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Hockaday v. Berryhill

United States District Court, N.D. Texas, Amarillo Division

March 15, 2017

JOE W. HOCKADAY, JR., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION TO AFFIRM THE DECISION OF THE COMMISSIONER

          CLINTON E. AVERITTE UNITED STATES MAGISTRATE JUDGE

         Plaintiff JOE W. HOCKADAY, JR., brings this cause of action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of defendant NANCY A. BERRYHILL, Acting Commissioner of Social Security (Commissioner), denying plaintiffs applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). For the reasons hereinafter expressed, the undersigned United States Magistrate Judge recommends the Commissioner's decision finding plaintiff not disabled and not entitled to benefits be AFFIRMED.

         I. PROCEEDINGS

         On or about June 13, 2012, plaintiff Joe W. Hockaday, Jr., protectively filed applications for DIB and SSI benefits alleging a disability onset date of June 13, 2012 due to joint disease, memory loss, arthritis, multiple epiphyseal dysplasia[1] and numbness in the arms and legs. (Tr. 12, 135, 139). The Commissioner denied benefits initially on September 18, 2012 and upon reconsideration on December 20, 2012. (Tr. 12, 50, 56, 48-49).[2] Upon plaintiffs request, a video hearing was held before an Administrative Law Judge (ALJ) on June 13, 2014. (Tr. 29-45). On the date of the hearing, plaintiff was 44 years old and had a high school education. (Tr. 33). Plaintiff had past relevant work as an animal control officer which the Vocational Expert (VE) listed as a light, skilled job performed at this level by plaintiff, and as an assistant groundskeeper at a country club, listed by the VE as a medium, semi-skilled job performed by plaintiff at the light level. (Tr. 34-35, 41 -42). On August 6, 2014, the ALJ rendered an unfavorable decision, finding plaintiff not disabled and not entitled to benefits at any time relevant to the decision. (Tr. 12-24). Following plaintiffs unsuccessful administrative appeal of the ALJ's decision, plaintiff sought federal judicial review.

         In reaching his decision, the ALJ followed the five-step sequential process in 20 C.F.R. §§ 404.1520(a) and 416.920(a). At Step One, the ALJ determined plaintiff had not engaged in substantial gainful activity since his alleged onset date of June 13, 2012. (Tr. 14). At Step Two, the ALJ found plaintiff to have the following severe impairments: "status post, bilateral hip replacement and back surgery; status post, right ankle surgery; pain disorder." (Id.). The ALJ found plaintiff suffered from the medically determinable physical impairments of hepatitis C and irregular heartbeat but the ALJ characterized these impairments as non-severe. (Tr. 15). While plaintiff was provisionally diagnosed with a learning disorder and Borderline Intellectual Functioning upon clinical interview and mental status examination, the ALJ did not find these to be firm diagnoses and did not consider them medically determinable impairments. (Id.). At Step Three, the ALJ concluded plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 15-18). The ALJ placed emphasis on Section 1.04 pertaining to disorders of the spine and Section 1.02, pertaining to major dysfunction of a joint. (Tr. 15). The ALJ found plaintiff did not have an inability to ambulate effectively as required by Section 1.02 for major dysfunction of a joint and found the file lacked evidence, i.e. no evidence of imaging of the spine, to confirm a disorder of the spine which meets Section 1.04. (Tr. 16).

         At Step Four, the ALJ found plaintiff could not return to his past relevant work as an animal control officer or groundskeeper. (Tr. 22). At Step Five, based on the plaintiffs age, education, work experience, Residual Functional Capacity (RFC) determination and the VE's testimony, the ALJ found plaintiff was capable of performing other jobs existing in significant numbers in the national economy at the unskilled, sedentary level including clerical mailer and assembler. (Tr. 23). Accordingly, the ALJ found plaintiff was not under a disability at any time between June 13, 2012, the alleged onset date, and August 6, 2014, the date of the decision.

