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McClung v. Berryhill

United States District Court, D. Oregon

August 23, 2017

JAMES B. MCCLUNG, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

         James McClung (“McClung”) brings this appeal challenging the Commissioner of the Social Security Administration's (“Commissioner” or “SSA”) denial of his application for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons that follow, the Court affirms the Commissioner's decision because it is free of legal error and supported by substantial evidence.

         BACKGROUND

         McClung was born in August 1962, making him fifty years old on September 14, 2012, the amended alleged disability onset date. McClung has a high school education and no past relevant work experience. In his application, McClung alleges disability due primarily to nerve damage in his left arm, posttraumatic stress disorder (“PTSD”), schizoaffective disorder, and bipolar disorder.

         On July 22, 2010, roughly two years before the alleged onset of disability, an x-ray of McClung's left elbow revealed an “[o]lecranon fracture with associated effusion.” (Tr. 442.) An emergency room physician treated McClung with a splint and sling. (Tr. 445.) McClung later met with a “surgical specialist in Portland” and they agreed “to let [the elbow fracture] heal without surgery.” (Tr. 432; see also Tr. 788, noting that a subsequent x-ray suggested it was “less likely to need operative repair”).

         On April 20, 2012, McClung had x-rays taken of his lumbar spine, knees, and hips. The x-rays of McClung's hips were “within normal limits, ” the x-rays of McClung's knees appeared “[n]ormal for [his] age, ” and the x-ray of McClung's lumbar spine was “[o]verall negative.” (Tr. 368-71, 589.)

         On October 31, 2012, McClung appeared for a consultative examination with Dr. James McHan (“Dr. McHan”). (Tr. 321-25.) Dr. McHan examined and interviewed McClung, and reviewed a health summary from the U.S. Department of Veterans Affairs (the “VA”) dated October 11, 2012. Dr. McHan noted that McClung complained of pain in his wrists, arthritis in his knees and back, and a rash; scored a thirty out of a thirty on a mini-mental status examination; and exhibited full strength in his “upper and lower extremities bilaterally except with slight decrease in the left hand where there is a slight atrophy of the thenar eminence muscle of the thumb.”[1] (Tr. 324.) Based on his examination, Dr. McHan opined that McClung can stand and walk for less than two hours; sit without limitation; lift and carry ten pounds occasionally and frequently; occasionally climb, balance, stoop, kneel, crouch, and crawl; never engage in manipulative activities with his left hand, but occasionally reach, handle, finger, or feel with the right hand; and needs to limit working at heights and with heavy machinery, and avoid dust, fumes and gases. (Tr. 325.)

         On January 2, 2013, McClung appeared for an individual counseling session at South Lane Mental Health. McClung reported that his “most concerning” symptoms were “being [in] a depressed mood, anger and feeling anxious, or ‘having compulsions[.]'” (Tr. 732.) McClung also reported being “in a more positive place” and feeling less depressed after his wife returned home. (Tr. 732.)

         On January 11, 2013, Dr. Joshua Boyd (“Dr. Boyd”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 77.) Dr. Boyd found that the limitations imposed by McClung's impairments failed to satisfy listings 12.03 (schizophrenic, paranoid, and other psychotic disorders), 12.06 (anxiety-related disorders), or 12.09 (substance addiction disorders).

         Also on January 11, 2013, Dr. Boyd completed a mental residual functional capacity assessment based on his review of the record. (Tr. 81-82.) Dr. Boyd found that McClung was not significantly limited in fifteen categories of mental activity and moderately limited in eight. Dr. Boyd added that McClung is capable of understanding, remembering, and sustaining the concentration necessary to complete simple tasks; McClung should not work with the general public or be in close proximity to co-workers; and McClung “could use help setting realistic goals.” (Tr. 82.)

         On January 14, 2013, Dr. Linda Jensen (“Dr. Jensen”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 78-80.) Dr. Jensen found that McClung could lift and carry twenty pounds occasionally and ten pounds frequently; stand, sit, or walk up to six hours in an eight-hour workday; push or pull on a frequent basis with the left upper extremity; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, or scaffolds; and frequently handle and finger with his non-dominant left hand. Dr. Jensen added that McClung does not suffer from visual or communicative limitations, but he needs to avoid concentrated exposure to hazards, fumes, odors, dusts, gases, and poor ventilation.

