United States District Court, D. Nebraska
MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
WARREN K. URBOM, Senior District Judge.
On December 6, 2012, Robert Edward Adams filed a complaint against Michael J. Astrue, who was then serving as Commissioner of the Social Security Administration. (ECF No. 1.) Adams seeks a review of the Commissioner's decision to deny his application for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq. See 42 U.S.C. § 405(g) (providing for judicial review of the Commissioner's final decisions under Title II). The Commissioner has filed an answer to the complaint and a transcript of the administrative record. (See ECF Nos. 10-11.) In addition, the parties have filed briefs in support of their respective positions. (See Pl.'s Br., ECF No. 15; Def.'s Br., ECF No. 20; Pl.'s Reply Br., ECF No. 23.) I have carefully reviewed these materials, and I find that the Commissioner's decision must be affirmed.
Adams protectively filed an application for disability insurance benefits on August 29, 1978 (Transcript of Social Security Proceedings (hereinafter "Tr.") at 82, 472.) The application was denied on initial review, (id. at 82, 94-97), and on reconsideration (id. at 86, 107-110). Adams then requested a hearing before an Administrative Law Judge (ALJ). (Id. at 111-12.) This request was granted, and a hearing was held on September 8, 2011. (Id. at 42.) In a decision dated September 21, 2011, the ALJ concluded that Adams "has not been under a disability, as defined in the Social Security Act, from August 31, 2005, the amended onset date, through the date of this decision." (Id. at 27 (citation omitted); see also id. at 17-28). Adams requested that the Appeals Council of the Social Security Administration review the ALJ's decision. (Id. at 12.) This request was denied, (see id. at 1-3), and therefore the ALJ's decision stands as the final decision of the Commissioner.
II. SUMMARY OF THE RECORD
On his Disability Report forms, Adams claimed that he became disabled on April 1, 1974, which is his date of birth, due to cerebral palsy, "drop foot' syndrome, " left Achilles heel pain, lower back "tightening, " and lower extremity pain, tightening, and muscle spasms. (Tr. at 445, 476.) During the hearing before the ALJ, Adams amended his alleged onset date to August 31, 2005. (Id. at 45-48.) He was 37 years old on the date of the hearing before the ALJ, and he has a high school education. (Id. at 48-49. See also id. at 49, 450 (indicating that Adams briefly attended college).) He has work experience as a waiter, call center representative, driver, factory production line worker, cook, "prep cook, " copy service worker, cashier, restaurant manager, bartender, lawn care service worker, brewery assistant, stocker, auto detailer, newspaper circulation supervisor, printing assistant, grocery bagger, and dish washer. (Id. at 397-434, 446, 467-69.)
A. Medical Evidence
As noted above, Adams asserted that he was born with cerebral palsy and that he later developed "drop foot' syndrome, " left Achilles heel pain, lower back "tightening, " and lower extremity pain, tightening, and muscle spasms. (Tr. at 445, 476.) Adams stated that he had heel cord lengthening procedures in 1979. (Id. at 522.) On October 1, 1990, Adams had surgery at Lincoln General Hospital for a fractured right ankle. (Id. at 521.)
The medical evidence following the amended onset date of August 31, 2005, shows that on January 22, 2010, Adams went to St. Elizabeth Regional Medical Center after four days of back pain. (Id. at 545, 548.) The hospital notes indicate "CP-mild" and state that Adams reported he had back pain for four years. Adams was discharged with hydrocodone for pain and cyclobenzapine for muscle spasms. (Id. at 550.)
On August 17, 2010, Adams began seeing Anthony Cox, PA-C, North Lincoln Family Medical Center, P.C. Cox stated that Adams reported he had cerebral palsy which affected only his legs. (Id. at 559.) Adams said he had leg spasms which improved when he stretched his legs. (Id.) Adams reported that he recently had pain in his knees and ankles, but he believed it was from a lack of exercise and that he hoped to begin exercising again soon. If the pain did not improve, he would return to the clinic. (Id.) Adams said he had been unable to work because of his leg problems. (Id.) Cox noted that Adams had an abnormal gait. (Id.)
Adams saw Cox again on December 9, 2010, to discuss gout. (Id. at 558.) Adams also asked for a note about his cerebral palsy because it was difficult for him to work a full day. (Id.) He said his legs tire and cause discomfort. (Id.) He was only able to exercise on a bicycle for about 15 minutes before he has discomfort and fatigue in his legs. (Id.) Adams had no insurance and said he cannot afford therapy. (Id.)
Cox wrote a letter on December 14, 2010, stating that Adams' cerebral palsy affected his lower extremities, and caused him frequent leg spasms, discomfort, and fatigue. (Id. at 560.) Cox stated that Adams' ability to earn a living was impacted by cerebral palsy because he cannot work at a job that required him to spend a significant amount of time on his feet, and it was difficult for him to maintain full-time gainful employment. (Id.) The letter was also signed by Charles Kreshel, M.D. (Id.)
Cox signed an application for Adams to get a handicapped parking permit on May 6, 2011. (Id. at 555.) Cox stated in a report that Adams came to the clinic for followup of cerebral palsy which affects his lower extremities. (Id. at 556.) Adams reported his condition was unchanged, but he had to quit his job as a waiter because of problems with his legs. (Id.) Adams said he was fatigued and uncomfortable by the end of a work shift. (Id.) He tried working in the kitchen doing prep work, but that required him to stand for a majority of the time. (Id.) Adams stated he was currently waiting for a part-time position in a call center. He asked if there were any supplements he could take for the stiffness in his knees. (Id.) Adams also reported lower back stiffness and said he had not been able to exercise regularly and cannot afford therapy or to join a gym. (Id.) Cox recommended water therapy, but Adams said he could not afford to pay for therapy. (Id.) Adams said he did not have as much stiffness when he was exercising regularly. (Id.) Adams stated that he hoped to qualify for disability benefits so he could get therapy and get into a formal exercise program. (Id.)
