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Kevin L. S. v. Berryhill

United States District Court, D. Oregon, Eugene Division

September 16, 2019

KEVIN L. S., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Kevin L. S. (“Plaintiff”) filed this action under section 205(g) of the Social Security Act (the “Act”) as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of Social Security (the “Commissioner”) who denied him social security disability insurance benefits (“Benefits”). The court finds the ALJ erred in failing to specify what portions of Plaintiff's testimony she found not credible or the evidence that, in her opinion, undermined such testimony. Accordingly, the Commissioner's final decision should be reversed and remanded for further proceedings consistent with this Findings and Recommendation.

         Procedural Background

         On or about December 13, 2013, Plaintiff filed an application for Benefits alleging an onset date of July 16, 2012. The application was denied initially, on reconsideration, and by Administrative Law Judge Elizabeth Watson (the “ALJ”) after a hearing. The Appeals Council found Plaintiff's additional evidence “did not show a reasonable probability that it would change the outcome of the decision” or did “not relate to the period at issue, ” and denied review. (Tr. of Social Security Administrative R., ECF No. 9 (“Admin. R.”), at 2.) As a result, the ALJ's decision became the final decision of the Commissioner.

         Factual Background

         Plaintiff is currently fifty-eight years old. He graduated from high school. His past relevant work experience includes laborer, truck driver, fuel pump attendant, and gas station manager. Plaintiff has not been involved in a successful work attempt since July 16, 2012. He alleges disability based on right foot and heel pain; a metal plate, screws, and pins in his left ankle; pulled groin and stomach muscles; lower back pain; amputation of three-and-a-half fingers on his left hand; multiple left shoulder dislocations; rib muscle spasms; neck pain; and obesity. Plaintiff last met the insured status requirements entitling him to Benefits on December 31, 2017.

         I. Testimony

         Plaintiff injured his back, implicating his sciatic nerve, in April 2012 while working at a gas station. (Admin. R. at 120-121, 306.) He was diagnosed with a “bad pull” and placed on restrictive duty. (Admin. R. at 122.) Later that month, Plaintiff's employer terminated his employment as manager of the gas station after he had an argument with a co-worker. (Admin. R. at 120.) Plaintiff attempted to look for work until July 16, 2012, when he re-injured his back, again affecting his sciatic nerve. (Admin. R. at 121-22-.)

         In a Function Report dated March 18, 2014 (the “Report”), Plaintiff offered information on his symptoms and his activities of daily living. (Admin. R. at 245-52.) Plaintiff explained he has extreme pain in his right heel when walking or standing, forcing him to put excess weight on his left leg and resulting in pain from the steel rod, screws and pins in his left ankle. (Admin. R. at 245.) He then starts limping, which generates pain in his lower back. (Admin. R. at 245.) Sitting creates pain in his mid-back and neck. (Admin. R. at 245.) He has trouble sleeping, uses a heating pad or muscle cream or takes an ibruprofen at night, and is constantly attempting to seek a comfortable position while sleeping and sitting. (Admin. R. at 245-46.) He is careful when reaching due to pain in his shoulder, back, and stomach. (Admin. R. at 245.)

         Plaintiff described his normal day as follows:

Have coffee and read news on internet, let my dog outside [for] about 20 min. Come back inside, have breakfast, do web searches on internet until noon, do house work, dishes, make bed, do laundry, vacuum, sweep and dusting, have lunch, take dog outside [to] play fetch [for] 20 min to 1 hr. This puts time [at] about 3:00 to 4:00. Sometimes I take a nap, depends on how well I slept the night before, 1-2 hrs more and plan our dinner. 7:00 watch movies or play video games until I go to bed.

(Admin. R. at 246.) As a result of his limitations, Plaintiff is unable to walk his dog or play fetch as much as he used to, but is still able to walk his dog regularly. (Admin. R. at 246, 249.) He watches movies, “surfs” the internet, and plays video games daily. (Admin. R. at 249.) He is unable to walk or stand for more than “short periods at a time”; squat, bend, or kneel without pain or assistance; cut or split firewood; do yard work; hike; window shop or attend local events in town; fish, other than at an easily accessible lake; or camp. (Admin. R. at 245-46.) Plaintiff cares for his personal needs, such as bathing, dressing, and eating, and prepares his own meals. (Admin. R. at 247.) He is able to do laundry and the dishes; mop, sweep and vacuum the floors; make his bed; clean his windows, blinds and bathroom; take out the trash; check the mailbox; carry in firewood; and dust the furniture but needs to take breaks from standing, walking or bending about every ten to fifteen minutes and his roommate is primarily responsible for the dishes, sweeping, trash, firewood, and mailbox. (Admin. R. at 248, 250.) He manages money; drives; and shops in stores (once a month for about four-to-six hours), or by mail computer, for food and household supplies. (Admin. R. at 248.) While he keeps in contact with his family and friends and enjoys playing video games, watching movies, going to the library, and having barbeques with them, he is unable to engage in physical activities with them or travel long distances to visit them. (Admin. R. at 249-50.) Depending on the weather and his pain level, he spends about an hour a day outside. (Admin. R. at 248.) Sometimes, his pain keeps him at home. (Admin. R. at 250.)

