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Johnsamson v. Saul

United States District Court, D. Alaska

October 16, 2019

STEPHEN MATAKATLA JOHNSAMSON, Plaintiff,
v.
ANDREW SAUL,[1] Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE

         On or about May 31, 2016, Stephen Matakatla Johnsamson filed an application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”), [2]alleging disability beginning September 1, 2015.[3] Mr. Johnsamson has exhausted his administrative remedies and filed a Complaint seeking relief from this Court.[4]

         Mr. Johnsamson's opening brief asks the Court to reverse and remand the agency decision.[5] The Commissioner filed an Answer and a brief in opposition to Mr. Johnsamson's opening brief.[6] Mr. Johnsamson filed a reply brief on March 24, 2019.[7]Oral argument was not requested and was not necessary to the Court's decision. This Court has jurisdiction to hear an appeal from a final decision of the Commissioner of Social Security.[8] For the reasons set forth below, Mr. Johnsamson's request for relief will be granted.

         I. STANDARD OF REVIEW

         A decision by the Commissioner to deny disability benefits will not be overturned unless it is either not supported by substantial evidence or is based upon legal error.[9]“Substantial evidence” has been defined by the United States Supreme Court as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[10] Such evidence must be “more than a mere scintilla, ” but may be “less than a preponderance.”[11] In reviewing the agency's determination, the Court considers the evidence in its entirety, weighing both the evidence that supports and that detracts from the administrative law judge (“ALJ”)'s conclusion.[12] If the evidence is susceptible to more than one rational interpretation, the ALJ's conclusion must be upheld.[13] A reviewing court may only consider the reasons provided by the ALJ in the disability determination and “may not affirm the ALJ on a ground upon which [he] did not rely.”[14] An ALJ's decision will not be reversed if it is based on “harmless error, ” meaning that the error “is inconsequential to the ultimate nondisability determination . . . or that, despite the legal error, the agency's path may reasonably be discerned, even if the agency explains its decision with less than ideal clarity.”[15] Finally, the ALJ has a “special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.”[16] In particular, the Ninth Circuit has found that the ALJ's duty to develop the record increases when the claimant is unrepresented or is mentally ill and thus unable to protect his own interests.[17]

         II. DETERMINING DISABILITY

         The Act provides for the payment of disability insurance to individuals who have contributed to the Social Security program and who suffer from a physical or mental disability.[18] In addition, SSI may be available to individuals who are age 65 or older, blind, or disabled, but who do not have insured status under the Act.[19] Disability is defined in the Act as follows:

[I]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.[20]

         The Act further provides:

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.[21]

         The Commissioner has established a five-step process for determining disability within the meaning of the Act.[22] A claimant bears the burden of proof at steps one through four in order to make a prima facie showing of disability.[23] If a claimant establishes a prima facie case, the burden of proof then shifts to the agency at step five.[24] The Commissioner can meet this burden in two ways: “(a) by the testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.”[25] The steps, and the ALJ's findings in this case, are as follows:

         Step 1. Determine whether the claimant is involved in “substantial gainful activity.” The ALJ concluded that Mr. Johnsamson engaged in substantial gainful activity after the alleged onset date of September 1, 2015 through November 2015. The ALJ noted that the remaining findings in the decision addressed the period during which Mr. Johnsamson did not engage in substantial activity.[26]

         Step 2. Determine whether the claimant has a medically severe impairment or combination of impairments. A severe impairment significantly limits a claimant's physical or mental ability to do basic work activities and does not consider age, education, or work experience. The severe impairment or combination of impairments must satisfy the twelve-month duration requirement. The ALJ determined that Mr. Johnsamson had the following severe impairments: diabetes mellitus; hypertension; hyperlipidemia; sleep apnea; degenerative disc disease and degenerative joint disease of the cervical and lumbar spine; osteoarthritis of the bilateral shoulders; and plantar fasciitis.[27]

         Step 3. Determine whether the impairment or combination of impairments meets or equals the severity of any of the listed impairments found in 20 C.F.R. pt. 404, subpt. P, app.1 so as to preclude substantial gainful activity. If the impairment(s) is(are) the equivalent of any of the listed impairments, and meet(s) the duration requirement, the claimant is conclusively presumed to be disabled. If not, the evaluation goes on to the fourth step. The ALJ determined that Mr. Johnsamson did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment.[28]

