United States District Court, D. Utah
BOYD R. YOUNG, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION AND ORDER
J. FURSE UNITED STATES MAGISTRATE JUDGE.
pursuant to 42 U.S.C. § 405(g), seeks judicial review of
the decision of the Acting Commissioner of Social Security
(Commissioner) denying his claim for disability insurance
benefits (DIB) under Title II of the Social Security Act
(“the Act”). Pursuant to 28 U.S.C. §636(c)
and Rule 73 of the Federal Rules of Civil Procedure, both
parties have consented to the undersigned conducting all
proceedings in this case, including entry of final judgment,
with appeal to the United States Courts of Appeals for the
Tenth Circuit (ECF No. 20). After careful review of the
entire record, the parties' briefs, and arguments
presented at a telephonic hearing held on September 14, 2017,
the undersigned AFFIRMS the Commissioner's final
age 49 as of the administrative law judge's (ALJ's)
decision, has a high school education and past skilled work
as a roofer (see Certified Administrative Transcript
(Tr.) 46, 47215). He alleges disability since June 23, 2012,
primarily due to limitations arising from a broken right leg
(see, e.g., Tr. 214). The ALJ followed the familiar
five-step sequential evaluation process to determine whether
Plaintiff was disabled (Tr. 22-35). See 20 C.F.R.
§ 404.1520(a)(4). As relevant here, between steps three
and four, the ALJ found that Plaintiff had the residual
functional capacity (RFC) to perform a range of “light
work as defined in 20 CFR 404.1567(b), ” except he
could “stand and/walk no more than two hours in an
eight-hour workday, ” “must be permitted to use a
crutch on an as-needed basis when walking, ” and had
some additional postural and environmental limitations (Tr.
26-27, Finding 5). After obtaining vocational expert
testimony, the ALJ found that this RFC precluded Plaintiff
from performing his past work (Tr. 33, Finding 6), but not
from performing other “light” occupations
totaling 150, 000 jobs in the national economy (Tr. 33-34,
Findings 7-10). The ALJ found these jobs existed in
“significant numbers” in the national economy and
that Plaintiff, therefore, was not disabled as defined by the
Act (Tr. 34-35, Finding 11). The Appeals Council later denied
Plaintiff's request for review (Tr. 1-6), making the
ALJ's decision the Commissioner's final decision for
purposes of judicial review. See 20 C.F.R.
§§ 404.981, 422.210(a). This appeal followed.
SUMMARY OF RELEVANT MEDICAL EVIDENCE AND TESTIMONY
23, 2012, Plaintiff broke his right leg (tibia and fibula) in
a four-wheeler accident, requiring surgery and a short
hospitalization (Tr. 304-34, 350-51, 380-82, 599, 603-05).
Care providers noted he was at risk for non-union of his
fractures due to cigarette smoking (Tr. 315). He followed up
with his surgeon, Gordon Stock, M.D., in July and August
2012, reporting controlled pain on Percocet and exhibiting
decreased swelling; he was using crutches, decreasing how
many cigarettes he smoked, and using a nicotine patch (Tr.
301-03). Dr. Stock felt he was doing well and should continue
to take pain medications, use ice, and elevate his leg (Tr.
301-03). Plaintiff also followed up with primary care
physician Bryan Nelson, M.D., in August and September 2012.
Dr. Nelson noted that Plaintiff had decreased to smoking
one-half a package of cigarettes per day, and found he had no
edema, sensory loss, or weakness upon examination (Tr.
430-32, duplicated at Tr. 541-43).
September 2012, Plaintiff had reduced his nicotine intake,
and his pain was decreasing (Tr. 299). Dr. Stock recommended
a bone stimulator because he suspected Plaintiff might be
developing non-union of his leg fractures, and he also
recommended only toe-touch weight-bearing for balance with
the right leg (Tr. 299-300). Around this time, Plaintiff also
followed up with Dr. Nelson, who explained how smoking
hindered healing and advised him to stop; he also noted that
Plaintiff had no sensory loss or weakness (Tr. 424-26,
427-29, duplicated at Tr. 535-37, 538-40).
