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Tate v. Colvin

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

September 12, 2016

TIMOTHY W. TATE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Timothy Tate (“Plaintiff”) seeks review of the decision by the Social Security Commissioner, Carolyn Colvin (“Defendant”), denying his applications for Social Security Income and Disability Insurance Benefits under the Social Security Act (“Act”). The parties consented to the exercise of authority by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 9). Because substantial evidence supports the decision to deny benefits, the Court affirms the Commissioner's denial of Plaintiff's applications.

         I. Background and Procedural History

         On June 13, 2012, Plaintiff filed applications for Social Security Income and Disability Insurance Benefits. (Tr. 125-31, 134-40). The Social Security Administration (“SSA”) denied Plaintiff's claims, and he filed a timely request for a hearing before an administrative law judge. (Tr. 76-79, 82-83). The SSA granted Plaintiff's request for review and conducted a hearing on December 19, 2013. (Tr. 27-55). In a decision dated February 14, 2014, the ALJ found that Plaintiff “has not been under a disability within the meaning of the Social Security Act from April 1, 2011, through the date of this decision.” (Tr. 11-22). The SSA Appeals Council denied Plaintiff's subsequent request for review of the ALJ's decision. (Tr. 1-3). Plaintiff has exhausted all administrative remedies, and the ALJ's decision stands as the Commissioner's final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         II. Evidence Before the ALJ

         A. ALJ Hearing

         Plaintiff, then fifty years of age, appeared with counsel at the administrative hearing on December 19, 2013. (Tr. 29, 31). Plaintiff testified that he completed high school in special education classes and continued to struggle with reading and math. (Tr. 31-32). Plaintiff stated that he had been unable to work since April 2011 as a result of lower back pain that extended down into his right leg and foot. (Tr. 32). Plaintiff explained that he could stand for about twenty minutes “but the whole time I'm still in pain, ” and he could sit for fifteen to twenty minutes before he would have to lie down. (Tr. 33). Plaintiff testified that he would generally lie down three to five times per day for about thirty minutes, and he could only lift “about five pounds.” (Id.). Standing, walking, bending, and riding long distances aggravated his back pain. (Tr. 34).

         In regard to activities of daily living, Plaintiff stated that his wife often helped him get in and out of the tub and dress himself. (Tr. 34). Plaintiff's wife did most of the housework and regularly brought him his meals “because a lot of times I just don't want to get up [from the couch] because I'm hurting.” (Id.). Plaintiff testified that he experienced four to five “bad days” per month during which he “can't even get out of bed.” (Tr. 35). During the day, Plaintiff watched television. (Tr. 38).

         Plaintiff testified that he was receiving epidural steroid injections, which temporarily relieved his back pain. (Id.). Plaintiff also experienced pain in his arms, which awakened him at night. (Tr. 36). As a result of this pain, “I have problems even lifting up a coffee cup to drink coffee with my right arm.” (Id.). Plaintiff further testified that, if he lifted anything weighing more than five pounds, “I usually drop it.” (Tr. 37).

         Plaintiff stated that he suffered “some” depression. (Id.). Specifically, he stated that his inability to participate in activities he once enjoy with his wife - such as fishing, driving in the countryside, shopping, and visiting relatives - “bums me out.” (Id.). Plaintiff was also unable to play the guitar and engage in woodworking.

         The ALJ asked Plaintiff whether he continued to drive his wife to work every day, as Plaintiff had stated in his adult function report of June 2012, and Plaintiff responded that his wife's employer terminated her the previous month. (Tr. 38-41). Plaintiff also stated he had not been feeding and watering the chickens or retrieving the mail. (Tr. 41). In regard to the cause of his back pain, Plaintiff testified that he slipped and fell on ice twice in December 2010 and once in January 2011, aggravating previously existing back problems. (Tr. 42-43). Plaintiff informed the ALJ that his mother drove him to the hearing, and they stopped once during the forty-five minute trip. (Tr. 45). During that stop, Plaintiff “got out and kind of moved around a little bit, ” but his mother “didn't stop on my account.” (Tr. 45-46).

         Denise Weaver, a vocational expert, also testified at the hearing. (Tr. 47-55). Ms. Weaver classified Plaintiff's primary occupation in the last fifteen years as delivery truck driver, which was medium strength, and material handler, which was heavy strength. (Tr. 47-48). Ms. Weaver affirmed that these are both semi-skilled jobs and that the skills from those jobs were not transferable to the sedentary or light exertional levels. (Tr. 48).

         The ALJ asked Ms. Weaver to consider a hypothetical individual who was “47 at the amended onset date, 50 years old now” with the same education and work history as Plaintiff and the ability to perform a range of light work, including: occasionally lifting up to 20 pounds; frequently lifting or carrying up to 10 pounds; standing or walking six hours out of an eight hour workday; sitting six hours out of an eight hour workday, with a sit-stand option every 30 to 60 minutes; climbing on ropes, ladders, or scaffolds; and occasionally climbing on ramps and stairs, stooping, kneeling, crouching, or crawling. (Tr. 48-49). Ms. Weaver opined that such person would not be able to perform Plaintiff's past work, but he could work as a folding machine operator, garment sorter, or mail clerk. (Tr. 49-50). Ms. Weaver stated that the hypothetical individual could still perform these jobs if he were further limited to: no more than occasional climbing on ramps, stairs, kneeling, crouching or crawling; no twisting or stooping; and occasional pushing and pulling with the lower extremities. (Tr. 51). However, Ms. Weaver testified that no work was available if that hypothetical individual needed to lie down at least once per day for about thirty minutes at unpredictable times due to pain. (Tr. 53).

