United States District Court, N.D. Texas, Amarillo Division
EDWIN T. SCOTT, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO AFFIRM
THE DECISION OF THE COMMISSIONER
ANN RENO UNITED STATES MAGISTRATE JUDGE.
Edwin T. Scott, Jr. (“Scott”) brings this cause
of action under 42 U.S.C. § 405(g) seeking review of a
final decision of Defendant Nancy A. Berryhill, Acting
Commissioner of Social Security (“Commissioner”),
denying Scott's application for disability insurance
benefits and supplemental security income
(“benefits”). The undersigned United States
Magistrate Judge recommends the Commissioner's decision
finding Scott not disabled and not entitled to benefits be
seeks judicial review of the final decision of denial of
benefits. [ECF 1 at 2]. Scott applied for benefits on March
12, 2013 claiming he has been unable to work since September
12, 2009 due to the following conditions: neuropathy,
clubfoot, plantar fasciitis, bilateral knee pain, bilateral
carpal tunnel syndrome, cervical spine pain, hearing loss,
anxiety, a personality disorder, and posttraumatic stress
disorder. (Tr. 71-72, 415-16). On April 23, 2015 the ALJ
denied Scott's claims [ECF 1 at 2]; however, on August 9,
2016 the Appeals Council vacated the ALJ's decision and
remanded the case for rehearing. (Id.). On January
19, 2017 the ALJ held the post-remand hearing and, on May 2,
2017, again denied benefits. (Id.). The Appeals
Council denied Scott's second request for review, and the
ALJ's second decision became the final administrative
decision. (Id.). Scott timely appealed.
Age, Education, and Work Experience
was born January 31, 1971 and was almost 46 years old at the
time of the January 19, 2017 hearing. (Tr. 192). He attended
school through the 11th grade and received his GED in 1990.
(Tr. 193, 518). He attended law enforcement training and
received a Bachelor of Science degree in criminal justice.
(Tr. 194). Scott has past relevant work (“PRW”)
as an armored car guard and driver (2001- 05), military
police officer, guard (1994-99), non-military police officer,
convenience store clerk (2005-07), and communications
equipment technician (2003-07). (Tr. 211-12, 465, 519).
2008 and 2009
December 9, 2008 to August 8, 2009, an eight-month period,
Scott presented to Dr. Sicher, a podiatrist, at least seven
times with complaints of pain and tenderness in his toes,
arches, and heels. (Tr. 891, 895, 841, 840, 839, 838, 956).
Dr. Sicher diagnosed Scott with plantar fasciitis due to arch
instability (Tr. 891), hallux limitus of both feet (Tr. 895),
and tendonitis (Tr. 841). Dr. Sicher treated Scott with
injections in his toes for pain (Tr. 895, 839), topical gel
(Tr. 893), shoe inserts (Tr. 893), and a night splint for his
right foot (Tr. 895). Physical therapy (“PT”) for
four to six weeks was also prescribed. (Tr. 841). For about a
two-week period in early April 2009, Scott attended five PT
sessions. (Tr. 699, 701-04). Scott tolerated the exercises
well according to treatment notes, but stated the relief
lasted only a few hours after the sessions. (Tr. 701-04). The
treatment notes show Scott was performing physical tasks at
home, such as climbing up and down a ladder many times and
digging and lifting while trying to fix a leak. (Tr. 701,
704). PT notes from August 2009 show Scott did not return
after his April 17th session. (Tr. 705). On August 8, 2009
Dr. Sicher ultimately advised Scott he would need surgery on
his left foot to remodel the dorsal aspect of the head of the
toe. (Tr. 838, 956).
mid-August to mid-September 2009, Scott presented to Dr.
Siemens at Concentra Urgent Care four times for a work-place
injury that occurred when he was detaining a shoplifting
suspect. (Tr. 715, 722, 720, 717). On August 16, 2009, the
date of injury, Dr. Siemens diagnosed Scott with a lumbar
strain and prescribed PT for two weeks. (Tr. 709). On August
24, 2009 Scott reported that his pain level was at 10/10, he
had shooting pain in both legs and his left knee, severe pain
in his lower back, and that moving exacerbated the pain. (Tr.
