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Warner v. Berryhill

United States District Court, W.D. Louisiana, Alexandria Division

September 30, 2019

ROBBY WARNER, Appellant
v.
ACTING COMMISSIONER NANCY A. BERRYHILL,[1] Appellee

          DRELL, JUDGE.

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes, United States Magistrate Judge.

         Robby Warner (“Warner”) appeals the denial of his claim for Social Security Disability Insurance Benefits (“DIB”). Substantial evidence does not support the Administrative Law Judge's (“ALJ's”)/Commissioner's conclusion that Warner's disability onset date was February 13, 2013, or that Warner was engaging in substantial gainful activity from February 13, 2013 until July 26, 2014. Further, the ALJ failed to make a finding as to whether Warner's work from August 9, 2012 to February 13, 2013 was an unsuccessful work attempt. Therefore, Warner's appeal should be GRANTED, the Commissioner's final decision should be VACATED, and the case should be REMANDED.

         I. Background

         A. Procedural Background

         Warner filed an application for DIB on July 22, 2011, alleging a disability onset date of August 7, 2010 (Doc. 6-1, p. 22) due to a right shoulder injury, lower back injury, sprained hips, depression, and anxiety (Doc. 6-1, p. 34). That application was initially denied by the Social Security Administration (“SSA”) on March 2, 2012 (Doc. 6-1, p. 50). Warner did not appeal.

         Warner filed a second application for disability insurance benefits on May 13, 2015, alleging a disability onset date of August 9, 2012 (Doc. 6-2, p. 18) due to: severe depression; anxiety; PTSD; “right shoulder (surgery) pain and weakness”; “chronic back pain (lumber surgery)”; “hip pain and degeneration (surgery)”; “constant headaches and memory loss from a work accident”; knees; ankles; and “left thigh (gun-shot wound).” (Doc. 6-2, p. 25). That application was initially granted with an onset date of May 1, 2014 (Doc. 6-1, p. 71; Doc. 6-2, p. 97). However, Warner returned to work on August 5, 2014, working full time and earning $27.10 per hour without a subsidy. (Doc. 6-2, p. 97; Doc. 6-3, p. 2). Warner's DIB application was then denied because Warner was engaging in substantial gainful activity (Doc. 6-2, p. 97; Doc. 6-3, pp. 2, 4).

         A de novo hearing was held before an ALJ on June 20, 2017 at which Warner appeared with his attorney. (Doc. 6-3, p. 76). The ALJ noted Warner had been granted disability benefits with an onset date of May 1, 2014, [2] but that a favorable determination had been overturned because Warner had performed substantial gainful activity “within the waiting period or within 12 months of onset.” (Doc. 6-1, p. 19). The ALJ concluded that Warner was not disabled on May 1, 2014 (the disability onset date determined by the SSA) because he was engaged in substantial gainful activity from August 14, 2014 through May 31, 2015, and performed continuous military duty with the United States Army Reserve through 2016. (Doc. 6-1, p. 19). Thus, the disability evaluation ended at Step 1.

         Warner requested a review of the ALJ's findings, but the Appeals Council declined to review it (Doc. 6-1, p. 6), and the ALJ's decision became the final decision of the Commissioner of Social Security (“the Commissioner”).

         Warner filed this appeal for judicial review of the Commissioner's final decision. (Doc. 10). Warner raises the following grounds for relief on appeal:

1. The ALJ incorrectly established May 1, 2014 as Warner's disability onset date instead of August 9, 2012.
2. New and material evidence was submitted to the Appeals Council that necessitates a remand as provided by 20 C.F.R. § 404.970(b).

         The Commissioner filed a response to Warner's appeal. (Doc. 11).

         B. Medical and Administrative Records

         Dr. Gerald Dzurik, a DDS examiner, examined Warner's medical records in November 2014. (Doc. 6-1, pp. 67). Dr. Dzurik found Warner has exertional limitations of only occasionally lifting of carrying 10 pounds; stand and/or walk a total of “slightly less than” 2 hours in an 8-hour day; sit a total of 6 hours in an 8-hour day; pushing and/or pulling is limited in the left lower extremity; only occasionally climbing ramps/stairs, balancing, stooping, kneeling, crouching, or crawling; limited reaching with the right arm and limited handling with the right hand; and he must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. (Doc. 6-1, p. 67).

         Dr. Robert McFarlain, Ph.D. also examined Warner's mental health records for the SSA in September 2014. Dr. McFarlain found Warner suffers from an affective disorder and an anxiety disorder. (Doc. 6-1, pp. 63-64). Dr. McFarlain found Warner had a moderate limitation in his ability to understand and remember detailed instructions; a moderate limitation in his ability to interact appropriately with the general public; and a moderate limitation in his ability to respond appropriately to changes in the work setting. (Doc. 6-1, pp. 67-69).