         Before proceeding to step four, a claimant's residual functional capacity (“RFC”) is assessed. Once determined, the RFC is used at both step four and step five. An RFC assessment is a determination of what a claimant is able to do on a sustained basis despite the limitations from his impairments, including impairments that are not severe.[29]The ALJ concluded that Mr. Johnsamson had the RFC to perform medium work except that he was additionally limited to “only frequent kneeling and climbing [of] ladders, ropes or scaffolds.”[30]

         Step 4. Determine whether the claimant is capable of performing past relevant work. At this point, the analysis considers whether past relevant work requires the performance of work-related activities that are precluded by the claimant's RFC. If the claimant can still do his past relevant work, the claimant is deemed not to be disabled. Otherwise, the evaluation process moves to the fifth and final step. The ALJ found that Mr. Johnsamson was capable of performing past relevant work as a schedule clerk, porter, and medical records clerk.[31]

         Step 5. Determine whether the claimant is able to perform other work in the national economy in view of his age, education, and work experience, and in light of his RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled. The ALJ determined that Mr. Johnsamson was capable of past relevant work and did not reach step five in his analysis.[32]

         The ALJ concluded that Mr. Johnsamson was not disabled at any time from September 1, 2015 through August 21, 2017, the date of the decision.[33]

         III. PROCEDURAL AND FACTUAL BACKGROUND

         Mr. Johnsamson was born in 1963; he is 56 years old.[34] He reported last working as a traffic management specialist for the Department of Defense from June 2014 to October 2015. Mr. Johnsamson also reported working in the past as a transportation assistant for the Department of Defense, as a patient services assistant for the Alaska VA Healthcare System, as a passenger and baggage processor for the U.S. Air Force, and as an active duty service member of the U.S. Air Force.[35]

         On January 30, 2017, the Social Security Administration (“SSA”) determined that Mr. Johnsamson was not disabled under the applicable rules.[36] On March 30, 2017, Mr. Johnsamson requested a hearing before an ALJ.[37] On August 1, 2017, Mr. Johnsamson appeared and testified without a representative at a hearing held before ALJ Paul Hebda.[38] On August 21, 2017, the ALJ issued an unfavorable ruling from September 1, 2015 through the date of his decision.[39] On December 7, 2017, the Appeals Council denied Mr. Johnsamson's request for review.[40] On October 24, 2018, the Appeals Council granted Mr. Johnsamson's request for an extension of time to commence a civil action.[41]Mr. Johnsamson appealed to this Court on September 5, 2018.[42]

         Medical Records

         Although Mr. Johnsamson's medical records date back to 1992, the Court focuses on the relevant medical records after the alleged onset date of September 1, 2015.[43]However, the following are the most relevant records before September 1, 2015:

         On June 7, 2007, Mr. Johnsamson visited Lori Kelsey, M.D., for a compensation and pension examination. Dr. Kelsey assessed Mr. Johnsamson with the following: (1) right elbow calcific tendonitis distal triceps tendon; (2) right shoulder rotator cuff tendonitis with prior cuff tear; (3) middle back degenerative disease; (4) hypertension with trace proteinuria; (5) bilateral carpal tunnel syndrome; (6) bilateral plantar fasciitis and achilles tendonitis; (7) insomnia; (8) allergic rhinitis and deviated septum status post septorhinoplasty; (9) vitiligo affecting 3% of the total body and exposed surface area; (10) gastroesophageal reflux disease; (11) bilateral knee strain; (12) anal fissures; (13) enthesopathy tendonitis; and (14) hyperlipidemia.[44]

         On September 24, 2007, the Department of Veterans Affairs issued a disability rating decision. It determined that Mr. Johnsamson had a service connection for insomnia with an evaluation of 30 percent; for anal fissure with 20 percent; bilateral plantar fasciitis with 10 percent; bilateral knee strain with 10 percent; hypertension with 10 percent; gastroesophageal reflux disease with 10 percent; and facial and extremity vitiligo with 10 percent. His entitlement to individual unemployability was deferred pending receipt of Mr. Johnsamson's application, but the rating decision noted that Mr. Johnsamson met the criteria for individual unemployability.[45]

         On January 23, 2008, the Department of Veterans Affairs granted a service connection for tinnitus with an evaluation of 10 percent.[46]

         On March 13, 2009, Mr. Johnsamson went to the emergency department at Alaska Regional Hospital. He reported lower back pain after a motor vehicle accident. X-rays showed no acute injury to the cervical, thoracic, or lumbar spine. He was assessed with cervical lumbar strain.[47]

