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Tankersley v. Commissioner, Social Security Administration

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

March 26, 2018

DOUGLAS TANKERSLEY, Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.[1]

          ORDER AND OPINION [2]

          ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Douglas Tankersley (“Plaintiff”) brought this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) under the Social Security Act.[3] 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.

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for DIB on June 6, 2013, alleging disability commencing on January 1, 2010. [Record (hereinafter “R”) 182]. Plaintiff's application was denied initially and on reconsideration. [See R81-110]. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). [R122-23]. An evidentiary hearing was held on April 2, 2015. [R41-80]. The ALJ issued a decision on June 26, 2015, denying Plaintiff's application on the ground that he had not been under a “disability” from the alleged onset date through the date of the decision. [R21-40]. Plaintiff sought review by the Appeals Council and amended the alleged onset date to February 1, 2013. [R283-90]. The Appeals Council denied Plaintiff's request for review on December 2, 2016, making the ALJ's decision the final decision of the Commissioner. [R1-6].

         Plaintiff then initiated action in this Court on January 12, 2017, seeking review of the Commissioner's decision. [Doc. 1]. The answer and transcript were filed on May 24, 2017. [See Docs. 6, 7]. On June 23, 2017, Plaintiff filed a brief in support of his petition for review of the Commissioner's decision, [Doc. 10]; on July 24, 2017, the Commissioner filed a response in support of the decision, [Doc. 11]; and on August 1, 2017, Plaintiff filed a reply brief in support of his petition for review, [Doc. 12]. Court-ordered oral argument took place on March 15, 2018. [Doc. 15]. The matter is now before the Court upon the administrative record, the parties' pleadings, the parties' briefs, and the parties' oral arguments, and it is accordingly ripe for review pursuant to 42 U.S.C. § 405(g).

         II. STANDARD FOR DETERMINING DISABILITY

         An individual is considered disabled for purposes of disability benefits if he is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment or impairments must result from anatomical, psychological, or physiological abnormalities which are demonstrable by medically accepted clinical or laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do previous work but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)-(3).

         The burden of proof in a Social Security disability case is divided between the claimant and the Commissioner. The claimant bears the primary burden of establishing the existence of a “disability” and therefore entitlement to disability benefits. See 20 C.F.R. § 404.1512(a). The Commissioner uses a five-step sequential process to determine whether the claimant has met the burden of proving disability. See 20 C.F.R. § 404.1520(a); Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The claimant must prove at step one that he is not undertaking substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(i). At step two, the claimant must prove that he is suffering from a severe impairment or combination of impairments that significantly limits his ability to perform basic work-related activities. See 20 C.F.R. § 404.1520(a)(4)(ii). At step three, if the impairment meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of Impairments), the claimant will be considered disabled without consideration of age, education, and work experience. See 20 C.F.R. § 404.1520(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a listed impairment, he must prove that his impairment prevents performance of past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). At step five, the regulations direct the Commissioner to consider the claimant's residual functional capacity, age, education, and past work experience to determine whether the claimant can perform other work besides past relevant work. See 20 C.F.R. § 404.1520(a)(4)(v). The Commissioner must produce evidence that there is other work available in the national economy that the claimant has the capacity to perform. Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant must prove an inability to perform the jobs that the Commissioner lists. Id.

         If at any step in the sequence a claimant can be found disabled or not disabled, the sequential evaluation ceases and further inquiry ends. See 20 C.F.R. § 404.1520(a)(4). Despite the shifting of burdens at step five, the overall burden rests on the claimant to prove that he is unable to engage in any substantial gainful activity that exists in the national economy. Doughty, 245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983), superseded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991).

         III. SCOPE OF JUDICIAL REVIEW

         A limited scope of judicial review applies to a denial of Social Security benefits by the Commissioner. Judicial review of the administrative decision addresses three questions: (1) whether the proper legal standards were applied; (2) whether there was substantial evidence to support the findings of fact; and (3) whether the findings of fact resolved the crucial issues. Washington v. Astrue, 558 F.Supp.2d 1287, 1296 (N.D.Ga. 2008); Fields v. Harris, 498 F.Supp. 478, 488 (N.D.Ga. 1980). This Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If substantial evidence supports the Commissioner's factual findings and the Commissioner applies the proper legal standards, the Commissioner's findings are conclusive. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam); Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

         “Substantial evidence” means “more than a scintilla, but less than a preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and it must be enough to justify a refusal to direct a verdict were the case before a jury. Richardson v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth, 703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court] must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary of the ALJ's findings, the ALJ decision will not be overturned where “there is substantially supportive evidence” of the ALJ's decision. Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ's application of legal principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker, 826 F.2d at 999.

