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Mitchell v. Colvin

United States District Court, N.D. Georgia, Atlanta Division

March 30, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ALAN J. BAVERMAN, Magistrate Judge.

Plaintiff Bobby Aaron Mitchell, Sr. ("Plaintiff") brought this action pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSI") under the Social Security Act.[2] For the reasons below, the undersigned REVERSES the final decision of the Commissioner AND REMANDS the case to the Commissioner for further proceedings consistent with this Opinion.


Plaintiff filed applications for DIB and SSI on March 26, 2010, alleging disability commencing on January 1, 2007. [Record (hereinafter "R") 157-70]. Plaintiff's applications were denied initially and on reconsideration. [R77-78]. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), and an evidentiary hearing was held on January 17, 2012. [R35-76]. The ALJ issued a partially favorable decision on February 22, 2012, finding that Plaintiff was disabled from January 1, 2007 through January 1, 2008, but determined that Plaintiff experienced medical improvement and was no longer disabled beginning January 2, 2008. [R12-28]. Plaintiff sought review by the Appeals Council, and the Appeals Council denied Plaintiff's request for review on June 25, 2013, making the ALJ's decision the final decision of the Commissioner. [R1-7].

Plaintiff then filed an action in this Court on August 23, 2013, seeking review of the Commissioner's decision. [ See Docs.1-3]. The answer and transcript were filed on January 27, 2014. [Docs. 9-10]. On March 4, 2014, Plaintiff filed a brief in support of his petition for review of the Commissioner's decision, [Doc. 13], and on April 4, 2014, the Commissioner filed a response in support of the decision, [Doc. 16]. Plaintiff did not file a reply brief. [ See Dkt.]. Plaintiff's unopposed motion to waive oral argument was granted by minute order on April 9, 2014. The matter is now before the Court upon the administrative record, the parties' pleadings, and the parties' briefs, and is accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).


A. Background

Plaintiff was 42 years old when the ALJ issued the decision. [R29, 162]. Plaintiff has a tenth grade education and past relevant work as a construction worker, heavy equipment operator, and septic installer. [R67, 200].

B. Medical Records

Plaintiff was diagnosed with Hodgkin's disease nodular sclerosis in January 2007 and subsequently underwent four rounds of chemotherapy. [R398-411, 444, 446, 453, 510, 462]. On September 25, 2007, Plaintiff received his final treatment of radiation with good response and was reported to be in complete remission. [R443, 561].

In January 2008, Plaintiff saw Dr. Richard Carter for a follow-up of his Hodgkin's disease. [R570-72]. Plaintiff reported to feeling well, having a good appetite and good energy levels. [R570]. Plaintiff saw his primary care physician, Dr. Wyatt Blake, in March and April 2008. [R645, 646]. Plaintiff complained that he was having back and wrist pain since chemotherapy and pain in his bones and joints. [ Id .].

Plaintiff returned to Dr. Carter in July 2008. [R573-74]. Plaintiff complained of generalized bone aches, but was otherwise doing well and his examinations were normal including a normal range of motion. [ Id .].

Also in July 2008, Plaintiff sought treatment at the East Metro Rheumatology ("Rheumatology") with complaints of pain in his joints, bones and muscles. [R427]. He was assessed as having myalgia[4] and myositis[5] and prescribed Tramadol.[6] [R428]. On follow up with Rheumatology in August 2008, Plaintiff reported that Tramadol helps. [R429]. However, in September 2008, Plaintiff reported that Tramadol no longer helps with the pain. [R448].

Plaintiff returned to Dr. Carter in October 2008, reporting severe pain deep in his bones and generalized joint pain, but had an otherwise normal examination. [R576-77]. Dr. Carter opined that Plaintiff could not perform any physically strenuous activity, but he was able to perform light or sedentary work, e.g. office work, light house work. [R577]. In April 2009, Plaintiff reported to Dr. Carter that he had shoulder and low back pain. [R579]. Dr. Carter indicated that a musculoskeletal examination was abnormal, but the remainder of the exam was normal. [R580]. Dr. Carter opined that Plaintiff was capable of self-care, but that he was unable to perform any work activities. [ Id .].

Plaintiff returned to Dr. Blake in May 2009, and Plaintiff's blood tested positive for ANA.[7] [R687]. Plaintiff tested negative for ANA in June 2009. [R435]. In August 2009, Dr. Blake assessed Plaintiff with chronic pain syndrome. [R635]. Plaintiff also saw Dr. Carter in August 2009, who noted that Plaintiff continued to struggle with arthralgia.[8] [R585]. Dr. Carter again opined that Plaintiff was able to carry out light or sedentary work, e.g. office work or light house work. [R586].

