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Wiley v. Colvin

United States District Court, E.D. Missouri, Southeastern Division

August 8, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         This action is before this Court for judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff Timothy Wiley was not disabled and, thus, not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., or supplemental security income under Title XVI of the Act, 42 §§ 1381, et seq. For the reasons set forth below, the decision of the Commissioner will be affirmed.


         Plaintiff, who was born on June 30, 1965, filed applications for disability benefits and supplemental security income on December 27, 2011, alleging a disability onset date of December 23, 2011, due to back, neck, and heart problems; neuropathy; and depression.[1] After Plaintiff’s applications were denied at the initial administrative level, he requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on October 9, 2013, at which Plaintiff and a Vocational Expert (“VE”) testified. By decision dated October 29, 2013, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work with some limitations, and that Plaintiff was not disabled, based upon the testimony of the VE that there were jobs that an individual such as Plaintiff could perform. Plaintiff’s request for review by the Appeals Council of the Social Security Administration was denied on February 18, 2015. Plaintiff has thus exhausted all administrative remedies, and the ALJ’s decision stands as the final agency action now under review.

         Plaintiff argues that the ALJ’s decision is not supported by substantial evidence in the record as a whole. Specifically, Plaintiff argues that the ALJ improperly discredited Plaintiff’s subjective complaints of pain and gave insufficient weight to the opinion of Plaintiff’s treating neurosurgeon, Sonjay Joseph Fonn, D.O.

         Work History and Application Forms

         Plaintiff represented on his application forms that he worked from 1993 to 2011, primarily in the heating and cooling business, as an inspector (1993-1998), service man (1999-2000), installer (2002-2005), and service manager (2006-2011). He indicated that he stopped working on December 23, 2011 because of his conditions. (Tr. 321-35.)

         On a Function Report dated December 30, 2011, Plaintiff described his typical daily activities, including personal care; cooking meals; doing housework such as cleaning, laundry, and washing dishes; shopping for two hours weekly; golfing once a month; hunting once a week; and fishing. He reported that his condition affected various abilities, including lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, and concentration. (Tr. 307-20.)

         Medical Records

         Prior to his alleged disability onset date (December 23, 2011), Plaintiff had several back surgeries in 2009, 2010, and early 2011. These surgeries involved fusion operations and the removal and reinstallation of hardware. (Tr. 377, 426, 561-62.)

         On August 3, 2011, in a post-operative visit after his last surgery, Dr. Fonn noted that Plaintiff was progressing well, his symptoms had improved, and a CT scan showed good fusion. Dr. Fonn advised Plaintiff to follow up with him after attending physical therapy. (Tr. 442.) The record does not contain evidence that Plaintiff attended physical therapy, and he did not return to treatment with Dr. Fonn until March 2012, when he reported a recurrence of his symptoms, including mid-shoulder pain, not sleeping well, and worsening numbness in his lower extremities. Dr. Fonn scheduled Plaintiff for a spinal cord stimulation trial. (Tr. 573.)

         On June 14, 2012, Plaintiff had a spinal cord stimulator placed in his back.[2]Plaintiff reported good symptom relief in his upper back, but reported that the stimulator provided little coverage of his lower back. Dr. Fonn reported that Plaintiff received reasonable coverage from the stimulator given his size. (Tr. 575-77.) On October 24, 2012, Plaintiff reported getting reasonable coverage from his stimulator but said that he continued to have symptoms in his neck. Dr. Fonn recommended a CT myelogram and a functional capacity evaluation. (Tr. 622.)

         On November 6, 2012, Plaintiff completed a functional capacity evaluation. The functional capacity evaluation showed the following. Plaintiff was able to perform all tasks except kneeling down on one knee. He displayed a normal gait, independent transfers and transitions, and full balance. He could frequently sit, stand, climb, bend, reach, squad, and twist, and occasionally walk and crawl. Plaintiff was unable to walk for prolonged or extended periods of time due to self-limiting pain and feelings of his legs giving way. Plaintiff could perform some material handling tasks at the heavy and medium level, and could occasionally lift 60 pounds and carry 70 pounds, frequently lift 30 pounds and carry 35 pounds, occasionally push 125 pounds and pull 136 pounds, and frequently push and pull 30 pounds. (Tr. 585.)

         The functional capacity evaluation also showed that Plaintiff failed two out of eight validity criteria, which were used to determine whether Plaintiff displayed symptom exaggeration. The two criteria Plaintiff failed were his perceived disability score and his modified somatic score. Plaintiff’s perceived disability score indicated that Plaintiff’s perception of himself as crippled did not correlate with his physical functional capabilities. Plaintiff’s modified somatic score indicated possible hypochondriasis.[3] (Tr. 585-86.) The evaluator stated that despite these findings, Plaintiff appeared to give maximum effort during testing procedures and also displayed physical signs of good effort during testing. (Tr. 585.)

         Dr. Fonn relied on the functional capacity evaluation to complete a medical source statement for Plaintiff on November 19, 2012. Dr. Fonn wrote that his diagnosis of Plaintiff was a lumbar herniated nucleus pulposus without myelopathy; facet arthropathy; lumbar disc degeneration; lumbar discogenic pain; thoracic radiculopathy; sciatica; lumbago; cervical radiculopathy; and peripheral neuropathy. Dr. Fonn checked “yes” as to whether imaging studies documented compromise of Plaintiff’s nerve root or spinal cord, and exams documented pain and limited range of motion. (Tr. 579.) Dr. Fonn indicated that Plaintiff was not limited in sitting or standing, that he could walk occasionally, and that he could lift and/or carry 30 pounds, and frequently bend, twist, reach, climb, balance, use upper and lower extremities, work around moving machinery, and drive. (Tr. 581-82.)

         Dr. Fonn indicated that he had “not tested” whether Plaintiff was capable of sustaining a 40-hour workweek. Dr. Fonn checked “yes” as to whether Plaintiff needed to be able to shift positions at will and sometimes needed to take unscheduled breaks during an eight-hour work day, but Dr. Fonn wrote that it was “unknown” how often Plaintiff would need to take breaks or for how long. Dr. Fonn further indicated that Plaintiff would likely be absent from work about once a month due to his impairments, but he wrote that this was “subject to change.” (Tr. 584.) Dr. Fonn also wrote that Plaintiff’s prognosis was “good.” (Tr. 580.)

         On November 29, 2012, during a cardiology appointment for chest pain, Plaintiff’s back was reported to be non-tender. (Tr. 609-09.)

         Plaintiff saw Dr. Fonn again on March 20, 2013, at which time Plaintiff’s physical examination was essentially normal. Plaintiff stated that he was unable to afford a CT myelogram for his neck pain but that he wished to try a ...

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