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Kincaid v. Berryhill

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

May 25, 2018

ANDY SCOTT KINCAID, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert, United States Magistrate 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 David A. Faber, 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 Briefs 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. 11, 12, 15).

         For the following reasons, the undersigned RECOMMENDS that Plaintiff's motion for judgment on the pleadings be GRANTED, to the extent that it requests remand of the Commissioner's decision pursuant to sentence four of 42 U.S.C. § 405(g); DENY Defendant's request to affirm the decision of the Commissioner, (ECF No. 15); REVERSE the final decision of the Commissioner; REMAND this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this PF&R; and that this case be DISMISSED, with prejudice, and removed from the docket of the Court.

         I. Procedural History

         In November 2012, Plaintiff Andy Scott Kincaid (“Claimant”), completed applications for DIB and SSI, alleging a disability onset date of April 23, 2009[1] due to “Bad back/bad knees/bad shoulders, Back injury, Arthritis, Depression, carpal tunnel, can not [sic] read and spell good.” (Tr. at 243-65, 388). The Social Security Administration (“SSA”) denied Claimant's applications initially and upon reconsideration. (Tr. at 155-67, 178-84). Claimant filed a request for an administrative hearing, which was held on August 18, 2015, before the Honorable Jeffrey J. Schueler, Administrative Law Judge (the “ALJ”). (Tr. at 30-70). By written decision dated September 25, 2015, the ALJ concluded that Claimant was not disabled as defined in the Social Security Act from the amended disability onset date of June 25, 2011 through the date of his decision. (Tr. at 21). The ALJ's decision became the final decision of the Commissioner on December 2, 2016 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). Thereafter, Claimant filed Briefs in Support of Judgment on the Pleadings, (ECF Nos. 11, 12), and the Commissioner filed a Brief in Support of Defendant's Decision, (ECF No. 15). Consequently, the matter is fully briefed and ready for resolution.

         II. Claimant's Background

         Claimant was 41 years old on the date following the prior ALJ's decision and 45 years old on the date of the decision in this case. (Tr. at 245). He completed the ninth grade and communicates in English. (Tr. at 35-36, 387, 419). Claimant previously worked as an assistant automobile mechanic. (Tr. at 60).

         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).

         Here, the ALJ determined as a preliminary matter that Claimant met the insured status for disability insurance benefits through December 31, 2015. (Tr. at 12, Finding No. 1). At the first step of the sequential evaluation, the ALJ found that Claimant had not engaged in substantial gainful activity since June 25, 2011, the day after the prior ALJ's decision. (Tr. 12-13, Finding No. 2). At the second step of the evaluation, the ALJ found that Claimant had the following severe impairments: lumbar spine degenerative disc disease, osteoarthritis of the knees, hypertension, carpal tunnel syndrome (“CTS”), borderline intellectual functioning, major depressive disorder, generalized anxiety disorder, and pain disorder. (Tr. at 13, Finding No. 3). The ALJ also considered Claimant's right shoulder rotator injury status post repair and left shoulder impingement, but concluded that these impairments were non-severe. (Tr. at 13).

         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 13-15, Finding No. 4). Accordingly, the ALJ determined that Claimant possessed:

[T]he residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). The claimant can never crawl or climb ladders, ropes, or scaffolds, can occasionally climb ramps or stairs, balance, stoop, kneel, or crouch, and can frequently reach, handle, finger, but only occasionally reach overhead. He should avoid concentrated exposure to chemicals, operational control of hazardous moving machinery, and unprotected heights, should not drive or operate motor vehicles, and needs a low-stress job (defined as having only occasional decision making or changes in the work setting) with only occasional interaction with the public or co-workers.

(Tr. at 15-19, Finding No. 5).

