Hardin v. Berryhill

Filing 36

MEMORANDUM re: 29 SOCIAL SECURITY BRIEF filed by Plaintiff Sonny R. Hardin ; For the reasons set forth above, the decision of the Commissioner of Social Security is reversed and remanded. An appropriate Judgment Order is filed herewith.. Signed by Magistrate Judge David D. Noce on 3/11/19. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
SONNY R. HARDIN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 2: 18 CV 6 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the application of plaintiff Sonny R.
Hardin for disability insurance benefits under Title II of the Social Security Act (Act), 42
U.S.C. §§ 401-434, and Supplemental Security Income (SSI) under Title XVI of the Act,
42 U.S.C. §§ 1381-1385. The parties have consented to the exercise of plenary authority
by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For
the reasons set forth below, the final decision of the Commissioner is reversed and
remanded.

I. BACKGROUND
Plaintiff was born in 1964 and was 50 years old at the time of his hearing. He filed
his applications for disability insurance benefits and for SSI on August 9, 2016 and
September 30, 2014, respectively. (Tr. 192-98, 163-68.) He alleged that he became
disabled on August 15, 2014, due to heart disease, HIV/AIDS, “no immune system,” high
blood pressure, pain, fatigue, and weight loss. (Tr. 163-68, 203.) His application was
denied, and he requested a hearing before an Administrative Law Judge (ALJ). (Tr. 9198.)

On February 1, 2017, following a hearing, an ALJ issued a decision finding that
plaintiff was not disabled under the Act. (Tr. 20-27.) The Appeals Council denied his
request for review. (Tr. 1-6.) Thus, the decision of the ALJ stands as the final decision of
the Commissioner.

II. ADMINISTRATIVE RECORD
The following is a summary of plaintiff’s medical and other history relevant to this
appeal.
Plaintiff was diagnosed with HIV in 1998. He was admitted to University Hospital
in Columbia, Missouri, from September 9-12, 2014, with fever and chills due to
complications from HIV that went untreated for two years. Plaintiff had shortness of
breath, dyspnea on exertion, chest pain aggravated by activity, dehydration, dry mouth,
lightheadedness, dizziness, diarrhea, decreased urine output, blurry vision, abdominal
bloating, back pain, abdominal pain and cough. He was alert, in no acute distress, had
regular cardiac rate and rhythm, and clear lungs. He had normal musculoskeletal range of
motion, no tenderness, and no swelling.

Plaintiff had been receiving Highly Active

Antiretroviral Therapy (HAART) until two years earlier when he was hospitalized for
severe bodily burns, placed in a coma, and provided multiple skin grafts. He was unable
to afford HAART after discharge for reasons concerning insurance coverage.

He had a

history of drug use and had last used methamphetamine one week earlier. He was a
cigarette smoker for 41 years.
He was diagnosed with febrile neutropenia from HIV. He had pancytopenia, a
condition marked by a reduction in the number of red and white blood cells, as well as
platelets. A CT scan showed left axillary lymphadenopathy, a disease of the lymph nodes,
that was concerning for Kaposi sarcoma. A biopsy and complete lymphoma work-up
were performed. Upon discharge on September 12, 2014, plaintiff was improved, had no
restrictions, and could resume normal activities as tolerated. (Tr. 251-88, 320.)
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Plaintiff was admitted to the University Hospital from September 22-24, 2014 for a
dog bite and subsequent infection. He was administered IV antibiotics in light of his
immune status.

