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Kirkpatrick v. Berryhill

United States District Court, N.D. Florida, Gainesville Division

April 19, 2018

CARL ROGER KIRKPATRICK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE

         Plaintiff appeals to this Court from a final decision of the Acting Commissioner of Social Security (the “Commissioner”) denying Plaintiff's application for Period of Disability and Disability Insurance Benefits pursuant to Title II of the Social Security Act (“the Act”) and for Supplemental Security Income pursuant to Title XVI of the Act. (ECF No. 1.) The Commissioner has answered, ECF No. 9, and both parties have filed briefs outlining their respective positions. (ECF Nos. 19, 20.) For the reasons discussed below, it is recommended that the Commissioner's decision be affirmed.

         I. PROCEDURAL HISTORY

         Plaintiff filed his Title II and Title XVI applications in January 2010, alleging a disability onset date of January 15, 2011. (R. 15, 107-08, 338-52.) His applications were denied initially and upon reconsideration. (R. 111-14.) His applications were then dismissed by an administrative law judge (“ALJ”) in August 2010 after Plaintiff failed to appear for a hearing. (R. 115-19.) The Appeals Council, however, remanded the case to an ALJ in July 2012 to offer Plaintiff an opportunity to explain his failure to appear. (R. 120-24.)

         The ALJ determined that Plaintiff showed good cause for his failure to appeal, and the ALJ held a hearing on the merits in May 2013. (R. 74-110.) The ALJ then issued a decision unfavorable to Plaintiff in January 2013. (R. 125-47.) But the Appeals Council remanded Plaintiff's case again in January 2015 to address post-hearing evidence the ALJ received, to have the ALJ further consider Plaintiff's residual functional capacity (“RFC”), and to obtain supplemental evidence from a vocational expert (“VE”) if necessary. (R. 148-51.)

         On remand, the ALJ held another hearing in July 2015, following which the ALJ issued a decision unfavorable to Plaintiff on January 11, 2015. (R. 13-71.) On January 25, 2017, the Appeals Council denied Plaintiff's request for review. (R. 1-4.) Plaintiff then filed the instant appeal. (ECF No. 1.)

         II. STANDARD OF REVIEW

         The Commissioner's findings of fact are conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g) (2000). Substantial evidence is more than a scintilla, i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982); Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).

         Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560. However, the district court will reverse the Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep't Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).

         The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(I), 423(d)(1); 20 C.F.R. § 404.1505 (2005).[1] The impairment must be severe, making Plaintiff unable to do his previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

         The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proving the existence of a disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). First, if a claimant is working at a substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant's impairments do not prevent him from doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant's impairments (considering his residual functional capacity (“RFC”), age, education, and past work) prevent him from doing other work that exists in the national economy, then he is disabled. 20 C.F.R. § 404.1520(f).

         III. SUMMARY OF THE RECORD

         Because the main issue on appeal relates to Plaintiff's credibility regarding the alleged limiting effects of his left foot deformity and Crohn's disease, the relevant portions of the medical record, opinion evidence, hearing testimony, and ALJ's findings are summarized below.

         A. Medical Evidence

         Plaintiff visited North Florida Regional Medical Center on multiple occasions from 2005 to 2009 complaining of chest pain. In 2005 Plaintiff underwent a cardiac catheterization, and the impression was nonobstructive coronary artery disease with severe myocardial bridging. In 2008 he underwent another catheterization, and the impression included patent coronary arteries with slow flow and an intramyocardial bridge. He also had chest x-rays and a CT that were unremarkable. Further, his physical exams throughout this time period revealed normal findings, including normal range of motion in his extremities. The impressions were often only chest pain. (R. 580-654.)

         Plaintiff continued to visit North Florida from 2010 to 2012, still complaining of chest pain and at times abdominal pain. His physical exam findings, chest imaging, and other testing continued to be normal overall but for some abdominal tenderness at times, and the clinical impressions at various visits throughout this time period included chest pain, acute dyspnea, hypertrophic cardiomyopathy, a gastrointestinal bleed, upper abdominal pain, chronic alcoholic gastritis, gastroesophageal reflux disease, hyperlipidemia, hypertension, mild distal colitis, and substance abuse. Some of his treatment notes also included references to drug-seeking behavior. (R. 944-1192.)

         Plaintiff also visited Shands Hospital multiple times from 2008 to 2015. During most visits he complained of chest pain or abdominal pain. His physical examinations were overall unremarkable, and the impressions during these visits included chest pain, angina, and abdominal pain primarily as well as a rib fracture on one occasion, acute coronary syndrome on another occasion, and a hiatus hernia on one occasion. He also had diagnoses of hypertrophic obstructive cardiomyopathy, gastroesophageal reflux disease, hyperlipidemia, and hypertension. In July 2011 Plaintiff underwent a surgical septal myectomy, and in March 2012 Plaintiff had an internal cardiac defibrillator implanted. By June, however, he was noted as stable from a cardiovascular standpoint. Additionally, he reported a history of myocardial infarctions related to drug use, and his treatment records noted that his behavior was suggestive of narcotic-seeking behavior.[2] (R. 655-773, 800-22, 929-36, 1194-2263, 2362-68.)

