United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
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
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
reasons that follow, the claimant's motion will be
granted, in part, and the matter will be remanded for further
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.
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]
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]
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]
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]
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]
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.
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 ...