         In the Report, Plaintiff represented he can walk with the use of a cane, shopping cart, or walking stick for 100 to 200 feet before needing to rest for five to ten minutes; is unable to lift twenty-five pounds due to back, neck and stomach pain; has pain in his heel, back and neck from standing; has difficulty reaching overhead and above his waist; and avoids climbing stairs or walking up hill. (Admin. R. at 250-52.) He can pay attention for twelve hours and has no difficulty following instructions. (Admin. R. at 250.)

         At the July 20, 2016 hearing, Plaintiff briefly described his ailments to include his back injury, which affects his sciatica and results in pain from his waist to mid-back; neck pain; the loss of some fingers on his left hand which prevents him from doing construction work or climbing ladders; a metal plate and various screws and pins in his left ankle resulting in lots of pain, particularly in cold weather; and a calcaneal spur on his right heel and resulting irritation of his Achilles tendon, which causes sharp pain and burning when he stands or walks. (Admin. R. at 121, 122, 125-27.) He explained he was able to spend four hours a day on his feet during the day, but needed to sit for twenty to thirty minutes every thirty minutes, and was able to walk fifty yards before needing to sit down. (Admin. R. at 127-29.) He has difficulty lifting and carrying items due to pain in his groin and back. (Admin. R. at 128.) Plaintiff testified he does not own a computer and while he has used a computer, has “very little knowledge of doing anything on them.” (Admin. R. at 138.)

         Plaintiff was unable to afford rent in Bend, Oregon, so he moved to Eugene, Oregon, where he lived with a roommate in an apartment, in a barn, and occasionally in his truck. (Admin. R. at 124.) He has no income and receives food stamps. (Admin. R. at 127.)

         II. Medical Evidence

         Plaintiff's first medical record is from a June 7, 2011 visit to the Bend Memorial Clinic (“Clinic”) where he sought treatment for lower back pain. (Admin. R. at 392-95.) Plaintiff reported injuring his back while getting into or out of his truck a week earlier. (Admin. R. at 392-93.) Patrick L. Simning, M.D. assessed Plaintiff with a lumbar sprain, prescribed hydrocodone-acetaminophen, and provided a work note releasing Plaintiff from work for two days and restricting him to light duty for two additional days. (Admin. R. at 392.) Plaintiff returned to the Clinic on June 13, 2011, feeling sixty-five percent better, with increased mobility and a decrease in and use of pain medication, but with continued stiffness. (Admin. R. at 388-89.) Jay O'Brien, PA-C, continued Plaintiff on work restrictions for five additional days and recommended Plaintiff treat his pain with Aleve. (Admin. R. at 388.)

         On October 28, 2011, Plaintiff arrived at the Clinic with complaints of moderate left shoulder pain resulting from what Plaintiff believed to be a spontaneous dislocation of the shoulder while he slept the previous night. (Admin. R. at 382.) Plaintiff explained he injured his shoulder playing high school football and frequently dislocates it as a result. (Admin. R. at 382.) X-rays revealed no fracture or dislocation with mild glenohumeral osteoarthritis. (Admin. R. at 383, 400.) The Clinic provided Plaintiff with a splint, applied by a nurse, and a velcro sling. (Admin. R. at 383.)

         A record from the Clinic dated March 23, 2012, describes a follow-up appointment for a back strain suffered by Plaintiff on March 2, 2012. (Admin. R. at 381.) Plaintiff reported he was doing much better, had only mild stiffness in his back and no groin or hip pain, was released from physical therapy, and was able to return to full duty at work.[2] (Admin. R. at 381.) John Battle, A.N.P.-B.C., released Plaintiff to full duty at work, with cautions about heavy lifting, bending, and twisting. (Admin. R. at 381.)

