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Edmond v. Berryhill

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

March 29, 2019




         By consent of the parties and the order of reassignment dated August 21, 2018 (doc. 23), this case has been transferred for the conduct of all further proceedings and the entry of judgment. Based on the relevant filings, evidence, and applicable law, the Commissioner's decision is REVERSED and REMANDED for further proceedings.

         I. BACKGROUND [1]

         A. Procedural History

         Raymond Earl Edmond (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner) denying his claim for supplemental security income (SSI) under Title XVI of the Social Security Act. (R. at 1, 202.) On June 6, 2014, Plaintiff filed his application for SSI, alleging disability beginning on April 23, 2010. (R. at 202.) His claim was denied initially and upon reconsideration. (R. at 43, 55.) Plaintiff requested a hearing before an administrative law judge (ALJ), and he personally appeared and testified at a hearing on April 21, 2017. (R. at 10-32.) On July 17, 2017, the ALJ issued a decision finding that he was not disabled and denying his claim for benefits. (R. at 56-72.)

         Plaintiff timely appealed the ALJ's decision to the Appeals Council. (R. at 200-01.) The Appeals Council denied his request for review on January 18, 2018, making the ALJ's decision the final decision of the Commissioner. (R. at 1-5.) 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 July 12, 1954, and was 62 years old at the time of the hearing before the ALJ. (R. at 16, 202.) He left school in the 12th grade, but did not receive a diploma. (R. at 16.) He could speak and understand English, but could not read or write. (Id.) He had past relevant work as a warehouse worker, a janitor, and a home health aide. (R. at 13.)

         2. Medical Evidence

         On July 28, 2014, licensed psychologist, Dr. Linda Ludden, Ed.D. completed a Confidential Cognitive Report based on her July 4, 2014 physical examination of Plaintiff (R. at 331-36.) Plaintiff was driven to the appointment by his mother, and she participated in the mental examination. (Id.) He had an abnormal gait and problems walking. (R. at 331.) Plaintiff reported experiencing various symptoms, including sleep issues, feelings of inadequacy, self-deprecation, inappropriate guilt, decreased attention and concentration, social withdrawal, brooding, loss of interest or pleasure in most activities, increased appetite, feelings of sadness, psychomotor agitation, and irritability. (R. at 331-32.) It was noted that those symptoms had met the criteria for severe persistent depressive disorder. (Id.)

         Plaintiff reported experiencing depressive symptoms after he stopped working seven years earlier. (R. at 332.) He applied for jobs but couldn't get hired. (Id.) He noted that his teeth were “raggedy, ” and he needed a medical checkup, but he could not go to the doctor because he lacked health insurance. (Id.) He was embarrassed that he could not work due to his inability to read. (Id.) Plaintiff's mother stated that he was promoted through school up to the eleventh grade without understanding content. (Id.) She noted that Plaintiff was illiterate and was able to compensate for his illiteracy by having his family members read and fill out necessary paperwork for him. (Id.) Plaintiff stated that modern technology “affects” him, and he did not know how to use computers. (Id.) He had one year of special education when he was in the seventh grade. (Id.)

         Plaintiff worked as a janitor at a school from 1995 to 2000, which he considered difficult because he was required to read chemicals. (R. at 332.) He also worked unloading trucks at a warehouse and at a hardware store for eight years. (Id.) He had been a caregiver for the elderly for four years. (Id.) He was polite and maintained average eye contact during the examination. (Id.) He reported doing okay with chores, but it would sometimes hurt. (Id.) He required assistance managing his daily activities, including managing his own money, reading, and filling out applications. (R. at 333). He described his ability to handle unexpected change as “fair, ” but he also would “get[] upset.” (Id.) He stated that he did not drive “because of tickets.” (Id.)

