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Snider v. Colvin

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

September 20, 2016

KENNETH SNIDER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of Defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, denying the application of Plaintiff Kenneth Snider (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (the “Act”). The parties consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 10). Because I find the decision denying benefits was not supported by substantial evidence, I will reverse the Commissioner's denial of Plaintiff's application and remand the case for further proceedings.

         I. Factual Background

         Plaintiff was 43 years old as of the date of the hearing before the ALJ. He last worked in 2008, doing concrete work, and he stopped working because of his leg and back pain. (Tr. 237). He testified that his condition has been steadily getting worse since 2008. (Tr. 238). His legs hurt all the time, and he has numbness and tingling in his feet and legs all the time. (Tr. 243). He has some muscle spasms in his calves. (Tr. 244-45). He has bad days and good days, but more bad than good. (Tr. 247). Plaintiff spends about 60% of the day lying down in his recliner or on the couch, because it is the only way he can get real relief for his back pain. (Tr. 239). He tries to get exercise by walking about 150-200 yards at least once a day, but it is a struggle because his legs bother him. (Tr. 238-39). He does not do chores around the house and does not go shopping because he cannot walk for that long. (Tr. 239-40). He does not usually have trouble bathing or getting dressed. (Tr. 239-40). He can typically sit in a chair for about 20 to 30 minutes before he gets sharp pains in his lower back. (Tr. 240). Plaintiff has been told not to lift anything over 22 pounds. (Tr. 242). Twisting his body from side to side or bending down to pick something up worsens his back and leg pain. (Tr. 243).

         Plaintiff has received regular treatment for lower back pain throughout the alleged disability period. He has consistently reported moderate to severe back pain to his treatment providers (at 6 to 8 out of 10 on the pain scale when he is taking medications); has often reported that the pain radiates to his legs and feet; has regularly been observed to have a mildly to moderately antalgic gait, moderate tenderness in the lumbar spine, and a symptomatic range of motion in the lumbar spine; and has consistently been treated with numerous pain medications and muscle relaxers, including Percocet, hydrocodone, Mobic, gabapentin, nortriptyline, baclofen, nabumetone, and others. (Tr. 9-64, 736-50, 815-19, 880-84, 897-919, 924-28, 967-77, 974-76, 981-84, 999-1011). He has also had frequent lumbar epidural steroidal injections (887-88, 891-92, 895-96, 920-22, 978-80, 985-86, 997-98) and has undergone lumbar medial branch radiofrequency nerve ablation procedures (Tr. 92, 94, 98).

         On April 26, 2012 (the alleged onset date), an EMG test showed moderate right L5/S1 radiculopathy and mild left L5/S1 radiculopathy. (Tr. 761). Radiographic testing of the lumbar spine performed in May 2012 showed a levo rotoscoliosis and degenerative facet disease on the right L4-5, L5-S1. (Tr. 691). An MRI performed in June 2012 showed degenerative disc disease at the L2-L3 and L4-L5 levels with desiccation of the intervertebral disc and a loss of disc height; a disc bulge with a superimposed small broad-based central disc protrusion at the L4-5 level indenting the ventral thecal sac and causing mild narrowing of the lateral recesses; no severe central canal stenosis; and no spondylolisthesis. (Tr. 689-90). An MRI performed in June 2014 showed lumbar levoscoliosis centered at ¶ 3; a developmentally narrow central spinal canal; a small L4-L5 central disc protrusion; and several findings of mild or minimal stenosis. (Tr. 113-14).

         On August 15, 2012, Plaintiff was evaluated by Dr. Tony Chien, D.O. Dr. Chien's examination showed pain with palpation over the spinous process and paraspinal muscle of lumbar spine; pain with flexion and extension of the lumbar spine; spasm over the paraspinal muscle of the lumbar spine; pain with palpation over the SI joints bilaterally; a positive Patrick-Faber's test in both hips; and a positive straight leg raising test in supine position on the right lower extremity. Other examination findings were normal, including findings of a normal gait and normal muscle strength and range of motion in Plaintiff's hips, knees, and ankles. Dr. Chien found that Plaintiff was not a surgical candidate at the time. (Tr. 988-89).

         The record contains no opinion evidence from any consulting, examining, or treating source.

         II. Procedural Background

         On July 31, 2012, Plaintiff applied for DIB and SSI, alleging that he had been unable to work since April 26, 2012 due to lumbar disc displacement, neuritis and radiculitis, spinal stenosis, idiopathic scoliosis and kyphoscoliosis, nerve impingement in leg, chronic leg weakness, chronic severe back and leg pain and immobility, and insomnia. (Tr. 383-97, 420). On September 21, 2012, his application was denied. (Tr. 311-22). Plaintiff filed a Request for Hearing by Administrative Law Judge (ALJ). (Tr. 326-27). After a hearing held on November 7, 2013, the ALJ issued an unfavorable decision on November 21, 2013. (Tr. 213-29). On December 18, 2013, Plaintiff filed a Request for Review of Hearing Decision with the Social Security Administration's Appeals Council. (Tr. 212). On March 13, 2015, the Appeals Council denied Plaintiff's request for review. (Tr. 1-7). Plaintiff has exhausted all administrative remedies, and the decision of the ALJ stands as the final decision of the Commissioner of the Social Security Administration.

         III. Standard for Determining Disability Under the Act

         To be eligible for benefits under the Social Security Act, a claimant must prove he or she is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec'y of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled a person who is unable “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 twelve months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The impairment must be “of such severity that [the claimant] 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.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).

         To determine whether a claimant is disabled, the Commissioner engages in a five-step evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the Commissioner determines whether the claimant has a severe impairment, which is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities”; if the claimant does not have a severe impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611. At Step Three, the Commissioner evaluates whether the claimant's impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); McCoy, 648 F.3d at 611. If the claimant has such an impairment, the Commissioner will find the claimant disabled; if not, the Commissioner proceeds with the rest of the five-step process. 20 C.F.R. §§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.

         Prior to Step Four, the Commissioner must assess the claimant's “residual functional capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the Commissioner determines whether the claimant can return to his past relevant work, by comparing the claimant's RFC with the physical and mental demands of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform his past relevant work, he is not disabled; if the claimant cannot, the analysis proceeds to the next step. Id. At Step Five, the Commissioner considers the claimant's RFC, age, education, and work experience to determine whether ...


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