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Nash v. Berryhill

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

April 3, 2018

GARY NASH, Plaintiff,

         Referred to U.S. Magistrate Judge



         By Special Order No. 3-251, this case was automatically referred for proposed findings of fact and recommendation for disposition. Before the Court is Plaintiff's Brief on Appeal, filed June 30, 2017 (doc. 15), and Defendant's Brief, filed July 28, 2017 (doc. 16). Based on the relevant findings, evidence, and applicable law, the Commissioner's decision should be REVERSED, and the case should be REMANDED for further administrative proceedings.

         I. BACKGROUND[1]

         A. Procedural History

         Gary Nash (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner) denying his claims for disability insurance benefits (DIB) under Title II of the Social Security Act (Act). (doc. 15 at 4-5; R. at 164.) On March 29, 2013, he filed his application for DIB, alleging disability beginning on March 19, 2013. (R. at 164.) His claim was denied initially on July 18, 2013, and upon reconsideration on October 25, 2013. (R. at 185-88, 191- 93.) On December 3, 2013, Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. at 194-95.) He appeared and testified at a hearing on November 3, 2014. (R. at 35-71.) On April 23, 2015, the ALJ issued a decision finding him not disabled and denying his claim for benefits. (R. at 9-34.)

         Plaintiff timely appealed the ALJ's decision to the Appeals Council on June 19, 2015. (R. at 5-8.) The Appeals Council denied his request for review on December 28, 2016, making the ALJ's decision the final decision of the Commissioner. (R. at 1-4.) Plaintiff timely appealed the Commissioner's decision under 42 U.S.C. § 405(g). (See doc. 1.)

         B. Factual History

         1. Age, Education, and Work Experience

         Plaintiff was born on November 10, 1961, and was 52 years old at the time of the hearing. (R. at 29, 41.) He had at least a high school education and could speak English fluently. (R. at 29.) He had past relevant work as a substance abuse counselor, residence supervisor, jailer, unit clerk, residence counselor, and director of classification and treatment. (R. at 28.)

         2. Medical Evidence

         On March 17, 2011, Plaintiff was treated at Parkland Hospital (Parkland) by Shiv K. Sharma, M.D., for chronic low back pain, which he described as a constant dull pain that radiated in his right hip and bilateral lower extremities to his feet. (R. at 495.) The pain was worse with activity, and only better with Hydrocodone. (Id.) He previously had surgery at ¶ 5-S1, and was told that no other surgery was needed. (Id.) A lumbar epidural steroid injection was attempted but he did not actually receive it. (Id.) He was not doing physical therapy but reported exercising daily on a bike, and later reported that he had not lost weight or exercised because of a hernia. (Id.) Plaintiff refused injection therapy throughout his visit and only asked for Hydrocodone, on which he was very fixated, and he took more than prescribed. (R. at 495-96.) He was advised of the ill effects of taking more than prescribed, and it was agreed that he would be prescribed a lower dose for one month and then tapered off the medication. (R. at 496.) Dr. Sharma recommended physical therapy. (Id.)

         On April 14, 2011, Plaintiff went to the Bluitt Flowers Health Center (BFHC), a clinic of Parkland, for a follow-up and a refill on his pain medication. (R. at 500.) He had disability papers with him and also complained of depression. (Id.) He had a supple neck with normal range of motion, normal heart rate with regular rhythm, and no edema in his extremities. (Id.) His dosage of Hydrocodone had been reduced to 60 pills. (Id.)

         On December 12, 2011, Plaintiff was seen by Jean Jingzhi Bao, M.D., at Parkland. (R. at 455.) Dr. Bao noted that Plaintiff had been previously diagnosed with a non-reducible umbilical hernia two years earlier that was painful with pressure, but Plaintiff had no bowel obstructive symptoms. (Id.) He also had a history of lumbar spinal fusion, anterior approach, and continued to experience chronic back pain. (Id.) He reported that he had never smoked, did not use illicit drugs at that time, and drank about one ounce of alcohol per week. (Id.) He stated that he became short of breath after walking one block. (Id.) Dr. Bao recommended surgery to repair his umbilical hernia. (R. at 456.) On that same day, William W. Turner, M.D., noted that Plaintiff led a sedentary life with little activity due to the pain in his back and hips. (R. at 452.) His umbilical hernia surgery was scheduled for December 23, 2011. (R. at 454.)

