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Patterson v. Berryhill

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

March 30, 2017

MICHAEL WAYNE PATTERSON, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         Pursuant to the consent of the parties and the order of reassignment dated March 28, 2016, this case has been transferred for the conduct of all further proceedings and the entry of judgment. (doc. 13.) Before the Court is Plaintiff's Brief in Support of Plaintiff's Appeal of Denial of Claim for Social Security, filed March 30, 2016 (doc. 15); Defendant's Response Brief, filed April 29, 2016 (doc. 16); and Plaintiff's Brief in Response to Defendant's Brief, filed May 2, 2016 (doc. 17). Based on the relevant findings, evidence, and applicable law, the Commissioner's decision is AFFIRMED.

         I. BACKGROUND[1]

         A. Procedural History

         Michael Wayne Patterson (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner)[2] denying his claim for disability and disability insurance benefits (DIB) under Title II of the Social Security Act. On January 24, 2014, he applied for disability and DIB, alleging disability beginning February 23, 2011. (R. at 216-17.) His claim was initially denied on March 24, 2014, and upon reconsideration on July 10, 2014. (R. at 145-46, 151-53.) On July 14, 2014, he requested a hearing before an administrative law judge (ALJ). (R. at 154-55.) He appeared and testified at a hearing on October 5, 2015. (R. at 29-71.) The ALJ denied Plaintiff's applications on November 10, 2015, finding him not disabled. (R. at 24.) Plaintiff timely appealed the ALJ's decision to the Appeals Council, and the Appeals Council adopted the ALJ's decision on January 14, 2016. (R. at 1-4, 9.) Plaintiff timely appealed the Appeals Council's decision under 42 U.S.C. § 405(g).

         B. Factual History

         1. Age, Education, and Work Experience

         Plaintiff was born on May 2, 1959, and was 56 years old at the time of the hearing before the ALJ. (R. at 23, 32.) He graduated from high school and had past relevant work as a an industrial cleaner. (R. at 23.)

         2. Medical Evidence

         On August 5, 2011, Plaintiff presented to the Parkland Memorial Hospital (Parkland) emergency room with a chief complaint of hemorrhoids, which he had reportedly experienced for “some time.” (R. at 418.) Plaintiff also reported that he had rectal surgery for hemorrhoids in 2005. (Id.) After a physical examination, Plaintiff was treated for constipation and prescribed Anusol for his hemorrhoids. (R. at 419.) He returned to the emergency room on February 17, 2012, with a chief complaint of dental pain and cough. (R. at 420-21.) Plaintiff's physical examination revealed mild palpable tenderness of the gum and tooth loss without vestibular tenderness. (R. at 422.) He was fully oriented, had full range of motion and a normal mood, affect, and behavior, and his judgment and thought content were also normal. (Id.) Plaintiff was diagnosed with a toothache, gingiva disorder, acute upper respiratory infection of an unspecified site, acute pharyngitis, unspecified disorder of the teeth and supporting strictures, and unspecified gingival and periodontal disease. (R. at 424.) He was prescribed Amoxicillin, Benzonatate, Atarax, and Naproxen; given dental resources; and discharged that day. (R. at 423.)

         On May 25, 2012, Plaintiff was admitted to Parkland's emergency room with a chief complaint of headache and abdominal pain. (R. at 429-30.) He described his abdominal pain as intermittent and occurring twice a month. (R. at 635.) Plaintiff's physical examination was normal, and a posterioranterior and lateral chest x-ray showed no significant radiographic abnormality. (R. at 432, 596.) He was prescribed Hydrocodone-Acetaminophen as needed and Ranitidine, and discharged home that day. (R. at 432, 439.)

         Plaintiff returned to Parkland's emergency room on June 27, 2012, with a chief complaint of abdominal pain. (R. at 446-47.) His physical examination was normal. (R. at 448.) He was started on Amlodipine and referred to his primary care physician for blood pressure management and a colonoscopy. (R. at 449.) He returned on June 31, 2012, with a chief complaint of a headache and breast pain. (R. at 454-55.) Plaintiff described the pain as “dull.” (R. at 643.) He was prescribed Tramadol and instructed to follow up with his primary care physician. (R. at 457.)

