United States District Court, D. Delaware
KENNETH L. EVANS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
R. Fallon United States Magistrate Judge
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).
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).
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)
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)
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.)
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)
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)
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; 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)
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)
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
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)
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)
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)
Hearing Before the ALJ
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)
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
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.
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.)
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)
Vocational expert testimony before the ALJ
The ALJ posed the following hypothetical to the vocational
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
(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, ...