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Feldman v. Berryhill

United States District Court, D. Nevada

May 7, 2019

JEFFREY FELDMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER RE: MOTION FOR REVERSAL AND/OR REMAND (ECF NO. 20)

          GEORGE FOLEY, JR., UNITED STATES MAGISTRATE JUDGE

         This case involves judicial review of an administrative action by the Commissioner of Social Security denying Plaintiff Jeffrey Feldman's claim for disability benefits under Titles II and XVI of the Social Security Act. Plaintiff filed his Motion for Reversal and/or Remand (ECF No. 20) on October 18, 2017. The Commissioner filed her Cross-Motion to Affirm (ECF No. 21) and Opposition to Plaintiff's Motion to Remand (ECF No. 22) on November 17, 2017.

         BACKGROUND

         A. Procedural History

         Plaintiff filed a Title II application for a period of disability and disability insurance benefits on January 6, 2012. He also filed a Title XVI application for supplemental security income on January 6, 2012. In both applications, Plaintiff alleged that his disability began on May 31, 2011. Administrative Record (“AR”) 197-214. The Social Security Administration denied Plaintiff's claims initially on June 7, 2012 and upon reconsideration on August 26, 2013. AR 81, 95, 150-152. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) which was conducted on September 4, 2014. AR 13. Plaintiff and a vocational expert testified at the hearing. The ALJ issued his decision on February 10, 2015 and concluded that Plaintiff was not disabled at any time between the date his applications were filed and the date of the decision. AR 29. The Appeals Council denied his request for review on June 14, 2016. AR 1-7. Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned for a report of findings and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).

         B. Factual Background

         Plaintiff's motion for reversal and/or remand is limited to whether the ALJ improperly rejected the opinion of psychologist, Paul Jones, Ed.D., who performed a consultative mental status examination of Plaintiff on April 4, 2012. The Court will therefore focus on the evidence relating to Plaintiff's mental condition, and will discuss Plaintiff's physical impairments only to the extent necessary to understand Plaintiff's claim for disability benefits, and as relevant to his alleged mental impairment.

         1. Plaintiff's Disability Reports and Hearing Testimony.

         Plaintiff was born on June 5, 1953. He is 6'1” tall and weighed approximately 300 pounds at the time of his application. AR 228. He resided with his mother who was eighty-five years old. AR 198. He has a Bachelor of Arts degree. AR 60. Plaintiff was self-employed, renovating homes, from 1999 to 2005. He thereafter worked as an operations manager at a UPS store owned by his brother from 2005 to 2011. AR 42-46. In his January 7, 2012 disability report, Plaintiff listed the following conditions that limit his ability to work: “Diabetes, heart problems, high blood pressure, herniated discs, migraines, enlarged prostate, torn tibial tendons in both knees, right knee damage, incontinent, sjourns syndrome, shingle and other skin disorders, and depression.” AR 227-237.

         Plaintiff stated in a February 9, 2012 function report that he could not stand or walk for any period of time. His ankles, knees and shoulders had been damaged over the years, and severe arthritis had taken over his body. He had daily chest pain that was brought on by stress. AR 246. He was unable to walk or lift items easily and was in severe pain for a majority of the day. Plaintiff was unable to sleep in a bed, and slept 2-4 hours a night in a recliner. AR 247. He had steadily looked for employment that would accommodate his illness, but had not been able to find a job. AR. 247. Plaintiff dressed himself and his mother on a daily basis, and took care of the family dog. He was able to shower with difficulty due to loss of motion in the arms and shoulder. He needed help shaving because of carpel tunnel syndrome in both hands and a damaged right rotator cuff. He also needed help with “foot care, ” had damaged tendons in both ankles, and needed a right knee replacement. AR 247.

         Plaintiff stated that he was unable to concentrate for any period of time and became very moody when questioned. He was frustrated when any negative events occurred. AR 246. His mother reminded him daily of his appearance and grooming needs, and he needed reminders to take medication. He also forgot to prepare meals. AR 248. He rarely needed reminders to go places, but sometimes needed someone to accompany him. AR 250. He had become very temperamental in getting along with family, friends and neighbors. His attention span was relatively good, and he was fair to good at following written instructions. He could follow spoken instructions when they were properly explained. AR 251. Plaintiff stated that he had always been an authority figure at work and knew how to treat people properly. He had difficulty with stress and cracked very easily when something didn't go as expected. He had become claustrophobic. AR 252.

         Plaintiff stated that he was able to prepare sandwiches and frozen dinners on a daily basis, and do laundry about two hours a week. AR 248. He did not do yardwork or housework. He was able to go outside alone, and walk and drive a car. He shopped by computer, and went to the supermarket a few times a week. Plaintiff was able to pay bills, count change, and use a checkbook or money orders. He did not have a savings account. AR 249. His hobbies and interests were watching television and working when able. He needed a job that would allow his disabilities and illnesses. He talked on the phone with others a couple of times a week. AR 250-251.

         Plaintiff had difficulty lifting, squatting, bending, standing, walking, kneeling, climbing stairs, completing tasks, concentrating, using his hands and getting along with others. He could only walk about 100 to 200 feet before needing to stop and rest. AR 251. He used a cane, prescribed by his doctor, for walking or standing for extended periods. AR 252. Plaintiff filled out a headache form indicating that he regularly had severe headaches. He additionally noted that he did not have health insurance. AR 253-254.

         Plaintiff testified at the September 4, 2014 hearing that he stopped working due to pain in his legs, ankles, severe migraine headaches, inability to multi task and shortness of breath. AR 47. Cysts had developed on the muscles in his legs. He was unable to stand for any significant periods of time because his kneecaps swelled with fluid. AR 48. He did not have surgery because the recovery time was too long, and the doctors told him that he would not be a good surgical candidate. He had received cortisone injections and took several types of pain medication to relieve his ankle pain. AR 49. His calf also swelled throughout the day, and he kept his feet elevated to reduce the swelling. AR 51. His right ...


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