         On December 22, 2011, Plaintiff saw Dina Alhazim, M.D., for lower back pain that radiated down both legs. (R. at 449.) He reported that due to his bad back, he needed to take medication and could not move in the morning. (Id.) He also reported that his depression medication was not working and requested anxiety medication. (Id.)

         On December 30, 2011, Plaintiff went to the Parkland day surgery unit for his umbilical hernia repair with Sarah C. Oltmann, M.D. (R. at 530, 532-33.) A CT scan demonstrated an umbilical hernia containing fat. (R. at 533.) The surgery went well, and Plaintiff was advised not to do any heavy lifting for 4-6 weeks. (R. at 534.)

         On January 3, 2012, Plaintiff had a post-operation follow-up, and his incision looked fine, had a good healing ridge, and some superficial epidermolysis. (R. at 443.) From a surgical standpoint, he would be unrestricted from activities in one month. (Id.)

         On May 11, 2012, Plaintiff reported that he was depressed and frustrated with his pain, and that he thought of suicide but had no intent or plan to commit suicide. (R. at 440.) He would go to Northstar for help with his depression. (Id.) He had normal mood, affect, and behavior. (R. at 438.) He was restarted on Gabapentin to help with nerve pain, and instructed to take Etodolac for inflamation. (Id.)

         On June 8, 2012, October 19, 2012, and January 17, 2013, Plaintiff went to ADAPT Institute of Texas (ADAPT) for mental health treatment. (R. at 479-91.) In his initial mental status exam on June 8, 2012, he appeared well-groomed, overweight, and blunted. (R. at 490.) He spoke clearly and denied delusions, but exhibited aggression as well as a suicidal plan to harm himself with a vehicle. (Id.) He exhibited a logical thought process, depressed mood, anhedonia, and cooperative behavior; he denied impairment; and he had average intelligence, fair insight, and fair judgment. (Id.) He consistently reported chronic back pain. (R. at 484-88.) At his last appointment, he reported feeling anxious but “emphasized that he [did] not have depression.” (R. at 481.) He denied substance abuse; the doctor noted that Plaintiff had a series of arrests for domestic violence and reportedly had another case pending for a felony. (R. at 479, 481.) Plaintiff gave contradicting information, and exhibited slurred, jumbled speech. (R. at 479.) He reported anger problems that could cause him to explode quickly, and he had been to anger management before. (Id.) He is primary problems were trying to stay away from illicit drugs and illegal behavior. (R. at 481.)

         On June 15, 2012, Beth Ann Ellsworth, P.T., created a physical therapy treatment plan for Plaintiff. (R. at 424-25.) Imaging showed he had a discectomy and fusion at ¶ 5-S1, degenerative facets at ¶ 4-L5, and hip degeneration. (R. at 424.) Plaintiff wanted to get tips on how to control his pain. (R. at 424.) His short term goal was to perform his exercise program at home on his own, and his long term goal was to return to work and daily activities without limitation. (R. at 425.) Plaintiff was discharged from physical therapy on August 29, 2012, because he was noncompliant with attendance. (R. at 431-32.)

         On June 22, 2012, Plaintiff was transported to Parkland by the Dallas County Jail. (R. at 368-69.) Mark Poynter, R.N., noted that he appeared to be under the influence of alcohol. (R. at 368.) He denied being hospitalized in the prior 30 days, stated he drank alcohol daily and used Xanax, and reported depression and low back pain. (R. at 368.) Plaintiff was observed to have no special needs, and Nurse Poynter referred him for chronic care and mental health treatment. (R. at 369.) He was treated at Parkland again on June 26, 2012, and complained of chronic back pain and depression. (R. at 376.) It was noted that he had a history of drug abuse with Xanax and Norco. (R. at 377.) He exhibited normal reflexes and gait, as well as grossly intact bilateral sensory and motor functions. (R. at 378.) He refused a mental health referral and stated he would see a psychiatrist once he was released from jail. (R. at 378.)

         On July 1, 2012, Plaintiff saw Shabbir Saherwala, M.D. (R. at 387-91.) Dr. Saherwala noted that Plaintiff was in jail for failure to maintain his lane and for forgery of a government document. (R. at 387.) Plaintiff stated he was depressed and had been looking for a job but had not had one in three years. (R. at 387.) He also stated he had a lot of impulsive ideas. (R. at 387.) Dr. Saherwala ruled out diagnoses of mood disorder and benzodiazepam abuse. (R. at 390.)