772). Scott stated he took Vicodin he was prescribed
previously for a toothache to alleviate the pain.
(Id.). Dr. Siemens' gross exams of Scott's
lumbar spine and left knee were normal, and Scott
demonstrated a “normal gait with no evidence of
limp.” (Id.). Dr. Siemens ordered an MRI on
Scott's back, thigh, and left knee and diagnosed him with
lumbar radiculopathy and strain, thigh sprain, and knee
strain. (Tr. 724). On August 28, 2009 Scott followed up with
Dr. Siemens and stated he ran out of his medications, the
pain had not improved, and he had difficulty performing his
job even with the restrictions. (Tr. 720). Dr. Siemens noted
Scott walked with “an antalgic and halting gait.”
(Id.). On September 4, 2009 Scott again followed up
and reported no improvement and continued difficulty
performing his job, but had not been to PT in the past week
as prescribed. (Tr. 717). Dr. Siemens noted the lumbar spine
and left knee were normal on gross exam, but that Scott
walked with a halting and antalgic gait. (Tr. 717-18). Dr.
Siemens recommended Scott continue PT. (Id.). A
September 14, 2009 note from the physical therapist stated PT
would benefit Scott and help decrease pain in his lower back
and that he had tolerated treatment well up to that point.
(Tr. 710, 712). On September 15th Scott followed up with Dr.
Siemens and reported continued difficulty performing his job
with restrictions and severe pain. (Tr. 715). Dr. Siemens
described Scott's gait as antalgic, diagnosed him with
chondromalacia of the knee and lumbar radiculopathy, strain,
and disc herniation. (Tr. 716). Scott was advised to continue
the treatment plan and return to the clinic as needed.
January 26, 2010 Dr. Burgesser examined Scott at the
Commissioner's request and diagnosed him with loss of
lumbar lordosis based on spinal x-rays but observed normal
disc spaces and no other issues. (Tr. 1139, 1141).
February 8th to June 16, 2010 Scott presented to his primary
care provider, Nurse Practitioner Wanda Clark (“NP
Clark”), five times for various issues, including
rashes, depression, back pain, requests to fill out
disability forms, requests for pain medications, requests for
referrals to a neurologist, headaches, and numbness. (Tr.
951, 970, 981, 994). At a March 29, 2010 examination, NP
Clark referred Scott to Dr. Sudhakar, a neurologist. (Tr.
993). On June 16th Scott requested a hydrocodone prescription
from NP Clark and stated he was taking more Ultram/Tramadol
than prescribed. (Tr. 994). Scott was advised to take his
medication as prescribed and to lose weight and exercise.
October 4, 2010 Scott presented to Dr. Sudhakar complaining
of low back pain. (Tr. 1292). A cranial nerve exam, motor
system exam, and sensory testing showed only mild decrease of
pinprick sensation in his lower limbs. (Id.). Dr.
Sudhakar relied on a 2009 MRI of Scott's lumbar spine to
conclude there was disc lesion at ¶ 12/L1 and stenosis
at ¶ 5/S1. (Tr. 1293). An MRI of his left knee showed
chondromalacia of the patella. (Id.). Dr. Sudhakar
reported Scott had low back pain, diffuse axonal type of
sensory and motor polyneuropathy, major depression,
polyarthritis, and chronic pain syndrome. (Id.). Dr.
Sudhakar prescribed hydrocodone and Neurontin.
(Id.). An October 8, 2010 MRI of Scott's brain
showed no abnormalities. (Tr. 1295). On October 22nd Dr.
Sudhakar prescribed a temporary disability placard. (Tr.
October 23, 2010 Scott presented to the Golden Plains
Community Hospital Emergency Room (“GPCH ER”)
following a fall that injured his back and left pinky toe.