         II. STANDARD OF REVIEW

         A disability is defined as a medically determinable physical or mental impairment lasting at least twelve months that prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. §§ 423(d)(1)(A); Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). To determine whether a claimant is disabled, the Social Security Administration (SSA) has established a five-step sequential analysis. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920. First, the ALJ must determine whether the claimant is presently working at any substantial gainful activity, which is defined as work activity involving the use of significant physical or mental abilities for pay or profit, even if on a part-time basis. 20 C.F.R. § 416.972. Second, the claimant must have an impairment or combination of impairments that is severe and meets the duration requirements. 20 C.F.R. §§ 404.1520(c), 404.1509; Loza v. Apfel, 219 F.3d 378, 392 (5th Cir. 2000). A severe impairment is defined as one which significantly limits an individual's mental or physical ability to meet the basic demands of work activity. 20 C.F.R. § 404.1520(c). Third, the ALJ must find disability if the impairment or combination of impairments meets or equals an impairment listed in the Listing of Impairments ("Listing"). 20 C.F.R. §§ 404.1520(d), 416.920(d). Fourth, an assessment of residual functional capacity is made and if claimant can still perform relevant work and has a vocational profile, claimant is not disabled. 20 C.F.R. § 404.1520 (a)(4)(iv). Fifth, the impairment or combination of impairments must prevent the claimant from doing any work, when taking into consideration the claimant's age, education, and past work experience. 20 C.F.R. § 404.1520(a)(4)(v). In the first four steps, the burden of proof rests with the claimant to show that he or she is disabled. Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999). If claimant is able to satisfy his or her burden on steps one through four, the burden will shift to the Commissioner to show that other gainful employment exists that claimant is capable of performing despite the impairments. Id.

         In reviewing disability determinations by the Commissioner, the Court's role is limited to determining whether substantial evidence exists in the record, considered as a whole, to support the Commissioner's factual findings and whether any errors of law were made. Anderson v. Sullivan, 887 F.2d 630, 633 (5th Cir. 1989); Leggettv. Chater, 67 F.3d 558, 564 (5th Cir. 1995). Substantial evidence in the context of SSA determinations "is more than a mere scintilla, and less than a preponderance." Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). To determine whether substantial evidence of disability exists, the following elements must be weighed: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) claimant's subj ective evidence of pain and disability; and (4) claimant's age, education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (citing DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972)). If the Commissioner's findings are supported by substantial evidence, they are conclusive, and the reviewing court may not substitute its own judgment for that of the Commissioner, even if the court determines the evidence preponderates toward a different finding. Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). Conflicts in the evidence are to be resolved by the Commissioner, not the courts, Laffoon v. Califano, 558 F.2d 253, 254 (5th Cir. 1977), and only a "conspicuous absence of credible choices" or "no contrary medical evidence" will produce a finding of no substantial evidence. Hames v. Heckler, 101 F.2d 162, 164 (5th Cir. 1983). Stated differently, the level of review is not de novo. The fact that the ALJ could have found plaintiff to be disabled is not the issue. The ALJ did not do this, and the case comes to federal court with the issue being limited to whether there was substantial evidence to support the ALJ's decision.

         III.

         ISSUES

         The ALJ found plaintiff not disabled at Step Five of the five-step sequential analysis. Consequently, the court's review is limited to whether there was substantial evidence in the record, taken as a whole, to support the finding that plaintiff had the ability to perform other work that exists in significant numbers in the regional and national economies, and whether proper legal standards were applied in making this determination. Plaintiff presents the following issues for review:

1. The ALJ committed reversible error in failing to adequately consider plaintiffs diffuse arthritis andretrocalcaneal exotosis[3] at Step Two and when formulating the RFC; and
2. The ALJ's credibility determination was not supported by substantial evidence.