At the request of Dr. Blake, Plaintiff underwent a bone density scan in June 2010, which revealed osteoporosis in the lumbar spine and osteopenia in the left hip. [R655].

In August 2010, Plaintiff underwent a consultative examination with Dr. Diana M. Whiteman. [R595-97]. Dr. Whiteman indicated that Plaintiff's chief complaint was body pain. [R596]. Dr. Whiteman further reported that Plaintiff exhibited some lumbar range of motion limitations, but there were no gross functional limitations, except that Plaintiff's back and knee pain restricts excessive bending and lifting. [R597].

Plaintiff underwent a mental status evaluation with consultative examiner Larmia Robbins-Brinson, Ph.D. in November 2010. [R620-22]. Dr. Robbins-Brinson diagnosed Plaintiff with Adjustment Disorder with Mixed Anxiety and Depression and opined as follows:

Mr. Mitchell appears able to understand simple, detailed and complex instructions. His ability to carry out instructions appears fair to poor. The claimant's ability to get along with the public, supervisors, and/or co-workers appears to be adequate. His ability to sustain focused attention appears to be impaired and may not permit the timely completion of assigned tasks or to maintain production norms. It is believed the claimant would not decompensate under stressful conditions given his denial of psychotic symptoms. The prognosis for recovery is fair. It is expected the claimant's current lack of contact with mental health professionals may negatively impact chances for recovery. The claimant is thought to be competent to manage disability funds, if awarded.


In March 2011, Dr. Blake completed a Clinical Assessment of Pain form in which Dr. Blake opined that Plaintiff's pain is present to such an extent as to be distracting to adequate performance of daily activities or work; if Plaintiff performed physical activity, it would greatly increase Plaintiff's pain to such a degree as to cause a distraction from tasks or total abandonment of task; and that drug side effects can be expected to be severe and to limit effectiveness due to distraction, inattention, drowsiness, etc. [R782].

Plaintiff saw Dr. Blake in April and May 2011. [R. 769, 772]. Dr. Blake reported that Plaintiff has anxiety which has been present for years, but has gradually gotten worse. [ Id .]. Also in May 2011, Dr. Blake completed a Physical Capacities Evaluation form in which he opined that Plaintiff could only be reasonably expected to lift and/or carry up to five pounds occasionally and one pound frequently; Plaintiff can sit up to eight hours in a work day, but can only stand or walk up to one hour in a work day; Plaintiff does not require an assistive device to ambulate; Plaintiff can rarely push and pull, use gross manipulation, fine manipulation, bending and/or stooping, reaching, and operating motor vehicles; but Plaintiff could never climb or balance, be around environmental problems or work with or around hazardous machinery. [R783]. It was Dr. Blake's opinion that Plaintiff would be absent from work for more than four days per month due to Plaintiff's severe COPD, chronic joint pain, and peripheral neuropathy. [ Id .]. Finally, Dr. Blake opined that Plaintiff will be unable to pursue any employment. [ Id .].

In August 2011, Dr. Blake completed a questionnaire regarding Plaintiff's mental limitations. [R784-86]. It was Dr. Blake's opinion that Plaintiff would have marked limitations in the ability to interact with the general public; perform daily activities, perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; and respond to customary work pressures. [R784-85]. Dr. Blake further opined that Plaintiff would have extreme limitations in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. [R785].

C. Evidentiary Hearing Testimony

At the evidentiary hearing before the ALJ, Plaintiff testified that he worked as a septic tank labor part time from January 2007 through December 2009. [R42]. He left that job because he almost killed the owner with the equipment due to the medications he was taking. [ Id .]. He was also self-employed as a septic tank worker in 2006. [R42-43].

Plaintiff testified that he went through six months of chemotherapy and twenty radiation treatments. [R45]. Plaintiff stated he is on a lot of medication as a result of the chemotherapy and also has COPD, osteoporosis, osteoarthritis, a blood disease and sleep apnea. [R45-46]. Plaintiff uses a C-PAP machine every night to treat his sleep apnea, but still wakes up very tired in the morning. [R46-47]. Plaintiff testified that he was diagnosed with chronic bronchitis by COPD which makes it hard to breathe, so he uses inhalers and takes Advair.[9] [R47].