(Tr. 1350-51). Scott was diagnosed with a low back strain and
fracture of his toe after x-rays. (Tr. 1353-55). His toes
were taped, and he was given prescriptions for Lortab and
Flexeril and discharged. (Tr. 1354).
December 1, 2010 Scott presented to NP Clark with multiple
complaints and requests, including pain and falling, a
referral to a podiatrist that accepts Medicaid, and tooth
pain. (Tr. 997). NP Clark noted Scott walked with a cane due
to unsteady gait and balance. (Tr. 999). Scott was advised to
exercise regularly and lose weight. (Tr. 1000). Scott also
presented to Dr. Sudhakar complaining of low back pain,
tingling, and problems with his feet, with treatment notes
showing Scott exhibited difficulty walking. (Tr. 941).
Sensory study responses showed deficits, motor study
responses showed peroneal motor distal latencies, and a
needle EMG study showed an early axonal type of sensory motor
neuropathy. (Id.). Dr. Sudhakar's notes also
showed radiculopathy at ¶ 5/S1 of a chronic nature.
(Id.). On December 13, 2010 Dr. Sudhakar prescribed
Scott a “walking cane for balance.” (Tr. 1313).
On December 22, 2010 a podiatrist at the Amarillo Foot Clinic
requested a handicapped placard for Scott. (Tr. 862).
2011 and 2012
February to August 2011, Scott presented to NP Clark three
times complaining of various issues, including lack of sleep,
chest congestions, swelling in his feet, difficulty
swallowing, lower back pain, and requests for refills on all
medication before Scott's Medicaid benefits terminated.
(Tr. 1002-03, 1007, 1019). Treatment notes from August 29,
2011 reflect Scott exhibited an abnormal gait and walked with
a cane. (Tr. 1020). A swallow study done at BSA on June 7,
2011 showed normal results and stated the “findings did
not support [patient's] complaints.” (Tr. 1016-17).
December 7, 2011 Scott presented to NP Clark complaining of
acid reflux, as well as chronic back pain, foot pain, and
foot numbness. (Id.). NP Clark noted mild lordosis,
gait abnormality, and that Scott was using a cane; she
directed him to continue his current medications, lose
weight, and exercise. (Tr. 1024-25). On March 6, 2012 Scott
presented to NP Clark to obtain clearance for a dental
procedure due to his high blood pressure. (Tr. 1026). Scott
complained of chronic headaches and stated he lost his
Medicaid and could not afford to see his specialists anymore,
including his neurologist, Dr. Sudhakar. (Id.). NP
Clark advised he should continue to see the neurologist if he
still needs Hydrocodone. (Id.). NP Clark noted
musculoskeletal degenerative changes and gait abnormality.
(Tr. 1027-28). She also noted the following:
Pt. appears to be a hypochondriac. He doesn't smile, he
doesn't laugh. He talks in a monotone voice. Can only
talk about the bad things in his life, there isn't
anything good. He appears to have educated himself well on
all medical terminology and uses this terminology when
describing his symptoms and pain, as well as self-diagnosing.
(Tr. 1028). Scott was prescribed medication to lower his
blood pressure and advised to lose weight and exercise.
March 29, 2012 Scott presented to the GPCH ER at 10:58 AM
with complaints of chest pain, nose bleeds, and difficulty
swallowing. (Tr. 764). He reported his pain level was a 9/10.
(Id.). Scott was given prescriptions and discharged
at 12:27 PM. (Tr. 765). Scott presented to NP Clark around
2:48 PM the same day with complaints of nose bleeds for four
days and a sore throat for three weeks. (Tr. 1030). His pain
level was a 0/10. (Id.). He also complained of
fatigue, frequently waking up gasping for air, and shortness
of breath with exertion. (Tr. 1030-31). NP Clark prescribed a
z-pak and nasal spray for sinusitis, as well as medication to
assist with the shortness of breath, and ordered a chest
x-ray. (Tr. 1032). Scott was advised to monitor his blood
pressure, lose weight, and exercise. (Tr. 1033).
