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Booker v. Berryhill

United States District Court, W.D. North Carolina, Charlotte Division

June 20, 2017

JAMES EDWARD BOOKER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          Richard L. Voorhees, United States District Judge

         THIS MATTER IS BEFORE THE COURT on cross-motions for summary judgment. (Docs. 11, 13). Plaintiff has filed a Response to Defendant's Motion for Summary Judgment. (Doc. 15). Also before the Court is Plaintiffs Motion for Remand pursuant to sentence six of 42 U.S.C. § 405(g). (Doc. 12). Defendant has not filed a response to Plaintiffs Motion for Remand and the time to do so has elapsed. For the reasons that follow, the Plaintiffs Motion for Remand under sentence six of 42 U.S.C. § 405(g) (Doc. 12) is DENIED, Plaintiffs Motion for Summary Judgment (Doc. 11) is GRANTED, the Defendant's Motion for Summary Judgment (Doc. 13) is DENIED, the decision of the Commissioner is VACATED, and this matter is REMANDED for further administrative consideration pursuant to sentence four of 42 U.S.C. § 405(g).

         I. BACKGROUND

         In 2013, Plaintiff James Edward Booker filed an application for disability insurance benefits under Title II of the Social Security Act, alleging an inability to work due to a disabling condition commencing on July 16, 2010. (Tr. 79, 164-67). The Commissioner of Social Security ("Commissioner" or "Defendant") initially denied Plaintiffs applications on July 15, 2013 and, upon reconsideration, again denied the application in October 2013. (Tr. 79, 93-96, 98-101). Plaintiff requested a hearing and, on September 28, 2015, appeared before Administrative Law Judge Ellen Parker Bush ("ALJ Bush") for said hearing. (Tr. 12-53, 79).

         Through a written decision, ALJ Bush concluded that Plaintiff was not disabled. (Tr. 79-88). At Step One, ALJ Bush found that Plaintiff engaged in substantial gainful activity for a period of time following his alleged disability onset date. (Tr. 81; see also Tr. 24-26 (hearing testimony where Plaintiff acknowledges working as a security guard after alleged disability onset date)). Specifically, ALJ Bush concluded that Plaintiff engaged in substantial gainful activity as a security guard through September 2011. (Tr. 81). ALJ Bush also noted that Plaintiff, after being terminated from his security guard job, performed work as a brick layer. Id. However, although ALJ Bush found that Plaintiff had "regular work lined up" as a brick layer or brick layer supervisor, ALJ Bush concluded that Plaintiffs brick laying work did not amount to substantial gainful activity. Id. Accordingly, ALJ Bush proceeded with the five-step analysis by considering a potential disability period of September 2011 through June 30, 2015, Plaintiffs "date last insured." (Tr. 79).

         At Step Two, ALJ Bush found that Plaintiffs degenerative disc disease, alone and certainly when considering Plaintiffs non-severe impairments, qualified as a severe impairment. (Tr. 82). ALJ Bush, however, concluded that Plaintiffs diabetes mellitus and peripheral neuropathy, left wrist and thumb pain, right shoulder pain, left hip pain, hypertensive retinopathy, history of hypertension, gastro-esophageal reflux disease, left scrotal abscess, benign prostate hyperplasia, urinary tract infection, and colon polyps were all non-severe impairments. (Tr. 82-83). Specific to Plaintiffs diabetes mellitus and peripheral neuropathy, ALJ Bush noted an April 2014 nerve conduction study diagnosing Plaintiff with mild neuropathy. (Tr. 82). Nonetheless, ALJ Bush relied on Plaintiffs failure to comply with his treatment plan and on subsequent exam findings that showed little change in Plaintiffs status and that indicated Plaintiff was "level 1 - low risk, " to conclude that Plaintiffs diabetes mellitus and peripheral neuropathy did not amount to a severe impairment. Id. In so concluding, ALJ Bush also gave "great weight" to the opinions of Dr. Albert Whitaker, Jr., MD, a consultative examiner, and Dr. Ellen Huffman-Zechman, MD, a state agency medical consultant, who respectively opined that Plaintiffs diabetes mellitus and peripheral neuropathy resulted in no limitations or only non-severe limitations. Id. Finally, ALJ Bush noted the lack of any medical opinion contradicting the opinions of Dr. Whitaker and Dr. Huffman-Zechman. Id.

         At Step Three, ALJ Bush concluded that Plaintiff did not meet any of the Listings in 20 CFR Part 404, specifically noting that she considered Listings 1.04, 11.14, 9.00, and Social Security Ruling ("SSR") 14-2p. (Tr. 83-84). ALJ Bush proceeded to form Plaintiffs residual functional capacity, first summarizing Plaintiffs hearing testimony and medical records. (Tr. 84-87). ALJ Bush found Plaintiffs statements about his pain, symptoms, and resulting limitations "not entirely credible" because (1) the medical evidence was "not entirely consistent" with Plaintiffs statements; (2) of Plaintiff s demeanor when testifying about his daily activities; (3) Plaintiffs testimony was inconsistent with his ability to perform some regular brick laying work and with his daily activities; and (4) there was no record of Plaintiff reporting significant limitations in his daily life to his doctors. (Tr. 84-87).

