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Carlton v. Berryhill

United States District Court, E.D. Louisiana

January 2, 2018


         SECTION: “E” (1)



          Janis van Meerveld, United States Magistrate Judge

         The plaintiff, David A. Carlton, Sr., seeks judicial review, pursuant to Section 405(g) of the Social Security Act (the “Act”), of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying his claim for supplemental security income under Title XVI of the Act, 42 U.S.C. § 1381. The matter has been fully briefed on cross-motions for summary judgment.[1] For the following reasons, IT IS RECOMMENDED that the Motion for Summary Judgment filed by the plaintiff (Rec. Doc. 10) be DENIED; and the Motion for Summary Judgment filed by the Commissioner (Rec. Doc. 12) be GRANTED.

         Procedural Background

         Mr. Carlton applied for supplemental security income on December 29, 2014, asserting a disability onset date of December 29, 2014. He alleged the following illnesses, injuries, or conditions: back injury, leg, shoulder, and hip problems. On July 31, 2015, his claim was denied by the state agency. The Disability Determination Explanations concluded that although Mr. Carlton's condition “results in some limitations in [his] ability to perform work related activities . . . these limitations do not prevent [him] from performing work [he has] done in the past as [a security officer] . . . .”

         Mr. Carlton obtained a non-attorney representative and requested a hearing before an Administrative Law Judge (“ALJ”), which was held on May 26, 2016. On August 25, 2016, the ALJ issued an adverse decision. The Appeals Council denied review on November 10, 2016.

         On December 19, 2016, Mr. Carlton filed a Complaint in federal court to review the Commissioner's decision. (Rec. Doc. 1). The Commissioner answered and filed the administrative record. (Rec. Docs. 8, 9). Mr. Carlton, now represented by counsel, filed a brief in support of his position, which this Court construes as a Motion for Summary Judgment. (Rec. Doc. 10). The Commissioner filed a Motion for Summary Judgment (Rec. Doc. 12).

         Evidence in the Record

         Hearing Testimony

         At the hearing before the ALJ, Mr. Carlton was represented by Kiersten Pritchett, a non-attorney representative from the law office of James Connor. R. at 39. Ms. Pritchett stated that Mr. Connor was not alleging a listed impairment and agreed that the matter was “strictly Step 5.” R. at 41. She argued that the combination of Mr. Carlton's impairments results in symptoms- including fatigue, numbness, tingling, dizziness, headaches, chronic pain, poor memory, and lack of concentration-that would interfere with his ability to work for two hour periods without interruption and would interfere with his ability to complete an eight-hour workday on a regular basis. R. at 42.

         Mr. Carlton attended school through the eighth grade. R. at 44. He was 55 at the time of the hearing. R. at 64. He lives with his wife and twenty-nine year old daughter, both of whom work. R. at 43-44. He noted that he applied for disability benefits in the 1990s, but said his claim had been denied because he had too many assets. R. at 45.

         Mr. Carlton testified that he last worked in 2008 as a security guard at a casino. R. at 44-46. He was bonded and carried a gun. R. ta 47. He sat and watched over people or walked with the tellers and watched over them as they opened the machines. R. at 47. He testified that he worked in the position for less than a year. R. at 48. Before working as a security guard, Mr. Carlton was a door builder. R. at 48.

         Mr. Carlton testified that he had not looked for work since his security guard job in 2008. R. at 51. The ALJ asked Mr. Carlton what was keeping him from working. R. at 51. Mr. Carlton testified that he was involved in a motor vehicle accident in 2014 and everything had gotten worse since then. R. at 51. He said he cannot walk, that his hips and lower back hurt, and that his shoulder and neck hurt on and off. R. at 51. He testified that the injections he had received earlier in the year had not helped at all. R. at 51. The ALJ pointed out that his medical records indicated that his pain levels were much better. R. at 52. Mr. Carlton testified that the hip injections had helped a little bit. R. at 52. His representative also asked him why he cannot perform a simple job. R. at 69. Mr. Carlton said the pain. R. at 69. He said that when he was 39, a doctor told him he had the body of a 52 year old. R. at 69.

         Mr. Carlton confirmed that he smokes marijuana, sometimes daily. R. at 53. He said he does so for his nerves and muscle spasms, but he also testified that every doctor he has told about his marijuana use has advised him to quit. R. at 53-54. Mr. Carlton said he does not smoke regular cigarettes or drink alcohol. R. at 54.

         Mr. Carlton testified that he could stand for 10 or 15 minutes. R. at 55. He can sit for about 30 minutes. R. at 55, 58. He said that he could walk less than a block. R. at 58. He testified that he experienced pain walking down the one flight of stairs in the parking lot before attending the hearing. R. at 55. Mr. Carlton was using a cane at the hearing and he testified that he was prescribed the cane by the consulting physician during his disability determination at the state level. R. at 56.

         Mr. Carlton can drive, and he drove about an hour and 20 minutes to get to the hearing, stopping twice. R. at 58. He testified that he does not typically run errands other than driving his wife and son to work-about a 26 mile round trip. R. at 59. Mr. Carlton cuts the grass at home using a riding lawn mower. R at 59. Mr. Carlton described a typical day as getting up, taking his son to work, laying down or sitting at the computer, then taking his wife to work, then picking up his son and laying down or sitting at the computer, then going pick up his wife. R. at 61. On the computer he gets on Facebook or plays Fresh Deck Poker. R. at 62. He said the most physical thing he does is lay in a baby pool with his six-year old grandson. R. at 61. He said he goes out to his shed sometimes. R. at 63. He said he had changed the battery terminal on his truck the day before but said it would take him two hours to do a 10 minute job because he would stop and rest. R. at 63.

