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Collier v. Commissioner of Social Security

United States District Court, M.D. Florida, Fort Myers Division

September 7, 2017

JAY KEVIN COLLIER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          CAROL MIRAND UNITED STATES MAGISTRATE JUDGE

         Plaintiff Jay Collier seeks judicial review of the denial of his claim for Social Security disability insurance benefits (“DIB”) and supplemental security income (“SSI”) by the Commissioner of the Social Security Administration (“Commissioner”). The Court has reviewed the record, the briefs and the applicable law. For the reasons discussed herein, the decision of the Commissioner is REVERSED, and this matter is REMANDED pursuant to 42 U.S.C. § 405(g), sentence four.

         I. Issues on Appeal[1]

         Plaintiff raises two issues on appeal: (1) whether the Administrative Law Judge (“ALJ”) properly considered the evidence of record in assessing Plaintiff's residual functional capacity (“RFC”); and (2) whether substantial evidence supports the ALJ's determination that Plaintiff's allegations of disabling limitations are not fully credible.

         II. Procedural History and Summary of the ALJ's Decision

         On June 14, 2012, Plaintiff filed his applications for DIB and SSI. Tr. 196-210. Plaintiff alleged disability beginning on April 16, 2012 due to a stroke, poor short-term memory and headaches. Tr. 35, 70, 88, 222. The claims initially were denied on August 10, 2012 and upon reconsideration on September 10, 2012. Tr. 114-132, 135-146. Plaintiff requested a hearing before an ALJ and received a hearing before ALJ David J. Begley on January 28, 2015. Tr. 27-69. Plaintiff, who was represented by an attorney, and Vocational Expert (“VE”) Jane Beougher appeared and testified at the hearing. See Tr. 27.

         On March 3, 2015, the ALJ issued a decision finding Plaintiff not disabled from April 16, 2012 through March 3, 015, the date of the decision. Tr. 12-21. The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through March 31, 2014. Tr. 14. At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since April 16, 2012, the alleged onset date. Id. At step two, the ALJ found that Plaintiff “has the following severe impairments: hypertension; status post lacunar stroke; headaches; chronic pulmonary disease; depression.” Id. At step three, the ALJ concluded that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. 15. The ALJ then determined that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), [2] except that:

[Plaintiff] would need to avoid climbing ladders, ramps, and scaffolds. He is further limited to occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling. In addition, he would need to avoid concentrated exposure to extreme heat, humidity, excessive noise, bright lights, and sunlight outside of normal office lighting. He would also need to avoid concentrated exposure to irritants such as fumes, odors, dust, gases, and poorly ventilated areas. Additionally, he would need to avoid slippery and uneven surfaces as well as hazardous machinery and unprotected heights. Finally, he is limited to doing simple routine repetitive tasks; involving only simple, work-related decisions, with few, if any, work place changes.

Tr. 16. Next, the ALJ found that Plaintiff is unable to perform any of his past relevant work as a carpenter, carpenter's foreman or air conditioner technician helper. Tr. 20. At step five, in considering Plaintiff's RFC, age, education, and work experience, the ALJ found that jobs exist in significant numbers in the national economy Plaintiff could perform. Id. Thus, the ALJ concluded that Plaintiff had not been disabled from the alleged onset disability date of April 16, 2012 through the date of the decision. Tr. 21.

         Following the ALJ's decision, Plaintiff filed a request for review by the Appeals Council, which was denied on June 13, 2016. Tr. 1-3. Accordingly, the ALJ's March 3, 2015 decision is the final decision of the Commissioner. Plaintiff filed an appeal in this Court on June 30, 2016. Doc. 1. Both parties have consented to the jurisdiction of the United States Magistrate Judge, and this matter is now ripe for review. Docs. 18, 20.

         III. Background and Relevant Medical History

         Plaintiff alleges that on April 12, 2012, while operating a nail gun on a construction site, he developed slurred speech, numbness in his right arm, dizziness and loss of balance. Tr. 284, 423. For the next two days, the symptoms persisted, and Plaintiff visited a nearby pharmacy to check his blood pressure, which he said was 195/122. Tr. 307. On April 16, 2012, Plaintiff's symptoms worsened, prompting him, at his brother's suggestion, to seek medical attention. Tr. 284.

         On April 16, 2012, Plaintiff presented to Michal Dunn, M.D., at Lee Memorial Health complaining of stroke-like symptoms. Id. Dr. Dunn detected no slurring of speech and recorded Plaintiff's blood pressure at 132/97. Id. Dr. Dunn concluded that Plaintiff had “somewhat of an unusual affect which potentially could be somewhat of an expressive deficit, which in this case would be a lacunar stroke.” Id. Dr. Dunn suggested Plaintiff be admitted to the hospital for further evaluation. Tr. 285.