         A March 2015 evaluation of Warner's work activity showed he was awarded DIB with an onset date of May 1, 2014. (Doc. 6-2, p. 97). Subsequently, Warner was found to have returned to work on August 5, 2014, working 40 hours per week and earning $27.10 with no subsidy. (Doc. 6-2, p. 97). Warner's DIB award was disallowed due to his substantial gainful activity. (Doc. 6-2, p. 97).

         C. Administrative Hearing

         At the 2017 administrative hearing, Warner testified that he was 49 years old, 5' 10” tall, and weighed about 200 pounds. (Doc. 6-3, pp. 79-80). Warner lives with his wife and receives medical retirement income of about $1400 per month (Doc. 6-3, p. 80). Warner stopped working in May 2015. (Doc. 6-3, p. 80). Warner's wife works as a physical therapy assistant. (Doc. 6-3, p. 83).

         Warner testified that he drives an automatic transmission pickup truck (Doc. 6-3, pp. 80-81). Warner completed high school and two years of college. (Doc. 6-3, p. 81). Warner also received vocational training as a mechanic in the National Guard (Doc. 6-3, p. 81). Warner was still in the Army Reserve at the time of the administrative hearing. (Doc. 6-3, p. 81).

         Warner was a federal civil service mechanic for the Government, and worked on a variety of military automotive equipment. (Doc. 6-3, p. 81). Warner's job involved some welding. (Doc. 6-3, p. 82).

         Warner has physical problems caused by an accident and back injury suffered when he was in the military, and another accident in 2012. (Doc. 6-3, p. 84).

         On August 9, 2012, when Warner had a civil service job as a mechanic, he fell eight feet from a “retch, ” which is a container loading machine for loading Army containers onto ships or trucks. (Doc. 6-3, pp. 91, 94). Warner testified that he was off work for a week, then returned to work on modified light duty for six months, until February 2013. (Doc. 603, p. 94).

         Warner had left hip surgery in February 2013 for a labrum tear, ligament tear, and tendon release and cleanup. (Doc. 6-3, p. 85). Warner had physical therapy after his hip surgery. (Doc. 6-3, p. 85). Warner had a laminectomy and discectomy in February 2014, with physical therapy afterward. (Doc. 6-3, pp. 84-85). Warner again returned to work in August 2014. (Doc. 6-3, p. 95).

         Warner testified that, from August 2012 through February 2013, his work duties were modified to accommodate him, and he missed about 130 hours of work during that time. (Doc. 6-3, pp. 95-96). Warner worked in the front office, answering phones and doing some computer work. (Doc. 6-3, p. 82). Warner was placed on leave without pay on February 13, 2013. (Doc. 6-3, p. 97).

         Warner testified that he stopped working in May 2015. (Doc. 6-3, p. 97). Warner medically retired from his federal civil service job after that. (Doc. 6-3, p. 83).

         Warner testified that, although he has stopped working, he does not feel better. (Doc. 6-3, p. 83). Warner is still receiving treatment at the Veterans Administration Hospital in Pineville. (Doc. 6-3, p. 83). Warner drives there or his wife takes him (Doc. 6-3, p. 83). One of Warner's medications made him sleepy and caused problems during his 45 minute drive home from work. (Doc. 6-3, p. 83).

         Warner testified he is being treated for PTSD and cannot work around or with a large group of people. (Doc. 6-3, pp. 82-83). Warner's PTSD manifests itself through a lot of anxiety, frustration, and anger. (Doc. 6-3, p. 83). Warner's PTSD caused him to be short-tempered and have anxiety attacks, and to not get along with his co-workers and supervisors. (Doc 6-3, p. 83).

         Warner now has constant radiating pain down his right side into his right foot. (Doc. 6-3, p. 85). Warner's problem has been worse after the surgery than it was before, and his doctors have discussed another surgery. (Doc. 6-3, p. 85). Warner testified that he is still learning what he can and cannot do at home. (Doc. 6-3, p. 84). Warner tries to do yard work, but he hires his nephew to help him when it is too much. (Doc. 6-3, p. 84). Warner walks to the end of his driveway every day to get the mail, and he starts having hip pain and fatigue on his way back to the house. (Doc. 6-3, pp. 85-86). It takes about two minutes to walk down his driveway. (Doc. 6-3, p. 86). Riding a stationary bicycle helps relieve the pressure on his hip while affording him exercise. (Doc. 6-3, p. 86). Warner is sore and fatigued the day after he rides it. (Doc. 6-3, p. 86).

         Warner takes hydrocodone for pain, tizanidine to relax his lower back muscles, and diclofenac cream to rub into his lower back. (Doc. 6-3, p. 92). Warner goes to the VA at least once a month, for both ...


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