Brown v. Colvin

OTIS BROWN v. CAROLYN W. COLVIN, Acting Commissioner of Social Security

No. 3:13-1293

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

February 23, 2015

To: The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION

The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's claim for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"), as provided by the Social Security Act.

Upon review of the Administrative Record as a whole, the Court finds that the Commissioner's determination that the plaintiff is not disabled under the Act is not supported by substantial evidence in the record as required by 42 U.S.C. § 405(g), and that the plaintiff's motion for judgment on the administrative record (Docket Entry No. 12) should be GRANTED to the extent that the case should be REMANDED.

I. INTRODUCTION

On March 19, 2010, the plaintiff protectively filed for SSI and DIB, alleging a disability onset date of September 16, 2009, due to arthritis in his back, shoulders, knees, and feet. (Tr. 12, 118-28, 146.) His applications were denied initially and upon reconsideration. (Tr. 12, 66-71, 73-78.) OnJuly 10, 2012, the plaintiff appeared and testified at a hearing before Administrative Law Judge Elizabeth Neuhoff ("ALJ") (tr. 27-56), and the ALJ entered an unfavorable decision on July 18, 2012. (Tr. 12-22.) On September 23, 2013, the Appeals Council denied the plaintiff's request for review, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3.)

II. BACKGROUND

The plaintiff was born on April 19, 1959, and he was 50 years old as of his alleged disability onset date. (Tr. 141.) He graduated high school, attended college but did not graduate, and has worked as a material handler in a factory. (Tr. 46, 52, 157-58.) He served in the United States Army, and the Department of Veterans Affairs ("VA") has awarded him service-connected disability benefits. (Tr. 46-47, 366.)

A. Chronological Background: Procedural Developments and Medical Records

The plaintiff received the majority of his medical care at VA hospitals and clinics, where he was treated for problems related to his back, shoulders, knees, and feet. (Tr. 188-256, 267-484.) The plaintiff frequently complained of back pain and stiffness (tr. 205-06, 219, 224-25, 418, 429, 434, 461, 465, 479), and an x-ray of his lumbar spine in January 2010 showed "mild diffuse degenerative disc disease." (Tr. 197.) He also frequently complained of pain and stiffness in his elbows and shoulders. (Tr. 219, 224-25, 229, 244-47, 250, 326-27, 431, 439, 451, 479-80.) April 2009 bilateral shoulder x-rays were normal (tr. 198-99), and a January 2011 MRI of the left shoulder showed normal joint spaces and cartilage, an intact AC joint, and "no significant joint effusion" but was"suggestive ofbiceps tendinopathy without evidence of focal tear." (Tr. 353-54.) A June 2012 x-ray showed minor degenerative changes in the right shoulder. (Tr. 475.)

Additionally, the plaintiff has a history of left knee pain. (Tr. 204-06, 225, 244-49, 324, 417-20, 423-25, 429.) An April 2009 x-ray showed "[m]oderate osteoarthritic change involving the medial compartment." (Tr. 199-200.) In October 2009, he was given a left medial unloader brace, which provided "immediate relief when ambulating," and he was prescribed a cane in December 2011. (Tr. 206, 226, 312, 378.) He also has a history of bilateral foot pain, stiffness, and occasional numbness due to flat feet. (Tr. 208-09, 237-39, 289-95.) An April 2009 x-ray showed "[m]inor bilateral pes planus deformity and bilateral hallux valgus deformity."¹ (Tr. 198.) An x-ray taken in January 2012 did not show a pes planus deformity but showed a "minimal" hallux valgus deformity on the left side that had not changed since April 2009. (Tr. 352.) The plaintiff has been treated with orthotics and reported in June 2012 that orthotics had "improved" his foot pain. (Tr. 208-09, 290-91, 480.)

On September 7, 2010, Dr. A. Przybyla, a nonexamining Tennessee Disability Determination Services ("DDS") consultative physician, completed a physical Residual Functional Capacity ("RFC") assessment. (Tr. 258-65.) Dr. Przybyla opined that the plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently, stand and/or walk about six hours in an eight-hour workday, sit about six hours in an eight-hour workday, and push and/or pull in unlimitedamounts. (Tr. 259.) Dr. Przybyla also opined that the plaintiff could frequently balance and occasionally climb, stoop, kneel, crouch, and crawl.² (Tr. 260.)