         On December 31, 2012, Plaintiff had a psychiatric diagnostic interview exam with Patricia Newton, M.D., at Metrocare Services (Metrocare). (R. at 348.) Plaintiff reported that he began to hear voices and suffer from paranoid delusions in 1984, and he had been paranoid to some degree ever since. (R. at 349.) The voices were not bothersome, but that he had tactile and visual hallucinations that “irritate[d]” him considerably. (Id.) He also had mood swings, he was bipolar and somewhat euphoric, his mind jumped from topic to topic, and he showed poor judgment. (Id.) He also suffered from depression and slept poorly. (Id.) Dr. Newton noted that Plaintiff had used illegal drugs (marijuana and cocaine) and alcohol from the 1980s until 1996. (Id.) She diagnosed chronic paranoid psychosis with bipolar mood disturbance. (R. at 351.)

         Plaintiff began counseling sessions with Christopher Keener, LPC, at Metrocare, on January 7, 2013. Mr. Keener noted that Plaintiff seemed positive and upbeat, he engaged well, and his goal was to find employment. (R. at 354.) He continued to have regular sessions with Mr. Keener until October 7, 2013. (R. at 354, 362, 369, 373, 375, 382, 383, 390, 394, 403.) During that time, Mr. Keener regularly reported that Plaintiff was appropriately dressed, his thoughts were organized, his mood was good or euthymic, and he was fully oriented. (R. at 362, 366, 373, 379.) On March 25, 2013, Plaintiff stated that he was “fine” and denied anxiety, nervousness, racing thoughts, mood swings, agitation, anger, crying spells, restlessness, depressive symptoms, difficulty concentrating, insomnia, anhedonia, auditory or visual hallucinations, or suicidal or homicidal thoughts. (R. at 367.) On May 6, 2013, Plaintiff stated he did not go to church, like his family wanted, because he was “too lazy.” (R. at 373.) He was also having problems with his job search because of his criminal record. (Id.) During his counseling sessions with Mr. Kenner, Plaintiff also reported no problems eating or sleeping. (R. at 362, 375, 379, 383.) On August 22, 2013, Plaintiff reported to Mr. Kenner that his “goal” was to obtain SSI and then save money to get a place of his own. (R. at 390.) At his last appointment with Mr. Kenner on October 7, 2013, Plaintiff told the counselor that everything in his life was stable, and that he would wait until one year after filing his appeal for SSI before he would begin trying to work. (R. at 403.)

         On February 13, 2013, Plaintiff met with Humaira Moten, M.D., at Parkland to establish care. (R. at 467.) Dr. Moten noted that Plaintiff had been diagnosed with gastroesophageal reflux disease (GERD) and depression. (R. at 467.)

         On March 21, 2013, Plaintiff was admitted to Parkland's emergency room with for dental pain and pharyngitis. (R. at 472.) A physical examination revealed tooth decay. (R. at 473.) He described the pain as moderate with a severity of 8/10. (R. at 648.) Plaintiff was prescribed Arnoxil and Loratadine, and referred to a dentist. (R. at 474.) He returned to the emergency room for “a check up” on June 10, 2013. (R. at 483.) He reported a history of bilateral hand and foot pain, a toothache, and chronic abdominal pain, but no pain was present during his “check up.” (Id.) His abdominal pain was relieved with over-the-counter Zantac. (Id.) He was negative for myalgia, back pain, and joint pain. (R. at 483, 485.) A psychiatric review for Plaintiff was normal. (R. at 486.) He was prescribed Naproxen, referred to his primary care physician, and discharged. (Id.)

         On December 10, 2013, Plaintiff returned to Parkland's emergency room for a medication refill. (R. at 659.) He reported no other complaints and denied any chest pain, dyspnea, palpitations, or abdominal pain. (Id.) Plaintiff was negative for any neck and back pain. (R. at 660.)