Plaintiff was compliant with HAART and other medications but

continued to have weight loss and diarrhea in addition to extreme pain near the biopsy site
and numbness in his shoulder. He denied any fevers, chills, vomiting, or diarrhea. He had
no neurological deficits. He had intact range of motion of the right hand with no obvious
joint swelling. (Tr. 314-36.)
On September 30, 2014, plaintiff was seen for follow-up for the dog bite due to
concerns with infection and HIV-positive status. Notes indicated there were no concerns
regarding further healing. (Tr. 353-55.)
On October 3, 2014, plaintiff was seen for follow-up. Swelling in his lymph nodes
had increased and was now associated with numbness. His CD4 count or T-cell test, used
to determine the status of a person's immune system, was 10. His viral load test, used to
determine the level of HIV in the body, was approximately 75,000. His diarrhea was
resolving. He had no musculoskeletal swelling or gross restricted range of motion. (Tr.
346-48.)
On November 7, 2014, plaintiff was seen at the University of Missouri Specialty
Clinic for follow-up. Swelling in the left axilla had decreased but numbness was still
present. He was gaining weight and was taking prescribed medications. (Tr. 341-45).
On May 12, 2015, plaintiff was seen at the infectious disease clinic for HIV followup and a swollen lymph node. He was taking Atripia, for HIV, and Dapsone, an antiinfective used to treat skin conditions. His last CD4 cell count was 90. He had issues
with scratching. He was having some compliance issues with medications. (Tr. 356-57.)
On June 5, 2015, plaintiff was seen at Missouri Orthopedic Institute for painful
warts on his left foot for the past 2 years. Notes indicate he was immunosuppressive with
HIV and AIDS, as well as hepatitis and heart problems. His pain was rated 8 out of 10,
and worse with activity. Thermal ablation was performed on his warts. (Tr. 362-63.)
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On July 1, 2015, plaintiff saw Matthew Collard, M.D., for bilateral hand
parenthesis. He was diagnosed with bilateral hand medial neuropathy across both wrists
consistent with moderate to severe carpal tunnel. Dr. Collard believed he would benefit
from a carpal tunnel release. Dr. Collard also opined that the neuropathy in plaintiff’s
elbows and extremities was likely related to his medications and disease process, rather
than any further work-relatedness or related to any previous occupation. (Tr. 424-25.)
On August 7, 2015, he was seen for evaluation of a wart on his left foot and
thermal ablation was performed again. On August 17, 2015, an excisional biopsy of soft
tissue lesion and thermal ablation of the suspected wart were performed. On August 28,
2015, plaintiff was seen for follow-up on the warts. (Tr. 364-67, 374.)
On September 11, 2015, plaintiff was seen in the infectious disease clinic for HIV
follow-up.

He was compliant with medications, which were modified due to viral

resistance. He was experiencing symptoms of bronchitis for over two weeks that were not
improving with over the counter medications.

He denied fever, headaches, chills,

shortness of breath, diarrhea, or dysuria. (Tr. 375-76.)
On October 1, 2015, plaintiff underwent left carpal tunnel release. On October 15,
2015, he underwent a second hand carpal tunnel release. (Tr. 427-28.)
On October 6, 2015, plaintiff was seen for follow-up on his warts. Plaintiff was
doing well overall and his pain was improving. He denied any constitutional problems
and had no additional complaints. He had complete resolution of the verruca and could
resume all pre-procedure activities. (Tr. 378.)
On December 1, 2015, plaintiff was seen at the Infectious Disease Clinic for HIV
follow-up. He reported tinnitus or ringing with possible hearing loss and occasional
vertigo.

His HIV medications were adjusted. An addendum dated December 7, 2015

noted “good news that his viral load was undetectable” and his CD4 was going up slowly.
(Tr. 379-81.)

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On December 18, 2015, plaintiff saw Dr. Collard for follow-up on his carpal tunnel
releases. He had continued stiffness and pain in both hands. He had difficulty removing
bolts or opening jars. He had pain in his neck, shoulders, and both arms. Dr. Collard
opined that pre-existing degenerative changes were causing ongoing issues with his hand
functioning. Dr. Collard further stated that plaintiff had an overall good clinical result
from his carpal tunnel releases and should continue home exercises as his strength will
continue to improve.