On July 20, 2011, Jacklen Robinson, a Family Nurse Practitioner with the VA, performed a Compensation and Pension ("C&P") examination of the plaintiff for his knee and shoulder impairments. (Tr. 417-24.) The plaintiff reported that his knee and shoulder pain had gotten "[p]rogessively worse," and it was noted that he was able to stand for 15-30 minutes and walk a quarter of a mile.³ (Tr. 417-18.) Ms. Robinson observed that the plaintiff walked with a limping gait and had knee crepitus, guarding of movement, and pain with active motion in both knees. (Tr. 418-20.) The plaintiff also demonstrated guarding of movement, popping, and pain upon active motion bilaterally in his shoulders. (Tr. 419-20.) Ms. Robinson diagnosed the plaintiff with degenerative joint disease of the left knee and bilateral shoulder strain. (Tr. 423.) She opined that the plaintiff's shoulder and knee impairments had "[s]ignificant [e]ffects" on his occupational activities as evidenced by "[d]ecreased mobility, [d]ecreased manual dexterity, [p]roblems with lifting and carrying, [l]ack of stamina[,] . . . [w]eakness or fatigue, [and] [d]ecreased strength [in his] upper extremity." Id.

On January 4, 2012, the plaintiff underwent a second C&P examination with Ms. Robinson related to his foot impairment. (Tr. 289-95.) Ms. Robinson noted that the plaintiff had pes planus and hallux deformity bilaterally with pain that was worse upon use and manipulation. (Tr. 289-92.) He had extreme tenderness of the plantar surfaces of both feet, and Ms. Robinson noted that hissymptoms were not relieved by orthotics. (Tr. 291-92.) She also noted that the plaintiff regularly used a cane and that his "feet hurt when he stands more than 45 minutes." (Tr. 293, 295.)

The plaintiff's medical records indicate that the VA has awarded him service-connected disability benefits due to the following physical impairments: limited motion of arm (20% impairment); limited motion of arm (20% impairment); flat foot condition (10% impairment); and traumatic arthritis (10% impairment). (Tr. 366, 378.)

B. Hearing Testimony

At the hearing on July 10, 2012, the plaintiff was represented by counsel, and the plaintiff and Lisa Courtney, a vocational expert ("VE"), testified. (Tr. 27-56.) The plaintiff testified that he graduated from high school and took college courses before joining the military. (Tr. 46.) He said that he left the military, in part, because he "couldn't do the physical requirements that they wanted [him] to do." (Tr. 51-52.) He testified that he draws benefits from the VA due to his feet, knee, and shoulder impairments. (Tr. 46-47.) The plaintiff testified that he last worked in 2009 when he was laid off. (Tr. 33-34.) He said that he also had difficulty keeping up with the pace of the job. Id. He explained that he attempted to find another job but did not believe he was able to perform jobs similar to his previous one that required lifting, stooping, and bending. (Tr. 35.)

The plaintiff testified that he has pain and muscle spasms in his feet, hands, shoulders, and low back. (Tr. 48-50.) He explained that his "feet are flat and . . . swell a lot and then . . . get numb." (Tr. 47.) He said that he experiences numbness in his feet "[p]retty much every day" and that his feet swell approximately once a week after prolonged standing. (Tr. 47-48.) He testified that he has pain and swelling in his left knee, which pops and grinds and causes pain in his shins.(Tr. 49-50.) He explained that he has problems balancing and said that he uses a cane. (Tr. 50-51.) He testified that he has arthritic pain in his shoulder and elbow joints and that he has trouble raising his arms above chest level. (Tr. 44, 48-49.) He described his back pain as a "sharp," "shoot[ing]" pain. (Tr. 49.)

The plaintiff estimated that he can sit for 10-15 minutes and stand for 10-20 minutes before needing to change positions. (Tr. 41-42.) He said that he can walk for 15-20 minutes at a time and can lift a gallon of milk "on a good day." (Tr. 42.) He testified that he takes Tramadol and Hydrocodone for pain and that he has tried stretching but that it "increased the pain." (Tr. 43, 45.) He said that his medications give him headaches, diarrhea, stomach problems, and dry eyes and make him "drowsy, dizzy, sleepy, [and] delirious." (Tr. 40, 44, 51.)

He related that he can "do a little" dusting and vacuuming but cannot wash the dishes because he cannot "stand at the sink that long." (Tr. 45.) He explained that he can put laundry "in a washer" but that he cannot move the laundry to the dryer when it is wet because it is too heavy and hurts his shoulders. Id. He said that he goes grocery shopping with a companion and that he does not do any outside chores such as mowing. (Tr. 45-46.) He added that he is able to drive "sometimes" but that other times he cannot drive due to muscle spasms and cramps in his feet. (Tr. 37-38.) He said that he reads as a hobby and attends church. (Tr. 39.) He explained that the church service is an hour and a half long and that sometimes he needs to leave early because he cannot sit that long. Id.

The VE testified that her testimony was consistent with the Dictionary of Occupational Titles ("DOT") and classified the plaintiff's past job as...