April 10, 2012 Dr. Sudhakar completed a Supplemental
Attending Physician Statement noting Scott's diagnoses
were lumbago and radiculopathy at ¶ 5. (Tr. 1310). Dr.
Sudhakar noted Scott walks with a cane and opined Scott
cannot sit or stand for more than 30 minutes at a time and
should avoid lifting, pulling, and pushing. (Id.).
Dr. Sudhakar stated it was “unknown” whether
Scott could work without restriction. (Id.).
1, 2012 Scott presented to NP Clark to again obtain clearance
for a dental procedure due to his blood pressure. (Tr. 1034).
Scott was cleared for the dental procedure and advised to
lose weight and exercise. (Tr. 1035).
7, 2012 Scott presented to Dr. Sudhakar with complaints of
low back pain and foot pain. (Tr. 934). Treatment notes state
Scott was in good general health, had a normal gait, and
normal muscle strength and tone, but also had abnormal mild
weakness in hip flexion on his right side, dizziness,
headaches, and numbness in his feet. (Tr. 934-37). Sudhakar
also noted decreased sensation with pin prick in Scott's
lower limbs. (Id.). Dr. Sudhakar's diagnoses
were lumbago and diffuse axonal sensory motor polyneuropathy,
for which he scheduled a follow-up exam in six months. (Tr.
September 20, 2012 Scott presented to NP Clark with
complaints of headaches and back pain. (Tr. 1037). Scott
reported his pain level was an 8/10 in his back and had been
for years. (Id.). Treatment notes indicate Scott
walked with a cane because of his back pain and abnormal gait
and appeared depressed due to his continual “focus on
all of his disabilities” that he “can't seem
to see past.” (Tr. 1038). Scott was screened for
diabetes, scheduled for a complete metabolic and lipid panel,
and directed to lose weight and exercise. (Tr. 1038-39). On
November 11, 2012 an x-ray of Scott's right knee showed
minimal degenerative changes and no acute or significant
chronic bony abnormality. (Tr. 769). On November 19, 2012 an
MRI of Scott's right knee showed normal results. (Tr.
February 11, 2013 Scott presented to Dr. Sudhakar with
complaints of pins and needles in his feet and low back pain.
(Tr. 929). Treatment notes indicated Scott was in good
general health, despite reports of dizziness, headaches,
numbness, arthralgia, myalgia, excess weight, and weakness in
his lower limbs. (Tr. 929-30). His motor tone and power,
gait, and muscle strength and tone were all normal. (Tr.
932). He reported using a cane to get around, difficulty
getting in and out of a car, constant neck pain, and falling
three months ago because of right knee pain, resulting in a
trip to the emergency room. (Tr. 929).
March 4, 2013 Scott presented to NP Clark with complaints of
neuropathy-type pain, headaches, and fatigue. (Tr. 1045-46).
He reported his back-pain level was a 6/10. (Tr. 1045).
According to Scott, he had been denied disability benefits
and was being forced to find a job, but Dr. Sudhakar would
not release him for work. (Tr. 1046). Scott requested his
testosterone levels be checked. (Tr. 1047). NP Clark noted
hypothesia and a gait abnormality, discussed the importance
of following a weight reduction diet and a routine exercise
program, and prescribed blood pressure medication.
24, 2013 Scott underwent a mental status examination with Dr.
Gradel who noted Scott's posture and gait were normal.
(Tr. 1075). Dr. Gradel diagnosed Scott with dysthymic
disorder with atypical features, pain disorder due to medical
condition and the associated psychological factors, and
anxiety disorder: PTSD type. (Tr. 1078).
