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Evans v. Berryhill

United States District Court, D. Delaware

February 12, 2019

KENNETH L. EVANS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Sherry R. Fallon United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff Kenneth L. Evans ("Evans") filed this action on August 25, 2016 against the defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration (the "Commissioner"). Evans seeks judicial review pursuant to 42 U.S.C. § 405(g) of the Commissioner's final decision denying Evans' claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"), respectively. 42 U.S.C. §§ 401-434 and §§ 1381-1383f. The court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).

         Before the court are cross-motions for summary judgment filed by Evans and the Commissioner. (D.I. 14; D.I. 17) Evans asks the court to reverse the Commissioner's decision and remand with instructions to award benefits or, alternatively, to remand his case for further administrative proceedings. (D.I. 15 at 2) The Commissioner requests the court affirm the decision of the administrative law judge ("ALJ"). (D.I. 18 at 19) For the reasons set forth below, the court recommends denying Evans' motion for summary judgment (D.I. 14), and granting the Commissioner's cross-motion for summary judgment (D.I. 17).

         II. BACKGROUND

         A. Procedural History

         Evans filed claims for DIB and SSI on February 27, 2012 and May 11, 2012, respectively, claiming a disability onset date of December 12, 2008. (D.I. 10-5 at 2-12; D.I. 10-6 at 2) His claim was initially denied on June 20, 2012, and denied again after reconsideration on March 11, 2013. (D.I. 10-4 at 2-6, 11-16) Evans then filed a request for a hearing, which was held on September 15, 2014. (D.I. 10-2 at 41-73; D.I. 10-4 at 17-22) At the hearing, Evans amended his alleged disability onset date to August 19, 2013. (D.I. 10-2 at 45) On December 10, 2014, ALJ Stanley J. Petraschuk issued an unfavorable decision, finding that Evans was not disabled under the Act. (Id. at 20-35) The Appeals Council subsequently denied Evans' request for review on June 23, 2016, rendering the ALJ's decision the final decision of the Commissioner. (Id. at 2-4) On August 25, 2016, Evans brought a civil action in this court challenging the ALJ's decision. (D.I. 2) On May 22, 2017, Evans filed a motion for summary judgment, and on July 20, 2017, the Commissioner filed a cross-motion for summary judgment. (D.I. 14; D.I. 17)

         B. Medical History[1]

         Evans was born on October 3, 1963. (D.I. 10-2 at 2) He was forty-eight years old when he applied for benefits in May 2012, and he was fifty-one years old when the ALJ rendered a decision on his applications for benefits. (Id; D.I. 10-2 at 33; D.I. 10-3 at 13) Evans graduated high school and worked as a pipefitter from 1987 to 2008. (D.I. 10-6 at 5, 22-23) The ALJ found Evans has the following severe impairments: alcohol dependence, depression, neuropathy, and chronic obstructive pulmonary disease ("COPD"). (D.I. 10-2 at 25) The amended onset date of Evans' impairments is August 19, 2013. (Id. at 23)

         Prior to his amended onset date of August 19, 2013, Evans had a history of alcohol abuse, COPD with asthma, hypertension, hyperlipidemia, bilateral foot pain, alcoholic neuropathy, renal failure, and a Dupuytren's contracture in his right hand. (D.I. 10-9 at 35-38, 51-56; D.I. 10-11 at 68-73, 91-93; D.I. 10-12 at 2-4, 45, 65-70) In June 2012, Dr. Robert Palandjian, a state agency medical consultant, reviewed Evans' medical records and completed a physical residual functional capacity ("RFC") assessment. (D.I. 10-3 at 7-9) Dr. Palandjian opined that Evans could lift twenty pounds occasionally, ten pounds frequently, stand and/or walk about six hours in an eight-hour workday, and sit for more than six hours. (Id. at 8) Dr. Palandjian also described some postural and environmental limitations due to Evans' impairments, including climbing ladders, ropes, and scaffolds. (Id.)