         Mr. Carlton testified that he can prepare himself a sandwich. R. at 61-62. He said he can groom himself in the mornings, though bending down is a little difficult. R. at 62.

         Ms. Pritchett asked Mr. Carlton about his diagnosis of amnesia and dementia. R. at 65. Mr. Carlton testified that this caused him to have trouble remembering things and that he had difficulty completing tasks because he would forget what he had started. R. at 65. He said he suffered from headaches a couple of times a week at a pain level of 8 on a scale of 1 to 10. R. at 66.

         Mr. Carlton testified that his COPD makes it difficult for him to breathe in extreme heat. R. at 67. He testified that he takes medication for his diabetes. R. at 67. He denied suffering any side effects from his medication, but he noted that he has recently been suffering from vision problems and he thought this could be due to the medications he was taking. R. at 67-68.

         Ms. Pritchett also asked Mr. Carlton about his neuropathy, and Mr. Carlton testified that he cannot feel the bottom of his feet and that he has constant numbness and tingling. R. at 68.

         Mr. Carlton testified that he takes medication for pain but it does not relieve the pain completely. R. at 68.

         Vocational Expert

         Thomas Meunier testified as a vocational expert. R. at 70. He classified Mr. Carlton's former work as a door assembler, medium, semi-skilled, SVP 3; a security guard, light, semiskilled, SVP 3; and a carpenter supervisor, light, skilled, SVP 7.

         The ALJ posed the following hypothetical to Mr. Meunier: a person with Mr. Carlton's age, education, and vocational experience, who is limited to occasional stooping and crouching, but no exertional limitations. R. at 71. Mr. Meunier said these restrictions would not preclude Mr. Carlton's past relevant work. R. at 71.

         The ALJ then added a medium exertional limitation along with only occasional climbing of ramps and stairs, with frequent crawling, kneeling, and balancing. R. at 71-72. Mr. Meunier testified that these additional restrictions would not preclude Mr. Carlton's past relevant work. R. at 72. The ALJ then added an additional limitation to simple, routine tasks and the requirement that complex instructions be written out to compensate for a memory or ability to understand limitation. R. at 72. Mr. Meunier said these mental restrictions would prevent work as a carpenter supervisor, but would not preclude door assembly or security guard work. R. at 72-73.

         The ALJ then added a further limitation to light work. R. at 73. With this added restriction, Mr. Meunier testified that the security guard work would still be available. R. at 73.

         The ALJ then added a further hypothetical restriction to walking or standing for no more than an hour at a time. R. at 73. Mr. Meunier said this would preclude all past work. R. at 73.

         Finally the ALJ asked whether under any of the hypotheticals, a person who was off task for an hour more per day than the typical lunch and break schedule would be precluded from competitive work. R. at 74. Mr. Meunier said that this restriction would preclude competitive work. R. at 74.

         Ms. Pritchett did not ask the vocational expert any questions.

         Medical Records

         Emergency room records indicate that Mr. Carlton was involved in a motor vehicle accident on January 6, 2014. R. at 240-41. At the time of admission, Mr. Carlton complained of right shoulder and neck pain and reported a history of chronic neck and shoulder problems. R. at 241. It was noted that he was not experiencing chest pain and was not short of breath. R. at 241. His breath sounds were normal. R. at 242. Mild reduction in range of motion in his right shoulder was noted, with normal range of motion in other extremities. R. at 242. A cervical spine and shoulder x-ray were performed and no fracture or dislocation were seen. R. at 242. The analysis of the cervical spine x-ray also noted no prevertebral soft tissue swelling and intervertebral disc spaces within normal limits. R. at 247. Mr. Carlton's weight was noted to be 320 pounds with a BMI of 47.26. R a. at 242. Mr. Carlton reported he was a current, daily smoker of one pack a day. R. at 242.

         On January 9, 2014, Mr. Carlton treated with Gregory Bickham, a chiropractic doctor at the Healing Health Center (“HHC”). R. at 263. Mr. Carlton reported his cervical pain as 4 or 5 on a scale of 1 to 10 before the motor vehicle accident and 8 since the accident. R. at 263. He described his shoulder pain as 7 on a scale of 1 to 10. R. at 263. He also reported that he had no thoracic pain before the accident but had been experiencing thoracic pain at level of 7 since the accident. R. at 263. He reported lumbar pain of 4 or 5 before the accident and 7 since the accident. R. at 263. Despite the reports of past lumbar and cervical pain, the record of this visit also notes that Mr. Carlton did not have any pain prior the motor vehicle accident. R. at 265.

         With regards to past injuries, Mr. Carlton reported working on a house four years earlier when a board fell on his head and right shoulder. R. at 264. Mr. Carlton reported he never smoked. R. at 264. His weight was 320 pounds and his BMI was 47.3. R. at 264.

         Dr. Bickham performed a physical examination and found tightness, tenderness to palpation, and spasms of the cervical muscles. R. at 264. Mr. Carlton was found positive for all cervical tests. R. at 264. There was decreased range of motion and pain in his right shoulder and thoracic region. R. at 264-65. Dr. Bickham found that Mr. Carlton scored an 80 on the Oswestry disability index, which indicated a very severe disability. R. at 265. A spinal function analysis was performed (with activities like push/pull vacuum, wash dishes in sink, pour soup, carry 20lb groceries, and dig with shovel). R. at 304. For each task, Mr. Carlton was scored on a scale of 1 to 5 with 1 being “able, ” 3 being “restricted, ” and 5 being “unable.” R. at 304. Mr. Carlton was not able to do any of the 50 tasks without restriction. He could pour soup ...

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