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Blumenberg v. Berryhill

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

May 3, 2018

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

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         This is a Social Security case referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D). 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 (SSA) denying Plaintiff's Title II application for period of disability and Disability Insurance Benefits. After careful consideration of the entire record, it is respectfully recommended that the decision of the Commissioner be affirmed.

         I. Procedural History and Facts

         Plaintiff was previously granted disability insurance benefits on June 29, 2011, with entitlement to disability commencing on March 24, 2011. Tr. 73, 75-76.[2] His benefits were based on military combat injuries including perineal area, right thigh and calf injuries, no motor function in right foot, left leg below the knee amputation, leg and ankle injuries, major tissue damage, kidney damage, stage II pressure ulcer below sacrum, broken right arm, back injury, fractured hip/pelvis, hypogonadism, and nerve damage requiring use of a colostomy bag and urinary catheter. Tr. 76.

         Pursuant to a disability review in which it was determined that Plaintiff had achieved medical improvement, Plaintiff was found not disabled as of April 1, 2015. Tr. 78-79, 82, 86. That determination was upheld by a State agency Disability Hearing Officer. Tr. 102-06. Plaintiff requested a hearing, which was held by videoconference in Jacksonville, Florida, on August 23, 2016. Tr. 33-68. Plaintiff appeared pro se and testified in Gainesville, Florida, after waiving his right to representation at the hearing. Tr. 37-38, 148. Impartial vocational expert Charles K. Heartsill also appeared and testified at the hearing. Tr. 59-65.

         A decision was issued on January 19, 2017, finding Plaintiff was no longer disabled, Tr. 9-19, and the Appeals Council denied review. Tr. 1-5. Accordingly, on July 14, 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 September 22, 2017, ECF No. 8, and both parties filed memoranda in support of their positions. ECF Nos. 17, 18.

         A. Hearing Testimony

         At the hearing held August 23, 2016, Plaintiff, age 31 at the time of the hearing, testified that he graduated from high school and served in the Marine Corps as an infantryman. Tr. 39. While on active duty in Afghanistan, he was injured by an Improvised Explosive Device (IED). Tr. 40. He was found to be disabled in 2011 but that disability was determined to have ended in April 2015. Tr. 41.

         Plaintiff testified he is still being treated medically by the Veterans Administration (VA) in Tampa, where he received his prosthesis for his amputated left leg. Id. He testified he visits the VA hospital in Tampa about every other month, but more frequently if he is having difficulty with his prosthesis. Tr. 43. His regular physician is Dr. Samantha Mendelson of the VA's Spinal Cord Institute. Tr. 48. As of the date of the hearing, his most recent visit was in June 2016 to be treated for an ongoing pressure sore on his buttocks. Tr. 42. He testified that he can drive a car but can only drive for about an hour due to the pressure sore. Tr. 43.

         Plaintiff testified that he was currently waiting for completion of a new prosthesis because the one he had was causing pain due to an ill-fitting socket. Tr. 44. He said he has had about twelve different prostheses due to changes in his leg. Tr. 48. He has been unable to wear his current prosthesis for about two and a half months and has been using a wheelchair, although he expects to be fitted for his new prosthesis in less than a month. Tr. 44. Plaintiff testified he had been doing bicycling on a hand bike, but had to stop due to the pressure sore. Tr. 45. He was hospitalized in January 2016 due to a nerve flare-up in his back arising from a bladder infection, which comes and goes. Tr. 46-47. He takes the occasional antibiotic, when necessary, and takes Tylenol. Tr. 47.

         He lives with his wife and two young sons in a handicap-accessible home. Tr. 49. During the day, he tries to cook occasionally and help with the dishes. He cannot do laundry or vacuuming, which his wife does. Tr. 50. He helps his children with homework and supervises their chores. Id. He said he spends the majority of his time-more than eight hours a day-in his wheelchair, which has a special cushion to relieve pressure from sitting, although he also tries to move around to change the pressure points once an hour. Tr. 51-53. He can wear his prosthesis when he goes to the grocery store but cannot walk or stand for very long-maybe 15 minutes. Id. For a more extended shopping trip, he will use the handicap cart. Tr. 51.