         On May 6, 2009, Mr. Johnsamson had an MRI of the lumbar spine. The MRI showed “[s]ignificant L5-S1 paracentral/left foraminal disc bulge, which results in left lateral recess stenosis and moderate to severe left neural foraminal narrowing”; a “[s]mall L4-5 right far lateral and right foraminal disc bulge, which results in mild right neural foraminal narrowing”; and an anterior annular tear at L3-4. Additionally, Mr. Johnsamson had an MRI of the thoracic spine and cervical spine. The MRI of the thoracic spine showed “[d]egenerative spondylosis of the thoracic spine without posterior disc bulges, central canal stenosis, nor neural foraminal narrowing.” The MRI of the cervical spine showed “[m]ultilevel spondylosis, worst at the C6-7 level”; “C6-7 significant right paracentral and right foraminal disc bulge is noted, which offaces the right side of the anterior thecal sac and impresses on the cord, and results in severe right neural foraminal narrowing”' and “C5-6 central disc bulge with annular tear which, in combination with bilateral uncovertebral facet arthropathy, results in mild to moderate right neural foraminal narrowing.”[48]

         On June 30, 2010, Mr. Johnsamson visited Larry Kropp, M.D., an interventional anesthesiologist in Anchorage, Alaska. He reported a 10-year history of lower back pain that had recently worsened. Dr. Kropp noted the recent MRI showed “a large protrusion at L5/S1 with foraminal stenosis mainly on the left” with minor protrusions and degenerative changes at other levels. On physical examination, Mr. Johnsamson had a positive straight leg raise test on the left with 5/5 strength in all extremities and no obvious deficits in sensation. He was assessed with lumbar displaced disc. Dr. Kropp recommended a steroid injection at L5 on the left and added that “if that fails he may need surgery.”[49]

         On July 16, 2010, Mr. Johnsamson had a steroid injection at L5 on the left.[50]

         On May 10, 2012, Mr. Johnsamson had x-rays taken of both knees and his lumbar spine. The x-ray of his left knee was normal. The x-ray of his right knee was also unremarkable. The x-ray of his lumbar spine showed “osteophytic changes, ” but “relatively good preservation of the intervertebral disc spaces.”[51]

         On August 27, 2012, the Department of Veterans Affairs rated Mr. Johnsamson's combined disability rating as 90%.[52]

         On May 8, 2013, Mr. Johnsamson had x-rays taken of his left and right knees. Both x-rays showed “[n]o acute osseous abnormality or osteoarthritis.”[53]

         On October 3, 2013, Mr. Johnsamson had a steroid injection in his left knee.[54]

         On October 11, 2013, Mr. Johnsamson had bilateral feet and knee x-rays taken. The x-rays of the feet showed bilateral calcifications, achilles enthesophytes, and minimal degenerative changes. The x-rays of the knees showed “[m]inimal degenerative changes to the tibiofemoral joints” and “[m]inimal to mild degenerative changes to the patellofemoral joints.”[55]

         On December 9, 2013, Mr. Johnsamson had an MRI of the left knee. The MRI showed a small effusion with no fracture and a “[h]eterogeneously increased signal consistent with tear at the medial meniscal root.”[56]

         On December 20, 2014, Mr. Johnsamson had an MRI of the lumbar spine. The MRI showed:

“[m]ild congenital central spinal stenosis. Multilevel degenerative disc disease with a small disc herniation at L2-L3, a right posterior lateral disc herniation at L3-L4 resulting in mild right neural foraminal narrowing. A right posterior lateral disc herniation at L4-L5 causing mild right neural foraminal with borderline impingement upon the exiting right L4 nerve root, and a broad-based left paracentral/posterior lateral disc herniation at L5-S1 resulting in compression of the low left S1 nerve root causes severe left and moderate central spinal stenosis. No evidence of cauda equina compression.”[57]

         On February 20, 2015, Mr. Johnsamson had an x-ray of his lumbosacral spine. The x-ray showed “[m]ild straightening of the normal lumbar lordosis” and “[m]ild multilevel degenerative disc disease with vertebral body spurring.”[58] On the same date, Mr. Johnsamson had an MRI of the lumbar spine. The MRI showed right sided disc herniation at L4-L5 impinging on the right L4 nerve root and left sided disc herniation at L5-S1 compressing the S1 nerve root.[59]

         On May 20, 2015, Mr. Johnsamson had a CT scan of his head. The CT showed no acute intracranial findings. On the same date, Mr. Johnsamson had an x-ray of his cervical spine. The x-ray showed “[d]egenerative cervical spondylosis.”[60]