         After admission on April 17, 2012, Chris Marino, M.D., and Sheng-Qian Wu, M.D., met with Plaintiff, who complained of slurred speech, right-hand clumsiness, disequilibrium and hypertension. Tr. 281, 307-08. His blood pressure was elevated at 201/118, but soon thereafter fell to 152/88. Tr. 282-83. He claimed no nervousness, mood changes or depression. Tr. 282. Although Dr. Marino described Plaintiff's gait as “somewhat cautious, ” neither an echocardiogram nor a computed tomography (“CAT”) scan of his head revealed any abnormalities. Tr. 283, 288-91. A magnetic resonance imaging (“MRI”) scan, however, showed an acute lacunar infarct-indicative of a stroke-around the left internal capsule. Tr. 292. Plaintiff also underwent an ultrasound of his neck, which showed “evidence of a 16-49% stenosis [narrowing] of the proximal right internal carotid artery, ” and similar blockage on the left. Tr. 309. Within a few days, he left the hospital prematurely against Dr. Marino's advice because he had “gotten tired of all that testing.” Tr. 443, 449.

         On May 25, 2012, Advance Registered Nurse Practitioner (“ARNP”) Mary Dion evaluated Plaintiff. Tr. 329-31. She found that Plaintiff had speech difficulty and slow thought process. Tr. 330. His skin was also of a “[v]ery ruddy, grayish color, ” and Plaintiff had ongoing hypertension, although he appeared in good health otherwise. Tr. 329-31. ARNP Dion encouraged Plaintiff to quit smoking. Tr. 331. At this point, Plaintiff was taking high blood pressure and blood thinning medication. Id.

         On June 7, 2012, Plaintiff returned to ARNP Dion to evaluate his blood pressure and blood test results. Tr. 325. Plaintiff reported that he was “feeling well and denie[d] chest pain, headaches and palpitations. He [was] not exercising and [did] not restrict his sodium intake.” Id. Although Plaintiff's blood pressure was “running about 140/100, ” and he appeared weathered and had a “ruddy” complexion, his physical exam was unremarkable. Tr. 325-26. He appeared to be in good health, despite feeling “slow” since his stroke. Tr. 326. ARNP Dion acknowledged Plaintiff's ongoing hypertension diagnosis and urged him to adopt healthy lifestyle habits. Id.

         On June 22, 2012, Plaintiff followed up with ARNP Dion, who indicated that Plaintiff was feeling weak from the stroke, yet “he [was] feeling well and denie[d] chest pain, cough, dizziness, headaches and palpitations. He [was] not exercising and [] restrict[ed] his sodium intake.” Tr. 321. At this time, he was still taking his high blood pressure and blood thinning medication. Tr. 323. Plaintiff continued to smoke, although he smoked less. Tr. 321. Plaintiff was counseled to eliminate smoking and to begin walking with the goal of exercising 30 minutes each day most days of the week. Tr. 322. A subsequent evaluation with ARNP Dion on July 26, 2012 led to substantially identical findings and recommendations, except that Plaintiff had begun to take small walks. Tr. 349.

         On August 7, 2012, Plaintiff was referred to Eshan M. Kibria, D.O., for an independent medical examination for Social Security disability purposes. Tr. 335. Dr. Kibria noted Plaintiff had problems with dizziness and hypertension, as well as “little tiny headaches and both hands go numb at night.” Id. Plaintiff also experienced shortness of breath after mild exertion and trouble with writing, sleeping and exposure to sunlight. Id. Plaintiff further reported that he had not worked since 2010. Id. Nonetheless, Plaintiff possessed a normal speech pattern without slurring and a normal fund of general information. Tr. 335-36. Dr. Kibria's impression diagnosis was that Plaintiff had speech problems around the time of the stroke, which had since “cleared up.” Tr. 336. Furthermore, Plaintiff had hypertension and “[s]light slow processing requiring occasional repeating. No visual field defect or any focal motor or sensory problems. Positional dizziness when [he] stands up or turns too quick [sic] on Metoprolol. Memory seems ok.” Id.

         On August 28, 2012, Plaintiff presented again to ARNP Dion, who noted that Plaintiff was feeling well and denied headaches, numbness or palpitations. Tr. 344. Plaintiff complained that “all the medications [were] making him dizzy.” Id. Plaintiff reported that he was exercising, walking one mile per day and restricting his sodium intake. Id. He also said that he occasionally checked his blood pressure at a local pharmacy, and it was “always high.” Id. His skin appeared warm, dry and ruddy, and he was diagnosed with malignant, uncontrolled hypertension. Tr. 345. ARNP Dion switched one of his medications, and encouraged him to stop smoking, increase activity and comply with his medication regimen. Tr. 345-46.

         From September through December 2012, Plaintiff underwent a series of almost-weekly Coumadin (warfarin) clinics to help regulate the coagulative properties of his blood. Tr. 355-76. His warfarin intake levels were frequently adjusted accordingly. Id.

