Sisco v. Berryhill

• Decision Date: 13 June 2017
• Docket Number: No. 2:14-cv-00088,2:14-cv-00088
• Parties: CHARLES MICHAEL SISCO, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

CHARLES MICHAEL SISCO, Plaintiff, v. NANCY BERRYHILL,¹ Acting Commissioner of Social Security, Defendant.

No. 2:14-cv-00088

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NORTHEASTERN DIVISION

June 13, 2017

Judge Trauger

MEMORANDUM

Pending before the court is the plaintiff's Motion for Judgment on the Administrative Record (Docket Entry No. 15), to which the defendant Commissioner of Social Security ("Commissioner") filed a response (Docket Entry No. 17). Upon consideration of the parties' filings and the transcript of the administrative record (Docket Entry No. 11),² and for the reasons given herein, the court finds that the plaintiff's motion for judgment be DENIED and that the decision of the Commissioner be AFFIRMED.

I. INTRODUCTION

The plaintiff, Charles Michael Sisco, filed an application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act on June 22, 2011, alleging disability onset as of July 31, 2009, due to diabetes, back and neck problems, high blood pressure, and high cholesterol. (Tr. 92, 196, 203, 261.) The plaintiff's claims were denied at the initial level on September 16, 2011,and on reconsideration on December 9, 2011. (Tr. 148-150, 154-57.) The plaintiff subsequently requested de novo review of his case by an administrative law judge ("ALJ"). (Tr. 140-41, 147.) The ALJ heard the case on April 1, 2013, when the plaintiff appeared with counsel and gave testimony. (Tr. 92, 106-137.) At the conclusion of the hearing, the matter was taken under advisement until June 17, 2013, when the ALJ issued a written decision finding the plaintiff not disabled. (Tr. 89-98.) That decision contains the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2015.

2. The claimant has not engaged in substantial gainful activity since July 31, 2009, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has a combination of impairments, which considered together, is "severe".

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1(20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b).

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).

7. The claimant is 48, which is defined as a younger individual (20 CFR 404.1563).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from July 31, 2009, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 94-98.)

On August 12, 2014, the Appeals Council denied the plaintiff's request for review of the ALJ's decision (Tr. 1-6), thereby rendering that decision the final decision of the Commissioner. This civil action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. § 405(g).

II. REVIEW OF THE RECORD

On April 24, 2009, the plaintiff presented to Dr. Tersa L. Lively for a follow-up on chronic pain syndrome and hypertension. (Tr. 460.) The plaintiff reported taking Percocet, which helped for the pain. Id. Dr. Lively noted that the plaintiff had a history of arthritis in his knees bilaterally, diabetes mellitus, hypertension, and ruptured discs of the cervical and lumbar spine. Id. Dr. Lively noted a history of alcohol use. Id. Dr. Lively also noted that the plaintiff was positive for back pain and bone/joint symptoms, but was negative for muscle weakness, myalgias, neck stiffness and rheumatologic manifestations. (Tr. 461.) The plaintiff's blood pressure was 162/102. Id. The plaintiff's physical examination revealed that the plaintiff was not in any apparent distress, was well nourished and well developed, and his extremities appeared normal. (Tr. 461-62.) The plaintiff was prescribed Percocet 10mg-325mg one to two tablets every eight hours, Gemfibrozil³ 600mg onetablet twice daily, Lisinopril⁴ 20mg one tablet daily, Lovastatin⁵ 40mg one tablet daily and Novolin 70-30.⁶ (Tr. 462.)

On August 21, 2009, the plaintiff returned for a follow-up with Dr. Lively. (Tr. 457.) Dr. Lively noted that the plaintiff's diabetes was stable and that his chronic pain was stable with current dosing and that he "has had no problems." Id. The plaintiff's blood pressure was 152/94. (Tr. 458.) On November 20, 2009, the plaintiff returned to see Dr. Lively. (Tr. 454.) As to his chronic pain, the plaintiff reported that he was doing well with his current medications and was not having any issues. Id. Dr. Lively prescribed the plaintiff Valium 5mg one tablet, three times daily to treat his anxiety. (Tr. 456.) Dr. Lively continued the plaintiff on his other medications. Id.