         On June 10, 2014, Michael Henderson, D.O. (“Dr. Henderson”), performed a comprehensive musculoskeletal consultative exam investigating Plaintiff's complaints with regard to his right foot/heel, left ankle, back, shoulder, muscle spasm in ribs, and neck pain. (Admin. R. at 306.) Plaintiff indicated he had no problems with sitting, he could stand about fifteen minutes and walk up to 100 yards, and had difficulty with vacuuming, doing dishes, and floors. (Admin. R. at 306.) Dr. Henderson indicated Plaintiff “seem[ed] to move around the office relatively normal considering his obesity, ” would “waddle back-and-fourth” and had difficulty tandem walking due to his body habitus, and had no pain except when walking on the right heel and left toe. (Admin. R. at 307.)

         Dr. Henderson noted Plaintiff's spine had normal curvatures and no pain, spasm, or tenderness in the back with palpation. (Admin. R. at 307.) Plaintiff carried his left shoulder higher than the right shoulder and reported pain in the mid-left clavicle progressing out toward the left shoulder. (Admin. R. at 307.) Muscle bulk, tone, and sensation appeared normal and equal in both the lower and upper extremities, and strength was normal throughout. (Admin. R. at 307.) Other than discrepancies in hip flexion, no range of motion concerns were noted and reflexes were 2/4 in the upper and lower extremities. (Admin. R. at 307.)

         Dr. Henderson summarized his assessment of Plaintiff's complaints as follows:

Right foot: This is most likely plantar fasciitis. When ambulating around the room did not have antalgia with normal heel to toe sequence. However did complain of pain when trying to walk on the right heel. Overall this appears to be mild.
Left ankle: He did not complain of left ankle pain impairing him. He stated he was able to work with this.
Back pain: This is his most impairing condition. This is likely muscle strain and spasm given the history of tight feeling and no specific diagnosis for the back pain. Generally would expect this to be intermittent. However, recovery is likely impaired by his obesity and deconditioning.
Ribs: He did not complain of this as impairing him from working.
Neck pain: Again no specific diagnosis. Spontaneous movements of the neck were normal.
Neuromuscular exam of the upper and lower extremities was normal.

(Admin. R. at 308.) He then concluded “[b]ased on today's history and exam, cannot find objective evidence to limit sitting. Standing should limited to 1-2 hours at a time, 6 hours per day due to obesity, deconditioning and back pain. Walking should be limited to 15 minutes at a time secondary to the plantar fasciitis, which may resolve, obesity and deconditioning.” (Admin. R. at 308.)

         Dr. Martin B. Lahr, M.D., M.P.H. (“Dr. Lahr”), reviewed Dr. Henderson's consultative examination and information provided by Plaintiff's with regard to his activities of daily living and work history, and in his June 23, 2014 report identified Plaintiff's fracture of his left ankle, amputation of three-and-a-half fingers on his left hand, and obesity as Plaintiff's severe medical impairments. (Admin. R. at 146.) He also noted Plaintiff's issues with plantar fasciitis and back pain. (Admin. R. at 146.) Dr. Lahr concluded Plaintiff was capable of performing light-level work with specific restrictions of occasional lifting and carrying of twenty pounds, and ten pounds frequently; standing, walking, and sitting for six hours in an eight-hour day; occasional pushing and pulling with the left upper and lower extremities; frequent, but not constant, overhead reaching with the left hand; no handling or fingering with the left hand; frequent climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; and occasional climbing of ladders, ropes, and scaffolds. (Admin. R. at 148-49.)

         On August 15, 2014, Plaintiff sought treatment at the Clinic for lower extremity pain and swelling over a two-month period, and right-heel pain lasting nearly a year. (Admin. R. at 316.) Plaintiff reported he had not seen a doctor since the early 1990s. (Admin. R. at 316.) Various tests, including an ultrasound, X-rays and blood tests, were relatively normal with the exception of a plantar calcaneal spur, ossification of the pre-insertional Achilles tendon on the right foot, and nonspecific soft tissue swelling in the lower extremities. (Admin. R. at 317-19, 323-25, 327.) Ginger Vaughn, M.D., diagnosed Plaintiff with cellulitis and prescribed medication, as well as elevation and limited use of the affected extremities for a few days. (Admin. R. at 328-29.)

         One week later, Plaintiff returned to the Clinic for back and left shoulder pain resulting from a fall from a chair two days earlier. (Admin. R. at 312.) A cervical x-ray revealed “mild multilevel discogenic and facet degenerative spondolyloysis appreciated” with a conclusion the area was “good and stable.” (Admin. R. at 313, 326.) Terri Mucha, M.D., instructed Plaintiff to ic e the area for ...

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