         On August 19, 2013, Evans sustained injuries to his neck, right shoulder, and back in a car accident. (D.I. 10-14 at 24-29, 49; D.I. 10-15 at 40) An x-ray of Evans' cervical spine taken in August 2013 showed significant degenerative changes at the C6 to C7 level with no neural foraminal narrowing. (D.I. 10-14 at 29) On August 27, 2013, Evans was evaluated at the Veterans Administration Medical Center ("VAMC") by Dr. Reema Malhotra for balance problems following multiple falls. (D.I. 10-15 at 46-47) Dr. Malhotra observed that Evans' gait was slow and antalgic, and she prescribed a cane to support his balance. (Id. at 43, 46-47) Evans reported nerve damage in his feet with impaired sensation to light touch, but he declined the use of orthotic metatarsal pads because he did not have tennis shoes. (Id. at 46)

         An MRI of Evans' cervical spine on October 18, 2013 revealed multilevel degenerative changes of the cervical spine at the C5-6 and C6-7 levels, with canal stenosis and neural foraminal narrowing. (D.I. 10-14 at 31) Beginning in October 2013, Evans attended physical therapy to improve his balance and address weakness in his bilateral lower extremities. (D.I. 10-15 at 33-42) The physical therapist prescribed a grab bar and shower chair for Evans' bathroom. (Id. at 33, 41) Evans discontinued physical therapy in December 2013 after he fell and broke his ribs. (Id. at 33)

         Beginning in September 2013, Evans was also treated for neck and back pain by Arnold Glassman, D.O., a physical medicine and rehabilitation specialist at Delaware Back Pain and Sports Rehabilitation. (D.I. 10-17) Dr. Glassman observed tenderness and a reduced range of motion in Evans' cervical, thoracic, and lumbar spine; an abnormal gait;[2] and impaired sensation in the bilateral extremities. (D.I. 10-18 at 11-12) Dr. Glassman diagnosed Evans with cervicothoracic and lumbosacral spine pain and a history of neuropathy not related to the motor vehicle accident. (Id. at 12) He prescribed Percocet and formal therapy with a goal of decreasing pain and increasing Evans' range of motion. (Id. at 12-13)

         From November 2013 through August 2014, Dr. Glassman continued to treat Evans for neck, back, right shoulder, and right wrist pain. (D.I. 10-17 at 3-75; D.I. 10-18 at 2-9) In November 2013, Evans underwent an MRI of his right shoulder, which showed tendinitis and a tear in his rotator cuff. (D.I. 10-14 at 36) Evans also had an EMG of his right upper extremity, which revealed carpal tunnel syndrome in his right wrist. (Id. at 57-58) Dr. Glassman noted that Evans had some limited range of motion in his spine and right shoulder, decreased sensation in his lower extremities, and positive Tinel's sign over his right wrist. (D.I. 10-17 at 10, 15, 20-21, 25-27, 36-37, 42-43, 48, 52-53, 68-69, 74-75) However, Evans had a full range of motion in his right hand. (Id. at 5, 10, 15, 20, 25, 36, 42, 48, 52, 65) Dr. Glassman prescribed Percocet and osteopathic manipulation. (Id. at 6-8, 11-12, 16, 21, 26, 37, 43) Evans declined orthopedic surgical intervention for his right shoulder or right wrist throughout his treatment with Dr. Glassman, and he reported only rare occasions of right wrist pain during his August 2014 visit. (Id. at 3, 8, 13, 16, 58, 63, 66)

         Evans consulted with Peter F. Townsend, M.D., an orthopedic surgeon, regarding his right shoulder, wrist, and finger pain in January 2014. (D.I. 10-14 at 49) Evans reported that his right shoulder pain did not improve with physical therapy. (Id.) Dr. Townsend diagnosed Evans with bursitis and tendinitis of the rotator cuff, and he noted that Evans' range of motion was mildly limited. (Id.) Dr. Townsend administered an injection to Evans' right shoulder. (Id.)

         In March 2014, Evans saw Dr. Townsend for a finger contracture and for pain, numbness, and tingling in his right hand. (Id. at 48) Evans had a positive Tinel's sign at the wrist flexion crease and a positive Phalen's test, and his right ring finger had a 35 degree contracture. (Id.) Dr. Townsend recommended night splints and an additional EMG, which revealed median nerve entrapment neuropathy at the wrist, consistent with mild right carpal tunnel syndrome. (Id. at 48, 54) Dr. Townsend noted that Evans had "a full range of motion of the shoulder, elbow, wrist and fingers." (Id. at 48)

         Evans continued to treat at the VAMC. A pulmonary function diagnostic test in January 2014 showed moderate obstructive airway disease with significant bronchodilator response. (D.I. 10-15 at 25) During a visit on February 8, 2014, Evans smelled of alcohol and reported tobacco use and shortness of breath with light activity. (Id. at 14) He was diagnosed with worsening COPD, but his back pain was listed as "resolved." (Id. at 15) A subsequent pulmonary examination in May 2014 revealed that Evans' lung capacity was reduced, but clear when examined with a stethoscope. (Id. at 3-4) He was diagnosed with mild COPD and asthma. (Id. at 4) Evans' prescribed inhalers were modified accordingly. (Id. at 4-5)

