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Carpenter v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

December 13, 2017

ALBERT E. CARPENTER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Comm'r of Soc. Sec., Defendant.

          BENITA Y. PEARSON JUDGE.

          REPORT AND RECOMMENDATION

          DAVID A. RUIZ UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Albert Eugene Carpenter (hereinafter “Plaintiff”), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter “Commissioner”), denying his applications for a Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.

         I. Procedural History

         On March 6, 2014, Plaintiff filed his applications for POD, DIB, and SSI, alleging a disability onset date of January 15, 2006.[1] (Transcript (“Tr.”) 184-193). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 141-159). Plaintiff participated in the hearing on October 1, 2015, was represented by counsel, and testified. (Tr. 40-100). A vocational expert (“VE”) also participated and testified. Id. On November 4, 2015, the ALJ found Plaintiff not disabled. (Tr. 33). On November 10, 2016, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-3). On December 22, 2016, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 10 & 13).

         Plaintiff asserts the following assignment of error: (1) the ALJ's assessment of opinion evidence from medical sources did not comport with the regulations and Sixth Circuit precedent. (R. 10).

         II. Evidence

         A. Personal and Vocational Evidence

         Plaintiff was born in October of 1964 and was 49-years-old on the amended alleged disability onset date. (Tr. 43, 184). He has a degree in business management from Malone University. (Tr. 53-54). He had past relevant work as a data center operator, bulk loader, box maker, cold food packer, ladle handler, packager, and assistant pastor. (Tr. 30).

         B. Relevant Medical Evidence[2]

         1. Treatment Records

         On December 20, 2011, Plaintiff was seen at the Care Alliance Center complaining of left hip pain and requesting pain medication and vitamins. (Tr. 277). He reported a history of right hip replacement 10 years earlier. Id. He was given Ibuprofen 800mg to take as needed. (Tr. 278).

         On May 6, 2014, Plaintiff reported 7/10 pain located in both hips of intermittent frequency. (Tr. 296).

         On June 30, 2015, Plaintiff was seen by James Brown, M.D., and diagnosed with hypertension, chronic allergic conjunctivitis, and primary osteoarthritis involving multiple joints for which he was prescribed Naproxen. (Tr. 275-276).

         On September 14, 2015, an x-ray of Plaintiff's knees yielded an impression of marked patellofemoral compartment degenerative arthritis in the left knee and mild to moderate lateral compartment degenerative arthritis in both knees. (Tr. 282). On the same date, an x-ray of Plaintiff's lumbar spine revealed mild degenerative disc disease at ¶ 4-5, mild facet degenerative changes at ¶ 5-S1, and no acute abnormality. (Tr. 284).

         2. Medical Opinions Concerning Plaintiff's Functional Limitations

         On April 22, 2014, at the request of the Agency, Plaintiff was seen by Dorothy Bradford, M.D. (Tr. 267-274). Manual muscle testing yielded normal results in all areas save for reductions in hip flexion, extension, and rotation. (Tr. 267-270). On examination, Plaintiff's station and posture were normal, gait was normal, and Plaintiff did not use an ambulatory aid. (Tr. 273). Examination of his lower extremities bilaterally revealed “No misalignment, tenderness or masses, normal stability, normal strength and tone. Decreased ROM at both hips more on the right.” Id. Dr. Bradford's assessment stated: “Claimant had a right TKR in 2000 and now alleges repeat pain with weight bearing for the past year along with left hip pain. He has not sought medical attention. On exam today he does have mildly decreased ROM in both hips with pain. His gait is normal.” (Tr. 274). Dr. Bradford opined this exam supported “possible [degenerative joint disease] of both hips” and that Plaintiff “should not stand or walk for more than 30 minutes continuously.” Id. A radiology report signed the next day by R. Firdaus, M.D., and addressed to Dr. Bradford states: “There is a total hip prosthesis which is maintained in satisfactory alignment and position. No complications are seen. Incidentally noted are some degenerative changes in the sacroiliac joint.” (Tr. 266).

