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Washington v. Berryhill

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

April 25, 2018

NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of the Social Security Administration, [1] Defendant.



         This Social Security case was referred to the undersigned upon consent of the parties by United States District Robert L. Hinkle. ECF Nos. 7, 9. It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Deputy Commissioner for Operations (Commissioner) of the Social Security Administration denying Plaintiff's application for a period of disability and Disability Insurance Benefits pursuant to Title II of the Social Security Act and Supplemental Security Income pursuant to Title XVI of the Social Security Act. See ECF No. 1. After careful consideration of the record, the decision of the Commissioner is affirmed.

         I. Procedural History and Facts

         On October 29, 2012, Plaintiff filed an application with the Social Security Administration for a period of disability and Disability Insurance Benefits (DIB) pursuant to Title II of the Social Security Act and Supplemental Security Income (SSI) pursuant to Title XVI of the Social Security Act. The applications alleged disability beginning October 15, 2010, based on alleged nerve damage in his right arm and recurrent infections in his left arm. Tr. 326-36.[2] That alleged onset date was later amended to September 30, 2014. Tr. 90. Plaintiff's applications were denied initially and on reconsideration. Tr. 112, 123.

         A hearing was commenced before Administrative Law Judge (ALJ) Marni R. McCaghren on February 6, 2014, but was continued. Tr. 46-54. The hearing was recommenced on August 27, 2014, Tr. 55-86, and resulted in a decision on November 17, 2014, denying disability insurance benefits and supplemental security income. Tr. 137-44.

         On April 29, 2016, the Appeals Council vacated the decision and remanded the case to the ALJ to consider Plaintiff's examination findings that indicate greater manipulative limitations than those found in the residual functional capacity determination of the ALJ. Tr. 150. On remand, a hearing was held before ALJ Marni R. McCaghren on October 19, 2016. Tr. 87-108. A decision was rendered December 22, 2016, denying DIB and SSI, Tr. 30-45, and the Appeals Council denied review on June 29, 2017. Tr. 1-7.

         Accordingly, on August 28, 2017, Plaintiff, appearing through counsel, filed a complaint for judicial review pursuant to 42 U.S.C. §§ 1381, et seq., and 42 U.S.C. § 405(g). See ECF No. 1. Respondent filed an answer on November 7, 2017, ECF No. 10, and both parties filed memoranda in support of their positions. ECF Nos. 15, 16.

         A. The Hearing

         Plaintiff appeared at the hearing, with Byron Lassiter, his counsel. Independent vocational expert Eric Anderson also appeared.[3] Tr. 87-108. At the beginning of the hearing, Plaintiff's counsel advised the ALJ that Plaintiff had developed problems with his legs and swelling in his knee, as well as problems with his left elbow. Tr. 90. The alleged onset date was amended to September 30, 2014, with the notation that Plaintiff was claiming steady deterioration. Id.

         Plaintiff, age 39 on the date of the hearing, testified that he has a ninth-grade education, has not received a GED, and is right-handed. Tr. 92. He lives at his mother's house and has not worked since September 2014. Tr. 92-93. His past work included stripping and waxing floors, construction, general labor, changing tires, and some cooking jobs. He also worked unloading heavy stock, driving heavy equipment, and delivery from 2011-2012. Tr. 93-94.

         Plaintiff testified that he cannot work because he has knee and elbow pain, and nerve damage in his right hand that prohibits his use of it even for tasks of daily living. Tr. 96-97. The nerve damage causes numbness, burning, stinging, and throbbing. Tr. 97. He testified that in 2014, he was able to open a door lever and open his car door with his right hand, but he can no longer do those things. Tr. 97-98. He can push with his right hand, but not grasp. Tr. 98. He has pain in his left elbow and his fingers cramp up a lot, with deterioration starting in his thumb area. Tr. 99. He testified he has arthritis in his knees, causing him inability to stand for a long time or walk more than 20 or 30 minutes. Id. He takes pain medication but it makes him tired. Tr. 100.

