status-post release, degenerative joint disease of the bilateral shoulders, actinic keratosis, liver lesion, adjustment disorder, seizure, and cannabis abuse, but found that the impairments were non-severe. (Tr. at 18-19). 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 19-20, Finding No. 4). Accordingly, the ALJ determined that Claimant possessed:

[T]he residual functional capacity to perform a range of light work as defined in 20 CFR 404.1567(b) consisting of: lifting up to 20 pounds occasionally and 10 pounds frequently, standing and walking for about 6 hours, and sitting for up to 6 hours in an 8-hour workday, with normal breaks. The claimant is able to perform occasional crawling, crouching, kneeling, stooping, balancing and climbing ramps or stairs. The claimant cannot climb ladders, ropes, or scaffolds. The claimant is able to perform work that does not involve even moderate exposure to moving machinery or unprotected heights. The claimant is able to perform work that does not involve concentrated exposure to extreme cold, extreme heat, wetness, or excessive vibration.

(Tr. at 20-26, Finding No. 5).

         At the fourth step, the ALJ found that Claimant was capable of performing his past relevant work as a sales agent for a pest control service. (Tr. at 26, Finding No. 6). Nevertheless, the ALJ also reviewed Claimant's past work experience, age, and education in combination with his RFC to determine his ability to engage in other substantial gainful activity. (Tr. at 26-27). The ALJ considered that (1) Claimant was defined as a younger individual aged 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. (Tr. at 26). Given these factors and Claimant's RFC, with the assistance of a vocational expert, the ALJ concluded that Claimant could perform jobs that existed in significant numbers in the national economy, including document preparer, escort vehicle driver, and call out operator, which were at the unskilled sedentary exertional level. (Tr. at 27). Therefore, based upon the above, the ALJ found that Claimant was not disabled and was not entitled to benefits. (Tr. at 27-28, Finding No. 7).

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

         Claimant raises numerous challenges to the Commissioner's decision. First, Claimant challenges the ALJ's RFC analysis and finding on the basis that the ALJ failed to properly consider the medical source opinions and evidence in the matter, did not properly evaluate his credibility, and did not accept the testimony of the vocational expert that there were no jobs in the national economy for an individual who is off task 10 percent of the work day or absent one or more days per month. (ECF No. 6 at 5-7). In another challenge to the Commissioner's decision, Claimant argues that his subsequent award of DIB effective the day after the ALJ's decision constitutes new and material evidence justifying reversal and/or remand of this matter because the subsequent award of benefits is based on the same impairments alleged in the instant case. (Id. at 9-10). Further, Claimant argues that the Appeals Council did not properly consider the “new and material evidence” that Claimant submitted for consideration. (Id. at 8-9).

         In response to Claimant's challenges, the Commissioner asserts that the ALJ properly analyzed the evidence, assessed Claimant's credibility, and crafted Claimant's RFC. (ECF No. 7 at 7-13). The Commissioner further argues that the Appeals Council properly considered Claimant's “after-submitted evidence.” (Id. at 13-15). Finally, as to the subsequent decision awarding Claimant DIB, the Commissioner asserts that the “later determination involved [Claimant's] condition during a different time than the period under review by this Court and did not affect the decision about [Claimant's] condition in 2012.” (Id. at 16).

         V. Relevant History

         The undersigned has reviewed all of the evidence before the Court. The information that is most relevant to Claimant's challenges is summarized as follows.

         A. Claimant's Statements

         Claimant testified during his administrative hearing on July 22, 2015 that he served in the Navy from 1993 to 1994 before he was medically discharged after falling down steps carrying a drill press and injuring his knees. (Tr. at 104). He worked thereafter, but stopped working in 2012 after he was laid off as a machinist. He testified that prior to being laid off, he was “already having problems” and could not “even perform [that] job anymore.” (Tr. at 102-03, 106-07). He stated that his “back is gone, ” he has costochondritis, his shoulders “are shot, ” and issues due to “damage in [his] neck.” (Tr. at 112).

