Ealy v. Commissioner of Social Sec.

• Decision Date: 05 February 2010
• Docket Number: No. 09-5451.,09-5451.
• Citation: 594 F.3d 504
• Parties: Jimmy Dearl EALY, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

594 F.3d 504

Jimmy Dearl EALY, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 09-5451.

United States Court of Appeals, Sixth Circuit.

Submitted: January 12, 2010.

Decided and Filed: February 5, 2010.

ON BRIEF:

Julie Atkins, Atkins Law Office, Harlan, Kentucky, for Appellant. Robert E. Hodum, Jr., Holly A. Grimes, Brian C. Huberty, Mary Ann Sloan, Dennis R. Williams, Social Security Administration, Office of the General Counsel, Atlanta, Georgia, John S. Osborn III, Assistant United States Attorney, Lexington, Kentucky, for Appellee.

Before: MARTIN and WHITE, Circuit Judges; ZOUHARY, District Judge.^*

OPINION

HELENE N. WHITE, Circuit Judge.

Plaintiff-Appellant Jimmy Ealy appeals from the district court order affirming the decision of the Commissioner of Social Security denying Ealy's claim for disability insurance benefits under 42 U.S.C §§ 416(i), 423(d). We reverse the judgment of the district court with instructions to remand the case to determine whether jobs exist consistent with Ealy's mental limitations.

I. BACKGROUND

A. Factual Background

1. Medical Records—Physical

In January 2006, Ealy claimed disability for the period beginning December 2, 2005, based on seizures, heart trouble, sleep apnea, restless leg syndrome, trouble with memory, high blood pressure, and gout. Ealy had worked as a spray line operator and coiler when he had a stroke in October 2002. A.R. at 176, 184. He returned to work with restrictions that he not climb, operate equipment, or be around heavy equipment. Also, before December 2005, Ealy was diagnosed with obstructive sleep apnea and restless leg syndrome and was prescribed medication for swelling in his right ankle.

On December 2, 2005, Ealy went to the hospital complaining of loss of consciousness. While in the hospital, he had episodes of slurred speech and spells during which he stared blankly and was unable to speak. A.R. at 270. He was transferred to a different hospital to receive a higher level of care, eventually diagnosed with "new-onset seizure" and "focal motor seizure," and given antiepileptic medication. A.R. at 271, 279. The discharge notes on the doctor's report stated that Ealy was not to work or drive for a month, at which point he could be reevaluated. A.R. at 280.

Ealy sought treatment from Dr. Gregory Wheatley, a neurologist, from January through August of 2006. Ealy was instructed in January 2006 not to drive for six months, not to swim or climb ladders, and to remain off work "because of the type of work that he has described and [the need] to investigate other options." A.R. at 357. By February 2006, Dr. Wheatley noted that Ealy "relates no definite episodes of any alterations in awareness" A.R. at 355. Dr. Wheatley also noted that Ealy "will need to remain on anticonvulsants for the indefinite future. The main concern presently is the choice of anticonvulsants." Id. Dr. Wheatley saw Ealy again in March 2006 and noted that Ealy had not had recurrent seizures. About Ealy's job, Dr. Wheatley wrote, "[h]e has not been able to return to work as he does do a heavy, potentially hazardous job. He will be under restriction from this for six months from his last seizure." A.R. at 354. When Ealy saw Dr. Wheatley in May 2006, the doctor noted that Ealy "relates no convulsive events since I last saw him but he has had some brief episodes in which he believes he may have some brief alteration in his awareness, or some symptoms suggestive of partial seizure." Dr. Wheatley increased Ealy's dosage of Trileptal and noted, "I am not sure if these lesser symptoms are related to any brief partial seizure activity or not. He seems to have done fairly well otherwise. He does have the residual deficits from his remote left hemorrhage. He remains off work and I think that he is going to likely be chronically disabled from employment." A.R. at 353. Ealy followed up with Dr. Wheatley in August 2006. Ealy reported and his wife confirmed that he had not had any seizures. A.R. at 545. Dr. Wheatley wrote that "Ealy has remained stable from a neurologic standpoint. He is tolerating the Trileptal and his seizure control is good." A.R. at 545. Dr. Wheatley concluded that he did not need any other studies, that Ealy would follow up with another doctor locally, and that he would be happy to see Ealy if any future seizure problems arose.

Meanwhile, in February and May of 2006, Ealy had visited his treating physician, Dr. Rhonda Sivley, complaining of (among other things) shortness of breath. Dr. Sivley suspected deconditioning and noted in February that the "plan" was for Ealy to increase his exercise and lose weight. A.R. at 371. In May, Sivley noted the need for Ealy to exercise and lose weight, and also noted that he might benefit from a pulmonary function test. A.R. at 376. In May, Ealy underwent a cardiolite stress test that yielded "borderline" results "with a very minimally reversible apical defect" which may have "represented a very small region of ischemia but the myocardium at risk would be felt to be quite small." A.R. at 393. Ealy exhibited "normal ventricular function" and showed a "[m]ild exercise intolerance for the patient's age, sex, and physical condition." A.R. at 392-93.