11, 2013 Dr. Burgesser examined Scott for the second time and
diagnosed him with probable spondylosis at ¶ 5, but no
acute bony abnormality, based on the lumbar spine x-ray taken
that day. (Tr. 1083). She further concluded Scott had a
hallux valgus deformity on his left foot based on the x-ray
taken that day. (Tr. 1084). Dr. Burgesser's treatment
notes state Scott reports pain in his mid and lower back, and
pain with straight leg raising, but that he can bend over and
touch his toes. (Tr. 1086). She noted Scott walked with a
cane but had a normal gait, could sit, stand, move about,
lift carry and handle objects, reach, handle, and
finger-feel, but could not heel-toe walk, hop, or squat.
(Id.) Dr. Burgesser found Scott showed no fatigue or
shortness of breath during the exam. (Id.).
2, 2013 Dr. Sudhakar completed another Supplemental Attending
Physician's Statement opining Scott cannot walk or sit
for more than half an hour due to pain and cannot do
sustained physical activity. (Tr. 1312). Dr. Sudhakar noted
his objective medical findings to be decreased movement of
the lumbar spine due to lumbago, diffuse axonal sensory motor
polyneuropathy, and radiculopathy at ¶ 5.
11, 2013 Scott presented to Dr. Sudhakar with complaints of
low back pain, pain in his lower limbs, and burning feet.
(Tr. 1090). Treatment notes state Scott was not in good
general health, reported fatigue, double vision, sinusitis,
headaches, numbness, shortness of breath, coughing, wheezing,
arthralgia, myalgia, and presented with excess weight. (Tr.
1090-92). His motor tone and power were normal, as well as
his gait and muscle strength and tone. (Tr. 1093).
19, 2013 Scott presented to GPCH ER with a chief complaint of
back pain that started when he was pulling up carpet at his
home. (Tr. 1101-02). Scott reported he had been disabled for
the past four years. (Id.). A lumbar spine x-ray
showed minimal degenerative changes. Scott was diagnosed with
a low back strain, given a prescription for Flexeril, and
discharged. (Tr. 1104).
September 9, 2013 Scott presented to NP Clark to follow up on
hypertension, chronic back pain, and allergies. (Tr. 1128).
His blood pressure was 145/90, he reported back pain as an
8/10, and indicated he still experienced chronic headaches.
(Id.). Scott again reported he had been denied
disability benefits multiple times and had started walking
and eating healthier as a result, which lead to a
twelve-pound weight loss. (Tr. 1129). NP Clark noted he
walked with a cane and had an abnormal gait due to his back.
(Tr. 1130). She treated him for hypertension and chronic pain
syndrome and ordered a complete metabolic panel, lipid panel,
and diabetes screen. (Tr. 1130-31).
February 19, 2014 Scott presented to Dr. Sudhakar with
complaints of low back pain and difficulty walking. (Tr.
1331). Treatment notes indicate Scott reported low back pain,
sleep apnea, headaches, a limited exercise tolerance,
fatigue, blurred vision, numbness, weakness, arthralgia,
myalgia, and exhibited excess weight but had good general
health. (Tr. 1331-33). His motor tone and power were normal,
and his gait and muscle strength and tone were normal. (Tr.
1334). Dr. Sudhakar's treatment notes indicate diagnoses
for lumbago, diffuse axonal sensory motor polyneuropathy,
carpal tunnel syndrome, depression, chronic migraines, and
March 5, 2014 Scott presented to NP Clark complaining of
various issues. (Tr. 1343). Scott stated he was applying for
disability and needed NP Clark to let him know what was wrong
with him. (Tr. 1344). He reported he could not stand for any
period of time due to pain in his feet and that he was
depressed but did not want medication for the depression
because he would be unable to sell guns. (Id.). He
complained of chronic fatigue and reported he had no energy.
(Id.). Scott indicated he was not exercising and had
gained six pounds. (Id.). NP Clark noted Scott
exhibited weakness and an abnormal gait (Tr. 1346), and
advised him regarding his diet and to lose weight and
exercise. (Tr. 1347).
April 10, 2014 Scott presented to GPCH ER and was diagnosed
with heel spurs based on the x-rays taken. (Tr. 1369, 1374).