         On May 28, 2015, Mr. Johnsamson visited Regina Krel, M.D., at the VA neurology outpatient clinic in Northport, New York. He reported headaches and neck pain. Mr. Johnsamson also reported that his neck pain and headaches interfered with his daily activities and that he had “taken multiple sick days due to his pain.” He was assessed with cervicogenic headaches; hypertension, acceptably controlled; dyslipidemia; diabetes mellitus; GERD; obstructive sleep apnea; insomnia; and chronic back pain/neck pain.[61]

         On June 15, 2015, Mr. Johnsamson had a CT scan of his cervical spine. The CT scan showed “[p]rominent anterior bulky osteophytes” from C4-7, ” but “[n]o other significant abnormalities” were seen.[62]

         On June 25, 2015, Mr. Johnsamson had an CT scan of the lumbar spine. The CT scan showed multilevel degenerative changes “superimposed on congenitally narrowed central canal, worse at L2-3 and L5-S1”; atherosclerotic disease; and “[m]ultiple scattered shotty retroperitoneal lymph nodes.” The radiologist noted that the findings of the MRI were not significantly changed since the December 20, 2014 evaluation, although the imaging techniques differed.[63]

         On July 15, 2015, Mr. Johnsamson visited Marilyn Otero, P.A., at the Brooklyn HHS Veteran's Hospital. He reported chronic lower back pain “since the year 2000, worsening in recent years, with left lower extremity pain since 2008.” He reported that his lower back pain was both left and right-sided with left mid-lateral thigh numbness and left lower extremity paresthesia. Mr. Johnsamson also reported that his mid-lower back pain was “worse on prolonged sitting or ambulation.” On physical examination, Mr. Johnsamson's motor strength was 5/5 throughout, but with lower back pain on left lower extremity resistance. PA Otero observed negative Hoffman's and Clonus tests and Mr. Johnsamson's sensation to light touch was intact distally. PA Otero opined that decompression surgery “would most likely address his left lower extremity radicular symptoms; but not address his chronic complaints of back pain.” She also opined that Mr. Johnsamson was “neurologically stable except for his subjective complaints of left lower extremity numbness.” She recommended conservative therapies, including physical therapy; pool therapy; back school; HEP; acupuncture; and an interventional pain management consultation for an epidural steroid injection evaluation.[64]

         On August 1, 2015, Mr. Johnsamson had bilateral x-rays taken of his knees. The x-rays showed “[b]ilateral patella alta and lateral patellar tilt” with “[m]arginal spurring at the lower pole of the patella on the right” with “[t]ibiofemoral joints appearing intact.”[65] He also had bilateral x-rays taken of his wrists. The x-rays showed “[b]orderline widening of the scapholunate joint bilaterally” and “[m]ild spurring at the scapholunate joint on the right” with “[m]ild to moderate arthrosis at the basal joint bilaterally.”[66] On the same date, Mr. Johnsamson saw Steven Olster, RPA-C, for an examination and consultation regarding his ankle, knee, lower leg, and wrist conditions. He reported that he was unable to tolerate stairs, walk more than five blocks, or drive without pain. Mr. Johnsamson reported that his knee condition limited his “standing, sitting at work.” He also reported that his knee condition caused him to miss days at work, leave work early due to pain, and “stand up and move around after being seated too long.” He also reported that he had to go home at least once per week and on occasion had to leave early or come in late due to his wrist condition. On physical examination, PA Olster noted that Mr. Johnsamson's right and left ankles and right and left wrists were outside the normal range of motion due to pain on examination, but the pain did not result in or cause functional loss. His range of motion of the knees bilaterally was also limited due to stated pain. Mr. Johnsamson had no knee joint instability on either side. His strength testing was normal at 5/5 bilaterally in his lower and upper extremities and he had no muscle atrophy or ankylosis. There were no signs or symptoms of carpal tunnel syndrome on examination of his wrists.[67]

         On August 10, 2015, the Department of Veterans Affairs decided that Mr. Johnsamson had a service connection for chronic right and left wrist sprain and right and left knee patellofemoral pain syndrome at 10 percent disabling.[68]

         On August 31, 2015, Mr. Johnsamson visited Heather Jones, M.D., at Capstone Family Medicine in Eagle River, Alaska. He reported neck pain and low back pain caused by standing or sitting for prolonged periods. Dr. Jones recommended that Mr. Johnsamson “pursue pain management for his neck as he is very young and should still be able to pursue a meanin[g]ful career and should be able to get his neck and back pain under control” and that he “may have to adjust [his] work station, get lumbar support or have pain management [prescription] medications for pain.” Dr. Jones opined that Mr. Johnsamson's limitations on sitting and standing “should not preclude him from working.” She also opined that he “is able to work but may need to pursue a different type job.”[69]