On June 18, 2010, the plaintiff returned to see Dr. Lively for a follow-up visit concerning neck pain and hypertension. (Tr. 451.) The plaintiff's blood pressure was 152/94. (Tr. 452.) Dr. Lively continued the plaintiff on his current medications. (Tr. 453.) On April 14, 2011, the plaintiff saw Dr. Lively for a follow-up visit. (Tr. 449.) The plaintiff's blood pressure was 144/96. Id. The plaintiff's examination results were unremarkable. (Tr. 449-450.)

In his Work Activity Report dated June 24, 2011, the plaintiff reported that he worked 10-15 hours per week, performing odd jobs such as mowing yards, repairing roofs or plumbing, and doingsmall construction tasks. (Tr. 242, 244.) The plaintiff stated that he avoided jobs that required heavy lifting. (Tr. 244.)

On August 29, 2011, the plaintiff presented to Dr. Donita Keown for a consultative examination. (Tr. 369.) The plaintiff reported that his neck pain was constant, which radiated into his shoulders, more so on the right than the left, making it difficult for him to use his arms or turn his head. Id. The plaintiff reported of pain radiating into the mid thoracic spine and lower back, left buttock and right hip. Id. The plaintiff complained that his right leg would go numb at times. Id. The plaintiff attended a pain clinic where he received narcotic medications. Id. Dr. Keown reported that the plaintiff thought that his neck problems started in 1998 and that his back problems began when he was still working. Id. Dr. Keown noted that the plaintiff was "very vague regarding the onset and timing," and that he could not get the plaintiff "to commit to a particular time frame." Id. The plaintiff's blood pressure was 116/60, a musculoskeletal examination showed that his range of motion was within normal limits, his cervical spine had a full range of motion, straight leg raises were negative, his strength was graded 5/5 in his left and right hands, arms and legs, and his gait and station were within normal limits. (Tr. 370-71.) Dr. Keown's impression was that he had type 2 diabetes, uncomplicated; chronic spinal complaints likely due to degenerative change with no physical evidence for herniated disc with neural foraminal impingement or stenosis; hypertension treated medically and dyslipidemia treated medically. (Tr. 371.) Dr. Keown essentially opined that the plaintiff could lift 51 to 100 pounds occasionally and 21 to 50 pounds frequently; stand and/or walk up to seven to eight hours in an eight hour workday; sit eight hours in an eight hour workday; that the plaintiff had no limitations as to the use of hands and feet; that the plaintiff could climbstairs, climb ladders and balance frequently; and that the plaintiff could stoop, kneel, crouch, and crawl frequently. (Tr. 97, 372-74.)

In a Function Report dated October 7, 2011, the plaintiff reported that he could lift up to twenty pounds. (Tr. 217.) On October 10, 2011, the plaintiff was treated by Charles S. Clifton, a certified physician assistant, at Advanced Spine and Pain. (Tr. 322.) The plaintiff complained of moderate pain in his lower back and neck. Id. The plaintiff reported that he did yard work, that he worked, that he watched his granddaughter, and that he exercised daily. Id. The plaintiff returned on November 8, 2011, complaining of joint pain. (Tr. 319.) The plaintiff's physical examination reflected that the plaintiff had tenderness and experienced moderate pain with motion in his cervical and lumbar spine, right shoulder and both knees. (Tr. 320.)

On November 21, 2011, Stephen Hardison, M. A., a licensed senior psychological examiner, completed a consultative psychological examination of the plaintiff. (Tr. 343.) Hardison observed that the plaintiff drove himself to the evaluation, he ambulated independently, he did not have difficulty providing information regarding his background and present situation, his thought content was clear, he did not appear in acute mental health distress, and he was cooperative. Id. The plaintiff stated that he "[got] along well with people in general." Id. The plaintiff reported that he had not drank alcohol in almost one year and that he was a heavy drinker in his "younger days," but that he had not drunk heavily since the early 1990's. Id. The plaintiff, however, reported receiving a DUI two years earlier. Id.

The plaintiff did not have health insurance and received medical care through the health department. (Tr. 344.) Hardison noted that the plaintiff suffered from diabetes, back and neckproblems, hypertension, and high cholesterol. Id. The plaintiff also reported past incidents where he woul...