13, 2014 Scott presented to Nurse Practitioner Dean Cates
(“NP Cates”) complaining of cold symptoms, left
foot pain, sinuses, and hypertension. (Tr. 1655). Scott was
treated for plantar fasciitis and acute sinusitis. (Tr.
1656). Scott followed up with NP Cates on May 27th
complaining of continued pain in his left foot. (Tr. 1651).
His medication was refilled, and he was advised to continue
stretching exercises due to his plantar fasciitis. (Tr.
18, 2014 Scott presented to Dr. Sudhakar with complaints of
low back pain at a level of 9/10, headaches, left foot pain,
numbness and burning in his feet, and sleep apnea. (Tr.
1385). Treatment notes state he was in good general health,
but had fatigue, numbness, myalgia, and excess weight. (Tr.
1385-87). Scott's motor tone and power were normal, and
his gait and muscle tone were normal, with mild weakness in
lower limbs. (Tr. 1388). Dr. Sudhakar's treatment notes
indicate diagnoses for lumbago, diffuse axonal sensory motor
polyneuropathy, carpal tunnel syndrome, depression, chronic
migraines, sleep apnea, and obesity. (Id.).
30, 2014 Scott presented to GPCH ER with complaints of chest
pain. (Tr. 1390). His blood pressure was 136/68, and the EKG
results were normal. (Tr. 1390, 1393). Scott was advised to
follow up with a cardiologist and discharged. (Tr. 1393-94).
The next day on July 31st, Scott saw NP Cates to follow up on
continued chest pain and requested a sleep apnea study. (Tr.
1648). Treatment notes indicate his blood pressure was 116/54
and his range of motion, muscle strength, and stability in
his extremities were normal. (Tr. 1649).
August 4, 2014 Scott presented to Dr. Nambiar, a
cardiologist, with complaints of chest pain, left arm
numbness, and sleep apnea. (Tr. 1404). Dr. Nambiar noted that
Scott walked with a cane and had an unsteady gait. (Tr.
1406). Dr. Nambiar recommended tests to evaluate complaints
of chest pain and left ventricular valvular function. (Tr.
1407). An August 12, 2014 Lexiscan stress myocardial
perfusion test showed mildly decreased ventricular ejection
fraction on the left ventricular valve of 48%. (Tr. 1443).
September 23, 2014 Scott presented to NP Clark with
complaints of all over pain at a level of 9/10. (Tr. 1520).
NP Clark noted a gait abnormality and that Scott walked with
a cane. (Tr. 1523). Scott's medications were adjusted; he
was scheduled for a complete metabolic and lipid panel and
diabetes screening and was also advised to lose weight and
exercise. (Tr. 1523-24).
September 25, 2014 Scott was treated for a stumped left pinky
toe at GPCH ER. (Tr. 1444). An x-ray of the toe showed normal
results. (Tr. 1447). The toe was wrapped and put in a
post-operative boot, and Scott was discharged with a referral
to Dr. Landers, an orthopedic surgeon. (Tr. 1446). On October
1, 2014 Scott presented to Dr. Landers and reported continued
pain in his toe. (Tr. 1452). Dr. Landers diagnosed him with a
contusion of the left pinky toe and advised Scott to continue
conservative care. (Tr. 1454).
October 2, 2014 Scott followed up with cardiologist Nambiar,
reporting off and on chest pain. (Tr. 1414). Treatment notes
state Scott's gait, strength, and posture were normal.
(Tr. 1416). Dr. Nambiar advised Scott to continue his
medication, follow a weight reduction plan, and increase his
activity levels. (Tr. 1417).
November 18, 2014 Scott presented to NP Cates with complaints
of nose bleeds and sinus symptoms. (Tr. 1474). NP Cates noted
Scott's range of motion, muscle strength, and stability
in extremities were normal. (Tr. 1476). On November 21, 2014
Scott presented to NP Cates with complaints of problems with
his teeth. (Tr. 1478). NP Cates again noted ...