         Also, a “court must consider evidence not submitted to the [ALJ] but considered by the Appeals Council when that court reviews the Commissioner's final decision.” Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1258 (11th Cir. 2007). In reviewing this additional evidence, the court must evaluate whether this “new evidence renders the denial of benefits erroneous.” Id. at 1262. This means that the court must “determine whether the Appeals Council correctly decided that the ‘[ALJ's] action, findings, or conclusion is [not] contrary to the weight of the evidence currently of record.' ” Id. at 1266-67 (quoting 20 C.F.R. § 404.970(b)).

         IV. STATEMENT OF FACTS[4]

         A. Background

         Plaintiff was born on February 22, 1961, [R81], and therefore was fifty-one years old on the amended alleged onset date, [R284], and was fifty-four years old when the ALJ issued her adverse decision, [R35]. He has a GED, [R223], and past work as a letter carrier, postal clerk, and custodian, [R49, 72-73, 223]. He alleges disability due to heart disease, coronary artery disease, atherosclerosis, [5] degenerative joint disease, hypertension, herniated discs, status post cervical fusion, generalized anxiety disorder, panic attacks, and bipolar disorder. [R45, 222].

         B. Lay Testimony

         In his testimony before the ALJ, Plaintiff stated that he had physical therapy when his back first started bothering him, but when he did not see any improvement over a course of about three months, he was referred to pain management. [R58]. He reported that he still had pain in his neck, left shoulder, and lower left back near the tailbone, radiating almost to the knee, [R58-59], and that his medications included Percocet, [6] Klonopin, [7] Neurontin, [8] Niravam, [9] Lexapro, [10] Coreg, [11] and Benicar, [12] [R53, 56-57]. He indicated that the pain in his back was generally constant and that any physical activity made his pain worse. [R68]. He stated that without medication, his low-back pain was at eight on a ten-point scale and his shoulder pain was at about four or five; that with medication, his lower-back pain was at five; and that medication did not really affect the pain in his shoulder. [R60]. He also indicated that ice on his lower back and sitting with a pillow behind his back could take the lower-back pain away for sometimes thirty minutes or longer. [R60-61]. Plaintiff further stated that he had received relief from epidural injections but that they had become less effective over time. [R53]. He also indicated that a C5-C7 cervical discectomy[13] and fusion surgery he had in 2014 relieved some of his shoulder pain but that he was still recovering. [R52-53, 61].

         Plaintiff testified that he had retired from the postal service at the end of January 2013. [R47, 69]. He stated that his back was causing him so much pain that he was unable to do the custodial work he was assigned to do. [R69]. The postmaster who was there at the time had assigned a temporary employee to do Plaintiff's custodial work and allowed Plaintiff to do things for her like filing. [R69]. When that postmaster was leaving, Plaintiff took the opportunity to accept early retirement because he was afraid he would lose his job and not have anything. [R69-70].

         Plaintiff described himself as “pretty much sedentary, ” stated that just about any kind of physical activity made his pain worse, and indicated that he did not do much because he was physically unable to do much. [R62]. He reported that he could walk for about ten minutes and stand for about fifteen minutes; that he is in pain when he sits for about thirty-five minutes in church; that the surgeon told him not to lift anything heavier than a gallon of milk after his surgery; and that he avoided bending “at all costs.” [R62-64, 67]. He also indicated that he did not have problems with personal care or dressing except for putting on his shoes, which required bending. [R64].

         Plaintiff stated that he could not clean his house completely and would do things like wash dishes or put them into the dishwasher in spurts-he would perform the activity and then sit for a while until the pain subsided. [R62]. He reported that he watched television sometimes and read a lot of books, [R62], and could use a microwave oven, cook things like pasta and frozen vegetables on the stove top, shop for groceries approximately every two weeks, do laundry, fold clothing, take out the garbage, change bed linen with assistance, use a Swiffer and vacuum, attend church services and Sunday school weekly, and manage his finances, [R49, 65-66]. Plaintiff testified that although he no longer owned a car, he could still drive, and he drove to the hearing in his mother's car. [R48]. He stated that he would also drive to doctor's appointments and to church on Wednesdays and Sundays. [R48].

