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Scott v. Berryhill

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

February 28, 2019

EDWIN T. SCOTT, JR., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO AFFIRM THE DECISION OF THE COMMISSIONER

          LEE ANN RENO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 affirmed.

         I. BACKGROUND

         A. Procedural History

         Scott 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.

         B. Factual History

         1. Age, Education, and Work Experience

         Scott 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).

         2. Medical Evidence

         a. 2008 and 2009

          From 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).

         From 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. (Id.).

         b. 2010

         On 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).

         From 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. (Tr. 996).

         On 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. 1302).

         On 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).

         On 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).

         c. 2011 and 2012

         From 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).

         On 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. (Id.).

         On 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).

         On 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.).

         On May 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).

         On June 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. 937-38).

         On 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. 770).

         d. 2013

         On 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).

         On 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. (Id.).

         On May 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).

         On June 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.).

         On July 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. (Id.).

         On July 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).

         On July 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).

         On 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).

         e. 2014

         On 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 cystitis. (Id.).

         On 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).

         On April 10, 2014 Scott presented to GPCH ER and was diagnosed with heel spurs based on the x-rays taken. (Tr. 1369, 1374).

         On May 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. 1652).

         On June 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.).

         On July 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).

         On 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).

         On 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).

         On 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).

         On 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).

         On 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 ...


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