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Shepperson v. Berryhill

United States District Court, E.D. Kentucky, Central Division, Lexington

August 9, 2017

LARRY LEE SHEPPERSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge.

         This matter is pending for consideration of cross-motions for summary judgment filed by Plaintiff Larry Lee Shepperson and Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (“the Commissioner.”) [Record Nos. 9, 11] Shepperson argues that, following an administrative hearing, the Administrative Law Judge (“ALJ”) assigned to his case erred in concluding that he was not disabled within the meaning of the Social Security Act (the “Act”). Specifically, he asserts that the ALJ failed to properly consider the opinion evidence in determining his residual functional capacity (“RFC”) and that he did not follow proper procedures for admitting evidence during the oral hearing. Shepperson requests an award of benefits in his favor or, alternatively, that this matter be remanded for further administrative proceedings.

         The Commissioner contends the ALJ properly evaluated the evidence, that any alleged errors were harmless, and that the ALJ's decision should be affirmed. She further contends that the ALJ's decision is supported by substantial evidence.

         For the reasons that follow, the claimant's motion will be granted, in part, and the matter will be remanded for further proceedings.

         I. Procedural History

         Shepperson filed a Title II application for a period of disability and disability insurance benefits (“DIB”) on May 20, 2014. [See Administrative Transcript, hereinafter “Tr., ” 152-53.] He alleged an onset of disability date of October 15, 2010, but was later permitted to amend the onset date to January 31, 2014. [Tr. 152, 42] Shepperson requested a hearing before an administrative law judge after the application was denied initially and on reconsideration. [Tr. 98, 102, 112] He appeared before ALJ Don Paris for an administrative hearing in Lexington, Kentucky, in December 2015. [Tr. 39-67] ALJ Paris denied the request for benefits in a written decision dated February 3, 2016, which the Appeals Council affirmed. [Tr. 25-33, 1-20] Accordingly, the claimant has exhausted his administrative remedies and this matter is ripe for review under 42 U.S.C. § 405(g).

         II. Background

         Shepperson was 54-years-old at the time of the ALJ's decision. [Tr. 33, 43] He worked for 24 years repairing lawn and garden equipment, but quit in 2010 due to health problems. [Tr. 171-73] Shepperson believed his ability to work was limited by spinal arthritis, hypertension, anxiety, and depression. [Tr. 171] He was diagnosed with a herniated disc and underwent a laminectomy in 2014. [Tr. 49] Shepperson continued regular treatment with a pain specialist when surgery did not resolve his symptoms. [Tr. 50]

         Shepperson used a cane and estimated that he could only walk about 20 feet before stopping due to pain. [Tr. 52, 59] He reported that he spent most of his time lying on a couch, in a recliner, or in bed to take pressure off of his low back. [Tr. 53] He advised the ALJ that he wore a CPAP machine at night and was able to sleep only three to four hours. [Tr. 55] Shepperson had a driver's license but did not drive due to the effects of his medications. He reported that he rarely left his house and that he has no hobbies. [Tr. 58]

         Shepperson established a treatment relationship with Dr. Padma Rao, a primary care provider, in October 2011. [Tr. 260] Rao treated Shepperson for various complaints including an upper respiratory infection, shoulder pain, and fatigue. [Tr. 261-97] The claimant underwent an x-ray of his right shoulder in November 2011, which revealed mild degenerative changes in the AC joint. [Tr. 258]

         Shepperson began to complain of low back pain in early 2014. [Tr. 321] He underwent an x-ray of the lumbar spine in May of 2014 which revealed mild degenerative changes and facet degeneration. [Tr. 328] An MRI performed shortly thereafter indicated that Shepperson had an extruded disc fragment at the T12-L1 level, a seven millimeter mass at the L3-L4 level, and multilevel degeneration with significant foraminal stenosis at ¶ 5-S1. [Tr. 336-37]

         Rao referred Shepperson to Dr. Hammad Malik at Georgetown Pain Management in May 2014. [Tr. 340-44] Shepperson exhibited a mildly antalgic gait and moderately restricted extension of his low back. [Tr. 342] He complained of numbness and tingling in both legs, but straight leg raising was asymptomatic bilaterally. [Tr. 343] Malik prescribed medication to manage Shepperson's pain, which he rated as nine on a scale of ten. Id. Shepperson also continued treating with Dr. Rao, but visited the emergency room on occasion and consulted with an orthopedist, Dr. Arms. [Tr. 345, 377] Shepperson also sought treatment with Dr. Ryan Cassidy, an orthopedic spine surgeon at the University of Kentucky. Dr. Cassidy referred Shepperson to a neurosurgeon and for physical therapy. [Tr. 385-94] The claimant attended some physical therapy sessions, but the range of treatment was limited due to his complaints of severe pain. [Tr. 385-88] Shepperson eventually reported that therapy made his symptoms worse. [Tr. 403]

         Dr. Robert Nold performed a consultative physical examination in July 2014. [Record No. 365-70] Nold noted that Shepperson's chief complaint was bilateral low back pain. Shepperson walked without an assistive device, but could not walk on his heels or toes, and was unable to squat. [Tr. 366-67] He was able to flex his shoulders to 130 degrees, but was limited beyond that due to back pain. [Tr. 366] Nold determined that Shepperson could “barely bend 30 degrees forward” and that he would have difficulty bending and lifting “much over 10 to 15 pounds on occasion.” [Tr. 368] Further, he opined that Shepperson could not lift items “completely above his shoulder level” because of low back pain. Id.

         Shepperson was seen by Dr. Travis Hunt in September 2014 for a second opinion regarding his back impairment. Dr. Hunt performed a laminectomy the following month. [Tr. 399-400] Shepperson reported, however, that his symptoms did not improve after surgery. [Tr. 402] Physician's Assistant Michael Jones submitted an opinion regarding Shepperson's ability to work in October 2014. [Tr. 397] Jones indicated that Shepperson would be unable to perform even sedentary work. Additionally, he believed that Shepperson would be able to stand or walk only one to two hours per day. [Tr. 397] He suggested that Shepperson would be absent ...


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