         The following are the more relevant records after the September 1, 2015 alleged onset date:

         On September 2, 2015, Donato Pacione, M.D., a neurosurgeon at NYHH VAMC, completed a health provider form on Mr. Johnsamson's behalf. Dr. Pacione assessed Mr. Johnsamson with chronic disc herniation as of 2011, pursuant to Mr. Johnsamson's report. He recommended interventional pain management and physical therapy with operative intervention at a future date if conservative measures failed. Dr. Pacione opined that Mr. Johnsamson was unable to tolerate prolonged sitting or standing. On physical examination, Dr. Pacione observed that Mr. Johnsamson was “intact” neurologically.[70]

         On September 12, 2015, Mr. Johnsamson had an MRI of his thoracic spine. The MRI showed “[m]ild degenerative changes in the thoracic spine” with “no significant disc herniation” and “[n]o canal or foraminal stenosis in the thoracic spine, with no cord compression.”[71]

         On November 5, 2015, Mr. Johnsamson initiated care with Myron Schweigert, D.C., at Chugach Chiropractic Clinic in Eagle River, Alaska. DC Schweigert observed no abnormal changes in Mr. Johnsamson's deep tendon reflexes in the upper extremities and “low normal” deep tendon reflexes in the patellar and achilles. DC Schweigert also observed a positive Kemp's Test and Bragard's sign bilaterally. He observed that Mr. Johnsamson's movement was painful.[72]

         On December 15, 2015, Mr. Johnsamson initiated care with Diana Hess, N.P., at Cornerstone Medical Clinic in Anchorage, Alaska. He reported back pain, neck pain, knee pain, migraines, dry eyes, and skin tags on his inner thighs. He reported that chiropractic treatments helped “a little, ” but he wanted to pursue other options. NP Hess assessed Mr. Johnsamson with HTN, GERD, DMII, hyperlipidemia, and migraines.[73]

         On December 21, 2015, Mr. Johnsamson saw DC Schweigert for chiropractic treatment.[74]

         On March 15, 2016, Mr. Johnsamson initiated care with James Glenn, PA-C, at the Veterans Hospital in Anchorage, Alaska. He reported cervical spine pain and lower back pain with numbness and “tingling down the ‘whole' left leg.” On physical examination PA Glenn observed no swallowing difficulty, no breathing difficulty, heel to toe walking without difficulty; weakness in muscle strength in the bilateral grip, hand intrinsics, and slightly with wrist extension, but 5/5 strength in the remaining upper extremities; and limited cervical spine range of motion due to pain. PA Glenn noted that Mr. Johnsamson experienced the same amount of pain with and without downward pressure on his neck. X-rays of the cervical spine taken at the visit showed “seven well-formed cervical vertebrae without profound significant disc degeneration, ” but “significant anterior osteophytes anterior to C4-C5, C6-C7.” PA Glenn noted that the largest osteophyte was over C4-C5 with a “bone which does protrude about 8 to 9 mm anteriorly, ” but “[n]o instability on flexion and extension views and no acute osseous abnormalities.” PA Glenn diagnosed Mr. Johnsamson with “[c]hronic cervical spine pain with referral symptoms into the paraspinal musculature over occipital lob down into bilateral trapezius without frank radiculopathy”; “[w]eakness in bilateral uppers with hand intrinsics”; “[s]ignificant anterior osteophytes from C4-C7”; and lower back pain, “not fully evaluated today.”[75]

         On March 21, 2016, David Prentice, D.C., at Chugach Chiropractic Clinic, completed a health provider certification form for the U.S. Department of Labor. He opined that Mr. Johnsamson was unable to perform prolonged sitting or standing. DC Prentice recommended rehabilitation and chiropractic care.[76]

         On March 24, 2016, Mr. Johnsamson saw Byron Perkins, D.O., at Cornerstone Medical Clinic. He reported lower back, neck, and bilateral knee pain. On physical examination, Dr. Perkins observed intact cranial nerves, a neurosensory exam within normal limits, good hip flexion and knee extension against resistance, preserved balance, equal and symmetric motor strength, full squat and return to standing without difficulty, and a normal straight leg test. Dr. Perkins performed osteopathic manipulation at the visit and noted that Mr. Johnsamson demonstrated improved range of motion and reported less pain following treatment.[77] On the same date, Mr. Johnsamson visited DC Prentice for chiropractic treatment.[78]