         At the supplemental hearing on November 18, 2015, Claimant stated that he had pain from “head to toe.” (Tr. at 57). His chest pain from costochondritis felt like electricity of “small explosions going off” that ran through his chest, shoulders, and hands. (Tr. at 57). He also had right foot pain in the ball of his foot and a bone spur in the back. (Id.). On a daily basis, he experienced tingling and numbness that felt like a “burning sensation” in his legs from his sciatic nerve. (Tr. at 57-58). The severity of his symptoms depended on how long he was on his feet and often required him to sit down. (Tr. at 58). He experienced knee pain for 20 years and wore braces on his knees 75 percent of the time; he also wore a back brace 25 percent of the time; and he used a cane. (Tr. at 58-59). He stated that all devices were prescribed to him by the VA hospital. (58.). Finally, he stated that whenever he used his hands to do anything, they hurt, became numb, or tingled a lot; he experienced low back pain “every day, all day;” and he reported having a constant headache, including during the time that he was testifying. (Tr. at 60-61). His pain averaged a 5 and when it climbed higher, he went to the VA for shots of a non-steroidal anti-inflammatory drug, Toradol, and a narcotic pain reliever, Stadol. (Tr. at 61).

         B. Treatment Records[2]

         On August 10, 2012, Claimant presented to the VA with shoulder pain. (Tr. at 672). He noted that he had been receiving cortisone shots in his shoulders for degenerative joint disease/osteoarthritis and recently had an increase in pain after carrying a 50-pound “sack of feed” for 200 feet. (Id.; see Tr. 696, 698). Claimant exhibited decreased range of motion in both arms. (Id.). X-rays of Claimant's shoulders showed degenerative changes. (Tr. at 485). He was given a corticosteroid injection in his left gluteal muscle. (Tr. at 672). During an orthopedic consultation regarding his bilateral shoulder pain later that month, on August 21, 2012, Claimant was assessed with mild osteoarthritis. (Tr. at 524).

         On August 26, 2012, Claimant presented for follow up regarding his chronic conditions and to review recent lab work. He had normal results on his cardiovascular, respiratory, and neurological examinations. (Tr. at 1134). He also had a normal gait and blood pressure of 126/87. (Id.). For Claimant's neck and low back pain, he was prescribed Etodolac and referred to pain management. (Tr. at 1135). For his type 2 diabetes and hyperlipidemia, he was prescribed Lipitor. (Id.).

         On September 4, 2012, Claimant had an EMG study performed by Ramon S. Lansang, Jr., M.D., which showed that Claimant had mild right radiculitis emerging from the S1 nerve root with evidence of very minimal spontaneous potentials indicative of denervation and mild axonal loss. (Tr. at 774). The condition was probably subacute to chronic. (Id.). Given the mild nature of the findings, surgery was not indicated, but epidural steroid injections were suggested to alleviate the back pain, spasms, and mobility limitations. (Id.). Additionally, Dr. Lansang noted that Claimant's MRI suggested facet arthropathy and he could therefore benefit from medial branch block injections. (Id.).

         On October 4, 2012, Claimant had an orthopedic consultation due to his complaints of right hand pain, weakness, numbness, and tingling. (Tr. at 520). Claimant, who was currently working in a machine shop, stated that he had problems with his right upper arm for “quite some time” and it progressively worsened to the point that he had trouble gripping a steering wheel or hammer or managing a standard-size chain saw; at times, he felt that his right arm was “going to fall off.” (Id.). It was noted that his nerve conduction study and EMG in July were positive for carpal tunnel syndrome in that extremity. (Tr. at 520-21). On examination, Claimant could make a fist and extend all of his fingers. (Id.). The impression was carpal tunnel syndrome and tennis elbow in his right upper extremity. (Id.). The plan was a short course of cortisone; continue Etodolac, right carpal tunnel release surgery, and no work for approximately two weeks after surgery. (Tr. at 522).

         On October 11, 2012, a CT scan of Claimant's chest showed a stable 4 millimeter nodule and a new 7 millimeter nodule in the middle lobe of Claimant's right lung, a 1.6 millimeter hypodensity in Claimant's left kidney, and possible thyroid nodules of less than a centimeter each. (Tr. at 483). A follow-up ultrasound of Claimant's kidneys on November 5, 2012, revealed that the density in Claimant's left kidney was a cyst. (Tr. at 481-82). Claimant received a corticosteroid injection to treat his right tennis elbow. (Tr. at 657). It was noted that he was using a tennis elbow strap and tried an oral cortisone, which was not helpful. (Tr. at 660). He used a drill press at work, which made the pain worse. (Id.). He was to continue Etodolac and return as needed. (Id.).