         At the fourth step, the ALJ found that Claimant was unable to perform his past relevant work. (Tr. at 19, Finding No. 6). Under the fifth and final inquiry, the ALJ reviewed Claimant's prior work experience, age, and education in combination with his RFC to determine his ability to engage in substantial gainful activity. (Tr. at 19-20, Finding Nos. 7-10). The ALJ considered that (1) Claimant was defined as a younger individual aged 18-44 on the date following the prior ALJ's decision, (2) he had limited education and could communicate in English; and (3) transferability of job skills was not material to the disability determination. (Tr. at 19-20, Finding Nos. 7-9). 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 unskilled sedentary work as an assembler, table worker, and stuffer. (Tr. at 20, Finding No. 10). Therefore, the ALJ found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 21, Finding No. 11).

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

         Claimant raises numerous challenges to the Commissioner's decision. First, he contends that the ALJ failed to properly assess whether he met Listing 12.05C at step three of the sequential evaluation. Claimant argues that the ALJ did not consider three factors, which are indicative of deficits in adaptive functioning: Claimant's past “employment in simple work, ” his poor grades in school, and his history of getting into fights and getting kicked out of school. (ECF No. 12 at 4-6).

         The remainder of Claimant's challenges focus on the ALJ's RFC analysis. Claimant asserts that the ALJ's RFC discussion failed to comport with Social Security Ruling (“SSR”) 96-8p because it omitted significant evidence, including the full results of his November 22, 2011 back MRI; a May 1, 2015 right knee MRI; and a June 5, 2015 visit with Dr. Zahir. In addition, it lacked any discussion of Claimant's “nonmedical evidence\daily activities.” (Id. at 7-8). Claimant further alleges that the ALJ did not explain his reason for rejecting the opinion of Claimant's treating orthopedic surgeon, Robert P. Kropac, M.D., that Claimant could stand for less than two hours and sit for less than six hours in an eight-hour workday. (Id. at 8-10). Claimant adds that the ALJ also failed to explain his conclusory statements that Claimant received conservative treatment, had “routine” problems and impairments, and had “minimal” or “benign” diagnostic results. (Id. at 10-12). Finally, Claimant challenges the Commissioner's decision on the basis that the ALJ failed to address his moderate difficulties in concentration, persistence, or pace when formulating the RFC finding. (Id. at 12-13).

         In response, the Commissioner points to what she considers to be substantial evidence to support the ALJ's RFC assessment and notes that an ALJ is not required to comment on every piece of evidence in the record so long as the analysis is sufficiently thorough to permit meaningful review. (ECF No. 15 at 12-20). The Commissioner contends that the ALJ's RFC assessment complied with SSR 96-8p, correctly analyzed Dr. Kropac's opinion, and fully accounted for Claimant's mental limitations. (Id. at 20-31).

         V. Relevant Evidence

         The undersigned has reviewed all of the evidence before the Court. The following evidence is most relevant to the issues in dispute.

         A. Treatment Records

         On May 27, 2010, Claimant saw orthopedic surgeon, Matthew Nelson, M.D., complaining of increased bilateral knee pain. (Tr. at 600). Dr. Nelson noted that Claimant had previously received cortisone injections in both knees over eight months earlier. (Id.). On examination, Claimant had mild effusion and moderate crepitus, but no erythema or increased warmth. He had a full range of motion and muscle strength, stability to varus and valgus stress testing, and a well-balanced gait. (Id.). Claimant was given cortisone injections, encouraged to remain active, and instructed to follow-up on an as-needed basis. (Id.).

         On July 16, 2010, Claimant saw internal medicine physician, Mustafa Rahim, M.D., complaining of a sudden onset of dizziness. (Tr. at 632). Although Claimant's EKG did not reveal any issues, Dr. Rahim planned for further cardiac testing and started Claimant on Antivert. (Id.).

         The following month, on August 26, 2010, Claimant again saw Dr. Nelson, this time reporting right shoulder pain. (Tr. at 601). Dr. Nelson gave Claimant a cortisone injection in his right shoulder and planned to order a MRI of Claimant's shoulder. (Id.).