         B. Relevant Medical Records

         Dr. Kevin Komes examined Plaintiff on July 31, 2012 at the request of the SSA. (Tr. 253-58). On the evaluation's cover sheet, Dr. Komes checked the space indicating that Plaintiff was unable to “sustain a 40-hour workweek on a continuous basis[.]” (Tr. 253). In his report, Dr. Komes wrote that Plaintiff: “has had no medical work-up in the past”; had a history of several slips and falls at work; and complained of back pain and numbness in the lower and upper extremities. (Tr. 256). Dr. Komes described Plaintiff's affect as “extremely flat” and observed that Plaintiff “has significant pain behaviors and self-limits range of motion testing and manual muscle testing.” (Tr. 257). Dr. Komes found that Plaintiff's strength in his shoulders, elbows, wrists, hips, knees, and ankles was fair, but his “right hip flexion is extremely painful relative to the other muscle testing.” (Id.). Dr. Komes believed that Plaintiff exerted “submaximal effort” in the testing of his grip strength and the range of motion in his hips. (Id.). Dr. Komes concluded: “Based on today's evaluation, there are no significant abnormalities that should prohibit sitting, standing, walking; lifting, carrying, handling objects; hearing, speaking, or traveling.” (Tr. 257-58).

         In August 2012, Plaintiff underwent x-rays of the lumbar spine and left knee. (Tr. 260). Dr. Jonathan Root analyzed the x-ray and found “larger osteophytes at ¶ 2-L3 and L3-L4” and “minor degenerative change” in his left knee. (Tr. 266-67).

         On September 25, 2012, Plaintiff visited his primary care physician, who prescribed Motrin for Plaintiff's back pain and referred him to an orthopedist. (Tr. 274). On October 17, 2012, Plaintiff saw Harry Stevenson, an advanced practice registered nurse (APRN), at Missouri Orthopaedic Institute. (Tr. 276-79). Plaintiff rated his pain as eight out of ten and reported that he had “not had any medications, therapy, injections, or surgery for this” and “has not been seen by any specialty physicians.” (Tr. 277). Mr. Stevenson diagnosed Plaintiff with spondylosis of lumbar spine, with right lower extremity radiculopathy and right trochanteric bursitis. (Tr. 278). Mr. Stevenson prescribed Plaintiff gabapentin and Flexeril. (Id.). Mr. Stevenson also ordered x-rays, which revealed “[m]oderate multilevel lumbar spondylosis worst at ¶ 2-L3 level with large anterior and lateral endplate spurs and moderate intervertebral disc space reduction.” (Tr. 280).

         Plaintiff underwent an MRI of the lumbar spine on November 5, 2012. (Tr. 282-83). The MRI revealed “L5-S1 moderate to severe right lateral recess, moderate right foraminal, and mild to moderate left foraminal stenosis secondary to disc herniation and degenerative disease.” (Id.). Mr. Stevenson reviewed the MRI with Plaintiff, increased his gabapentin dosage, and referred him to Dr. Fiala for foot and ankle pain. (Tr. 285). In his notes, Mr. Stevenson wrote:

At this time, given the degenerative changes of his back, the long term pain that he has been having in his right lower extremity pain [sic] and the MRI consistent with his symptoms. It is not likely that [Plaintiff] would be able to return to gainful employment as an over the road trucker, given the strains and stresses of being seated for multiple hours during the day, getting up and in out of the cab. The patient would not be able to do any twisting, pushing, pulling or stooping.

(Id.). Mr. Stevenson also provided Plaintiff a note excusing him from jury duty “because of the patient['s] inability to sit for greater than 5-10 minutes without severe pain.” (Tr. 287).

         Dr. Gavin Vaughn at Missouri Orthopaedic Institute examined Plaintiff's right hip on November 8, 2012. (Tr. 288-90). Dr. Vaughn diagnosed Plaintiff with right iliotibial band pain and low back pain, prescribed stretching and strengthening exercises, and recommended Plaintiff continue taking ibuprofen and Flexeril “on an as-needed basis only.” (Tr. 289).

         Plaintiff returned to Mr. Stevenson for a follow-up visit on November 13, 2012. (Tr. 291-92). Plaintiff reported that the gabapentin “has helped well.” (Tr. 291). Mr. Stevenson noted that Plaintiff “seemed satisfied with the symptom relief that he had gotten with the gabapentin” but expressed interest in an epidural steroid injection. (Tr. 292).

         Dr. Kyle Fiala examined Plaintiff's ankle on November 13, 2012. (Tr. 293-96). Plaintiff informed Dr. Fiala that the pain in his right ankle “has been present for approximately 3 years, ” “is sharp and shooting in nature, ” and “is relieved with rest.” (Tr. 295). Plaintiff rated his pain as eight out of ten. (Id.). Based on x-rays and a physical examination, Dr. Fiala diagnosed Plaintiff with ples planus, right; degenerative arthrosis, right midfoot; and sinus tarsi syndrome. (Id.). Dr. Fiala recommended Plaintiff wear a mechanical support and administered an injection. (Tr. 296).

         Plaintiff returned to his primary care physician on November 16, 2012 and reported that his condition was “unchanged.” (Tr. 275). Plaintiff informed his physician that his pain level with medication was four or ...

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