(Dkt. 17at2).[4]

         IV. MERITS

         A. ALJ's RFC Determination

         Plaintiff argues the ALJ failed to discuss his medically determinable impairments of diffuse arthritis and ankle spur when discussing plaintiffs severe and non-severe impairments at Step 2 and contends this error was harmful because these impairments imposed more severe limitations than the ALJ accounted for in his RFC. (Dkt. 17 at 10). Plaintiff argues the ALJ error is clear because the ALJ provided reasons why plaintiff s impairments of hepatitis C and irregular heartbeat were not severe but failed to do so regarding the diffuse arthritis and ankle spur. The ALJ made findings of fact and conclusions of law with regard to plaintiffs severe impairments stating:

According to Stone v. Heckler (cite omitted) the standard in determining whether the claimant's impairment is severe is: 'An impairment can be considered as not severe only if it is a slight abnormality (having) such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience.' The above impairments [status post, bilateral hip replacement and back surgery; status post, right ankle surgery; pain disorder] have more than a minimal effect on the claimant's ability to perform basic work-related activities. The claimant's records documented no other severe impairments under the Stone standard.

(Tr. 14).

         Plaintiff first addresses the issue of ankle spur and argues, "...the ALJ noted that' [o]n March 6, 2014, Dr. Higgins found that the claimant had marked pain on weight-bearing and during ambulation, but this appeared to result from the condition of the foot.' Consequently, the ALJ acknowledged that Hockaday had a foot condition, but made no effort to explain how that foot condition was not sufficient to be classified as a severe impairment." (Dkt. 17 at 10 citing to Tr. 16). A review of the record shows that Dr. Eric Higgins, D.P.M., a podiatrist, examined plaintiff on February 12, 2013 and March 6, 2014. The ALJ noted this in his decision and more specifically stated, "The claimant had painful toenail, on February 12, 2013 (Exhibit 19F, page 4). On March 6, 2014, Dr. Higgins found that the claimant had marked pain on weight-bearing and during ambulation, but this appeared to result from the condition of the foot (See Exhibit 19F, page 2)." (Tr. 16). The ALJ went on to say,

The medical records from primary care physician, David Thetford, D.O. do not demonstrate an inability to ambulate effectively. The undersigned notes no specific findings regarding gait over the course of Dr. Thetford's physical examinations during treatment (See Exhibits 9F, 13F, 17F and 18F). The evidence is not sufficient to establish that the claimant's impairments meet Listings 1.02 and 1.04.

(Tr. 16). A review of podiatrist Dr. Higgins's records shows that plaintiff was seen on February 12, 2013 for the first time for painful, thick and deformed toenails on all toes of both feet. (Dkt. 15-9 at 37, Tr. 400). Because plaintiff was unable to take oral antifungals due to his hepatitis C, he was given a topical ointment. (Id.). Plaintiff was seen again by Dr. Higgins on March 6, 2014 for a toenail trim and at that time, plaintiff complained of left heel pain. (Dkt. 15-9 at 35, Tr. 398). The doctor noted plaintiff s toenails had marked thickening, discoloration and deformation and that they were painful on palpation, that plaintiff had moderate pain on palpation of the posterior aspect of the left heel and marked pain on weight bearing and during ambulation. (Id.). The doctor's medical notations, of course, are only a memorialization of petitioner's complaints of pain. Moreover, the plaintiffs marked pain on ambulation appears to have been due to his toenail infection, in light of the note that there was moderate pain on palpitation of the left heel. The doctor's notes also indicate plaintiff was there to have his toenails trimmed. While there, surgical treatment alternatives for excision of plaintiffs ankle spur were explained in detail and the doctor noted a conservative management plan with surgery as an option if the symptoms failed to improve. (Dkt. 15-9 at 35-36, Tr. 398-399). Nothing in the record indicates plaintiff ever sought or received surgery as treatment for his bone spur or that the spur condition worsened or even continued.

         Plaintiff argues that although the AL J acknowledged the foot condition, he failed to articulate how this condition was not sufficient to be classified as a severe impairment. Plaintiff claims this error was particularly egregious since marked pain with weight-bearing and ambulation would arguably pose more than a minimal limitation on plaintiffs ability to stand or walk for two hours as set out in the RFC. (Dkt. 17 at 10). Plaintiff complains the ALJ's failure to articulate how this foot condition was not sufficient to be classified as a severe impairment, especially in light of his reasoning of why plaintiffs conditions of ...


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