         Plaintiff testified he cannot lift much weight with his right hand because a portion of it and his forearm is missing. The bones in his right forearm are fused so he cannot turn his wrist. Tr. 54. He can open a door with his right hand if it has a lever handle, but not if it has a round handle. Id. He can hold possibly fifteen pounds with his right hand. Tr. 53. His left hand is fine and he uses it to roll his wheelchair and do other things, even though he is right-handed. Tr. 54. He has learned to eat with his left hand, although his wife usually helps him if something needs to be cut up. Id. He can dress himself, but his wife helps him to bathe and take care of his colostomy bag and his catheter. Tr. 55. He tries to care for the family dog. Tr. 57. His wife began a teaching job so he is home alone for much of the day, but he will call his mother to come over if he needs help. Id.

         Plaintiff testified he is no longer being given physical therapy through the VA. Tr. 49. He has not sought any retraining through the VA or the Florida Division of Vocational Rehabilitation. Tr. 55. He participates in the Wounded Warrior Project when he can and tries to participate in his children's functions, although his nerve pain sometimes makes that difficult. Tr. 56.

         Impartial vocational expert, Charles K. Heartsill, testified that he would be relying on the Dictionary of Occupational Titles (DOT) and jobs identified by the United States Department of Labor's Bureau of Labor Statistics, through the Occupational Employment Survey.[3] Tr. 60. The vocational expert said he will also rely on his past experience in studying how jobs are being performed in terms of mental and physical demands. Tr. 61. He testified that Plaintiff's past work in the Marine Corps fell under the job category of infantry weapons crew member, DOT code 378.684-026, very heavy, SVP of 3.[4] Id.

         The ALJ posed a hypothetical question to the vocational expert, asking him to assume a younger individual of 31 years of age with a high school education and past semi-skilled work, who can sit for six hours a day, stand and walk for four hours, lift with his dominant right hand ten pounds occasionally and five pounds or less more frequently, who can lift twenty pounds with his left hand and ten pounds or less more frequently. Tr. 62. This individual can occasionally push or pull arm or hand controls with his right hand and frequently with his left, push or pull leg controls occasionally with both feet, cannot climb ramps, stairs, ropes, ladders, or scaffolding. He can balance, bend, stoop, etc., on an occasional basis. Tr. 63. The individual cannot work at unprotected heights, around dangerous moving machinery, or in proximity to concentrated industrial vibration. The hypothetical individual has no mental impairments that reduce his occupational work base. Id. The vocational expert confirmed that such an individual could not do the past work of Plaintiff, but there would be other light and sedentary work that he could perform. Id.

         The vocational expert testified that such an individual could perform the following representative jobs: surveillance system monitor, DOT code 379.367-010, sedentary, SVP of 2, of which there are 113, 020 jobs nationally and 2, 884 jobs in the region (Florida); call-out operator, DOT code 237.367-014, sedentary, SVP of 2, of which there are 11, 842 jobs nationally and 834 in the region; and ticket seller, DOT code 211.467-030, light, SVP 2, of which there are 35, 258 jobs nationally and 2, 253 in the region. Tr. 63-64. He testified that, in his opinion, ticket seller is a job that can be performed with a sit/stand option and can be sedentary, which differs from the way the job is defined in the DOT. Tr. 64.

         In a second hypothetical, the ALJ revised the limitation of standing and walking to two hours a day. Id. The vocational expert testified that the person could still perform the jobs which he just described. Id. He testified that he had taken into account, in reaching his opinions, the manipulative issues with the individual's right hand, and that the jobs described only require occasional reaching, handling, fingering, and feeling and focus more on oral skills. Tr. 65.

         In response to the testimony of the vocational expert, Plaintiff testified that the expert did not address the situation that would occur when Plaintiff has nerve flare-ups that prevent him from working for three straight days or when he has problems with his colostomy bag or his catheter bag and he gets soiled while at work. He stated, “I mean those are all real world situations that are - - can't really be hypothesized. And that's stuff that I deal with on a daily basis.” Tr. 66-67. The ALJ noted that these situations are not reflected in the file but he would see what more recent records from the Tampa VA might show. Tr. 67.