         On March 25, 2016, Mr. Johnsamson had an MRI of the cervical spine. The MRI showed “[m]ild multilevel cervical spondylosis” and “[a] large right posterior paracentral disc osteophyte complex and uncovertebral osteophytes at C6-7” causing “severe right neural foraminal origin stenosis and mild central spinal canal stenosis.”[79]

         On March 30, 2016, Mr. Johnsamson visited DC Prentice for chiropractic treatment.[80]

         On March 31, 2016, Mr. Johnsamson saw PA Glenn. He reported “ongoing cervical spine pain mainly on the left with feelings of continued weakness into his hands.” PA Glenn diagnosed Mr. Johnsamson with ongoing chronic cervical spine pain with right C6-C7 disc protrusion; weakness in bilateral upper hands and hand intrinsics; significant anterior osteophytes C4-C7; and lower back pain, not fully evaluated. PA Glenn reviewed the MRI and noted that Mr. Johnsamson had “degenerative changes with degenerative spondylosis throughout his cervical spine with a larger disc protrusion at the right at C6-C7” and that the protrusion did “impress upon what appears to be the exiting C7 nerve root, ” but that Mr. Johnsamson had “[n]o other significant abnormalities” and the “cord diameter [was] maintained at about 10 mm.” PA Glenn noted that he did “not think [Mr. Johnsamson was] fully disabled” and that Mr. Johnsamson was “able to perform some type of employment.” He noted that Mr. Johnsamson indicated he did “not want to do an epidural” and did not “seem like he [wanted] to get much better with treatments that I offered.”[81] PA Glenn also completed a health care provider form for FMLA. He opined that Mr. Johnsamson was unable to work at the time, but if his symptoms improved he “may be able to return to work in the future.” PA Glenn recommended an epidural steroid injection.[82]

         On April 8, 2016, Mr. Johnsamson visited DC Prentice for chiropractic care.[83]

         On July 6, 2016, Mr. Johnsamson saw Cynthia Davis, RN, at the Elmendorf Disease Management clinic, for follow up on diabetes mellitus, type 2, without complications.[84]

         On August 16, 2016, Mr. Johnsamson followed up with NP Hess. He reported that he continued to have back and neck pain and he needed a referral for more chiropractor visits.[85]

         On September 12, 2016, Mr. Johnsamson followed up at Chugach Chiropractic Clinic for chiropractic treatment.[86]

         On December 21, 2016, Mr. Johnsamson initiated care with Zachary Johnson, PA-C, at Anchorage Fracture and Orthopedic Clinic. He reported right shoulder pain and bilateral knee pain. On physical examination of the shoulder, PA Johnson observed no ecchymosis and no edema, “good strength with resisted abduction and an external rotation, ” but “slight weakness with internal rotation”; and a positive Neer and Hawkins impingement sign. On physical examination of the knees, PA Johnson observed no ecchymosis; no edema; tenderness at the medial and lateral joint line and medial and lateral aspects of the patella; a stable varus and valgus stress test, and a negative Lachman's and anterior and posterior drawer. PA Johnson assessed Mr. Johnsamson with “[c]hronic right shoulder pain concerning for rotator cuff tendinopathy”; “[o]steoarthritis of the knees bilaterally”; and “[c]hronic bilateral knee pain with concerns for possible meniscus injury of the left knee.” X-rays of the right shoulder showed “[m]ild osteoarthritis of the right acromioclavicular joint and possible injury to the rotator cuff.” X-rays of the knees showed “[o]steoarthritis of the knees bilaterally.”[87]

         On December 27, 2016, Mr. Johnsamson had an MRI of his right shoulder. The MRI showed moderate acromioclavicular osteoarthritis and mild subacromial subdeltoid bursitis; “[s]evere anterior infraspinatus tendinopathy and partial-thickness intrasubstance degenerative tear of the anterior infraspinatus tendon insertion”; and “[m]ild partial-thickness glenohumeral chondrosis.” Mr. Johnsamson also had an MRI of his left knee. The left knee MRI showed mild lateral patellofemoral chondrosis.[88]

         On December 29, 2016, Mr. Johnsamson had an MRI of the lumbar spine. The MRI showed “[d]iffuse congenital narrowing of the lumbar spinal canal along with prominent intraspinal fat that causes diffuse mild stenosis of the subarachnoid space”; “L2-L3 disc protrusion that combined with above causes moderate to severe stenosis of the subarachnoid space”; L3-L4 and L4-L5 degenerative joint disease with mild left L3-L4 and bilateral L4-L5 mild neural foramen stenoses; and L5-S1 disc extrusion with severe left lateral recess and neural foramen stenoses.[89]

