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Duck v. Colvin

United States District Court, S.D. Mississippi, Eastern Division

July 31, 2014



KEITH STARRETT, District Judge.

This cause is before the Court on Complaint [1] filed by Jerome Duck, Jr. ("Duck") seeking review of a final decision of the Acting Commissioner of the Social Security Administration, Plaintiff's brief [10] and Defendant's Motion to Affirm the Decision of the Commissioner [11], the Report and Recommendation [14] of Magistrate Judge Michael T. Parker, and Objection to the Report and Recommendation. The Court has considered the pleadings and the record in this case and finds that the decision of the Acting Commissioner should be affirmed.


On May 9, 2005, Plaintiff applied for a period of disability and disability insurance benefits ("SSD"), [1] alleging disability as of April 1, 2005, due primarily to diabetes mellitus, hypertension, impaired vision in his left eye, kidney failure and migraine headaches. (Administrative Record [9] at pp. 153-155, 187).[2] Plaintiff's claim was denied initially and upon reconsideration. ([9] at pp. 82-85, and 91-93). Thereafter, he requested a hearing before an Administrative Law Judge ("ALJ"). ([9] at p. 94).

On February 15, 2008, a hearing was convened before ALJ Lanier Williams. The ALJ heard testimony from the Claimant and Joe Hargett, a vocational expert ("VE"). ([9] at pp. 626-698). The Claimant's medical history was presented through the medical records and Mr. Duck's testimony. In addition to the medical issues for which he initially claimed disability, the Claimant's diagnosis of major depressive disorder with psychotic features, as well as his obesity, were presented during the hearing.[3] On February 29, 2008, the ALJ issued a decision finding that Plaintiff was not disabled. ([9] at pp. 51-61).[4]

The Claimant appealed; and on September 22, 2008, the Appeals Council granted the request for review, vacated the hearing decision, remanded the case to the ALJ to resolve three issues and directed the ALJ to: (1) evaluate Claimant's mental impairment in accordance with 20 C.F.R. § 404.1520(a); (2) give further consideration to Claimant's residual functional capacity ("RFC"), citing the record and applying the pertinent Social Security rulings and Code regulations; (3) evaluate Claimant's obesity in accordance with Social Security Ruling 02-1p, determining its impact, if any, on claimant's RFC; (4) evaluate the "additional evidence received since the hearing in accordance with 20 C.F. R. § 404.1527";[5] and (5) obtain supplemental evidence from a VE with regard to transferable skills, if any, pursuant to the applicable Code regulations and Social Security rulings. The ALJ was directed to offer the Claimant another opportunity for hearing. ([9] at pp. 127-128).

A second hearing was held before ALJ Williams on June 3, 2009, at which both Mr. Duck and VE Hargett testified. During the hearing, more medical evidence was presented; and counsel for the Claimant raised yet another possible diagnosis, "iatrogenic disorder, "[6] which he argued stemmed from Mr. Duck's "perception" that he had sustained a heart attack not long after the time of his alleged disability onset. ([9] at pp. 699-793). Pursuant to the ALJ's request, on June 6, 2009, counsel submitted information about iatrogenic disorder. ([9] at pp. 147-148). The ALJ rendered his decision on July 27, 2009, finding that the Claimant was not disabled within the meaning of the Social Security Act from April 1, 2005 through the date last insured, December 31, 2006.[7] ([9] at pp. 62-77).

After the Claimant appealed the ALJ's second decision denying SSD ([9] at pp. 142-146), the Appeals Council granted his request for review and vacated the decision with respect to the issue of disability on or before December 31, 2006. ([9] at p. 79). The matter was again remanded, and the Appeals Council directed the ALJ to: (1) give further consideration to the treating source opinion pursuant to 20 C.F.R. §§ 404.1427 and 416.927 and Social Security Rulings 96-2p and 96-5p, explaining the weight given to the opinion; (2) as appropriate, obtain evidence from a medical expert to clarify the nature and severity of Claimant's impairments; (3) further evaluate the Claimant's mental impairments and document specific findings thereto in accordance with 20 C.F.R. §§ 404.1420a and 416.920a; (4) give further consideration to the claimant's maximum RFC and provide a rationale with record references; and (5) as appropriate, obtain supplemental evidence from a VE to clarify the effect of the assessed limitations, pursuant to the applicable Code regulations and Social Security rulings. Finally, the Appeals Council directed that the matter be heard before a different ALJ. ([9] at pp. 78-81).

ALJ James Barter presided over the third hearing on October 19, 2011. Mr. Duck testified again, and VE Katina Virden testified. The Claimant raised additional medical issues including back and arm pain and numbness. ([9] at pp. 794-842). The treating source, Dr. Moses Young, was not present. Counsel represented that Dr. Young had been contacted and said that he "st[ood] by everything [he'd] written and [was] willing to provide a statement." ([9] at p. 799). On December 13, 2011, the ALJ wrote Dr. Young, seeking clarification about his diagnosis of peripheral neuropathy[8] and his statement that the Mr. Duck had sustained a heart attack, among other things. ([9] at pp. 517-518). Dr. Young responded on December 22, 2011; and the ALJ handed down his decision on April 26, 2012, finding that the Claimant was not disabled and thus not entitled to SSD.[9] ([9] at pp. 18-40). The Claimant again appealed ([9] at pp. 620-625); but this time the Appeals Council denied review, rendering ALJ Barter's decision final. ([9] at pp. 11-13).