         Plaintiff reported having two friends and was able to get along well with his family. (R. at 332.) He got along “fair” with those in authority. (R. at 333). He had severe difficulty staying on task and could not read instructions. (Id.) He had never been to the doctor because he did not have medical insurance, and he had the following physical issues: a boil on his lower back; frequent bathroom use; numbness in his hands and feet; poor eyesight; and a knot-like feeling in his stomach. (R. at 333-34.) He began smoking when he was eighteen and would smoke half a pack “every once in a while.” (R. at 334.) He reported drinking “one or two beers a day, seven days a week.” (Id.) Dr. Ludden considered Plaintiff's thought process organized and noted no tangentially, looseness of association, or circumstantiality. (Id.) Plaintiff did not report any paranoia, delusions, suicidal thoughts, or homicidal ideation. (Id.) Dr. Ludden assessed his intelligence as “below average, ” his insight as “average, ” and his judgment as “satisfactory.” (R. at 335.)

         Dr. Ludden used the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV) and Wechsler Memory Scale - Third Edition (WMS-III) tests to measure Plaintiff's verbal, nonverbal, and general intelligence. (R. at 335). Plaintiff had a Full Scale IQ score of 58. (Id.) He needed the examiner to repeat each question during the oral math subtest, and to read the math problems with writing on the Wide Range Achievement Test (WRAT). (Id.) He was breathing heavily out of his mouth throughout the testing. (Id.) Dr. Ludden opined that Plaintiff's overall cognitive ability could not be easily summarized because his nonverbal reasoning abilities were much better developed than his verbal reasoning abilities. (Id.) His ability to sustain attention, concentrate, and exert mental control, was in the “extremely low range, ” and his “ability in processing simple or visual material without making errors [was] in the extremely low range when compared to his peers.” (Id.)

         Plaintiff was diagnosed with intellectual disability, severe persistent depressive disorder, and mild tobacco use disorder. (R. at 336.) His illiteracy and insufficient social insurance or welfare support was also noted as part of his diagnoses. (Id.) Dr. Ludden opined that Plaintiff's prognosis was “guarded to poor with proper treatment.” (Id.) His overall intellectual functioning was in the “moderately impaired range, ” and his academic achievement abilities were in the “mildly to moderately impaired range.” (Id.) She further opined that Plaintiff would not be able to manage benefits on his own and would need assistance to understand and file for government benefits. (Id.) On August 11, 2014, Plaintiff presented to Dr. Jelani D. Ingram, M.D., complaining of back pain. (R. at 343-347.) He reported that his back pain started in 2012, but he never sought medical treatment. (R. at 345.) He described the back pain as sharp and achy, and it would radiate to both hands. (Id.) He rated his current pain level a 7 out of 10. (Id.) He stated that his back pain did not improve with any treatment and would worsen with lying down. (Id.) It was not the reason he stopped working, however. (Id.) Plaintiff also reported experiencing numbness in both hands and feet since 2014. (Id.) It radiated bilaterally in his arms and would worsen at night, but it was not affected by any particular activity. (Id.)

         An x-ray scan of Plaintiff's cervical spine revealed small degenerative spurs (spondylosis) along the vertebral body endplates at ¶ 4-C5, C5-C6, and C6-C7, with mild degenerative face joint hypertrophy at ¶ 4-C5 and C5-C6. (R. at 339.) Plaintiff's range of joint motion was evaluated, and he displayed some limitation in his back. (R. at 343.) He was unable to perform range of motion of his hips and knees “due to obesity.” (Id.) He exhibited full range of motion with his other extremities, however. (R. at 343-44.)

         A physical examination revealed a “golf ball size[d] growth” at his right ear, edema in his knees, and tenderness to palpitation in his lumber spine. (R. at 346-47.) Dr. Ingram noted that Plaintiff was obese and appeared slightly uncomfortable at rest, including harsh breathing. (Id.) H e had a waddling gait, but there were no other abnormalities noted from his neurologic examination. (R. at 347.) His upper and lower extremity strength was rated a 5 out of 5. (Id.) Dr. Ingram assessed Plaintiff with cervical spondylosis with myelopathy, unspecified congestive heart failure, morbid obesity, abnormality of gait, and elevated blood pressure. (R. at 347.) She opined that his “current ability to do work related activities [was] limited, ” and he would be able to tolerate unlimited sitting; standing/walking for 20 minutes before taking a 10 minute break; and lifting and carrying objects no heavier than 20 pounds. (Id.) She noted “secondary to poor exercise tolerance.” (Id.) His hearing and speaking were unimpaired. (Id.)