         In addition to chest and abdominal pain, Plaintiff also complained of left ankle and foot pain. In June 2012 Plaintiff complained for the first time of left ankle pain after tripping in a hole. Plaintiff's physical examination of his left knee, ankle, and lower leg were normal, although Plaintiff did have tenderness in his left foot and a decreased range of motion in his left ankle after a second fall in July. His diagnoses included an ankle sprain and ankle pain, and his imagining revealed only a stable left foot deformity and associated joint osteoarthritis. He also refused crutches on discharge after his first injury, and by mid-July his ambulation and range of motion were normal again. He complained again of left ankle pain in early 2013, but he did not want physical therapy, only narcotic pain medication, and there was no swelling or tenderness upon examination. Further, his x-rays showed only arthritic changes. (R. 2010-49, 2076, 2098, 2235-62.)

         Plaintiff also visited UF Physicians Cardiology West from 2011 to 2013. His assessments included status post myectomy, chest pain, hypertrophic obstructive cardiomyopathy, and paroxysmal ventricular tachycardia. His physical examinations were normal overall. Additionally, in 2013 it was noted that he was stable from a cardiovascular standpoint, and Plaintiff stated to his doctors that he was trying to find a job but that no one would hire him because of his defibrillator. Further, the notes contained suspicions of narcotic-seeking behavior as well as documentation of Plaintiff's noncompliance with his prescribed medication. (R. 881-926.)

         Plaintiff visited the UF Orthopaedics and Sports Medicine Institute from 2013 to 2015 regarding his left foot and ankle. In 2013 Plaintiff underwent a left triple arthrodesis with tendo-achilles lengthening to address his left foot deformity, but in October 2014 he had his left calcaneus hardware removed. The screw removal resolved his heal pain, but he continued to have some stiffness and pain. In April 2015 he sprained his left ankle and wanted a brace for support, but he did not have any swelling and his foot alignment was stable. (R. 2287-2338.)

         Lastly, Plaintiff visited University of Florida Physicians in 2015 for pain management, complaining of left foot, left knee, and lower back pain. His physical exam revealed restricted range of motion of the left foot, and he walked with a limp. His ankles, however, had 5/5 motor strength, and his knees and ankles could bear weight. Plaintiff also had multilevel cervical degenerative changes as well as mild multilevel lumbar degenerative changes. The impressions included chronic left foot and knee pain, neuropathic left ankle pain, chronic lower back pain, degenerative disc and joint disease, and an acquired leg length difference, and his treatment plan included medication and physical therapy. (R. 2339-61.)[3]

         B. Opinion Evidence

         1. Robert Greenberg

         Plaintiff underwent a physical consultative examination with Dr. Greenberg on April 16, 2009. The impressions were (1) chronic anxiety disorder; (2) atypical chest pain with recent normal cardiac catherization, ruling against significant coronary artery disease; (3) congenital deformity of the left foot, resulting in chronic pain and difficulty standing/walking. Specifically with regard to Plaintiff's left ankle, the physical examination reviewed a total absence of range of motion of the left ankle. Although Plaintiff had difficulty walking and stooping, he did not require an assisting device for ambulation. (R. 500-01.)[4]

         Dr. Greenberg also performed a physical consultative examination in March 2010. His physical exam findings revealed overall normal results other than a deformity of Plaintiff's left ankle and a lack of range of motion of the left ankle. Plaintiff walked with a mild, left leg limp, but he did not require a device for ambulation. The impressions were (1) severe osteoarthritis of the left ankle as a result of congenital deformity; (2) anxiety, depression, and panic attacks; and (3) chest pains with both typical and atypical features for angina pectoris. (R. 790-91.)

         2. Lance Chodosh

         Dr. Chodosh conducted a physical consultative examination of Plaintiff in June 2010. His physical examination revealed a significant deformity of the left ankle and foot, with inversion of the left ankle, enlargement of the joint, and lack of arch on the left side. His joints were generally hypermobile, but his left knee had full range of motion. He had 5/5 muscle strength in the upper extremities and right lower extremity as well as 5/5 proximal strength in the left leg and 4/5 distal strength. The exam findings were otherwise normal overall. (827-29.)

         Dr. Chodosh's impressions included (1) chronic deformity of the left foot and ankle which interferes somewhat with prolonged walking and standing; and (2) left knee and chronic back pain, but examination of the left knee was clinically normal. Dr. Chodosh opined that Plaintiff could stand and walk occasionally, sit, bend over, squat occasionally, kneel, lift 40 pounds occasionally, carry 15 pounds, handle objects, and see, hear, and speak normally. (R. 830.)[5]

         C. Hearing Testimony

         At Plaintiff's hearing on July 15, 2015, Plaintiff testified that he sometimes lives with his stepfather and he sometimes pitches a tent about a half mile from there. He said he has medical appointments every month with his gastrointestinal doctor for his Crohn's disease and colitis. Plaintiff also said the reason he does not work is because employers think he is an insurance risk due to his pace maker and defibrillator. He ...


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