         On December 27, 2013, Plaintiff met with Dr. Newton at Metrocare. (R. at 413.) She noted that Plaintiff had a “few” symptoms and occasionally heard voices, but he was satisfied with how he felt. (Id.) His bipolar symptoms were manageable on the current medications, and he did not want to change his medications. (R. at 414.) He had follow ups with Metrocare every few months until November 24, 2014. (R. at 413, 514, 522, 567, 573, 578, 581, 585, 588, 726.)

         On February 17, 2014, Plaintiff presented to Parkland's emergency room with nasal congestion and headaches. (R. at 508.) He reported recurrent headaches in the frontal region, which he described as a sharp, moderate pain. (R. at 509.) His physical examination revealed a normal range of motion. (R. at 510.) He was discharged the same day. (R. at 507.)

         On March 18, 2014, medical consultant Patty Rowley, M.D., completed a case analysis and found that Plaintiff's physical impairments were non-severe. (R. at 121.) On July 8, 2014, medical consultant Kelvin Samaratunga, M.D., found that Plaintiff's physical impairments were non-severe, and that he had no significant functional limitations. (R. at 134-34.)

         On March 20, 2014, Matthew Turner, Ph.D., considered Plaintiff's mental impairments and the paragraphs B and C criteria. (R. at 121-22.) Dr. Turner found that Plaintiff's affective disorder moderately affected his activities of daily living, maintenance of social functioning, and his concentration, persistence, and pace. (R. at 122.) He opined that Plaintiff was able to understand, remember, and carry out detailed but non-complex instructions, make important decisions, attend and concentrate for extended periods, interact with others, accept instructions and respond to changes in work settings. (R. at 125.) On July 7, 2014, Susan Thompson, M.D., opined that Plaintiff retained the ability to understand, remember and carry out simple instructions, make simple decisions, concentrate for extended periods, and interact with others as well as respond to changes in the work setting. (R. at 138.) He was capable of simple and repetitive tasks. (Id.)

         On April 17, 2014, Plaintiff went to Parkland for a follow up on his GERD, hypertension, and seasonal allergies. (R. at 527.) He reported no complaints regarding his hypertension or issues associated with his GERD. (Id.) He also reported having back pain for several years but no trauma or other symptoms related to back pain. (Id.) He had a normal range of motion, was fully oriented, and had a normal mood and affect. (R. at 529.) Plaintiff's Zantac prescription was discontinued and he was started on Protonix. (R. at 530.) He was also prescribed a low sodium diet. (Id.)

         On June 11, 2014, Plaintiff had a consultative physical examination with Thomas Pfeil, M.D. (R. at 535.) He reported hand and foot pain, low back pain, headaches, abdominal pain, and hypertension. (Id.) Plaintiff also reported that his low back pain began in 2010, but denied radiation of the symptom, attending physical therapy, or using pain-relieving medication. (Id.) He took medication for high blood pressure, which was 148/87 at the examination. (R. at 535-36.) Dr. Pfeil noted that Plaintiff was alert, fully oriented, and cooperative, and that his memory and concentration were good. (R. at 536.) He found no tenderness of the cervical or lumbar spine, a normal gait with no unsteadiness, a full range of motion in all joints (including the lumbar spine with not evidence of tenderness or inflamation), and the ability to stand on toes and heels. (R. at 537-38.) Imaging of Plaintiff's left hand noted minimal degenerative hypertrophy and a small cyst. (R. at 540.) Imaging of the lumbar spine revealed spondylolisthesis, mild degenerative spondylosis from L3 to L5, severe degenerative facet joint hypertrophy, and moderate degenerative joint hypertrophy at ¶ 2 to S1. (Id.) Dr. Pfeil opined that Plaintiff was limited in bending and stooping repetitively, lifting and carrying more than 20 to 30 pounds, and sitting, standing, or walking more than one hour without changing position. (R. at 537-38.) He opined that Plaintiff's maximum range of motion for his back was a 25 degree extension and 90 degree flexion, and that he had a lateral (flexion) of 25 degrees on the left and right. (R. at 542.)