         On December 19, 2012, Claimant had right carpal tunnel release surgery and an injection to treat tennis elbow in his left arm. (Tr. at 628). The following month, on January 11, 2013, Claimant stated that he was doing better following carpal tunnel release surgery, but still had some pain. (Tr. at 622). On February 25, 2013, Claimant had a thyroid ultrasound, which showed that his cystic and solid nodules were stable in size and character as compared to the November 5, 2012 examination. (Tr. at 478, 619).

         On April 30, 2013, Claimant presented for a physical examination necessary to obtain his commercial driver's license. (Tr. at 611). His blood pressure was 123/84 and his weight was 288 pounds. (612.). The plan was to switch his medication to the non-steroidal anti-inflammatory drug (NSAID) Voltaren for his arthralgias, obtain a MRI for his low back pain, and test Claimant for thyroid dysfunction. (Tr. at 613). Claimant had a chest CT scan at that visit, which showed borderline expanded lungs, but no acute process in his lungs. (Tr. at 477). He stated that he quit smoking in March. (Tr. at 616).

         On May 14, 2013, Claimant had x-rays of his hips and pelvis to evaluate his complaints of pain. (Tr. at 474). There was no acute bone injury. (Id.). He also had a lumbar spine MRI due to his complaints of low back pain and left extremity numbness. (Tr. at 475). The MRI was compared to his previous MRI on May 1, 2011. (Id.). The impression was that Claimant had a five millimeter right paracentral disc protrusion that was touching the ventral aspect of the right S1 nerve root, but he did not have any significant central spinal canal stenosis. (Tr. at 476). Claimant also had a podiatry consultation for bilateral foot pain that was worse on the left. (Tr. at 514). The assessment was that his pain was caused by an impinged nerve and xerosis (dry skin). (Id.).

         The following day, on May 15, 2013, Claimant presented to the emergency room complaining of chest pain. (Tr. at 597). He stated that he awoke in the morning with chest pain on the right side that radiated to his back and worsened with movement and deep breathing. (Tr. at 598). He stated that he “moved a tree” the previous day and was coughing that night. (Id.). He did not have shortness of breath or wheezing and he recently quit smoking. (Id.). The impression was chest wall pain and costochondritis. (Tr. at 600). Claimant had a CT angiogram of his chest, but there was no evidence of pulmonary embolism, the test was negative for dissection or aneurysm, and there was no acute process demonstrated in Claimant's chest. (Tr. at 473). Claimant was administered a NSAID, Toradol, in the emergency room. (Tr. at 600). He was discharged with prescriptions for a muscle relaxer, methocarbamol; a corticosteroid, methylprednisolone; and a narcotic-like pain reliever, Tramadol. (Tr. at 601). It was also noted that Claimant needed a stress test and costochondral injections could be considered. (Id.). Claimant underwent his stress test on June 19, 2013, which was normal. (Tr. at 601-02).

         On May 24, 2013, Claimant was informed that his chest CT, CXR, and hips x-rays were normal. (Tr. at 593). The MRI of his back showed small bulging discs at ¶ 3-L4 and L4-L5, as well as a broad disc bulge at ¶ 5-S1, which contacted the right nerve root and was the likely cause of his pain. (Id.). Claimant was advised that he needed an EMG and was prescribed gabapentin to treat his nerve pain. (Id.).

         On June 4, 2013, Claimant presented with low back pain. (Tr. at 588). He stated that he had back pain for two years, but he “aggravated” it two weeks earlier when he was fishing and a “beaver took off with his line.” (Tr. at 591). When he grabbed his pole, he felt like someone stuck a knife through his back into his chest. (Id.). Lab work was ordered and he received prescriptions for Toradol and Depo Medrol. (Tr. at 589).

