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Young v. Berryhill

United States District Court, D. Utah

September 28, 2017

BOYD R. YOUNG, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM DECISION AND ORDER

          EVELYN J. FURSE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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 decision.

         I. PROCEDURAL HISTORY

         Plaintiff, 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.

         II. SUMMARY OF RELEVANT MEDICAL EVIDENCE AND TESTIMONY

         On June 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).

         In 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).

         On 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, 530-33).

         During 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).

         Plaintiff 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 476-80, 600-02).

         When 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).

         On 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).

         In 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.

         In May 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 ...


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