         In September 2014, Dr. Glassman completed a Lumbar Spine Medical Source Statement, listing Evans' diagnoses to include cervical/thoracic/lumbar strain and sprain, carpal tunnel syndrome, shoulder impingement syndrome, and peripheral neuropathy. (D.I. 10-18 a 50) Dr. Glassman identified a reduced range of motion in Evans' neck, low back, and right shoulder. (Id. at 51) As a result of these impairments, Dr. Glassman opined that Evans could stand or walk less than two hours a day, and sit two to four hours a day, with breaks every one to two hours lasting between three and five minutes. (Id. at 51-52) According to Dr. Glassman, Evans could lift less than ten pounds occasionally and ten pounds rarely, could never crouch, squat, or climb ladders, and could rarely twist, stoop, and bend. (Id.) Dr. Glassman indicated that Evans would have to shift positions at will, walk around every thirty minutes, take unscheduled breaks, elevate his legs with prolonged sitting, and use a cane for standing or walking. (Id.) Dr. Glassman noted no restrictions on Evans' use of his hands for grasping, fine manipulation, and reaching in front of his body, but explained that Evans could only reach overhead with his right arm for 50% of the work day. (Id. at 52-53) Dr. Glassman predicted that Evans' impairments would cause him to be absent from work about three days per month, and would cause him to be off task 20% or more of the work day. (Id. at 53)

         C. Hearing Before the ALJ

         1. Evans' testimony

         Evans testified that he experiences neuropathy in his legs due to damage in the muscles caused by his kidney failure. (D.I. 10-2 at 52) According to Evans, this condition causes him constant pain from his hips to his feet that causes his legs to give out. (Id. at 52-53) Evans testified that the pain in his legs affects his ability to walk without a cane and stand in the shower. (Id.) Despite taking nerve blockers to reduce the pain, Evans testified that he still experiences pain. (Id. at 53-54) Consequently, Evans reported that he can only walk for a couple of blocks before his legs start hurting and he runs out of breath, and he cannot stand for more than a half hour without pain. (Id. at 60-61)

         Evans explained that he also has problems with nodules forming in his right hand, preventing him from straightening his thumb and two middle fingers or picking up small objects. (Id. at 54) He stated that the carpal tunnel syndrome in his right hand causes constant numbness in his fingers and down the side of his hand. (Id. at 54-55)

         Evans reported that he was diagnosed with cervical strain and sprain in his neck, which makes it difficult to move his head from side to side. (Id. at 55-56) Evans described having constant soreness in his lower back and stabbing pain in his middle back. (Id.) In addition, Evans explained that his torn rotator cuff causes him pain in his right shoulder when he reaches above his head. (Id. at 57)

         Evans stated that he suffers from depression, and his medication makes it difficult to concentrate. (Id. at 58-59) Evans testified as to his history with alcohol abuse. (Id. at 60) At the time of the hearing, Evans stated that he had not consumed alcohol for four months following his diagnosis with cirrhosis. (Id.)

         Evans lives with his girlfriend, who performs all the chores. (Id. at 64) Evans testified that he is no longer able to wash dishes due to his hand condition, and he cannot vacuum because the dust makes it difficult for him to breathe. (Id.) Evans is able to attend church services, but he does not participate in other social activities. (Id. at 64-65) Evans reported that he is able to care for his personal hygiene. (Id. at 65)

         2. Vocational expert testimony before the ALJ

The ALJ posed the following hypothetical to the vocational expert ("VE"):
And if you could please assume a hypothetical individual of the claimant's age, education and work history who can perform at the light exertional level; who can frequently climb ramps and stairs; who can never climb ladders, ropes and scaffolds; who can frequently balance, stoop, kneel, crouch and crawl; who must avoid concentrated exposure to extreme cold and extreme noise - excuse me, extreme cold, extreme heat, noise, vibration, fumes, odors, dusts, gases, poor ventilation; who must avoid all exposure to hazards such as machinery and heights; who can frequently interact appropriately with the general public; who can ask simple questions or request assistance. Would there be any jobs available?

(Id. at 69) The VE testified that at the light, unskilled level, the individual described would be able to work in occupations including router, inspector, and pre-assembler for printed circuit boards, ...


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