         On June 18, 2013, Claimant presented for an unscheduled visit because he was nearly out of his medication for low back pain. (Tr. at 576). He stated that he was carrying a chain and bending and stretching, which exacerbated his back pain. (Id.). He was given a 10-day supply of Tylenol with codeine. (Tr. at 576). On that date, Claimant also had an injection of a corticosteroid into his left elbow to relieve swelling and inflammation from tennis elbow. (Tr. at 577, 580). He was still using his elbow brace and was on NSAIDS. (Tr. at 580).

         The next day, on June 19, 2013, Claimant presented to the emergency room with right ankle swelling and pain after he tripped while performing yard work. (Tr. at 571). The impression was no acute fracture or subluxation, but some soft tissue swelling over the lateral malleolus. (Tr. at 470-71). X-rays of Claimant's knees showed minimal narrowing of the medial compartment of each knee with small effusions, but no acute fracture. (Tr. at 467).

         On July 26, 2013, Claimant again presented to the emergency department stating that his low back pain was worse. (Tr. at 542). He was evaluated for physical therapy, stating that he had low back pain for years with radicular symptoms in his lower extremities, particularly on his right side. (Tr. at 509). Claimant also complained of muscle spasms in his back. (Id.). Claimant presented in moderate distress with a guarded gait and decreased trunk rotation. (Tr. at 510). His range of motion was limited and painful in all ranges, but his strength and neurological findings were normal. (Id.). Claimant was noted to not be an appropriate candidate for physical therapy because he was unable to tolerate the activities due to pain. (Tr. at 511). He was assessed to have degenerative disc disease and a herniated disc. (Tr. at 544). He was administered Toradol and an anti-inflammatory glucocortiocosteroid, Decadron, in each hip. (Tr. at 542, 544).

         On August 12, 2013, Claimant had x-rays of his cervical spine due to neck pain and headaches, which showed normal results in the cervical spine and mild degenerative changes at ¶ 6-C7. (Tr. at 810-11). Later that month, on August 21, 2013, Claimant presented to the emergency room stating that he had pain in his chest, both shoulders, and left elbow. (Tr. at 871). Claimant had chest x-rays to evaluate chest pain, which showed no active disease. (Tr. at 809-10). The impression was multiple somatic complaints of joint and soft tissue pain, which could possibly be fibromyalgia. (Tr. at 874). He also had degenerative joint disease of the spine and shoulders. (Id.). He was given an anti-inflammatory glucocortiocosteroid, Solumedrol, and Toradol. (Id.).

         On August 30, 2013, Claimant had routine follow up of chronic conditions. (Tr. at 863). His blood pressure was “slightly high” at 133/91, but he was not sure if he took his medication the previous night. (Tr. at 864-65). Claimant had a thyroid ultrasound, which showed that his thyroid nodules were unchanged since February 2013. (Tr. at 808). For diabetes, Claimant was started on metformin, given aviva, and he was to continue Lisinopril. (Id.). It was noted that Claimant's liver enzymes were elevated. (Tr. at 866). The plan was to bring Claimant's diabetes under control before addressing the concerns regarding his liver. (Tr. at 865-66).

         On September 3, 2013, Claimant presented for chest wall and low back pain. (Tr. at 819). The impression was costochondritis, low back pain with lower extremity radiculitis that was worse on the right, and lumbar degenerative disc disease. (Tr. at 823). Claimant was offered joint injections. (Id.). The following day, he had a neurosurgery consultation at which his motor strength was normal, but his deep tendon reflexes were decreased in his lower extremities. (Tr. at 825-26). No surgical intervention was indicated for his low back pain and a MRI would be obtained to evaluate his shoulder pain. (Id.).

         On September 9, 2013, Claimant had a corticosteroid injection in his left elbow. (Tr. at 853). He was recommended for left carpal tunnel release surgery. (Id.). Later that month, on September 16, 2013, Claimant had a MRI of his thoracic spine without contrast, which showed disc extrusion at ¶ 6-C7 with moderate spinal canal stenosis, but Claimant's thoracic spine was intact. (Tr. at 807-08). On September 18, 2013, Claimant had another corticosteroid injection, this time in his sternum. (Tr. at 833).

         Claimant underwent left carpal tunnel release surgery. On October 10, 2013, Claimant stated that he did not have pain or problems following surgery, there was no sign of infection, and Claimant had full range of motion in his hand and fingers. (Tr. at 940-41). Claimant presented for additional follow up on October 17, 2013 at which time he denied pain, tingling, or numbness and his hand strength was good. (Tr. at 934).

