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Darr v. Commissioner of Social Security Administration

United States District Court, D. Oregon

April 11, 2018

JAMES M. DARR, JR., Plaintiff
v.
Commissioner of Social Security Administration, Defendant.

          HOWARD D. OLINSKY, MARK MANNING HARDER, WELLS, BARON & MANNING, P.C. OF ATTORNEYS FOR PLAINTIFF

          BILLY J. WILLIAMS UNITED STATES ATTORNEY, RENATA GOWIE ASSISTANT UNITED STATES ATTORNEY, ERIN F. HIGHLAND SPECIAL ASSISTANT UNITED STATES ATTORNEY OFFICE OF THE GENERAL COUNSEL ATTORNEYS FOR DEFENDANT

          OPINION AND ORDER

          MARK CLARKE UNITED STATES MAGISTRATE JUDGE

         Plaintiff James M. Darr, Jr., ("Darr") seeks judicial review of the final decision by the Social Security Commissioner ("Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("SSA"). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful review of the record, the Commissioner's decision is REVERSED and REMANDED for an immediate award of benefits.

         Procedural Background

         Darr filed for SSI on February 6, 2013, alleging disability as of February 1, 2011. Tr. 19. His application was denied initially and upon reconsideration, and a hearing was held on February 20, 2015, before an Administrative Law Judge ("ALJ"); Darr was represented by counsel and testified, as did a vocational expert ("VE"). Tr. 37-68. Darr amended his disability onset date to February 6, 2013 at the administrative hearing. Tr. 19. On March 31, 2015, ALJ Rudolph Murgo issued a decision finding Darr not disabled. Tr. 19-30. Darr requested timely review of the ALJ's decision and, after the Appeals Council denied his request for review, filed a complaint in this Court. Tr. 1-3.

         Factual Background

         Born in 1971, Darr was 42 years old on the disability onset date. Tr. 39. He dropped out of high school after the ninth grade and could not obtain his GED. Tr. 242. He previously worked at a medical sterilizing company and performed construction work. Tr. 185. He alleges disability due dyslexia, attention deficit disorder, shoulder and neck arthritis, and a tumor in his ear. Tr. 161.

         Darr underwent a mental status examination performed by Dr. Phillip Barnard, Ph.D. on December 20, 2012. Tr. 245. Dr. Barnard recorded Darr's medical and social history, and noted that Darr had been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") at the age of six, had not finished high school, participated in special education classes "throughout his schooling years, " and could not get the help he needed to pass the GED exam. Tr. 242. Dr. Barnard diagnosed Darr with ADHD, learning disorder, cannabis dependence, "pain disorder associated with psychological factors as well as a general medical condition, " borderline intellectual functioning (onset date childhood), and a 60 GAF score. Tr. 243-44. Dr. Barnard assigned mild or moderate limitations on Darr's ability to perform basic work activities. including moderate difficulties communicating and performing effectively in a work setting. maintaining appropriate behavior in a work setting, setting realistic goals and planning independently, learning new tasks, and completing a normal work day without interruptions from psychologically based symptoms. Tr. 244. Dr. Barnard conducted several intelligence tests and found Darr could not complete "serial 7"s, " recall two out of three words after a five minute delay, or spell the word "world" forward or backward. Tr. 245. He scored a 68 on the WAIS-IV IQ test, which Dr. Barnard interpreted as evidence of a limited "fund of knowledge." Tr. 245. "Halstead's Trail Making Test" revealed a moderate and mild range of impairments. Tr. 245.

         On November 27, 2012, Nurse Practitioner Rebecca Nelson performed an initial assessment of Darr and noted that he had little recent medical history because he did not have insurance. Tr. 238. Darr presented with a mass growing on his left earlobe that caused significant pain, as well as shoulder pain located in his trapezius and neck muscles. Tr. 238. A subsequent x- ray revealed moderate degenerative changes at the C6-7 vertebral levels. Tr. 239. X-rays of Darr's left shoulder, however, revealed normal findings. Tr. 269.

         Darr"s follow-up appointment with NP Nelson revealed significant hearing loss of the middle frequencies. Tr. 255. NP Nelson also noted neck and left shoulder pain with associated radiculopathy. Tr. 255. On March 5, 2013, Darr complained of numbness in his left arm, as well as pain whenever he moved his neck. Tr. 261.

         On June 24, 2013. Arthur Ticknor, M.D., noted that the mass growing on Darr"s left earlobe had been successfully excised and an MRI of Darr's left shoulder "showed a labral tear at 6 o'clock" with "juxtalabral cysts." Tr. 278.

         On October 21, 2013, Darr underwent an anterior cervical discectomy and fusion at the C6-7 vertebrae. Tr. 339. The attending surgeon noted disc herniation at the C6-7 vertebral level and C7 radiculopathy. Tr. 339. An x-ray of Darr's spine immediately after the procedure noted the C6-7 vertebral levels were in normal alignment, and an additional x-ray two months later revealed normal alignment at the C6-7 levels and unchanged degenerative disc disease at the C4-5 levels. Tr. 345. Darr stated that his symptoms improved after the surgery, but he still felt some residual numbness in his arms. Tr. 353.

         Darr's final treatment note on August 1, 2014, showed he was "slowly making progress after [cervical] spine surgery" and used gabapentin for radicular ...


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