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McCord v. Commissioner of Social Security

United States District Court, N.D. Mississippi, Oxford Division

June 8, 2017

CLARENCE MCCORD PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          MEMORANDUM OPINION

          ROY PERCY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Clarence McCord has applied for judicial review under 42 U.S.C. § 405(g) of the Commissioner of Social Security's decision denying his application for supplemental security income (SSI) under Title XVI of the Social Security Act. Docket 1. Plaintiff filed an application for benefits on January 15, 2013, alleging disability beginning on August 9, 2009. Docket 7 at 178-183.

         The agency administratively denied Plaintiff's claim initially on April 23, 2013, and on reconsideration on September 3, 2013. Id. at 81- 91; 94-103. Plaintiff then requested an administrative hearing, which the Administrative Law Judge (ALJ) held on January 20, 2015. Id. at 116-17; 128-32. The ALJ issued an unfavorable decision on May 1, 2015. Id. at 9-23. The Appeals Council denied his request for review on July 19, 2016. Id. at 1-4. Plaintiff timely filed this appeal from the July 19, 2016 decision, the undersigned held a hearing on May 11, 2017, and it is now ripe for review.

         Because both parties have consented to a magistrate judge conducting all the proceedings in this case as provided in 28 U.S.C. § 636(c), the undersigned has the authority to issue this opinion and the accompanying final judgment. Docket 9.

         I. FACTS

         Plaintiff was born January 10, 1963, and was 52 years old at the time of the ALJ hearing. Docket 7 at 178. At the time Plaintiff's application was filed, Plaintiff was 50 years old and considered an individual closely approaching advanced age. Id. at 21. Plaintiff has an eighth grade education and has past relevant work in construction, which is considered semi-skilled, medium to heavy work. Id. at 34-35. Plaintiff testified that he last worked in 2004 or 2005 and contends he became disabled as a result of back problems, sleep apnea, breathing problems, arthritis, diabetes, and depression. Id. at 35; 81. Plaintiff testified that, due to his back pain, he hurts all the time and cannot stand for more than a couple of hours “on a good day.” Id. at 38.

         Regarding Plaintiff's mental health issues, he testified that he was previously treated by a therapist for his anxiety and depression and was prescribed celexa but currently just “read[s] the Bible and pray[s] to God about [his] depression.” Id. at 48. Due to his excessive worry about his friends and family members and their wellbeing, Plaintiff stated that he “ain't been to sleep in days, and […] can't even think right.” Id. at 49. Plaintiff testified that he is able to cook and clean for himself but described some limitations in his ability to drive a car and stated that his family and friends assist him with grocery shopping. Id. at 40, 42.

         Plaintiff's Function Report - Adult was submitted on January 30, 2013, in which he stated that his conditions affect his ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb stairs, see, complete tasks, concentrate, use his hands, and get along with others. Id. at 218. Plaintiff indicated that he uses a cane, a brace/splint, glasses, and an electric shopping cart but stated that none of these devices was prescribed by a doctor. Id. at 219. In the general remarks section, Plaintiff listed the following conditions from which he suffers: arthritis, sleep apnea, nerves, anxiety, major depression, chronic pain, diabetes, mesothelioma, or some form of cancer from working with asbestos in the construction industries. Id. at 220 The ALJ established that Plaintiff had not engaged in substantial gainful activity since January 15, 2013, the application date. Id. at 14. Next, the ALJ found that Plaintiff experienced the severe impairments of arthralgias, obesity, obstructive sleep apnea, depression, and anxiety but that Plaintiff's impairments did not meet or medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d), 416.925, and 416.926). Id. at 14-15.

         The ALJ specifically discussed how Plaintiff's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of Listing 12.04. Id. The ALJ determined that Plaintiff has mild restrictions in the activities of daily living, moderate difficulties in social functioning and concentration, persistence, and pace, and has not experienced any episodes of decompensation. Id. at 15. Furthermore, the ALJ determined that Plaintiff “is able to live alone and care for his needs […] outside of a highly supportive environment.” Id.

         Considering all of Plaintiff's severe impairments, the ALJ found that Plaintiff's demonstrated abilities were consistent with a Residual Functional Capacity (RFC) to perform light work. Id. at 15-21. The ALJ concluded that Plaintiff could “occasionally climb ramps and stairs, […] crouch, stoop, kneel, and crawl” but should “avoid climbing ladders, ropes, and scaffolds” and “should not work at exposed heights or around dangerous machinery.” Id. at 15. Further, the ALJ limited Plaintiff “to jobs involving simple and routine tasks, ” “frequent interaction with coworkers and supervisors, ” and “occasional interaction with the general public.” Id.

         The record contains two medical source statements from Plaintiff's treating physician Dr. Ramon Rosencrans dated September 15, 2011 and April 28, 2014. Id. at 242-44; 356-58. As a result of Plaintiff's chronic low blood pressure, osteoarthritis/joint pain, and depression, Dr. Rosencrans opined that Plaintiff experienced constant (meaning 67% or more of the day) “pain or other symptoms severe enough to interfere with attention and concentration needed to perform even simple work tasks during a normal eight-hour work day.” Id. at 242, 356. He indicated that due to Plaintiff's back pain, he could sit, stand, and walk for less than two hours during a normal workday and needed to elevate his legs with prolonged sitting. Id. at 243, 357. Dr. Rosencrans stated that Plaintiff required the use of a cane to assist with balance. Id.

         In his first medical source statement, Dr. Rosencrans opined that due to his back and leg pain, Plaintiff could occasionally lift and carry 10 pounds in a normal eight-hour workday; occasionally twist, stoop, and climb stairs, and never crouch or climb ladders. Id. at 243. In his second statement approximately two and a half years later Dr. Rosencrans believed Plaintiff could only rarely lift and carry 10 pounds, but could rarely (as opposed to never, as he had previously opined) crouch and climb ladders or stoop, and could occasionally twist and climb stairs. Id. at 357. Dr. Rosencrans believed Plaintiff had significant limitations in doing repetitive reaching, handling, or fingering and would likely be absent from work as a result of his impairments or medical treatment about four days per month Id. at 243-44; 357-58.

         Despite these severe limitations and lengthy record of treatment visits from Dr. Rosencrans, the ALJ noted the absence of “any laboratory work or other clinical work up other than simply recording [Plaintiff's] temperature and blood pressure” as well as the absence of any MRI or x-ray reports. Id. at 18. Since the only x-rays in the record were from 2009 and “showed very mild degenerative changes, ” the ALJ ordered a consultative examination to obtain new x- rays in order to “find a reason for [Plaintiff's] back pain.” Id. at 55. On January 30, 2015, consultative examiner Dr. Covin Jordan performed an x-ray of Plaintiff's lumbar spine with the following interpretation: “Curvature is normal. No compression injury is seen. No unusual degenerative change.” Id. at 467.

         In deciding to afford only some weight to Dr. Rosencrans's opinion, the ALJ referenced Dr. Barry Politi's Mary 27, 2013, opinion that Plaintiff demonstrated “obvious gross overreaction on some palpation and movement of the extremities.” Id. at 315. Despite refusing to perform most major musculoskeletal movements on physical examination, when preparing to leave, Dr. Politi noted that Plaintiff “had no problems bending over, picking up his shoes, and crossing his legs to show me a scar on … his foot.” Id. Dr. Politi further noted that Plaintiff “had no difficulty walking into the parking lot and getting into his car. He was able to turn the steering wheel ...


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