         On October 20, 2012 and January 11, 2013, Plaintiff returned to BFHC complaining of back pain and seeking a refill of Hydrocodone. (R. at 551, 555.) In October, he refused any medication other than Hydrocodone and became upset when the doctor declined to refill his prescription. (R. at 552.) He requested a referral to a pain clinic for pain management. (R. at 551.) In January, he was advised that Norco was not the appropriate long term treatment for his lower back pain. (R. at 555.) An x-ray and MRI of his lower back showed degenerative changes. (Id.) He stated that nothing else improved his symptoms and bargained to receive 30 pills until his next visit. (Id.) He refused to try other medications or to get a physical exam, and stated that he wanted a new primary care physician. (Id.)

         On March 25, 2013, Plaintiff saw Cornelia W. Tan, M.D., at the Bluitt Flowers Geriatric clinic. (R. at 559.) He requested Hydrocodone, but Dr. Tan recommended non-narcotic medications. (Id.) He declined medications other than Hydrocodone. (R. at 560.) He declined a referral to a pain clinic and also refused to have an examination. (R. at 559.) Dr. Tan prescribed Trazodone, Risperidone, Etodolac, and a cane. (Id.)

         Plaintiff saw Lorraine Rudder, M.D., from April 17, 2013 to September 26, 2014. (R. at 630-41, 643-48, 650-52, 654-57.) In April, Plaintiff stated that his back pain had begun years ago when he fell off of bus steps and injured his back. (R. at 639.) He consistently reported that his back pain was constant, aching, chronic, and severe, and he was most symptomatic in the mornings and evenings. (R. at 630, 639, 643, 646, 650, 654.) His pain decreased with rest and abated with medication. (R. at 643, 646, 650, 654.) Dr. Rudder routinely provided him with refills for Hydrocodone. (R. at 632, 640, 644, 648, 652, 657.)

         On May 31, 2013, Plaintiff underwent a consultive examination with Kelly Davis, M.D. (R. at 561-64.) His medical history included chronic low back pain, dyslipidemia, bipolar disorder, obesity, and substance abuse, and he took Hydrocodone and Trazodone. (R. at 562-63.) His back pain only improved with medication. (R. at 563.) He reported having one drink of alcohol and a few cigarettes weekly, but denied illegal drug use. (R. at 562.) Examination showed he was 68 inches tall and weighed 233 pounds. (R. at 562.) He was in no acute distress and walked with a single prong cane. (R. at 562.) Muscle strength measured 5/5 in the left and right shoulders, grip strength was 5/5 bilaterally, and muscle strength in his quadriceps, hamstrings, and calves measured 5/5 bilaterally. (R. at 562.) He could flex his shoulders 150 degrees and abduct his right shoulder 150 degrees and his left shoulder 130 degrees with no complaints. (R. at 562.) He was able to minimally squat while holding the table for support, but reported pain. (R. at 563.) He could not attempt to heel/toe walk, but could move about, and get off and on the table without assistance. (Id.) Although he had his cane, he could move around and walk without it. (Id.) An x-ray on his lumbar spine on June 3, 2013, revealed decreased disc space between L5-S1 with adjacent end plate sclerosis, and marginal osteophytes from L3 to L5. (R. at 564.) Degenerative changes in the lumbar spine were noted. (R. at 564.)

