United States District Court, E.D. Louisiana
DAVID A. CARLTON, SR.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
REPORT AND RECOMMENDATION
van Meerveld, United States Magistrate Judge
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. 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
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] . . . .”
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.
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).
in the Record
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
Carlton testified that he takes medication for pain but it
does not relieve the pain completely. R. at 68.
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.
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.
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.
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.
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.
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.
Pritchett did not ask the vocational expert any questions.
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.
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.
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.
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 ...