         On May 1, 2014, State Agency non-examining physician Gerald M. Klyop, M.D., reviewed the evidence of record, including Dr. Bradford's above examination. (Tr. 105-106). Dr. Klyop found Plaintiff only partially credible. (Tr. 105). While acknowledging Plaintiff's prior joint replacement, he noted the lack of any evidence of arthritis around the reconstructed joint. Id. Dr. Klyop also noted Plaintiff had some limited range of motion and reported pain, but contrasted this with Plaintiff' normal gait and Plaintiff's acknowledged lack of any pain treatment for his hips in the last ten years and reliance on over-the-counter medications to combat discomfort. (Tr. 105). Dr. Klyop also opined that Dr. Bradford's opinion should be ascribed only limited weight because “it is unclear why she felt he could stand/walk in 30 minute increments as the clt reported only 10 min tolerance and she does not provide any explanation as to the total amount of time in a day the clt can bear weight.” Id. Dr. Klyop pointed to the largely normal objective manual muscle testing that, “[a]side from some ROM deficit in the hip, clt does not show any weakness or gait disturbance which would support the degree of limitation opined.” Id. Dr. Klyop opined Plaintiff could lift/carry 20 pounds occasionally and 10 pounds frequently, stand/walk for 6 hours and sit for 6 hours in an 8-hour workday, should avoid heavier lifting, could frequently kneel and crouch, and could occasionally climb and crawl. (Tr. 105-106).

         On July 18, 2014, State Agency non-examining physician Diane Manos, M.D., also reviewed the evidence of record, including Dr. Bradford's above examination. (Tr. 124-127). Dr. Manos's findings are in agreement with those of Dr. Klyop above. Id. She too found Plaintiff only partially credible noting his lack of treatment, took issue with Dr. Bradford's opinion given the lack of any explanation or supporting evidence, and assessed identical lifting/carrying, standing/walking and sitting restrictions as Dr. Klyop. (Tr. 125-126).

         On September 14, 2015, Plaintiff was seen by George F. Muschler, M.D., an orthopaedic surgeon.[3] (Tr. 286-295). Dr. Muschler noted Plaintiff walked with a limp suggesting discomfort in the left lower extremity. (Tr. 289). Dr. Muschler stated “[p]ain limits both flexion and internal and external rotation [in the left hip] consistent with degenerative arthritis seen on radiographs.” (Tr. 289). With respect to the right hip, Dr. Muschler stated “[w]ell-functioning hip with respect to range of motion. Pain is reported only after prolonged standing and weight bearing, consistent with possible early aseptic loosening of the femoral complement associated with polyethylene wear.” (Tr. 289-290). Dr. Muschler diagnosed Plaintiff with the following: left hip degenerative osteoarthritis, moderate with pain limiting physical activities but not sufficient to justify intervention with hip arthroplasty at present; right hip 16 years status post-surgery with pain, possible aseptic loosening but pain not sufficient to justify intervention with revision arthroplasty at present; degenerative arthritis of both knees, symptoms slightly worse on the left; high blood pressure, controlled with medication; right ankle osteoarthritis; right Achilles tendinosis; low back pain consistent with mild facet arthropathy without any evidence of radiculopathy; bilateral chronic knee pain, likely secondary to degenerative osteoarthritis. (Tr. 290). Radiographs and imaging studies were ordered. (Tr. 291). With respect to exercise and activity, Dr. Muschler stated as follows:

Standing and walking greater than 4 hours and in the lower day as well as frequent stair climbing, ladders, scaffold, crawling, kneeling are significant the [sic] limited by his combination of bilateral hip and bilateral knee pathology. This limits him from aggressive physical activities involving the lower extremities. He is capable of working in an office setting where stairclimbing is minimized and lifting and carrying activities are occasional. There is no limitation and upper extremity activities.
A regular walking program to maintain physical thickness is encouraged. Cross training with an exercise bicycle, treadmill, and even stair master is encouraged to the limits of tolerance, provided he does not suffer the following day for exercise performed during the current day.

(Tr. 291). Dr. Muschler also found that physical therapy was “not necessary at this time, ” and opined that home exercise was sufficient. Id.

         C. Relevant Hearing Testimony

         At the October 1, 2015 hearing, Plaintiff testified as follows:

. He is 6'4” and weighs 220 pounds. (Tr. 47). He is left handed. Id.
. His driver's license was suspended two years earlier. (Tr. 51). He is able to take public transportation. (Tr. 52).
. He lives in a ministry house with two friends supported by donations, receives food stamps, and has health insurance. (Tr. 48).
. He was convicted of theft in 2009. He has a history of prior crack cocaine and alcohol abuse. ...

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