         On January 3, 2017, Mr. Johnsamson saw Ernest Meinhardt, M.D., for an evaluation of his right shoulder and bilateral knee pain. On physical examination, Dr. Meinhardt observed decreased range of motion of the shoulder and pain with abduction and rotation; bilateral knee pain to palpation; and a slow, shuffling gait with a limp favoring his left leg.[90]

         On January 12, 2017, Shirley Fraser, M.D., a state agency reviewing physician, opined that Mr. Johnsamson could perform his past relevant work as a transportation assistant. She opined that Mr. Johnsamson was limited to lifting and carrying 25 pounds occasionally and 20 pounds frequently; standing a total of four hours and sitting a total of six hours in an eight-hour workday; and pushing and pulling with the right arm occasionally. Dr. Fraser also opined that Mr. Johnsamson was limited to climbing ramps and stairs occasionally; climbing ladders, ropes, and scaffolds occasionally; and stooping, kneeling, crouching, and crawling occasionally. Dr. Fraser opined that Mr. Johnsamson should avoid excess cold and heat and avoid hazards.[91]

         On January 26, 2017, the Office of Personnel Management wrote a letter notifying Mr. Johnsamson that he was found to be disabled “for your position as [a] Traffic Management Specialist for Intervertebral Disc Disorder-Lumbar, Chronic Neck Pain only.” His application for disability retirement under the Federal Employees Retirement System (“FERS”) was approved.[92]

         On March 25, 2017, Mr. Johnsamson followed up at Chugach Chiropractic Clinic.[93]

         On April 19, 2017, Mr. Johnsamson saw PA Johnson at Anchorage Fracture and Orthopedic Clinic for a cortisone injection in the right shoulder and the left knee.[94]

         On May 2, 2017, Mr. Johnsamson initiated care with Jaclyn Levesque, PT, DPT, at Healthwise Physical Therapy in Eagle River, Alaska for physical therapy to relieve low back pain. He reported difficulty sleeping, that he was unable to work, and was unable to sit, stand, or walk more than 20 minutes.[95]

         In an undated letter, DC Prentice opined that “based on objective medical findings and in my professional opinion, ” Mr. Johnsamson was “functionally limited and impaired from work-related physical activities such as prolonged sitting or standing, lifting or carrying of other [sic] than light objects placed conveniently for him to pick up without bending or twisting, sustained walking, or travel of long distances without the flexibility to take frequent breaks or change position.”[96]

         Hearing Testimony on August 1, 2017

         Mr. Johnsamson attended a hearing before ALJ Hebda on August 1, 2017 without an attorney or other representative. He testified that he last worked in November 2015 as a traffic management specialist and that it was an office job, but it involved lifting boxes and computers. He testified that in the past he also worked in patient services assistance, as a passenger baggage processor, and air transportation specialist. At the hearing, Mr. Johnsamson testified that, “my neck and my back are the two main problems, that's the reason I can't work.” He also indicated that he had problems with his knees, right shoulder, and back. Mr. Johnsamson reported that he had headaches, plantar fasciitis, insomnia, carpal tunnel, hearing loss, dry eyes, and sleep apnea. He indicated that his back pain was in his lower back, mid-back, and neck and averaged a seven or eight on a scale of one to ten. He testified that his neck pain was the worst pain and that it was sharp and shot up his right side. Mr. Johnsamson testified that Motrin worked “up to a point” and that he also took Flexeril for his pain. He testified that he could not bend down and lift up with his legs, go up and down stairs, or walk more than 40 minutes. Mr. Johnsamson testified that he had difficulty dressing himself, but he could shower and bathe on his own. He indicated that he did not perform any household chores and did not do yard work. He testified that he spent his day reading the news, sitting or lying on the couch, working on the computer, and going to doctor's appointments. He reported that he would occasionally go for a walk with his family for 20-30 minutes and see his grandbaby “once in a while.” He also testified that he lived in a three-story house and he could drive.[97]