         A typical day involves him getting up around 9 or 9:30 a.m., taking pain medications, having a hot shower, and walking for 20 or 30 minutes. Id. He tries to elevate his knee for a few hours. He is not involved in church or any community service work. Id. His mother helps him with dressing and cooking. Tr. 96. He cannot open bottles or cans. Tr. 97. Plaintiff testified on questioning that he had not been advised to do any physical therapy and would need to know the outcome of the disability hearing before that issue was decided, due possibly to insurance issues. Tr. 106.

         Eric Anderson, impartial vocational expert, testified that Plaintiff's past work falls in the category of stock clerk, DOT code 222.387-058, heavy, semi-skilled, SVP of 4; janitor, DOT code 381.687-018, medium, unskilled, SVP of 2; short order cook, DOT code 313.374-014, light, semi-skilled, SVP of 3; construction worker, DOT code 869.664-014, heavy, semiskilled, SVP of 4; and tire changer, DOT code 915.684-010, heavy, semiskilled, SVP of 3.[4] Tr. 101.

         The ALJ posed a hypothetical question to the vocational expert, asking him to assume an individual of the same age, education, and work experience as Plaintiff, who was limited to: lifting and carrying 20 pounds occasionally and 10 pounds frequently; could stand or walk for six hours per eight-hour workday and sit for six hours with customary breaks; should not perform pushing and pulling or arm, leg, or foot controls; should not climb ladders, ropes, scaffolds, or stairs; should not crouch, kneel, or crawl; could perform no handling with the right-dominant hand, no feeling, or fingering except for occasional use of the thumb; and should avoid operation of vibratory equipment. Tr. 102. The vocational expert was asked if this individual would be capable of Plaintiff's past work, to which the vocational expert answered that he would not. Tr. 102.

         When asked if there were other jobs that the individual could do, the vocational expert testified there were “[v]ery few, ” but the individual could perform the representative jobs of surveillance system monitor, DOT code 379.367-010, sedentary, unskilled, SVP of 2, for which there are 114, 000 jobs in the national economy; information clerk, DOT code 237.367-022, sedentary, SVP of 2, for which there are 110, 000 jobs in the national economy;[5] and bakery worker, DOT code 524.687-022, light, unskilled, SVP of 2, for which there are 130, 000 jobs in the national economy. Tr. 103. He testified that the job of information clerk does not typically require computer or keyboard use, but was more a matter of providing information on where to go. Tr. 105. He said the job of surveillance system monitor would not require more than occasional bilateral manual dexterity. Tr. 106.

         The ALJ posed a second hypothetical with the same restrictions as previously stated with the additional limitations of deficits in pace due to need to use the non-dominant hand, and the preclusion of writing or fine manipulation. Id. The vocational expert testified that this individual could still perform the listed occupations. Id.

         In a third hypothetical, the ALJ added the limitations of lifting and carrying ten pounds only occasionally, standing and walking only two hours per workday, and sitting for six hours with customary breaks. Tr. 104. The vocational expert testified that such an individual would still be capable of performing the listed sedentary jobs. Id. The vocational expert added the representative job of call-out operator, DOT code 237.367-014, sedentary, unskilled, SVP of 2, for which there are 62, 000 jobs in the national economy. Id. The job of call-out operator might have a computer component requiring occasional bilateral use of hands. Tr. 106.

         The ALJ posed a fourth and final hypothetical in which the above-described individual would be off task, or work at an unproductive pace, frequently throughout the day. Id. The vocational expert testified that there would be no work for such an individual in the national economy. Id. The vocational expert testified that his testimony was consistent with the DOT, but explained that his testimony regarding the dominant hand/non-dominant hand and off-task behavior was based on his education, training, and experience in vocational rehabilitation over the past 28 years. Tr. 105.

         B. The Decision of the Administrative Law Judge

         In the decision issued on December 22, 2016, the ALJ made several findings pertinent to this review. Tr.32-39. The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2014. Tr. 33. He was 33 years old, defined as a younger individual age 18-44, on the alleged disability onset date. Tr. 37. Plaintiff has a limited education and is able to communicate in English. Id.