         Plaintiff saw ARNP Dion on December 5 and 7, 2012 to follow up on his hypertension levels, which remained high. Tr. 377-78, 381. Plaintiff stated that exposure to the sun caused headaches, and contradictory evidence in the record exists on these dates regarding Plaintiff's sodium intake, exercise habits and at-home blood pressure monitoring. Tr. 377, 381.[3] Although Plaintiff's skin had a weathered, dusky appearance, his physical exam was unremarkable. Tr. 378. ARNP Dion counseled him to stop smoking and increased the dosage of his Diltiazem. Id.

         On March 22, 2013, Plaintiff met with Dr. Marino for a neurological evaluation. Tr. 443. Dr. Marino noted, among other things, difficulty understanding speech, shortness of breath, wheezing, chest pain and depression. Tr. 444. Otherwise, Plaintiff appeared normal, including his gait, speech, memory and attention. Id. Dr. Marino stated that Plaintiff described “a level of functional impairment that is well beyond what would be expected given the small lacunar nature of his stroke. I have found no neurological explanation for this. One thought would be that he could be having general functional impairment on the basis of a post stroke depression.” Tr. 445. Dr. Marino suggested that psychological and psychiatric treatment may be necessary. Id.

         On March 29, 2013, ARNP Dion saw Plaintiff again, who complained of shortness of breath, depression and impaired memory. Tr. 535, 537. He appeared grayish and unkempt, but otherwise looked normal. Tr. 537. ARNP Dion continued to encourage him to stop smoking, and Plaintiff declined an antidepressant at this time. Tr. 538.

         On April 29, 2013, May 29, 2013 and June 7, 2013, at the referral of Florida Division of Vocational Rehabilitation (“DVR”) counselor Lucas Halverson, Plaintiff underwent a psychological assessment with Noble Harrison, Ph.D. Tr. 448-68. At the conclusion of the June 28, 2013 evaluation, Dr. Harrison noted high levels of depression, anxiety and frustration with his life as Plaintiff's most predominant symptoms. Tr. 452. Plaintiff also expressed concern that there seemed to be inadequate medical documentation to support his condition. Tr. 451-52. Dr. Harrison also talked to Plaintiff's mother, who corroborated many of Plaintiff's physical symptoms, yet said that he sometimes drives and fishes.[4] Tr. 451.

         As part of his assessment with Dr. Harrison, Plaintiff underwent a Wechsler Adult Intelligence Scale-IV Edition. Tr. 452. Dr. Harrison's diagnosed Plaintiff with mild vascular neurocognitive disorder (mild memory and attention and concentration deficits with depression, anxiety, and affective liability accompanying and enhancing the neurocognitive deficits) and somatic symptom disorder, persistent, moderate. Tr. 457. Dr. Harrison opined, “[i]t is my strong clinical opinion that . . . [Plaintiff's] problems are significantly less than his subjective expression of those symptoms, ” and that he could certainly perform a variety of indoor jobs, if not construction work. Id. Dr. Harrison's concern was Plaintiff's “expressed belief” that he has worked his whole life and now thinks he deserves to not continue to work as hard and receive disability benefits. Id. Dr. Harrison opined that Plaintiff's returning to work “would be the best antidote to his anxiety and stress related to his physical condition.” Tr. 459. He recommended to Mr. Halverson, the vocational counselor, that Plaintiff be referred for a work activity assessment to determine his physical abilities to re-enter the workforce. Id.

         On July 2, 2013, Plaintiff presented to ARNP Janet Loo for shortness of breath. Tr. 527. ARNP Loo noted that Plaintiff did not exercise, restrict his sodium intake or check his blood pressure and continued to smoke. Tr. 527-28. Plaintiff complained of “daily headaches since his stroke, ” but denied taking any medications for them. Tr. 528. Plaintiff experienced possible chronic obstructive pulmonary disease (“COPD”)[5] and claimed he was depressed. Id. Although Plaintiff's mood was dysphoric, he “adamantly refuse[d] medication for treatment.” Id. ARNP Loo counseled him that “the only way to stop the progression of [COPD] is to stop smoking.” Id.

         On August 21, 2013, at the referral of DVR counselor Mr. Halverson, chiropractor Eric Gerken, D.C., performed a work capacity evaluation on Plaintiff that included an extended battery of physical tests. Tr. 413-41. During the visit, Plaintiff noted the following impairments: weight gain, memory loss, numbness/tingling, fainting/dizziness, headaches, balance problems, high blood pressure, difficulty sleeping, stress, depression, bronchitis/lung problems and shortness of breath. Tr. 420. At the conclusion of the evaluation, Dr. Gerken noted Plaintiff's stroke and hypertension, as well as COPD, sarcopenia, [6] cognitive disorder and possible peripheral neuropathy. Tr. 413. Dr. Gerken opined that Plaintiff possessed ‚Äúpervasive physical ...


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