Aggrieved by the Acting Commissioner's decision to deny benefits, Plaintiff filed a Complaint in this Court on May 7, 2013, seeking a modification of the ALJ's decision, thereby granting SSD, and other relief. (Complaint [1] at pp. 4-5). The Acting Commissioner answered the Complaint, denying that Plaintiff is entitled to any relief. (Answer [8]). The parties having briefed the issues in this matter pursuant to the Court's Order [4], the matter is now ripe for decision.[10]


Plaintiff was sixty-one years old at the time of his third hearing before the ALJ on October 19, 2011. ([9] at p. 801). His alleged disability onset date was April 1, 2005, when he was fifty-five years old. ([9] at p. 813). Plaintiff has a high school education and has past work experience as a truck driver and more recently as a prison guard at Louisiana State Prison, Angola. ([9] at pp. 192, 653, 801, and 806-808). Plaintiff alleges that he is disabled due to diabetes mellitus, hypertension, impaired vision in his left eye, kidney failure, migraine headaches, major depressive disorder with psychotic features, obesity, neuropathy/polyneuropathy, back pain, leg pain, arm numbness, dizziness, chest pain, inability to sleep for fear of death and iatrogenic disorder that caused deconditioning as a result of a perceived diagnosis of heart attack. ([9] at pp. 187, 637-650, 655-681, 709, 714-715, 719, 731-742, 767-769, 789 and 809-830).

Plaintiff began treating with physicians at Jefferson Comprehensive Health Center, Inc. in Fayette, Mississippi ("Jefferson Health Center")[11] in August of 2001. He requested medication for depression, stating a history of separation from his wife, four children in foster care, job loss and a problem with workers' compensation. ([9] at pp. 344-345). Records indicate that, at or before that time, he was diagnosed with major depression and diabetes mellitus; he was prescribed Paxil for depression and Glucotrol for diabetes. He weighed 234 pounds. ([9] at pp. 344-345). In November 2001, he was diagnosed with hypertension; but no medication was prescribed. His weight remained steady at 235 pounds. ([9] at p. 349). His physician prescribed Accupril for hypertension a year later, in November 2002, at which time Amaryl was added to his regime for blood sugar control relative to diabetes. ([9] at p. 352).

From 2002 through 2004, the Plaintiff returned to Jefferson Health Center regularly for medication refills, check-ups and an annual assessment.[12] His blood pressure and blood sugar levels were stable and controlled through the year 2004 with the prescribed medications.[13] During this three-year period, his weight ranged from 231 to 239 pounds; and his height was recorded as 5 feet 8 inches. In January 2002, the diagnosis of depression disappeared from his chart, as did the prescription for Paxil. ([9] at pp. 350-360). Although depression was mentioned again on April 4, 2002, September 5, 2002 and October 6, 2003, no medication was prescribed.[14] ([9] at pp. 350-351, and 355). The medical records otherwise remained silent regarding the depression diagnosis from 2002 through 2004. ([9] at pp. 350-360).

Plaintiff had a check-up on February 5, 2005, which revealed some developments in his overall health condition. According to lab work from December 2004, his diabetes was not optimally controlled, and he had elevated cholesterol and triglyceride levels. A diagnosis of hyperlipidemia was added, as was the physician's impression that Mr. Duck was "overweight" at approximately 238 pounds. ([9] at p. 361). His plan that day was to increase the Glucotrol dosage, keep the same dosage of Accupril and perform some tests and additional lab work. The physician noted that the patient needed medical examinations for his eyes and feet.[15] Mr. Duck was to return in four weeks. ([9] at p. 361).

The Plaintiff returned to Jefferson Health Center on April 25, 2005, complaining of dizziness, "feeling bad, " and almost fainting for a period of three weeks. ([9] at p. 362). He reported that his vision was blurry and that his last eye exam had been several years ago. He had not checked his blood sugar for a while because he was out of test strips and could not afford them because he was unemployed. Both his blood pressure and blood sugar were elevated; he had onchomychosis, [16] but both feet were dry with no lesions and full distal pulses. ([9] at pp. 362-363). Lab tests revealed an extremely elevated microalbumin[17] level (89 with a reference range of 0-17); and his hemoglobin A1c[18] was high, as it had been in December 2004. ([9] at pp. 370-371). The physician's plan included adding Glucophage for diabetes, taking Glucotrol twice per day (as opposed to once daily), increasing the Accupril dosage, and adding Lipitor for high cholesterol. He was advised to get an eye exam "ASAP, " follow up with a podiatrist, check his feet daily, monitor his blood sugar daily and return in four-to-six weeks. ([9] at pp. 362-363).

He followed up on May 23, 2005, complaining of eye problems, nausea, dizziness, occasional vomiting and recent syncope (fainting). He had checked his blood sugar a week before and reported that he "[felt] well with no complaints." It appears that an electrocardiogram was performed at Jefferson Health Center. The physician was concerned about Mr. Duck's heart and admitted him to Jefferson County Hospital for tests to rule out ...

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