         On June 6, 2013, Plaintiff saw Leshea Jarmon, Ph. D., for a psychological consultive examination. (R. at 565-70.) He drove himself to the appointment. (R. at 565.) No. difficulties were noted in his gait, but he did report using a cane sometimes due to arthritic pain in his lower back. (Id.) He was cooperative, and rapport was easily established. (Id.) He reported that he was seeking disability due to mood instability associated with depression, bipolar disorder, and decline in his physical health. (Id.) He had battled several emotional problems and various levels of oscillating mood swings since 2006, and he was formally diagnosed with depression and bipolar disorder in 2012. (Id.) He began to experience mood instability after his common law wife passed away and also suffered suicidal thoughts, insomnia, and increased anger concerning his past and present life experiences. (R. at 565-66.) In addition to his mental health limitations, he also suffered lower back and hip pain associated with arthritis. (R. at 566.) His physical pain often impaired his ability to lift, bend, or stand, and hindered him from performing work-related duties. (Id.) He had a decrease in energy and an increase in sleep, irritability, and temper outbursts, as well as difficulty focusing and concentrating. (Id.) He was unemployed and uninsured, and relied on his family and odd jobs for support. (Id.) The mental status exam showed depressed mood and affect, fair memory, judgment, insight, and concentration, normal thought process and content, and no confusion. (R. at 568-69.) He was diagnosed with bipolar disorder and depressive disorder. (R. at 569.) He had a fair prognosis with continued support and management for his mental and physical health. (Id.) Dr. Jarmon opined that his declining physical health could limit his ability to work in high demand environments, but he could thrive in a structured, low impact work environment, provided he sought the necessary medical attention, psychotherapy, and psychiatric care. (Id.)

         An MRI on June 7, 2013, showed severe narrowing of the L5-S1 space, grade 1 anterolisthesis at ¶ 4-L5, mild decreased disc space at multiple lumbar levels, facet arthropathy at ¶ 4-L5 and L5-S1 bilaterally, mild sacroiliac joint degenerative changes, and a vacuum phenomenon on the right. (R. at 597.)

         3. Hearing Testimony and Interrogatory Responses

         On November 3, 2014, Plaintiff and a vocational expert (VE) testified at a hearing before the ALJ. (R. at 35-71.) Plaintiff was represented by an attorney. (R. at 35.)

         a. Plaintiff's Testimony

         Plaintiff testified that he was 52 years old and had a college degree in rehabilitation studies. (R. at 41.) He had obtained his college degree about ten or twelve years ago. (R. at 41.) He had worked as a corrections officer for about ten years, and had also worked in warehousing. (R. at 41-42.) He was laid off in 2009. (R. at 44.) When he was a corrections officer, he worked with mentally handicapped juvenile individuals; he would have to subdue individuals and break up fights at times. (R. at 42-43.) He stated the alleged onset date was March 19, 2013, because he was still having problems with his back and depression, and had previously applied for benefits, and he had not worked since then. (R. at 42.)

         Plaintiff previously had fusion surgery on his back at ¶ 5, but his back began hurting again in 2009, when he was up “at night checking the doors, ” and his hip started bothering him to where he could not walk anymore. (R. at 44.) His back pain became worse when he was doing yard work one day and fell down. (R. at 44.) The pain was in his lower back and radiated down to his right hip. (R. at 45.) He was in pain daily and it stayed the same throughout the day, but could get worse if he was too active, or walking or standing too much. (R. at 45.) The hip pain came and went with his level of activity. (R. at 45.) He was in a pain management program with Dr. Rudder, who “basically supplie[d] [him] with medication.” (R. at 45.) Walking was the only exercise he could do, and he tried to walk daily. (R. at 45-46.) He would walk a couple of neighborhood blocks, but no more due to his pain. (R. at 46.) It took him about an hour to walk two blocks. (R. at 46.) He stated that he “pretty much” always used his cane when he was “out and about” due to his hip pain; his hip would lock up if he over-strained himself. (R. at 46.) He did not use the cane when he was in his house; he only needed it when he was walking. (R. at 47.) He could stand for about 10-20 minutes before he had to sit down due to his back aching and bothering him. (R. at 47-48.) It did not bother him to sit, but he could not sit for eight hours a day. (R. at 48.) He could probably sit for eight hours a day if he were able to get up and move around to stretch before sitting back down. (Id.) He then stated he did not know what he could do. (Id.) If offered another back surgery, he would not accept it because the first surgery did not help him as much as he thought it would. (R. at 49.) He previously had spinal injections but they did not work well. (R. at 57.) He weighed about 245 pounds at the time of the hearing. (R. at 49-50.)

         Plaintiff stated that he had trouble with depression, but he did not know if it was due in part to him not being sociable with others or his mom being very ill. (R. at 50.) His pain also exacerbated his depression because he could not do as much as when he was younger. (R. at 50-51.) He was not sleeping all the way through the night because he had “restroom problems” and pain. (R. at 51.) He would become irritable and cranky and did not get along with others. (R. at 51.) He worked with others when he was younger and thought he “probably could” work with others depending on ...

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