United States District Court, E.D. Missouri, Eastern Division
TIMOTHY W. TATE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.
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.
Background and Procedural History
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).
Evidence Before the ALJ
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.
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).
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).
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.
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).
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).
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).
Relevant Medical Records
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).
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).
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).
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).
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).
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).
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.
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 ...