Adams underwent a psychological evaluation at the Psychological Consultation Center at the University of Nebraska-Lincoln Department of Psychology. (Id. at 567.) He took part in individual and structured clinical interviews and was administered a number of psychological tests. (Id.) The report of the evaluation was submitted on August 15, 2011, by Milena Stoyanova, M.A., psychology extern, and Mary Fran Flood, Ph.D., supervising clinical psychologist. (Id. at 571.) Adams was diagnosed as having anxiety disorder not otherwise specified; major depressive disorder, recurrent, in partial remission; cerebral palsy; and unemployment and financial problems. He had a GAF of 55. (Id. at 571.)
During the evaluation, Adams described concern about other people judging him negatively due to his medical condition. (Id. at 568.) In the past, he told his friends that he had been in a car accident as a child rather than telling them he had cerebral palsy. (Id.) He reported that he had lost interest in activities and in spending time with friends. He lacked motivation and often stayed home and watched television. He had not received any treatment for anxiety or depression. (Id.)
Adams' level of risk was within normal limits as he did not report any suicidal ideation or actions. (Id. at 568.) He reported no medication for psychological problems. (Id. at 569.) Adams reported that he experienced anxiety in social situations, such as at parties and meetings, and in initiating and maintaining conversations with unfamiliar people. (Id.) His main concern is that others will make fun of him because of his walk. His fear of being negatively judged has affected his overall functioning, and he avoids attending social gatherings and social settings that are unfamiliar to him. (Id.)
Adams reported that he had experienced episodes of depressed mood since the age of 12, but the episodes had become more frequent over time as he was unable to stay at a job for longer than four months. (Id.) The diagnosis of major depressive disorder, recurrent, in partial remission was appropriate given that some symptoms of depression are still present after his most recent episode. He experienced moderate depressive symptoms over the previous two weeks. (Id. at 570.)
The clinical impression was that Adams had no pervasive personality problems. His feelings of inferiority are the result of his feelings and beliefs about having a disability. (Id.) Adams' cognitive function was in the average to above average range with an IQ of 113. (Id.)
The report recommended that Adams undergo outpatient psychotherapy to address his anxiety from fear of being judged by others due to his physical limitations. It would also be helpful for treatment to address skills to manage future major depressive episodes. (Id. at 571.)
B. Vocational Evidence
Adams completed a pre-employment musculoskeletal screening on January 11, 2006, for a position as a driver with Cash-Wa of Lincoln. (Id. at 562.) At that time, he indicated he had no restrictions for lifting, pushing, pulling, squatting, bending, or reaching. (Id. at 562.) He was not taking medication or seeing a physician. (Id.) He stated he had no problems with his upper extremities or previous knee injury. (Id.) Daniel Creal, P.T., determined that Adams was at a moderate risk and qualified for the position if accommodations could be made. (Id. at 563.) He demonstrated significantly limited range of motion, below average strength levels, or was unable to perform job simulations. (Id.) Adams was restricted to carrying 125 pounds on stairs. (Id.) He was able to lift 75 pounds from the floor to his waist eight times, 55 pounds from floor to chest 10 times, and 55 pounds from floor to overhead 10 times. (Id. at 564.) He was able to safely push and pull a two-wheeled cart carrying the minimum of 340 pounds. (Id.) However, Adams was unable to safely pull a cart upstairs carrying the minimum of 225 pounds, but he was able to pull the cart upstairs carrying 100 pounds. (Id.)
Glen Knosp, M.D., completed a residual functional capacity report (RFC) on January 12, 2010. (Id. at 534-541.) Knosp stated that Adams was born with cerebral palsy which affected his lower limbs, while his upper extremities were minimally affected. (Id. at 541.) Adams had drop foot on the right side when he had extended periods of walking, and he had pain in the ankle after walking two blocks. (Id.) Knosp stated that Adams had weakness and stiffness in the musculature of the lower limbs and had problems perceiving temperature in his feet. (Id.) A neurological evaluation showed that Adams' coordination was intact and that he could perform precise movements with his hands. (Id.) He had moderate weakness of extension in the feet and toes while all other muscle groups have normal strength. (Id.) Overall, Knosp stated that Adams would have problems with long periods of standing and walking due to cerebral palsy. (Id.) Knosp stated that Adams was "partly credible" and that he had learned to live with his condition. (Id.)
As to exertional limitations, Knosp indicated that Adams could occasionally lift or carry 20 pounds and frequently lift or carry 10 pounds. (Id. at 535.) He could stand and/or walk with breaks for at least two hours out of an eight-hour workday and could sit for about six hours out of an eight-hour workday. His ability to push and pull was unlimited. (Id.) Adams could occasionally climb, balance, stoop, kneel, crouch, and crawl. (Id. at 536.) Knosp stated that Adams should avoid concentrated exposure to hazards, such as machinery and heights, and should avoid uneven surfaces due to his right foot drop as a result of cerebral palsy. (Id. at 538.)
On March 17, 2010, Jerry Reed, M.D., affirmed the previous RFC report. (Id. at 552.) Adams was able to ambulate independently without assistive devices. (Id.) He had no mental health limitations. (Id.) Reed stated that the recommendation of ...