         Arthur W. Joyce, Ph.D., completed an interview and mental status evaluation for Plaintiff on June 17, 2014, whose chief complaint was “Not able to work because Schizophrenia and hearing voices and things.” (R. at 546.) He gave vague reports regarding the usefulness of his treatment at Metrocare. (Id.) Plaintiff had been hospitalized at Green Oaks for 24 hours in 2012, because the “voices got worse” and he “was feeling bad.” (Id.) His symptoms included hearing voices, feeling sad and nervous, and poor sleep. (Id.) Plaintiff was cooperative but mildly restless, demonstrated a paranoid thought process, experienced daily auditory command hallucinations, was fully oriented, and had problems with accurately encoding information and deficient memory. (R. at 548.) He had a coherent, logical, and goal-directed thought process, a negative and dysphoric mood, issues with concentration, and poor judgment and insight. (Id.) Dr. Joyce's prognosis was guarded. (R. at 549.)

         On June 17, 2014, Plaintiff was admitted to Parkland with a chief complaint of seasonal allergic rhinitis and chronic nasal congestion. (R. at 564.) He had a CT maxillofacial exam without contrast. (R. at 552, 561-63, 596.) It showed minimal mucosal thickening involving the left maxillary sinus and periodontal disease, and he was discharged home. (R. at 552, 564.) On July 31, 2014, Plaintiff had a follow-up appointment at Parkland for his hypertension, back pain, and GERD. (R. at 670.) He reported no complaints and denied any side effects of his medication. (Id.)

         On September 8, 2014, Dr. Newton completed a Medical Assessment of Ability to Do Work-Related Activities (Mental) for Plaintiff. (R. at 554.) She noted that he suffered from appetite and sleep disturbances, paranoia, low energy, chronic disturbance of mood, psychomotor agitation/retardation, difficulty thinking/confusion, racing thoughts, chronic depression, hallucinations/delusions, and anger outbursts. (R. at 555.) Dr. Newton diagnosed schizoaffective disorder and alcohol and cannabis dependance, and she assessed a GAF score of 50. (R. at 555.) She opined that Plaintiff had some loss of his ability to maintain his personal appearance and substantial loss of his ability apply commonsense understanding to carry out detailed but uninvolved written or oral instructions, maintain attention/stay on task for an extended period, ask simple questions or request assistance, and cope with normal work stress without exacerbating pathologically based symptoms in regular competitive employment. (R. at 554-55.) She further opined that he had extreme loss of ability to perform the following activities in regular, competitive employment and in a sheltered work setting: apply commonsense understanding to carry out simple one or two-step instructions, demonstrate reliability by maintaining regular attendance and being punctual within customary tolerances, maintain concentration for an extended period, perform at a consistent pace without an unreasonable number and length of rest period/breaks, act appropriately with the general public, make simple work-related decisions, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes, behave in an emotionally stable manner, respond appropriately to changes in a routine work setting, and finish a normal work week without interruption from psychologically-based symptoms. (Id.)

         On November 12, 2014, Plaintiff had a colonoscopy at Parkland. (R. at 597-98, 672.) His exam was normal except for a benign-appearing pedunculated polyp in his rectum, which was removed. (R. at 597-98.)

         Plaintiff returned to Parkland on December 17, 2014, for headaches and arthritis. (R. at 678.) It was noted that Tylenol PM “correct[ed]” Plaintiff's insomnia, and that Pantoprazole controlled his GERD. (Id.) Plaintiff was fully oriented and had normal range of motion, reflexes, and mood and affect. (R. at 680.)

         Plaintiff went to Parkland's emergency room on February 19, 2015, with a chief complaint of daily headaches. (R. at 681-82.) He described the headaches as a dull, gradual pain in the front of his head, which had occurred since 2010. (R. at 682.) A CT brain without contrast was ordered and conducted later that day. (R. at 599, 681.) Plaintiff's brain and ventricles were normal in appearance without evidence of mass, hemorrhage, hydrocephalus, or other lesions, and no acute intracranial abnormalities were identified. (R. at 599.)