Plaintiff stated that he was overall happy with his care and

treatment. Dr. Collard released plaintiff at maximum medical improvement without work
restriction. (Tr. 416-17.)
On December 21, 2015, plaintiff was seen at an otolaryngology clinic for
progressively worsening ringing in his ears for more than a year. An audiogram showed
mild sensorineural hearing loss. Although a possible side effect of medications was
considered as a cause, he was advised not to stop his HIV medication. (Tr. 386-88.)
On May 24, 2016, plaintiff was seen by Dr. Salzer at the Infectious Disease Clinic
for HIV follow-up. Plaintiff complained about his right knee, which was swelling and
causing pain when weight was applied. (Tr. 391-95.)
On May 27, 2016, plaintiff was seen by James A. Keeney, M.D., at the Missouri
Orthopedic Institute with chronic right knee pain. He was able to walk a mile, although
with discomfort. A possible meniscus tear was discussed, and he received an intraarticular injection. (Tr. 396-97.)
A June 13, 2016 MRI of plaintiff’s right knee showed a horizontal cleavage tear,
multiple cysts along the posterior border of the posterior cruciate, cartilage loss, small
cartilage ulceration, and moderate osteoarthritis. (Tr. 398-99.)
On August 17, 2016, plaintiff saw David Volarich, D.O., for an independent
medical examination. On examination, plaintiff had symmetric muscle bulk and tone in
the upper and lower extremities and had 5/5 strength in the shoulder, biceps, triceps, and
lower extremity, and 4/5 strength in the forearms. Dr. Volarich noted plaintiff was a
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smoker and instructed him to stop. Dr. Volarich diagnosed carpel tunnel syndrome,
HIV/AIDS requiring extensive chemotherapy causing peripheral neuropathy, past history
of pneumocystis and pulmonary infection, coronary artery disease, and second degree
burns.

He noted that plaintiff was able to get his HIV/AIDS under control with

medications. (Tr. 400-15.)
Dr. Volarich opined that a 40% permanent partial disability to the body as a whole
due to HIV/AIDS infection and accounting for peripheral neuropathy involving the upper
and lower extremities. He limited plaintiff to avoid using elbows, forearms, wrists, and
hands in an awkward or blind fashion. He should minimize repetitive gripping, pinching,
squeezing, pushing, pulling, twisting, rotary motions and similar tasks and limit use to as
needed. He should avoid impact and vibratory trauma to the arms and use appropriate
braces. He should handle weights to tolerance with the arms dependent, close to the body
and not more than 15 to 20 pounds. He was advised to continue strengthening and
stretching. (Tr. 400-15.)

ALJ Hearing
On August 23, 2016, plaintiff appeared and testified to the following at a hearing
before an ALJ. (Tr. 441-74.) He was born on January 19, 1964. He was diagnosed with
HIV/AIDS in 1998. He lost his insurance in 2013 and became very ill before he was able
to receive treatment again. He contracted pneumonia and was hospitalized for one week.
Around early 2015, he resumed taking two HIV medications, although one had stopped
being effective. When the medication stopped working he became easily sick, nauseated,
and fatigued. He was currently taking the most recently FDA approved medication for
HIV. He does not feel any better on new medication and cannot regain his energy. He
has difficulty getting up and opening a bottle or pack of sugar. He has considerable
fatigue and nausea. (Tr. 447-52.)

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In 2013, he was able to live alone and take care of all of his daily needs. By July or
August 2014 his health began to deteriorate. He was no longer able to shop in stores, go
to appointments, get out of bed in the morning, get dressed, and perform other daily
activities. He lost his job at Walker’s Automotive in July 2014 when he was no longer
able to work every day because of nausea, fatigue, throwing up, and pneumonia. His wife
assumed taking care of the house and shopping for groceries. His mother-in-law also
lived with him and his wife for a while. He lost thirty to forty pounds. His landlord took
care of the lawn during that time. (Tr. 452-57.)
He is able to run the washing machine and occasionally clean dishes. He can go to
the store for a few items and assist in taking care of their two cats and two dogs. His wife
does the cooking and prepares meals that he can then microwave. He cannot stand for
periods of time without pain and weakness. He gets dizzy and fatigued, and has restless
leg syndrome. He can stand for only minutes at a time. He stays in bed approximately
twelve to fourteen hours a day. He feels low energy and nauseated all of the time. He has
tried to take his medication at different times of the day but still feels poorly. He had
surgery for carpal tunnel syndrome in 2015 but still has limitations from it. A nerve
conduction test was abnormal. He has no grip and can barely write. He frequently drops
small items. Every day is a battle for him. (Tr. 457-71.)