         Claimant returned to Dr. Rahim on September 16, 2010. (Tr. at 637). Claimant continued to complain of dizziness and symptoms of restless leg syndrome (“RLS”). Claimant's blood pressure was 115/90, but no issues were noted on his physical examination. (Id.). Dr. Rahim diagnosed Claimant with suspected RLS, peripheral vascular disease, non-critical carotid stenosis, chronic obstructive pulmonary disease, hypertension, and dizziness in need of further evaluation. (Id.). Dr. Rahim ordered an arterial doppler study for Claimant's suspected RLS and a MRI to evaluate Claimant's dizziness. (Id.).

         On November 15, 2010, Claimant saw Dr. Rahim and did not voice any issues or problems other than trouble sleeping. (Tr. at 640). Claimant's arterial doppler study did not show any significant disease, but a CTA was requested and Claimant was prescribed Ambien. (Id.). Claimant returned to Dr. Rahim later that month and was prescribed Ultram. (Tr. at 642).

         On January 14, 2011, Claimant saw Dr. Rahim with persistent right shoulder pain. (Tr. at 643). Claimant's hypertension was stable on Vasotec. (Id.). Dr. Rahim requested an x-ray, physical therapy, and occupational therapy for Claimant's shoulder. (Id.). He was started on the non-steroidal anti-inflammatory drug, Mobic, and his dosage of Ultram was increased. (Id.).

         On February 1, 2011, Claimant saw orthopedic surgeon, Philip J. Branson, M.D., for right shoulder pain that had been present for two months. (Tr. at 648). Dr. Branson diagnosed Claimant with right shoulder rotator cuff tendonitis and right hand paresthesia. (Tr. at 649). Claimant was given an injection of lidocaine, Marcaine, and celestone in his right shoulder and referred to physical therapy. (Tr. at 649-50).

         The following month, on March 2, 2011, Dr. Branson noted that the injection and physical therapy had not improved Claimant's right shoulder pain, although his hand paresthesia was improved. (Tr. at 651). Dr. Branson ordered a right shoulder MRI, which was taken on March 11, 2011. (Tr. at 751). Upon review of the MRI, Dr. Branson diagnosed Claimant with a small right rotator cuff tear, mild to moderate impingement, and mild arthritis. (Tr. at 757). Dr. Branson repaired the tear arthroscopically on April 8, 2011. (Tr. at 653).

         On September 21, 2011, Claimant had lumbar spine x-rays, which showed degenerative changes, but no fracture. (Tr. at 760). However, a lumbar spine MRI taken the following month showed a small to moderate-sized left posterolateral herniated nucleus pulposus at ¶ 5-S1 that was narrowing the left neural canal and a small midline disc protrusion at ¶ 4-5. (Tr. at 680). In his thoracic spine, Claimant had mild kyphoscolisosis and degenerative changes. (Tr. at 681).

         On December 6, 2011, Claimant saw orthopedic surgeon, Dr. Robert Kropac. Claimant's physical examination revealed tenderness in Claimant's lower lumbosacral spine extending downward; a positive straight leg raising test in Claimant's right lower extremity at 90 degrees in the sitting position; 1-2, symmetric deep tendon reflexes, and intact sensation. (Tr. at 662-63). Claimant had some tenderness to palpation in his right knee, but there was no effusion or ligamentous laxity. (Tr. at 663). Claimant could heel and toe walk without weakness, and his gait was not antalgic. (Id.). Dr. Kropac diagnosed Claimant with a lumbosacral musculoligamentous strain with lower right extremity radiculitis and a right knee strain. (Id.). Claimant was continued on Motrin and Lortab and advised to return in three months. (Id.).

         On December 19, 2011, Claimant saw physician's assistant, Heather Cook, at Bluestone Health Center. Claimant seemed to be doing well overall, but stated that Motrin was no longer effective for his back pain. (Tr. at 665). His blood pressure was 128/76; he was in no acute distress, well developed, and oriented in all spheres; and his gait and stance were normal. (Tr. at 666-67). Claimant was continued on blood pressure medications and a muscle relaxant, Robaxin, and was started on Mobic in place of Motrin. (Id.).