         Robert Sklaroff, M.D., testified as the medical expert. Based on his review of the record, Dr. Sklaroff indicated that Mr. Johnsamson's primary physical problems were related to his neck, degenerative joint disease, degenerative disc disease, and headaches. Dr. Sklaroff noted that there was “no evidence of radiculopathy.” Dr. Sklaroff opined that Mr. Johnsamson had “a metabolic syndrome associated with exogenous obesity, and that is associated with the diabetes, the hypertension and the sleep apnea.” He also noted, “all of those other metabolic problems as you confirmed are really not major issues in terms of what would be an impairment that would cause an inability to work.” Dr. Sklaroff indicated that Mr. Johnsamson's pain was managed by pain medications. Specifically, he testified, “there is no mention also of the Gabpentin, nor is there any mention of the failure to use any narcotic medication to alleviate the pain because of the problems regarding dizziness.” He opined that although there was a diagnosis of weakness in the bilateral upper hands and hand intrinsics in Mr. Johnsamson's medical record, “whatever problem the person would have in terms of lifting, there can be compensation for the left arm even if the right arm can't lift as much.” He testified that Mr. Johnsamson was not “at maximum medical improvement” and “potentially would benefit from a bariatric consultation.” Dr. Sklaroff opined that Mr. Johnsamson could stand, sit, or walk up to six hours each in an eight-hour workday. He also opined that Mr. Johnsamson could lift 50 pounds occasionally, 25 pounds frequently with no limitations pushing, pulling, squatting, bending, or reaching.[98] Although Mr. Johnsamson reported having a VA disability rating, Dr. Sklaroff testified that he did “not depend upon the VA disability evaluations, but [he] didn't see one.”[99] Also at the hearing, Mr. Johnsamson testified that he provided neurology records from Manhattan, New York, but the ALJ asked Dr. Sklaroff “to just proceed based on what we have in the file.”[100]

         John Head testified as the vocational expert (“VE”). Based on the ALJ's first hypothetical, he opined that Mr. Johnsamson could perform all of his past work “with the exception of the baggage handler.”[101] Based on the ALJ's further limitation of frequent kneeling, VE Head opined that the positions of schedule clerk and medical record clerk “would be satisfactory.” Based on the ALJ's limitation of light work instead of medium work, VE Head opined that the individual could still work as a scheduling clerk and medical records clerk.[102]

         Mr. Johnsamson's Function Report

         Mr. Johnsamson completed a function report on September 8, 2016. He reported that he could not stand or sit due to chronic back, neck, and knee pain. He also noted that he had “frequent migraines that start from my neck and go to my head” and that they “are continually getting worse and more frequent which prevents me from concentrating on my work” and “led to routine mistakes at work.” Mr. Johnsamson reported that he had pain and insomnia and his sleep medications made him “groggy” and unable to “concentrate the next morning.” He reported that his back pain “also cause[d] anal leakage that must be managed throughout the day with frequent bathroom visits.” He reported that he did not prepare his own meals because he was “unable to stand or bend” and experienced a “loss of sensation in [his] hands to heat and cold.” He noted that he could do light chores that did not involve standing or bending, but did not do yard work. Mr. Johnsamson indicated that he went outside 3-4 times a week; could drive and ride in a car; shop in stores, by mail, and by computer; and pay bills and count change. He indicated that he watched television and videos; read; and went to doctor's appointments. He also indicated that he attended church services but his attendance was “very limited.” Mr. Johnsamson reported that his chronic pain and medication side-effects, including mood changes, affected lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, hearing, stair-climbing, seeing, memory, completing tasks, concentration, understanding, following instructions, using his hands, and getting along with others. He also noted that medication side effects and hearing difficulties affected his comprehension of written and spoken instructions.[103]

         IV. DISCUSSION

         Mr. Johnsamson is now represented by counsel. In his opening brief, Mr. Johnsamson asserts that the “agency decision failed to take account of the additional evidence that Mr. Johnsamson submitted to the Appeals Council.” He also alleges that the ALJ: (1) failed to fully and fairly develop the record “by carrying out the specific recommendation for further diagnostic testing that was made at [the] hearing by medical expert Dr. Sklaroff” and (2) failed to “account for and to weigh the functional medical evaluation and medical source statement of treating physician Heather Jones, M.D..”[104]The Commissioner disputes Mr. Johnsamson's assertions.[105] The Court addresses each of Mr. Johnsamson's assertions in turn:

         A. Additional Evidence

         In its decision, the Appeals Council stated that Mr. Johnsamson had submitted additional documents to the Council from: (1) James Glenn, PA-C, dated March 15, 2016 to March 31, 2016; (2) medical records from Imaging Associates dated March 25, 2016 to December 29, 2016; (3) Brooklyn HSS Veterans Hospital dated August 24, 2015 to September 2, 2015; and (4) Office of Personnel Management statement dated January 26, 2017. The Appeals Council determined that this evidence did not “show a reasonable ...


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