         Plaintiff indicated that he periodically has panic attacks where he shakes and gets really nervous; sometimes it happens two or three days in a row and then not for another month. [R70]. He stated that every day he has episodes where he has difficulty concentrating: he will need to read a paragraph three or four times and can hardly concentrate through an entire television show. [R68]. He also stated that he has a lot of insomnia. [R67].

         C. Administrative Records

         Plaintiff's work-history report indicates that he worked for the postal service as a letter carrier, clerk, and custodian for nearly twenty-two years, until January 31, 2013. [R214]. Earnings records show no income after 2013. [R210].

         In an adult function report Plaintiff completed on July 23, 2013, he reported that he had lived alone in his house since May 15, 2013, when his wife died. [R231]. He described a typical day as awakening, having breakfast, taking medicine, icing his back, walking around the house or backyard, watching television on occasion, visiting in person or over the phone with his mom, feeding his cats, and reading books. [R231]. He also indicated that he went to church on Sundays. [R231].

         Plaintiff stated that he was able to maintain his personal care with no problem, would set his own reminders to take medicine, could do laundry, fold clothes, and put dishes in the dishwasher, could prepare sandwiches and microwavable or stove-top meals, could drive, would shop every two weeks for groceries, and could pay bills, count change, and use a checkbook, but he asked family or friends to do his yard work. [R232-34]. He indicated that he had a fear of bankruptcy and was lonely since his wife died. [R237].

         In a disability report dated October 21, 2013, Plaintiff indicated that he was extremely depressed and was having a hard time coping with his anxiety. [R244]. He also stated that because stress gets to him easily and causes him to have panic attacks, he tries to do only simple tasks and to avoid complex chores. [R248].

         In a report dated November 16, 2013, Plaintiff reported essentially the same activities and limitations that he had reported in July. [R257]. He also indicated that his neck was a problem, that it caused his left arm to be numb, and that he might need surgery. [R257].

         D. Medical Records

         Plaintiff presented to Atlanta Heart Associates on July 22, 2011, for follow up on his atherosclerosis and hyperlipidemia. [R313]. It was noted that Plaintiff was doing well, with no cardiac symptoms; that he was maintaining his usual level of activity; and that he reported doing reasonably well. [R314].

         Plaintiff saw Kusuma S. Rao, M.D., for psychiatric follow up on September 7, 2011. [R445-46]. Plaintiff was concerned because 3, 000 postal workers had been laid off in Georgia in the last week, and he was afraid that postal jobs would vanish altogether. [R445]. Dr. Rao noted that his concern appeared justified. [R445]. Notes from the mental-status examination indicate that Plaintiff was sensitive, his facial expression was fearful, and he felt persecuted. [R445]. Dr. Rao assessed a GAF score of 80-71[14]; opined that Plaintiff's symptoms were transient reactions to psychosocial stressors; and continued Plaintiff on Lexapro. [R446-47].

         Plaintiff saw Dr. Rao for psychiatric follow up on November 2, 2011. [R443-44]. Dr. Rao noted that Plaintiff was sick with high blood pressure, had been working too much, and had to take time off work after having chest pain. [R444]. A mental-status examination was unremarkable. [R444]. Dr. Rao assessed a GAF score of 70-61[15]; opined that Plaintiff had “[m]ild symptoms or difficulties, but generally functioning pretty well, conflicts”; and continued medication. [R444].

         Plaintiff returned Dr. Rao for psychiatric follow up on November 30, 2011. [R360-61, 442-43]. Dr. Rao noted that Plaintiff was still going through extreme stress on the job and suggested that Plaintiff consider early retirement in order to prevent stress-induced heart attacks. [R360, 442]. A mental-status examination was unremarkable. [R360-61, 443]. Dr. Rao assessed a GAF score of 80-71; opined that Plaintiff's symptoms were transient reactions to psychosocial stressors; and continued medication. [R360, 443].

         Plaintiff presented to Atlanta Heart Associates on December 1, 2011, for follow up on his atherosclerosis and hyperlipidemia. [R309]. It was noted that Plaintiff was doing well, with no cardiac symptoms; that he was maintaining his usual level of activity; and that he reported doing reasonably well. [R310].