         On July 31, 2014, Dr. Susan Posey, PsyD., completed a psychiatric review technique (PRT) form for Plaintiff. (R. at 35-37.) She opined that he had some limitations due to illiteracy and lower test scores, but his current limitations would not hinder him from all types of jobs. (R. at 35.) She noted the existence of an organic mental disorder and an affective disorder. (R. at 36.) She opined that Plaintiff had moderate difficulties in maintaining concentration, persistence, or pace, and in maintaining social functioning, but no limitations on activities of daily living. (R. at 36.) Plaintiff was “somewhat limited by symptoms, ” but the impact of those symptoms did not “wholly compromise the ability to function independently, appropriately, and effectively on a sustained basis.” (R. at 37.) She further opined that Plaintiff's “alleged severity and limiting effects from the impairments [were] not wholly supported.” (Id.)

         Dr. Posey also completed a mental residual functional capacity assessment (RFC) for Plaintiff. (R. at 39-41) In her opinion, he was markedly limited in the abilities to understand and remember detailed instructions and to carry out detailed instructions. (R. at 40.) He exhibited moderately limited abilities in maintaining attention and concentration for extended periods and in asking simple questions and requesting assistance. (R. at 40-41.) She concluded that Plaintiff had the mental RFC to understand, remember, and carry out only simple instructions; make simple decisions; attend and concentrate for extended periods; interact adequately with co-workers and supervisors; and respond appropriately to changes in routine work setting. (R. at 41.)

         On August 29, 2014, non-examining State agency physician, Karen Lee, M.D., completed a physical RFC assessment for Plaintiff. (R. at 36-39.) She assessed Plaintiff's physical impairment as a non-severe spine disorder. (R. at 36.) Dr. Lee opined that Plaintiff could: lift and/or carry up to 50 pounds occasionally and 20 pounds frequently; unlimited push and/or pull, other than shown for lift and/or carry; stand and/or walk and sit for a total of 6 hours in an 8-hour workday; occasionally climb ramps and stairs; occasionally stoop, kneel, crouch, and crawl; and never climb ladders, ropes, and scaffolds. (R. at 38-39.) The postural limitations she recommended were based on Plaintiff's morbid obesity and degenerative changes in the spine. (R. at 39.) She noted that Plaintiff had no treatment for his condition for the past year, and his physical examination showed normal range of motion and no severe neurological deficits. (Id.) Dr. Lee further opined that Plaintiff's self-reported limits were not wholly supported by the evidence on record. (Id.)

         On January 28, 2015, non-examining State agency physician, Shabnam Rehman, M.D., prepared a physical RFC assessment of Plaintiff that generally mirrored Dr. Lee's physical RFC, except that Dr. Rehman did not assess any postural limitations. (R. at 49-50.) On February 2, 2015, Dr. Mischa Scales, Ph.D., reaffirmed Dr. Posey's mental RFC. (R. at 51-53.)

         On February 19, 2016, Plaintiff presented to the emergency room (ER) at Navarro Regional Hospital complaining of confusion, general weakness, and abdominal pain. (R. at 374-455.) He rated his pain level a 5 out of 10. (R. at 380.) Physical examination of his abdomen and gastrointestinal revealed obesity and abdominal tenderness to palpitation, but no guarding or rebound. (R. at 376.) An examination of his back was negative for Costovertebral angle tenderness. (Id.) His neurology examination noted him as being oriented, but slow to respond, and appearing confused “mixed with moments of clear lucidity.” (Id.) A CT scan of Plaintiff's abdomen revealed cirrhosis and portal venous hypertension. (R. at 398.) Radiologist, Dr. William Woodard concluded that there was likely a small bowel obstruction in the region of the mid to distal small bowel. (Id.) A chest X-ray revealed the likelihood of congestive heart failure. (R. at 440.) A CT scan of Plaintiff's head revealed chronic small vessel ischemic changes. (R. at 442.)