III. DECISION OF THE ALJ
On January 12, 2017, the ALJ issued a decision finding that plaintiff was not
disabled. (Tr. 20-29.) At Step Two the ALJ found that plaintiff had severe impairments
including a right knee meniscus tear, the residual effects of a prior heart attack, peripheral
neuropathy, hammertoes, claw toes, asymmetrical sensorineural hearing loss and tinnitus
not corrected by hearing aids, the residual effects of prior burns including a restricted
range of motion due to contractures of the skin, and bilateral carpal tunnel syndrome with
residual effects following release surgeries. At Step Three, the ALJ found that he did not
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have an impairment or combination of impairments listed in or medically equal to one
contained in 20 C.F.R. part 404, subpart P, appendix 1. (Tr. 22-23.)
The ALJ then determined that plaintiff retained the residual functional capacity
(RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
except he should never use hand controls with either hand. He could frequently reach
overhead and in all directions with either arm, but could only occasionally handle and
finger with the right and left hands. He could never climb ladders, ropes, or scaffolds, but
could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. He
should never be exposed to unprotected heights, moving mechanical parts, or vibration,
and can never operate a motor vehicle as a job duty. He could work in an environment
with a moderate noise level. (Tr. 23.)
At Step Four, the ALJ found that he was unable to perform any past relevant work
as a greenskeeper, machine operator, or auto mechanic. However, the ALJ found that
plaintiff’s impairments would not preclude him from performing work that exists in
significant numbers in the national economy, including light and unskilled work as a
counter clerk, furniture rental consultant, and boat rental clerk. Consequently, the ALJ
found that plaintiff was not disabled. (Tr. 28-29.)

IV. GENERAL LEGAL PRINCIPLES
The Court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings apply the relevant legal standards to facts that are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). “Substantial evidence is less than preponderance, but is enough
that a reasonable mind would find it adequate to support the Commissioner’s conclusion.”
Id. In determining whether the evidence is substantial, the court considers evidence that
both supports and detracts from the Commissioner's decision. Id. As long as substantial
evidence supports the decision, the Court may not reverse it merely because substantial
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evidence exists in the record that would support a contrary outcome or because the Court
would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d 1019, 1022
(8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove he is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment that would either result in death or which has lasted or could be expected to
last for at least twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A); PateFires, 564 F.3d at 942. A five-step regulatory framework is used to determine whether an
individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also Bowen v. Yuckert, 482 U.S.
137, 140-42 (1987) (describing five-step process).
Steps One through Three require the claimant to prove: (1) he is not currently
engaged in substantial gainful activity; (2) he suffers from a severe impairment; and (3)
his condition meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to Steps Four and Five.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform past relevant
work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of demonstrating
he is no longer able to return to his PRW.

Pate-Fires, 564 F.3d at 942.

If the

Commissioner determines the claimant cannot return to his PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy.

Id.; 20 C.F.R. §

404.1520(a)(4)(v).

V. DISCUSSION
Plaintiff argues the ALJ erred in failing to find at Step Two that his HIV was a
severe impairment. He argues that the record evidence demonstrates that his HIV--an