October 30, 2012, Dr. Stock stated that Plaintiff had
slightly decreased pain and significantly decreased swelling;
however, Plaintiff continued to smoke three-fourths of a
package of cigarettes per day and x-rays continued to show
non-union (Tr. 298). Plaintiff also followed up in late 2012
and early 2013 with Dr. Nelson, who once again urged
Plaintiff to stop smoking (Tr. 409). He also noted that
Plaintiff's gait and balance were intact with no motor
weakness (Tr. 406-08, 409-11, 413-15, 416-19, 420-22,
partially duplicated at Tr. 519-21, 523-25, 526-29,
this same time period, in December 2012, Plaintiff also
started seeing orthopedist Jeffrey Jackson, M.D. Dr. Jackson
noted that Plaintiff had markedly decreased right-ankle range
of motion, but full right-knee range of motion with no
instability (Tr. 344-45). He could put a small amount of
weight on the right leg with toe-touch weight-bearing, and he
continued to smoke three-fourths of a package of cigarettes
per day (Tr. 344). Dr. Jackson “impressed upon
[Plaintiff] the importance of stopping smoking. Technically,
I think the operation went well. I think the likely cause of
the nonunion and the postoperative complications is due to
the patient smoking” (Tr. 346). He recommended that
Plaintiff bear weight as tolerated, continue using the bone
stimulator, and follow up in a month, at which time he hoped
Plaintiff would report he had stopped smoking (Tr. 346,
duplicated at Tr. 566). At his next visit, Dr.
Jackson explained “[u]nfortunately, he has not stopped
smoking. I do think this is affecting his ability to
heal” (Tr. 343, duplicated at Tr. 563).
continued to smoke and have non-union of his fractures
(see Tr. 341-42, 473-75), and Dr. Jackson ultimately
performed another surgery to remove and exchange the hardware
in Plaintiff's right leg in late January 2013 (Tr.
791-808; see also 377-79 duplicated at
Plaintiff followed up with Dr. Nelson in February 2013,
Plaintiff was very optimistic with significant improvement in
his pain and the ability to put more weight (40 pounds) on
his leg than he had in the past seven months (Tr. 340,
duplicated at Tr. 560). He had been more active, up
and moving around, and, while he continued to smoke, he was
smoking less (about six or seven cigarettes per day) (Tr.
340, duplicated at Tr. 560). Dr. Jackson was
concerned about possible infection and told Plaintiff to keep
taking antibiotics (Tr. 340, duplicated at Tr. 560).
Unfortunately, Plaintiff was hospitalized later that month
due to a reaction to the antibiotics (Tr. 637-660; see
also Tr. 339, duplicated at Tr. 559).
March 5, 2013, about two and a half months after the revision
surgery, Dr. Jackson opined, among other things, that
Plaintiff could not lift and was “currently unable to
bear weight on Rt. Lower extremity. He uses a wheelchair to
get around” (Tr. 392-95). Dr. Jackson later noted
improvement in Plaintiff's pain and ability to bear
weight (about 20 pounds) (Tr. 557-58). Dr. Nelson similarly
noted that Plaintiff was much improved and smoking less, and
that he was exercising occasionally (Tr. 400-02,
duplicated at Tr. 510-12).
April 2013, Dr. Jackson noted that Plaintiff was making good
progress with physical therapy and that he had improved range
of motion, including significant improvement in ankle
dorsiflexion (Tr. 555). He had an antalgic gait with one
crutch, and was able to put 25 to 50 percent of his weight on
his right foot (Tr. 555). Dr. Jackson recommended that
Plaintiff continue to advance his weight-bearing; he was
still concerned that Plaintiff could have a low-grade
infection, and that smoking was inhibiting healing (Tr. 555).
Plaintiff said he was going to return to work soon and wanted
to hold off on further treatment until he had insurance (Tr.
555-56). Dr. Jackson thought this was “reasonable as
long as he continues his therapy and progressing as
tolerated” (Tr. 556). The record contained no evidence
that Plaintiff sought further treatment for his leg.
2013, state agency physician Susanne Thobe, M.D., reviewed
the record evidence-including Dr. Jackson's opinion-and
opined that, within 12 months of his alleged onset date,
Plaintiff would have some postural and environmental
limitations but would be able to lift/carry 20 pounds
occasionally and 10 pounds frequently; sit up to six hours ...