         On October 11, 2013, Claimant presented to the hypertension clinic. (Tr. at 935). He stated that he was taking his HCTZ/Lisinopril daily as prescribed and was tolerating it well. (Id.). He stated that his blood pressure at home measured in the 120s/80s. (Id.). His blood pressure measured 135/80 at the visit, which was borderline above goal range. (Tr. at 935-36). No changes were made to his medications. (Tr. at 936). Claimant recently gained weight and was to begin dietary and lifestyle modifications, including walking every day as tolerated. (Id.).

         On October 28, 2013, Claimant had fluoroscopic-guided lumbar epidural steroid injections at ¶ 5-S1 due to back pain. (Tr. at 926). However, the following day, Claimant reported over the telephone that the injections did not alleviate his pain at all. (Tr. at 922).

         On January 9, 2014, Claimant presented to the emergency room stating that he fell and hit the back of his head two days prior and suffered headaches, neck pain, and some nausea thereafter. (Tr. at 1254-55). No issues were noted on the CT scan of Claimant's head. (Tr. at 1020). He also had a CT scan of his cervical spine, which showed mild degenerative changes in the lower cervical spine, but no evidence of fracture or malalignment. (Tr. at 1022). He was sent home with a prescription for Toradol and he was advised that he should take the naproxen that he had at home. (Tr. at 1257).

         On February 5, 2014, Claimant had a thyroid ultrasound, which revealed a solid nodule in the mid-right lobe that was not present in the previous August 30, 2013 ultrasound. (Tr. at 1019-20). The other multiple cystic and solid nodules were stable. (1020).

         On March 6, 2014, Claimant had a mental health consultation in preparation for bariatric surgery. Claimant reported struggling with his weight most of his adult life and noted that his weight fluctuated between 200 and 300 pounds even while he was in the Navy. (Tr. at 1082). He was not physically active due to chronic pain. (Id.). His most recently recorded weight on February 27, 2014 was 299 pounds with a body mass index of 40.5. (Tr. at 1083). He was advised that he had to be nicotine free for six weeks prior to pre-bariatric surgery psychological evaluation and that he had to remain nicotine free through the date of surgery. (Id.). He would be tested for nicotine use on March 14 and April 25, 2014. (Id.).

         On March 18, 2014, Claimant had an ultrasound of his abdomen during a pre-operative bariatric consultation. (Tr. at 1014-15). The ultrasound showed a solid lesion on Claimant's liver that was not seen in his chest CT scan in May 2013. (Tr. at 1015); see (Tr. at 593). Therefore, a CT scan of Claimant's thorax was taken for further evaluation. This CT scan showed a small density mass in the upper/middle lobe of Claimant's right lung that was stable as compared to a previous CT scan taken on October 11, 2012; severe fatty liver infiltration without hepatomegaly (an enlarged liver); no adenopathy (large or swollen lymph nodes) in the abdomen or pelvis; and no other significant findings to suggest metastatic disease. (Tr. at 1018).

         On April 2, 2014, a MRI of Claimant's abdomen was taken to evaluate the 1.6 centimeter liver mass that was seen during his above-noted visit. (Tr. at 1012-14). The appearance of the lesion on the MRI favored benign etiology. (Tr. at 1014). Thus, it was recommended that Claimant receive a repeat ultrasound in three months to ensure stability of the mass. (Id.). Otherwise, the MRI showed that Claimant had severe fatty liver infiltration and hepatomegaly, as well as non-specific, non-enhancing small renal cysts. (Id.).

         On April 7, 2014, Claimant had x-rays to evaluate his various pain complaints. His shoulders showed the same early degenerative changes with no significant change from the August 10, 2012 examination. (Tr. at 1006). The x-rays of Claimant's cervical spine showed mild degenerative changes at ¶ 6-C7 that were unchanged from the August 10, 2012 radiographs, the same straightening of the normal cervical lordotic curvature, and no acute fracture or prevertebral soft tissue swelling. (Tr. at 1008). Claimant's thoracic spine x-rays showed early degenerative changes in the lower thoracic ...

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