Plaintiff testified that he suffers from anxiety and depression and is taking medication for it, but is not currently seeing a mental health professional. [R47-48]. Plaintiff stated that the anxiety and depression keep him tired and have a negative affect on the relationship with his wife and children. [R48].

Plaintiff testified that he has pain all in his joints, his hands and feet swell, and he has "really bad pain" in his hips. [ Id .]. He stated that he has a "whole gallon bucket full of medicines" that he takes everyday. [R50]. Plaintiff rated his pain at an eight out of ten before taking the medication, and a seven out of ten from relief from the medication. [ Id .]. Plaintiff testified that side effects from the medication include short-term memory loss, sleepiness, dizziness, and nausea. [ Id .].

Plaintiff testified that he uses a cane and Dr. Carter prescribed one due to the medications which make it difficult for Plaintiff to stand up and keep stable without supportive help. [R51]. Plaintiff stated he can walk about one block at one time and then he has to stop because his knees and feet swell and he would have bad pain in his back. [R52]. He can stand for about twenty to thirty minutes with a cane before the pain gets bad in his back. [ Id .]. Plaintiff can also sit for about thirty minutes before the pain gets bad. [R53]. He lays down most of the day. [R55]. Plaintiff explained that Dr. Carter was treating him for a blood disorder that made his heart beat too fast and caused swelling in hands, knees and feet. [R53-54].

On examination by the ALJ, Plaintiff testified that he started having joint pain about five or six months after the chemotherapy and radiation. [R55]. Plaintiff further testified that he has trouble bending and stooping and has difficulties lifting his grandchild, who weighs about six pounds, because his hands give out on him. [R57-58]. He is 5'8" tall and weighs about 226 pounds. [R59].

Plaintiff testified that during a typical day, it takes him about two hours to get out of bed due to pain, and then he would take his medications. [R59-60]. His wife helps him with showers, he does not cook or clean, and sleeps most of the day. [R60]. He typically does not go out due to swelling. [R61].

A vocational expert (VE) characterized Plaintiff's past work as a construction worker as semi-skilled heavy work; his work as a heavy equipment operator as skilled medium work; and his work as a septic installer as medium semi-skilled work. [R67]. The VE testified that given a person of Plaintiff's age, education and prior work experience, if that person could perform medium work; lift, carry, push and pull up to fifty pounds occasionally and twenty-five pounds frequently; stand and walk for at least a total of six hours per work day; sit for at least a total of six hours with normal breaks; engage in no more than occasional climbing of ladders, ropes, or scaffolds, climbing of ramps and stairs or crawling; engage in no more than frequent bending, stooping, kneeling, or crouching; must avoid concentrated exposure to pulmonary irritants such as fumes, odors, dust, gases, and poor ventilation; must avoid concentrated exposure to hazards such as unprotected heights and dangerous moving machinery; cannot adhere to a rapid rate of production; and interact with other people at least on a superficial level, said person could not be a construction worker, but could operate heavy equipment and be a septic installer. [R67-69]. At the medium exertion level, said person also could be a driver's helper on a sales route or a tray worker/dietary aide in a hospital or health care setting. [R69-70].

The VE also testified that at the light exertional level (lift, carry, push, pull up to twenty pounds occasionally, and ten pounds frequently), that person could operate a utility tractor, silo operator, or a pull out operator in the floor covering industry, based on transference of his skills as a heavy equipment operator. [R71-72]. Finally, at the sedentary level (ability to lift up to ten pounds occasionally, stand and walk for up to a total of two hours per work day, sit for at least six hours per work day, with a sit-stand option that either permitted them to change positions at will at the work station or to stand and alternate positions at least one time per hour for roughly ten to fifteen minutes at a time), the VE opined that such a person could perform the jobs of patcher (assembly of small electrical devices like sockets or thermostats); optical (eyeglasses) assembler; or taper.[10] [R73]. However, such a person would not be employable if three or four days of work per month were missed and while on the job, the person needed at least two unscheduled work breaks. [R74].


The ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2014.

2. The claimant had not engaged in substantial gainful activity since January 1, 2007, the date the claimant became disabled (20 CFR 404.1520(b), 404.1571 et seq., and 416.971 et seq. ).

3. From January 1, 2007 through January 1, 2008, the period during which the claimant was under a disability, the claimant had the following severe impairments: Hodgkin's lymphoma, anemia, obesity, drug-related neuropathy, obstructive ...

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