         Ted Kovacev, M.D., also examined Plaintiff and noted that he had “very poor insight with respect to the remainder of his medical condition.” (R. at 400.) Plaintiff had not seen a doctor since he was a child . (Id.) He reported heavily drinking beer “for a long period of time, ” but denied other alcohol, tobacco, or recreational drug use. (Id.) Dr. Kovacev reported Plaintiff as being conversive, but his affect was “quite flat” and speech was “somewhat slow.” (R. at 401.) Plaintiff required frequent redirection, did not answer some questions, and required frequent repetitive questioning to obtain minimal answers. (Id.) He exhibited decreased breath sounds with poor respiratory effort bilaterally and bilateral wheezing in the lower bases. (Id.) Dr. Kovacev observed a fluid wave in Plaintiff's abdomen and pitting edema in his bilateral lower extremities, and he initially assessed him with gastroenteritis. (R. at 402.) He further noted that Plaintiff required medical management for his “multiple” undiagnosed medical problems. (Id.)

         On February 25, 2016, Plaintiff established care with Grady Shaw, M.D. (R. at 360-62.) He was accompanied by his mother, who reported that Plaintiff had been admitted to the ER because of bowel problems and “not thinking straight.” (R. at 360.) Other than his ER visit, Plaintiff had not seen a doctor since he was a child. (Id.) Plaintiff complained of decreased appetite, diminished activity, coughing, hypertension, shortness of breath, swelling in his extremities, change in bowel habits, constipation, and headaches. (Id.) He weighed 256 pounds, and his blood pressure was 130/72. (R. at 361). He had decreased breath sounds and pitting edema in his lower extremities. (Id.) His gait and coordination was noted as being normal. (Id.)

         On March 17, 2016, Plaintiff returned to Dr. Shaw for a followup. (R. at 357-39.) Plaintiff reported “doing alright, ” but was having difficulty sleeping at night. (R. at 357.) He also reported decreased appetite, diminished activity, coughing, hypertension, shortness of breath, swelling, headaches, and a change in his sleep patterns. (R. at 358.) Dr. Shaw noted improvements with Plaintiff's appetite and shortness of breath. (Id.) Plaintiff weighed 252 pounds and his blood pressure was 134/70. (Id.) Plaintiff's was obese, and his gait and coordination were normal. (R. at 359.) Dr. Shaw reported that a prior CT scan revealed liver cirrhosis, and he prescribed Plaintiff Spironolactone and Metoprolol. (Id.)

         On April 15, 2016, Plaintiff saw Dr. Shaw for a follow-up regarding his hypertension, and was accompanied by his mother. (R. at 354-56.) He stated: “I don't know why I am here. I just had an appointment. My back hurts. I'm sore in the legs too.” (Id.) Plaintiff was coughing, and complained of back pain, myalgia, extremity pain, dizziness, headaches, tingling and numbness in his hands, and difficulty sleeping. (R. at 355). Plaintiff weighed 270 pounds, and his blood pressure was 122/70. (Id.) He rated his pain level a 4 out of 10. (Id.) Dr. Shaw observed non-pitting edema in his lower extremity. (R. at 356.) His gait and coordination were normal. (Id.)

         On May 23, 2016, Plaintiff presented to Providence Health Center for an upper abdomen ultrasound examination. (R. at 371.) The sonogram revealed a 4.2 cm calculus in the proximal left ureter causing moderate left hydronephrosis and bilateral renal calculi. (Id.) It was otherwise noted as being within normal limits. (Id.)

         On June 7, 2016, Plaintiff presented to Dr. Shaw complaining of kidney stones, hypertension, shortness of breath, and swelling in his extremities. (R. at 350-351.) He was accompanied by his mother, who stated that an ultrasound of Plaintiff's liver and kidneys showed “a stone in each kidney.” (R. at 350.) He continued experiencing symptoms of headaches, dizziness, and numbness in his feet and hands. (R. at 350-51.) He weighed 274 pounds, and his blood pressure was 120/78. (R. at 351). Dr. Shaw observed tenderness in the right upper quadrant of his abdomen. (Id.) His gait and coordination were normal. (R. at 352.)

         3. Hearing Testimony

         On April 21, 2017, Plaintiff and a vocational expert (VE) testified at a hearing before the ALJ. (R. at 10-32.) Plaintiff was represented by an attorney. (R. at 12.)

         a. ...

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