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Russell T. A. v. Berryhill

United States District Court, N.D. Oklahoma

March 25, 2019

RUSSELL T. A., II, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Jodi F. Jayne, Judge

         Plaintiff Russell T. A., II seeks judicial review of the decision of the Commissioner of the Social Security Administration (“SSA”) denying his claim for disability insurance benefits under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 416(i) and 423. In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge. Any appeal of this decision will be directly to the Tenth Circuit Court of Appeals. For reasons explained below, the Court affirms the Commissioner's decision denying benefits.

         I. Standard of Review

          In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994)). The Court's review is based on the record, and the Court will “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Id. (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). The Court may neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, the Commissioner's decision stands so long as it is supported by substantial evidence. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).

         II. Procedural History and ALJ's Decision

          Plaintiff, then a 46-year-old male, protectively applied for Title II benefits on May 1, 2014, alleging a disability onset date of January 4, 2011. R. 162-165. Plaintiff last met the insured status requirements of the Act on December 31, 2011. R. 19. Plaintiff claimed he was unable to work due to psoriatic arthritis. R. 200. Plaintiff's claim for benefits was denied initially on July 21, 2014, and on reconsideration on October 27, 2014. R. 81-84; 88-90. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). The ALJ held an initial hearing on November 9, 2015, but took no substantive testimony. Instead, the ALJ gave Plaintiff, who was pro se at that time, an opportunity to gather more medical records and retain an attorney. R. 30-40. Plaintiff's hearing was reset to April 12, 2016, and proceeded with Plaintiff's counsel present. R. 41-65. Due to reported work activity spanning the months of January through May 2011, Plaintiff's attorney amended Plaintiff's alleged onset date to May 31, 2011. R. 47, 48.

         Plaintiff testified that he worked building swimming pools for twenty years. Plaintiff was employed by Vivian Pools for “over ten years” installing pools (R. 49), and then owned his own pool company for ten years doing the same type of work. Id. All of Plaintiff's past relevant work was performed at the “very heavy” exertional level, skilled, with SVPs of 8 (installer) and 7 (independent contractor). R. 22. Plaintiff testified that he had to stop building pools in May 2011 because he “couldn't function because of my hands were - I had sausage fingers, I couldn't make a fist.” R. 51. Plaintiff stated that as of May 2011, normal pool installations that required an average of two months to complete took him six months to complete. Id.

         Upon questioning, Plaintiff testified that he experienced episodes of psoriasis since the 1990s that would “come and go, ” and he did not seek or receive treatment for psoriatic arthritis beyond pain and anti-inflammatory medication until 2012. R. 51-52, 55. However, in 2011 Plaintiff testified that he experienced “unexplainable fever … for weeks” and had difficulty breathing and walking, so he went to see a rheumatologist. R. 55. Plaintiff testified that by the end of 2011, he spent a total of three hours per day out of bed, and the remainder of the time lying down to relieve symptoms. R. 57.

         The ALJ found that Plaintiff did not engage in any substantial gainful activity from his amended alleged onset date, May 31, 2011, through his date last insured (“DLI”) of December 31, 2011. R. 19. The ALJ noted that Plaintiff worked on some pools after his original alleged onset date of January 4, 2011, but the work did not rise to the level of substantial gainful activity. Plaintiff denied working after his amended alleged onset date. Id. The ALJ found that through the DLI, Plaintiff had the severe impairments of psoriatic arthritis, psoriasis, and obesity. Id. Plaintiff's impairments did not meet or medically equal any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ discussed listing 14.09 for psoriatic arthritis, finding Plaintiff did not have “a persistent inflammation or persistent deformity [that] causes an inability to ambulate effectively and/or to perform fine and gross movements effectively” and that Plaintiff's condition did not “fulfill other requirements of severe fatigue, malaise, or involuntary weight loss.” R. 20. The ALJ also discussed listing 8.05 for psoriasis, finding Plaintiff's condition “does not include extensive lesions persisting at least three months despite continuing treatment as prescribed.” Id. The ALJ found Plaintiff's obesity, combined with his other impairments, “somewhat reduce[d Plaintiff's] ability to stand, walk, lift and carry. A reduction in capacity to work at the light exertional range with some further appropriate work restrictions is therefore warranted. These limitations are accounted for in the residual functional capacity [(“RFC”)] as determined herein.” R. 20.

         Prior to making a step four finding and after “careful consideration of the entire record, ” the ALJ found that Plaintiff had the following RFC during the relevant time period:

The claimant had the residual functional capacity to perform less than the full range of light work as defined in 20 CFR 404.1567(b). He can lift/carry 20 pounds occasionally and 10 pounds frequently. In an eight-hour workday, he can stand/walk for six hours and sit for six hours. There can be no climbing of ladders, ropes, or scaffolds. There can be frequent climbing of stairs and ramps, stooping, crouching, crawling, kneeling, handling, and grasping.

Id. In making his RFC decision, the ALJ summarized Plaintiff's hearing testimony, noting that Plaintiff testified he stopped working “due to illness in May 2011, ” and Plaintiff's testimony that in 2011 “he could not turn his neck and so could not drive. His spine and every joint were affected by his psoriatic arthritis.” R. 21. The ALJ further noted that Plaintiff “could not explain the statement in Exhibit 2F, page 45 that he did a lot of work in 2012. He thought it might refer to chores he did around his home, not work for which he was paid. However, the report from Michael Vu, M.D. states he had been ‘very busy with a lot of physical jobs . . . .'” Id.

         In his RFC discussion, the ALJ pointed out that “[a]ll but a few of [Plaintiff's] medical records date after his date last insured.” Id. Records from Muscogee Nation Division of Health, dated December 20, 2011, show that Plaintiff presented complaining of a psoriasis flare and psoriatic arthritis. Plaintiff's chronic problems during that visit were listed as “other psoriasis and similar disorders, sleep apnea, obstructive, elevated BP without hypertension.” R. 22. The ALJ mentioned findings from this December 20, 2011, visit that, although Plaintiff did have “extensive psoriatic plaques on his torso and extremities, ” he also had normal range of motion, muscle strength, and stability in all extremities, and no pain on inspection. Id. The ALJ also noted that a “report from Jasmine Gaddy, M.D. of Claremore Indian Hospital sets [Plaintiff's] arthritic onset in September 2011 (Exhibit 5F, page 6).” Id.

         The ALJ found that Plaintiff's complaints were “not entirely consistent with the medical evidence and other ...

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