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established, diagnosed, and treated condition--which has existed throughout the entirety of
the record--causes more than slight limitations. The Court agrees.
At Step Two of the evaluation process, the ALJ must determine if a claimant suffers
from a severe impairment. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). The
claimant bears the burden of proving his impairment or combination of impairments is
severe, but the burden is not a heavy one, and any doubt concerning whether the showing
has been made must be resolved in favor of the claimant. Id.; Dewald v. Astrue, 590 F.
Supp.2d 1184, 1200 (D.S.D. 2008). “Severity is not an onerous requirement for the
claimant to meet, but it is also not a toothless standard. . . .” Kirby, 500 F.3d at 707. A
severe impairment is an impairment or combination of impairments that significantly
limits a claimant’s physical or mental ability to perform basic work activities. See 20
C.F.R. §§ 404.1520(c), 404.1521. An impairment is not severe if it amounts to only a
slight abnormality and does not significantly limit the claimant’s physical or mental ability
to do basic work activities. Kirby, 500 F.3d at 707; 20 C.F.R. § 404.1521(a). Basic work
activities concern the abilities and aptitudes necessary to perform most jobs. 20 C.F.R. §
404.1521(b). Examples of basic work activities include: (1) physical functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2)
capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a
routine work setting. Id. The sequential evaluation process terminates at Step Two if the
impairment has no more than a minimal effect on the claimant’s ability to work. Kirby,
500 F.3d at 707; Hudson v. Bowen, 870 F.2d 1392, 1396 (8th Cir. 1989).
Here, the ALJ determined at Step Two that the record supported the presence of
severe medical impairments including, right knee meniscus tear, the residual effects of a
prior heart attack, peripheral neuropathy, hammertoes, claw toes, asymmetrical
sensorineural hearing loss and tinnitus not corrected by hearing aids, the residual effects of
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prior burns including a restricted range of motion due to contractures of the skin, and
bilateral carpal tunnel syndrome with residual effects following release surgeries.
With respect to plaintiff’s HIV, the ALJ stated:
Plaintiff had been diagnosed with HIV; however, this condition is well
controlled on medications. With medication and treatment, the claimant’s
viral load decreased (Exhibit 3F/4). The record is devoid of any HIV related
complications. In fact, the record does not support a conclusion that the
claimant’s HIV or AIDS caused more than a minimal vocationally relevant
limitation for a period of 12 months or more.
(Tr. 23.)
The record evidence concerning plaintiff’s HIV is well-developed, referencing
plaintiff’s HIV impairment and how it causes more than a slight limitation. For example,
plaintiff was hospitalized in September 2014 due to complications from untreated HIV
and was started on HAART and other HIV medications. (Tr. 314.) On September 22,
2014, plaintiff was hospitalized again following a dog bite due to lowered immunity status
from HIV. (Tr. 353.) On October 3, 2014, plaintiff’s lymph nodes had increased in size
and he had ongoing numbness. (Tr. 346.) On May 12, 2015, he was seen at the infectious
disease clinic for HIV follow-up. (Tr. 356.) He was seen at Missouri Orthopedic Institute
on July 1, 2015 for bilateral hand medial neuropathy.

Dr. Collard opined that the

neuropathy in plaintiff’s elbows and extremities was likely related to his medications and
disease process, rather than any work-relatedness. (Tr. 364.) On September 11, 2015,
plaintiff was seen at the infectious disease clinic for HIV follow-up when his HIV
medications were adjusted. Plaintiff had symptoms of bronchitis for over 2 weeks that did
not improve with over the counter medications. (Tr. 375-77.) On December 1, 2015, he
returned to the Infectious Disease Clinic for HIV follow-up when he reported tinnitus with
possible hearing loss and occasional vertigo. (Tr. 379-81.) On December 21, 2015,
plaintiff was seen at an otolaryngology clinic for ringing in his ears for more than a year,
believed to be a possible side-effect of his medications. (Tr. 386-88.) On May 24, 2016,
plaintiff saw Dr. Salzer at the Infectious Disease Clinic for HIV follow-up. (Tr. 391-95.)
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On August 17, 2016, plaintiff saw Dr. Volarich for an independent medical examination.
He opined that plaintiff had a 40% permanent partial disability due to HIV/AIDS infection
and accounting for peripheral neuropathy involving the upper and lower extremities. (Tr.
400-15.)
The record is clear that the general finding by the ALJ that plaintiff's HIV
impairment "caused [no] more than a minimal vocationally relevant limitation for a period
of 12 months or more" (Tr. 23) is not supported by substantial evidence. Given the low
standard for determining impairment severity, the ALJ erred at Step Two of the sequential
evaluation process. Further, substantial evidence unequivocally supports a finding that
plaintiff's HIV impairment is severe.

The Court reverses the final decision of the

defendant Commissioner and remands the case for general reconsideration of plaintiff's
disability applications with his HIV impairment considered severe.

VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social
Security is reversed and remanded. An appropriate Judgment Order is filed herewith.

/s/ David D. Noce
k
UNITED STATES MAGISTRATE JUDGE
Signed on March 11, 2019.

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