         Plaintiff saw Dr. Rao for psychiatric follow up on December 29, 2011. [R359-60, 441-42]. It was noted that Plaintiff did not show any concern about possible job loss since he was open to accepting retirement at any time. [R359, 441]. A mental-status examination was unremarkable. [R359-60, 441-42]. Dr. Rao assessed a GAF score of 80-71, specified that the score indicated transient symptoms and reactions to psychosocial stressors, and continued medication. [R360, 442].

         Plaintiff returned to Dr. Rao for psychiatric follow up on January 25, 2012. [R440]. Plaintiff reported that he had a few chest pains over the weekend. [R440]. Dr. Rao noted that Plaintiff was dealing with a hectic work schedule and a home-improvement project that may have taken a toll on him. [R440]. Dr. Rao assessed a GAF score of 70-61; specified that the score indicated “[m]ild symptoms or difficulties, but generally functioning pretty well, conflicts”; and suggested that Plaintiff try working part time until his stress cleared. [R441]. She also continued medication. [R440].

         Plaintiff visited Dr. Rao on February 22, 2012. [R356, 438-39]. He stated that he was feeling better since a house repair was finished and that he did not have any stress on the job since he had a conference with his supervisor. [R356, 438]. Mental-status examination was unremarkable. [R357, 439]. Dr. Rao assessed a GAF score of 70-61; specified that the score indicated “[m]ild symptoms or difficulties, but generally functioning pretty well, conflicts”; and continued medication. [R357, 439].

         Plaintiff presented to Atlanta Heart Associates on March 1, 2012, for follow up on his atherosclerosis and hyperlipidemia. [R306]. It was noted that Plaintiff was doing well, with no cardiac symptoms; that he was maintaining his usual level of activity; and that he reported doing reasonably well. [R306].

         Plaintiff had a lumbar-spine MRI on March 8, 2012. [R368-69]. The imaging revealed degenerative changes, including disc desiccation and spondylosis[16] at every level. [R368]. It was noted that Plaintiff had no significant central spinal stenosis[17]but did have moderate-to-severe disc space narrowing at ¶ 3-L4; severe facet hypertrophy[18] bilaterally at ¶ 4-5; mild-to-moderate foraminal stenosis[19] bilaterally at ¶ 4-5 and L5-S1; and small left foraminal to extra-foraminal disc bulging at ¶ 2-3 abutting the left L2 nerve root. [R368-69].

         Plaintiff visited Dr. Rao on March 21, 2012, for refills of medication. [R355, 437]. He presented no new problems. [R355, 437]. Mental-status examination was unremarkable. [R355-56, 437-38]. Dr. Rao assessed a GAF score of 70-61 and specified that the score indicated “[m]ild symptoms or difficulties, but generally functioning pretty well, conflicts.” [R356, 438].

         Plaintiff returned to Dr. Rao for psychiatric follow up on April 18, 2012. [R354-55]. He reported that he had been unable to work for a week due to hip pain. [R354]. Dr. Rao discussed with him that because of his declining health, he might need to consider early retirement. [R354]. A mental-status examination was unremarkable except for a fearful facial expression and agitated motor behavior. [R354]. Dr. Rao assessed a GAF score of 70-61; specified that the score indicated “[m]ild symptoms or difficulties, but generally functioning pretty well, conflicts”; and continued medication. [R354].

         Plaintiff presented to pain specialist Pickens A. Patterson III, M.D., on April 30, 2012, with complaints of back and leg pain. [R770]. Notes indicate that the pain started four to five months earlier; that Plaintiff presently rated the pain at eight on a ten-point scale; that the pain traveled from the low back down the left leg into the foot; and that Lortab[20] helped the pain. [R770]. Dr. Patterson scheduled Plaintiff for selective lumbar epidural steroid injections. [R770].

         Dr. Patterson administered selective L2 and L5 epidural steroid injections on May 4, 2012. [R772].

         Notes from Dr. Patterson's office dated May 14, 2012, indicate that Plaintiff complained of left-leg pain that he rated at eight on a ten-point scale, with nine at its worst and five at its best. [R768]. It was noted that Plaintiff was improving approximately fifty percent with epidural steroid injections, that Lortab was helping, and that ice packs also relieved pain. [R768].