         B. The Decision of the Administrative Law Judge

         On January 19, 2017, the ALJ issued a decision finding that Plaintiff's disability ended on April 1, 2015. Tr. 9-19. The ALJ noted that he must follow an eight-step evaluation process to answer the question of whether Plaintiff's disability ended under section 223(f) of the Social Security Act. The ALJ made several findings pertinent to this review. Tr. 11-19. Plaintiff is a younger individual age 18-44 on April 1, 2015, the date that the Commissioner determined Plaintiff's disability ended. Tr. 18. The ALJ found that Plaintiff has not engaged in any substantial gainful activity since the alleged onset date through the date of the decision. Tr. 11. Plaintiff has at least a high school education and is able to communicate in English. Tr. 18.

         The most recent favorable medical decision finding that Plaintiff was disabled is the determination dated June 29, 2011, which is known as the “Comparison Point Decision” or CPD. Tr. 11. The ALJ reported that, at the time of the CPD, Plaintiff had the following medically determinable impairments: history of multiple traumatic injuries including left leg amputation below the knee, broken right arm, back injury, fractured hip/pelvis, and kidney damage. Id. Since April 1, 2015, Plaintiff had the following medically determinable impairments: a history of hypogonadism, history of obesity, history of left below the knee amputation, history of a neurogenic bladder and bowel, and a history of lumbosacral plexopathy. Id.

         The ALJ found that since April 1, 2015, Plaintiff has not had an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 11. In reaching this conclusion, the ALJ found that the medical records do not demonstrate that all additional requirements set forth by any of the pertinent paragraphs of section 1 (musculoskeletal system), section 5 (digestive system), section 9 (endocrine system), and section 11 (neurological), all of which were considered by the ALJ. Id. The ALJ concluded that Plaintiff had medical improvement, which is related to the ability to work, because by April 1, 2015, Plaintiff's CPD impairments no longer met or medically equaled Listing 1.05B, the listing that was met at the time of the CPD. Tr. 12.

         The ALJ found that Plaintiff's medical improvement occurred on April 1, 2015, as shown by medical evidence of marked improvement in ability to ambulate on the left prosthetic leg, cessation of prescription medication for pain, and an active lifestyle. The ALJ cited the fact that none of the treating physicians placed any substantial functional limitations on Plaintiff. Id.

         The ALJ recognized that since April 1, 2015, Plaintiff continues to have severe impairments or combinations of impairments, citing hypogonadism, obesity, left below the knee amputation, neurogenic bladder and bowel, and lumbosacral plexopathy, which cause more than minimal limitations on Plaintiff's ability to perform basic work activities. Tr. 12. The ALJ noted that a cat scan of Plaintiff's lumbar spine showed prior lumbar fusion and laminectomy defect at ¶ 4/L5 level. Tr. 16 (citing records at Tr. 582). Based on the finding of these severe impairments, the ALJ determined that Plaintiff cannot perform his past relevant work as an infantry weapons crew member, Tr. 17, but has the residual functional capacity (RFC) to perform a range of sedentary work with the following limitations: sit for a total of six hours in an eight-hour workday, with reasonable customary breaks; stand and walk for two hours per day; lift ten pounds occasionally and five pounds or less more frequently with his right hand; lift twenty pounds with his left hand and ten pounds more frequently; perform the pushing and pulling of arm/hand controls occasionally with right hand and frequently with the left; occasionally perform pushing and pulling of foot/pedal controls with both feet; never climb ramps, stairs, ropes, ladders, or scaffolds; occasionally perform all other postural activities of balancing, bending, stooping, crouching, crawling, and kneeling; frequently reach in all directions with both hands; occasional handling, fingering, and feeling with the right upper extremity, with no such manipulative problems with the left hand; no limits on ability to see, speak, and hear; may not work at unprotected heights, around dangerous moving machinery, in proximity to concentrated industrial vibrations; and, requires a temperature controlled environment.[5] Tr. 12.

         In making the RFC determination, the ALJ found that Plaintiff's medically determinable impairments could have reasonably been expected to produce some of the alleged symptoms, but concluded that his statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the objective medical and other evidence. In reaching this conclusion, the ALJ recognized the determination of disability dated June 29, 2011, as the CPD, as it is the most recent favorable medical determination for Plaintiff's disability. Tr. 14. After Plaintiff's case was reviewed, a determination was made that Plaintiff is no longer disabled as of April 2015. The ALJ noted that ...


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