         The ALJ found Plaintiff did not engage in substantial gainful activity during the period from his alleged amended onset date of September 30, 2014. Tr. 33. The ALJ found that Plaintiff had the following severe impairments: degenerative changes of the left elbow with recurrent elbow pain, swelling, and infection; right upper extremity muscle wasting and finger contractions with “Hand of Benedict”; and arthroplasty, polyneuropathy, cervicalgia, and cervical spine spondylosis. Tr. 33. Based on his severe impairments documented by the medical evidence and the evidence presented at the hearing, the ALJ concluded that Plaintiff cannot perform his past work. Tr. 37.

         The ALJ found 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 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ found, in pertinent part, that the severe impairment of Plaintiff's elbow does not meet the requirements of gross anatomical deformity and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion, and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis, resulting in inability to perform fine and gross movements effectively, as required by Listing 1.02B. Tr. 33. The ALJ found that the record did not indicate that Plaintiff has an extreme loss of function, that he has good use of his non-dominant hand, and can perform hygiene independently and can drive. Tr. 34.

         As for Plaintiff's right upper extremity impairment, the ALJ found that Plaintiff's right hand and arm impairment does not meet the requirements of Listing 1.05 in that Plaintiff has had no amputation and retains the limited use of the right upper extremity. Id. The ALJ found that Plaintiff's peripheral neuropathy/arthropathy does not meet Medical Listing 11.14 because it does not cause disorganization of motor function as required by Medical Listing 11.04B. Id. As for Plaintiff's severe impairment of cervical degenerative disc disease and related spinal problems, Listing 1.04 requires, in pertinent part, a disorder of the spine resulting in compromise of the nerve root or the spinal cord with evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss. The ALJ found that the record did not support these findings. Tr. 34.

         In determining Plaintiff's residual functional capacity (RFC), [6] the ALJ found that Plaintiff has the capacity to perform a reduced range of sedentary work in that he can lift and carry up to 10 pounds occasionally. He can stand/walk for up to two hours in an eight-hour workday and sit for up to six hours in an eight-hour day. Tr. 34. The ALJ found that Plaintiff should not perform pushing or pulling of arm, leg, or foot controls; cannot climb ladders, ropes, scaffolds, or stairs. He should not crouch, kneel, or crawl; and he cannot handle, feel, or finger with the right dominant hand except he can occasionally use his right thumb. The ALJ found as part of the RFC that Plaintiff can only occasionally write or perform fine manipulation with his left hand, but can constantly perform handling, grasping, and feeling with his left hand; and he should not operate handheld vibratory equipment. Id.

         In reaching this RFC determination, the ALJ concluded that although Plaintiff's medically determinable impairments could reasonably be expected to cause “some of the alleged symptoms, ” Plaintiff's statements concerning the intensity, persistence, and limited effects of the symptoms are not entirely consistent with medical evidence and other evidence in the record. Tr. 35. The ALJ cited Plaintiff's claims that he cannot work due to knee and elbow pain and problems in his right hand, all requiring him to take medication daily. Id. The ALJ referred to testimony from the earlier hearing that he could not write with his right hand and could not grasp, make a fist, pick up things, or open doors with that hand. He testified at that hearing that he had little strength in his left elbow. Id. The ALJ also cited Plaintiff's more recent testimony that he could not stand for long periods due to knee pain and could only walk for 20 to 30 minutes. Id.

         Concerning Plaintiff's left elbow symptoms, the ALJ recognized that medical records documented degenerative changes in his elbow and that he has required debridement and irrigation for left elbow cellulitis. Id. Radiographic imaging of the elbow revealed extensive soft tissue swelling that suggested calcific olecranon bursitis or possibly gout. Tr. 36 (citing records at Tr. 447, 444). Imaging also revealed possible multiple soft tissue abscess use and/or cellulitis. Id. The ALJ concluded that even with the severe impairments of his left elbow, objective findings of ...

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