         At a visit to Dr. Rao on May 16, 2012, Plaintiff reported that he had broken his shoulder and had been on medical leave for two weeks. [R352-53, 434-35]. He was concerned about the pain in his shoulder and the length of time he had to work before retirement. [R352, 434]. Dr. Rao encouraged him to discuss earliest time of retirement if a package was offered to him. [R352, 434]. A mental-status examination was unremarkable. [R353, 435]. Dr. Rao assessed a GAF score of 70-61; specified that the score indicated “[m]ild symptoms or difficulties, but generally functioning pretty well, conflicts”; and continued medication. [R353, 435].

         At a visit to Atlanta Heart Associates on May 31, 2012, Plaintiff's chief complaints were anxiety, chest pain, shortness of breath, and fatigue. [R302]. He also complained of chronic low-back pain. [R302]. It was noted that Plaintiff was doing well, with no cardiac symptoms, [R302]; that he was exercising sporadically, [R303]; that he was maintaining his usual level of activity, [R304]; and that he stated he was doing reasonably well, [R304].

         Plaintiff returned to Dr. Patterson with complaints of lumbar pain on June 4, 2012. [R391-92]. He reported receiving sixty- to seventy-percent relief from an injection he received on May 18, 2012, but he said he had good and bad days and had trouble sleeping most nights because of pain, particularly in his left lower back. [R391]. He reported that his pain level was at five or six on a ten-point pain scale. [R391]. Examination was unremarkable. [R391-92]. Dr. Patterson assessed lumbar radiculopathy[21] and herniated disc syndrome; started Plaintiff on Lortab and Neurontin; and scheduled him for more epidural injections. [R391].

         Plaintiff saw Dr. Rao for psychiatric follow-up on June 15, 2012. [R351-52]. It was noted that Plaintiff complained less of sleep and anger problems and was having fewer work absences since his pain had become tolerable. [R351]. A mental-status examination was unremarkable. [R351-52]. Dr. Rao assessed a GAF score of 70-61; specified that the score indicated “[m]ild symptoms or difficulties, but generally functioning pretty well, conflicts”; and continued medication. [R351-52].

         Plaintiff returned to Dr. Patterson for follow up on his lumbar pain on July 9, 2012. [R386-87]. Although he complained of pain in his left leg, his pain level that day was at one; he reported that he had some good days due to shots and was sleeping better; and he reported eighty-percent overall improvement after his third injection. [R386]. Examination was unremarkable. [R386-87]. Dr. Patterson assessed lumbar radiculopathy and herniated disc syndrome and refilled Plaintiff's Norco[22] and Neurontin. [R386].

         Plaintiff visited Dr. Rao on July 13, 2012. [R350, 432]. He denied any new pain problems and reported that he was not taking early retirement. [R350, 432]. Mental-status examination was unremarkable. [R350, 432]. Dr. Rao assessed a GAF score of 80-71; specified that the score indicated transient symptoms and reactions to psychosocial stressors; and continued medication. [R351, 433].

         Plaintiff returned to Dr. Patterson with complaints of lumbar pain on August 6, 2012. [R384-85]. He stated that his pain had flared earlier that week, but he rated the pain on the date of his appointment at three on a ten-point pain scale. [R384]. Examination was unremarkable. [R384-85]. Dr. Patterson assessed lumbar radiculopathy and herniated disc syndrome; increased Plaintiff's Norco prescription and continued him on Neurontin; prescribed water therapy; and scheduled Plaintiff for more epidural injections. [R384].

         Plaintiff returned to Dr. Rao for psychiatric follow-up on August 10, 2012. [R349, 431]. Plaintiff complained that his back pain caused him to miss work and stated that he feared that he might need surgery. [R349, 431]. Dr. Rao noted that Plaintiff's facial expression was fearful, his motor behavior was decreased, his mood and affect were labile, [23] and he was restless. [R349, 431]. She assessed a GAF score of 70-61; specified that the score indicated “[m]ild symptoms or difficulties, but generally functioning pretty well, conflicts”; and continued medication. [R349, 431].

         Dr. Patterson administered a therapeutic lumbar transforaminal epidural injection on August 15, 2012. [R381]. It was noted that Plaintiff had been unresponsive to nonsteroidal anti-inflammatory medication and physical therapy; he had failed conservative treatment; he had experienced sixty-percent improvement for two to three weeks following the previous procedure; and the epidural ...


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