         On April 21, 2015, Plaintiff returned to Parkland with a complaint of tingling and headaches. (R. at 686.) He reported a sticking/burning sensation in both feet and hands that had not improved with prior medication. (Id.) He also reported a remote history of lower back injury and that his GERD was controlled with Pantoprazole. (Id.) Plaintiff's hypertension problem was controlled. (R. at 686.) His active problems were listed as chest pain, nocturia, tension headaches, hypertension, seasonal allergic rhinitis, GERD, and depression. (R. at 686-87.) Plaintiff was prescribed Gabapentin for his hand and foot numbness. (R. at 688.)

         On July 20, 2015, Plaintiff reported to Parkland's emergency room with a chief complaint of chest pain. (R. at 689.) He reported that chest pain was from his abdominal pain ascending that morning after his breakfast. (Id.) He had a posterioranterior and lateral chest x-ray, which found no significant abnormalities. (R. at 600.) His pain resolved and he was discharged. (R. at 692.) On September 15, 2015, Plaintiff had a follow up appointment at Parkland. (R. at 693-94.) He denied chest pain but reported anxiety and occasional nervousness. (R. at 694.) He was directed to schedule an optometry appointment, continue his medication, take Tylenol for arthritis as needed, and buy Claritin, Benadryl, or Zyrtec for his allergies. (R. at 696.)

         3. Hearing Testimony[3]

         On October 5, 2015, Plaintiff and a vocational expert (VE) testified at a hearing before the ALJ. (R. at 29-71.) Plaintiff was represented by an attorney. (R. at 31.)

         a. Plaintiff's Testimony

         Plaintiff testified that he was 5' 9" tall, weighed 180 pounds, and was right-handed. (R. at 35.) He graduated from high school, but neither attended college nor had any special vocational training. (R. at 36.) He lived with his mother, and she paid any of his bills that were not covered by food stamps. (R. at 35, 37.) Plaintiff's driver's license was suspended in 1996 for drugs, and he never successfully had it reinstated. (R. at 35-36.) He had served in the National Guard for two or three years and was discharged sometime in the 1970s. (R. at 36.)

         Plaintiff previously worked as a custodian for nine years. (R. at 39.) His duties included cleaning, mopping, taking out trash, buffing floors, vacuuming, and running a scrub machine. (R. at 40.) He carried heavy items ranging from 20 to 40 pounds and pushed items heavier than 50 pounds on a dolly. (R. at 40-41.) He did not have problems following his supervisor's directions, but he did not like his coworkers telling him to do things. (R. at 63-64.) He committed a crime, i.e., making a false statement, was given probation, and was terminated. (R. at 38-39.) Plaintiff had not attempted to seek employment since 2010. (R. at 37-39.) He did, however, receive unemployment benefits in 2011. (Id.)

         Plaintiff's lower back hurt when he lifted things. (R. at 42.) He did not take any medication for it. (R. at 44-45.) He could pick up a gallon of milk but felt “a little pain” when he did so. (R. at 44.) He had high blood pressure, which caused dizziness and headaches. (R. at 47.) His headaches began in 2010 or 2011 and had lasted for a day on average. (R. at 43.) They could last for the entire week, however. (Id.) When he experienced a headache, it would make him not want to do anything. (R. at 44.) Plaintiff took Amlodipine for his high blood pressure. (R. at 46.)

         Plaintiff also experienced acid reflux. (R. at 47.) It caused him to stop breathing and experience chest pain, which lasted all day . (R. at 47-48.) When it flared up, he had to stop for a few minutes before he could begin working again. (R. at 49.) He took Ranitidine for it. (R. at 47.) Plaintiff also suffered from depression, which made him nervous around loud noises. (R. at 50-51.) He did not like being around people. (Id.) Plaintiff sought ...


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