Dr. Sivley referred Ealy to Dr. Barry Michelson for evaluation of Ealy's chest pain and shortness of breath. A.R. at 474. In May 2006, Dr. Michelson recommended that Ealy undergo a cardiac catheterization in order to obtain a definitive diagnosis. A.R. at 475. In June 2006, Ealy underwent a heart catheterization and stent placement. A.R. at 441-42. Dr. Michelson noted "single-vessel coronary disease" and "successful deployment of ... stent." A.R. at 442. Upon Ealy's June 10th discharge, Dr. Michelson indicated that he could return to work on June 12th, but that he should not lift greater than ten pounds for a one-week period. A.R. at 444.

In July 2006, Ealy followed up with Dr. Michelson for his coronary artery disease. According to Dr. Michelson's notes, Ealy did not have chest pain, but he did have "breathing problems with activity." A.R. at 472. Dr. Michelson also noted that Ealy "does complain of smothering, but is morbidly obese." Id. Dr. Michelson reviewed with Ealy the importance of regular exercise and weight reduction and planned a follow-up visit in six months.

During his February 2007 visit to Dr. Michelson, Ealy reported increasing shortness of breath with activity and a hot sensation in his upper chest and face. A.R. at 527. Ealy again underwent a stress test, and in March 2007, Dr. Michelson conducted a "left heart catheterization." A.R. 512. Dr. Michelson noted "small vessel disease distal posterior descending artery (left dominant system)," but "normal left ventricular function," and concluded "[b]ecause of the small vessel size, medical management has been recommended. We will add a beta blocker to his therapeutic regimen." A.R. at 513. Ealy was again instructed to avoid lifting more than ten pounds for a one-week period.

Ealy followed up with Dr. Michelson in April 2007. Although Ealy did not have chest pain, he did complain of smothering. A.R. at 525. Dr. Michelson noted that Ealy's "left ventricular function is normal by catheterization. I do not feel that this is the etiology of his shortness of breath. I have therefore recommended, given his smoking history, that [pulmonary function tests] be performed." A.R. at 525. In the "recommendations" portion of his report, Dr. Michelson wrote that he "did discuss with [Ealy] the importance of weight reduction. I believe that this and regular exercise may help his dyspnea [(shortness of breath)] as well." A.R. at 526.

In a May 2007 pulmonary function study, Ealy showed a moderate lung restriction. A.R. at 544. In his May 2007 medical appointment, Ealy complained of shortness of breath. The advanced registered nurse practitioner who treated Ealy assessed hypertension, sleep apnea, and seizure disorder, and recommended additional labs, including bloodwork, but did not indicate that Ealy had any physical or work-related restrictions. A.R. at 534.

2. Non-Examiner Reviews

In March 2006, Stacy Justice, a medical consultant for the state agency, reviewed the available medical evidence and completed a residual functional capacity ("RFC") assessment. Justice concluded that Ealy had no exertional limitations, but he could not drive or operate dangerous machinery, or climb ladders, ropes, or scaffolds. A.R. at 338-45. This RFC was completed before Ealy underwent his first stress test and catheterization. In September 2006, Dr. Carlos Hernandez, also a state agency medical consultant, reviewed the available medical evidence and affirmed Justice's prior RFC. Dr. Hernandez noted, "[n]ew [medical evidence of record] does not appear to change initial RFC dated 3/30/06." A.R. at 495. In the time period between the dates of the Justice RFC and the Hernandez RFC, Dr. Wheatley had seen Ealy two additional times and Dr. Michelson had performed the first heart catheterization and stent insertion.

3. Medical Records—Mental

The state agency referred Ealy to a psychologist, Jeanne M. Bennett, Psy.D., who performed a consultative examination on March 11, 2006. Dr. Bennett observed that Ealy's attention and concentration were intact, his thoughts were organized in a logical and goal-oriented manner, and his thought content was appropriate to mood and circumstances. Dr. Bennett characterized Ealy's recall for recent events as "spotty" and found his global intellectual functioning to be in the borderline range. Dr. Bennett noted that Ealy avoided eye contact and had a depressed affect. Ealy stated that he had "[a] little depression," and Dr. Bennett wrote that "[h]e appeared very depressed to the examiner as tears roll silently down his cheeks during the assessment." A.R. at 317. Relating to stress, Dr. Bennett wrote, "[w]hen asked about stressors, he replied that he was stressed by his illness. He has also been...