         On February 19, 2013, Dr. William Habjan (“Dr. Habjan”), a non-examining state agency physician, issued a second physical residual functional capacity assessment, wherein he agreed with Dr. Jensen's conclusion that McClung can lift and carry twenty pounds occasionally and ten pounds frequently; stand, sit, or walk up to six hours in an eight-hour day; frequently push or pull with the left upper extremity; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, or scaffolds; and frequently handle and finger with his non-dominant left hand. (Tr. 93-95.) Dr. Habjan also agreed with Dr. Jensen's conclusion that McClung does not suffer from visual or communicative limitations, but he needs to avoid concentrated exposure to hazards (machinery, heights, etc.), fumes, odors, dusts, gases, and poor ventilation.

         On February 21, 2013, Dr. Irmgard Friedburg (“Dr. Friedburg”), a non-examining state agency psychologist, issued a psychiatric review technique assessment, agreeing with Dr. Boyd's conclusion that McClung's mental impairments failed to satisfy listings 12.03, 12.06, and 12.09, and noting that McClung's impairments also failed to satisfy listing 12.04 (affective disorders). (Tr. 91-92.)

         Also on February 21, 2013, Dr. Friedburg issued a second mental residual functional capacity assessment, agreeing with Dr. Boyd's initial determination that McClung is moderately limited in five of twenty categories of mental activity and not significantly limited in fifteen. (Tr. 95-97.)

         On March 11, 2013, x-rays of McClung's right elbow revealed “[n]o acute fracture or malalignment, ” “[n]o joint effusion, ” and “[s]oft tissue swelling . . . at the posterior aspect of the elbow.” (Tr. 770.)

         On July 22, 2013, McClung had images taken of his thoracic spine, which revealed “mild anterior wedging of the T8 vertebral body, ” “[n]o destructive process, ” and “no subluxation.” (Tr. 597.) McClung also had images taken of the right side of his rib cage based on complaints of pain, but “[t]he cause for the patient's [pain] symptoms [was] not detected” by those images. (Tr. 596.)

         On July 30, 2013, Rebecca Podhora (“Podhora”), a mental health nurse practitioner, noted that she had recently visited with McClung for thirty minutes; that McClung's current Global Assessment of Functioning (“GAF”) score was forty-two; that McClung continues “to use substances [and] is drug seeking”; and that McClung seemed “to understand the possible risks/benefits of drug treatment and agree[d] to consent to the treatment and/or options.”[2] (Tr. 506-08.)

         On September 3, 2013, McClung presented for a follow-up visit with Podhora. In her treatment note, Podhora observed that McClung complained of “pain issues.” (Tr. 693.) Podhora, however, also noted that McClung's gait was within normal limits “with no indication of limping or shuffling, ” that McClung reported that he “walks around Cottage Grove about ‘[thirty] miles per day, '” which takes “a few hours, ” and that McClung reported that he is “kind of like the town Security Guard” because he watches over property and reports problems to the police chief. (Tr. 693.)

         On January 14, 2014, McClung presented for a mental health assessment with Deborah Hardwick (“Hardwick”), a qualified mental health professional. During the assessment, McClung reported “an increase in both depressed mood and anxiety, ” which prevented him from being “able to do his own shopping” or “be in any place with a crowd [of] . . . more than [three] people at a time.” (Tr. 868.) Hardwick noted that her interview of McClung was consistent with reported diagnoses of PTSD and bipolar disorder, and she assigned a GAF score of fifty-five.[3](Tr. 870.)

         On January 31, 2014, Disability Determination Services (“DDS”) referred McClung to Dr. Jennifer Metheny (“Dr. Metheny”), a licensed psychologist, for a psychodiagnostic evaluation regarding “issues related to schizoaffective disorder, PTSD, and bipolar disorder.” (Tr. 314-19.) Based on her examination and review of certain medical records, Dr. Metheny diagnosed McClung with schizoaffective disorder, PTSD, and alcohol and cannabis abuse, and concluded that McClung did “not appear to meet criteria for a bipolar spectrum disorder.” (Tr. 318-19.)

         On February 6, 2014, McClung visited his primary care physician, Dr. Gerald Barker (“Dr. Barker”). Dr. Barker noted that McClung's mood and affect were good, his mental status was “quite good, ” he seemed “in touch with reality, ” and his extremities were “[a]ctually quite good with good range of motion through he complains of pain in both elbows and his left wrist.” (Tr. 862.)

         On February 22, 2014, McClung visited the emergency department, complaining of pain “basically in all locations of his body.” (Tr. 853.) After reviewing the “Oregon prescription drug monitory website, ” Dr. Daniel Kranitz (“Dr. Krantiz”) agreed to provide McClung with a limited Vicodin prescription, but he also informed McClung that he “would not represcribe narcotics ...


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