         As to Plaintiffs medical records, ALJ Bush focused primarily on Plaintiffs back condition. (Tr. 85-86). ALJ Bush noted that Plaintiff did not report any back pain until February 2013 and, thereafter, did not complain of back pain during doctor visits between February 2013 and September 2013. (Tr. 85). A June 2013 consultation exam by Dr. Whitaker noted that Plaintiff stood and sat with ease and documented that Plaintiff had full range of motion, intact motor strength, and no tenderness. Id.; (see also Tr. 387-88). An exam note from a September 2013 doctor visit showed Plaintiff experienced shoulder, wrist, and thumb tenderness but did not reflect any abnormal findings as to Plaintiffs back and did not include any medication prescriptions for Plaintiff s back condition. (Tr. 85; see also Tr. 399-404). Dr. Huffman-Zechman's October 2013 state agency opinion noted that Plaintiff suffered from degenerative disc disease with occasional low back pain and concluded that Plaintiff experienced a postural limitation restricting Plaintiff to only frequent stooping. (Tr. 85; see also Tr. 72). An April 2014 electromyelogram showed no lumbar radiculopathy or acute or chronic denervation changes to Plaintiff s back. (Tr. 85; see also Tr. 485). An exam note from a May 2014 doctor visit reflected no treatment for Plaintiffs back and reflected that Plaintiff was "walking fine." (Tr. 85; see also Tr. 482). Finally, an exam note from a March 2015 doctor visit noted that Plaintiff had full range of motion in his back. (Tr. 85-86; see also Tr. 539).

         ALJ Bush noted a possible change in Plaintiffs back condition in mid-June 2015, when Plaintiff reported a sudden onset of severe lower back pain radiating down his left leg that was not precipitated by any injury. (Tr. 86; see also Tr. 571). ALJ Bush noted that Plaintiff walked with an abnormal gait during his June 15, 2015 doctor visit but that he did not use an assistive device and that he did not have any point tenderness in his back. (Tr. 86; see also Tr. 572). ALJ Bush also summarized Plaintiffs August 11, 2015 magnetic resonance imaging ("MRI"), noting that the MRI showed (1) "mild degenerative subluxations at ¶ 4-S1, " (2) severe degenerative disc disease with an annular bulge and facet arthrosis at ¶ 5-S1, (3) moderate degenerative disc disease with annular bulge and facet arthrosis producing moderate central spinal stenosis in L4-L5, (4) moderate degenerative disc disease with annular bulge and facet arthrosis producing mild central spinal stenosis in L3-L4, and (5) mild degenerative disc disease with annular bulge at L-L3. (Tr. 86; see also Tr. 584-87). ALJ Bush, however, noted that Plaintiffs complaints of back pain did not commence until shortly before his last date of insurance and that the MRI was taken after Plaintiff s last date of insurance. (See Tr. 86). Based on the MRI, ALJ Bush altered Dr. Huffman-Zechman's opinion by increasing the restriction for stooping from only frequent stooping to only occasional stooping. Id. ALJ Bush, however, did not add any further restrictions based on the MRI results. (Tr. 86-87). Accordingly, ALJ Bush established that, as of Plaintiffs date last insured on June 30, 2015, Plaintiff had the residual functional capacity to perform medium work with a restriction for only occasional stooping. (Tr. 84, 87).

         At Step Four, ALJ Bush, relying on a vocational expert, determined that Plaintiff could perform his past relevant work as a security guard, DICOT 372.667-034. (Tr. 87-88). Accordingly, ALJ Bush concluded that Plaintiff was not disabled for purposes of receiving disability insurance benefits under Title II of the Social Security Act. (Tr. 88). Plaintiff requested that the Appeals Council review ALJ Bush's adverse decision but the Appeals Council denied review. (Tr. 1-4). Plaintiff instituted this action seeking judicial review of the denial of benefits. In his memorandum in support of his motion for summary judgment, Plaintiff raises three intertwined assignments of error: (1) ALJ Bush did not determine Plaintiffs residual functional capacity in accordance with SSR 96-8p; (2) ALJ Bush discounted medical evidence from Plaintiff s June 2015 doctor visit and August 2015 MRI without providing a sufficient explanation; and (3) ALJ Bush did not consider the effects of Plaintiffs degenerative disc disease in combination with the effects of his neuropathy when concluding that Plaintiff could stand for long periods of time. (Doc. 11-1 at 4-9). Plaintiffs memorandum in support of his Motion for Summary Judgment also suggests that ALJ Bush erred at Step Two when she concluded that Plaintiff s peripheral neuropathy was not a severe impairment and Plaintiff more directly advances this argument in his Response to the Commissioner's Motion for Summary Judgment.[1] See Id. at 9; (see also Doc. 15 at 6). Plaintiff also filed a Motion for Remand under sentence six of 42 U.S.C. § 405(g), arguing that treatment records from pain management visits subsequent to ALJ Bush's decision qualify as "new" and "material" evidence.[2] (Doc. 12). This Court will consider Plaintiff s Motion for Remand before considering Plaintiffs Motion for Summary Judgment because sentence six of 42 U.S.C. § 405(g) provides a narrower basis for relief than does sentence four of the subsection.

         II. DISCUSSION

         A. Motion for Remand under Sentence Six of 42 U.S.C. § 405(g)

         Plaintiff states that treatment records from Caromont Regional Medical Center from April to June of 2016 warrant remand under sentence six of 42 U.S.C. § 405(g). (Doc. 12 at 1-2). Connecting Plaintiffs arguments in his Memorandum in support of his Motion for Summary Judgment to his statement in his Motion for Remand, Plaintiff seemingly contends that ALJ Bush's notation that Plaintiff s back pain did not become enhanced until two weeks before Plaintiffs date last insured means that ALH Bush discounted Plaintiffs July and August 2015 medical evidence because Plaintiffs condition did not last for twelve months. See id.; (see also Doc. 11-1 at 7-8). ...


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