         On January 23 and April 23, 2012, Claimant saw Dr. Kropac for his three-month follow-up visits. Claimant's physical examinations, diagnoses, and treatment remained the same. (Tr. at 658-61). On May 17, 2012, Claimant saw Ms. Cook for a check-up and medication refills. (Tr. at 668). Claimant was doing well on medications, but wanted to see a different physician for his lower back pain, because the physician that he saw stated that he could not do anything for him. (Id.). Claimant's blood pressure was 110/60; he had no erythema in his legs, and his gait and stance were normal. (Tr. at 669-70). Claimant was referred to a neurologist and continued on his medications. (Tr. at 671). Shortly thereafter, on May 23, 2012, Claimant returned to Ms. Cook complaining of RLS symptoms. (Tr. at 672). He stated that he was on Requip for the condition and did well, but had been out of it for over a year. (Id.). Claimant's Requip was renewed. (Tr. at 674).

         Claimant returned to Dr. Kropac on October 25, 2012. Claimant's physical examination was essentially the same with tenderness in his lower lumbosacral spine, a positive straight leg raising test in his right lower extremity at 90 degrees in the sitting position, and deep tendon reflexes that were 1-2 and symmetric, with intact sensation. (Tr. at 656-57). Claimant still had some tenderness to palpation and patellofemoral crepitation in his knees, but there was no evidence of swelling, erythema, or deformity. He had no palpable effusion or ligamentous laxity; his McMurray test was negative; he could heel and toe walk without weakness; and his gait was not antalgic. (Tr. at 657). Dr. Kropac's diagnoses remained lumbosacral musculoligamentous strain with radiculitis into the right lower extremity, but Dr. Kropac felt Claimant's knee strains were superimposed on mild degenerative changes. (Id.). Dr. Kropac injected a Lidocaine and Celestone mixture into each of Claimant's knees and continued him on Motrin and Lortab. (Id.). Dr. Kropac still felt that no other treatment was recommended at that time instructed Claimant to return for re-evaluation in three months. (Id.).

         On October 31, 2012, Claimant saw Ms. Cook for regular evaluation. He was doing acceptably on medications, but had stopped taking Plavix because it caused him to itch. (Tr. at 676). Claimant's blood pressure was 110/70. His examination was unremarkable. (Tr. at 678). He was continued on medications for RLS, hypertension, and arthritis. (Tr. at 679).

         On December 11, 2013, Claimant reported to orthopedic surgeon, Robert C. Pennington, M.D., that he continued to have pain localized in the lateral epicondyle of his right elbow. (Tr. at 708). Claimant denied numbness or tingling, and he was fully ambulatory with a normal gait. (Tr. at 708-09). An examination of Claimant's upper extremities was normal, other than tenderness in his right elbow, and there was no evidence of swelling, deformity, restriction of rotation or passive motion, collateral laxity, or neurological issues. Dr. Pennington's diagnosis was lateral epicondylitis and possible intraarticular pathology of the lateral elbow. (Id.). He recommended that Claimant to undergo arthroscopic surgery for definitive investigation and lateral epicondylar debridement. (Id.). Claimant's arthroscopic synovectomy and open lateral epicondylar release surgery in his right elbow was performed on January 9, 2014. (Tr. at 714).

         On January 16, 2014, Claimant returned to Dr. Pennington following his right elbow surgery and stated that he was “doing really well” and his deep pain was “gone.” (Tr. at 707). Claimant appeared comfortable and alert. (Id.). On examination, Claimant lacked ten degrees of full extension in his elbow and had mild swelling, but he had full flexion, unrestricted rotation, and his incision was healing nicely. (Id.).

         On February 12, 2014, Claimant saw Dr. Rahim for back pain and arthritis, “especially with the change in the weather.” (Tr. at 717). His blood pressure was 106/79. He had full flexion in his lumbosacral spine, good lateral bending, negative straight leg raising testing in both positions, no tenderness, and he could squat and stand on his heels and toes without difficulty. (Id.) ...


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