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Lewis v. Colvin

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

November 15, 2016

CURTIS M. LEWIS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Curtis Lewis (“Plaintiff”) seeks review of the decision of the Social Security Commissioner, Carolyn Colvin, denying his application for Disability Insurance Benefits under the Social Security 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 the Court finds that substantial evidence supports the decision to deny benefits, the Court affirms the denial of Plaintiff's application.

         I. Background and Procedural History

         In May 2012, Plaintiff filed an application for Disability Insurance Benefits alleging he was disabled as of July 1, 2007.[1] (Tr. 230-41). The Social Security Administration (SSA)

         denied Plaintiff's claims, and he filed a timely request for a hearing before an administrative law judge. (Tr. 168-72, 175-76). The SSA granted Plaintiff's request for review and conducted a hearing on November 13, 2013. (Tr.132-53). In a decision dated February 12, 2014, the ALJ found that Plaintiff “was not under a disability, as defined in the Social Security Act, at any time through June 30, 2011, the date last insured.” (Tr. 28). Plaintiff requested review of the ALJ's decision and submitted additional evidence to the SSA Appeals Council, which denied Plaintiff's request for review. (Tr. 307-10, 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 appeared with counsel at the administrative hearing on November 13, 2013. (Tr. 132). Plaintiff stated that he was born in 1982, had a GED, and lived with his wife and two children. (Tr. 134). Plaintiff testified that he suffered the following impairments: back, neck, and shoulder problems; wrist issues; depression and anxiety; high blood pressure; and fibromyalgia. (Tr. 135). He was currently taking cyclobenzaprine, Xanax, hydrocodone, Fentanyl, citalopram, Adderall, and gabapentin. (Tr. 135-36). Plaintiff stated that he saw Dr. Goldman once a month for depression. (Tr. 136).

         In regard to his back pain, Plaintiff testified that his pain level was a nine on a ten-point scale, and it radiated into his legs, causing them to “go numb.” (Tr. 137, 144). The radiating pain occurred “[o]ff and on all day.” (Tr. 144). His most recent visit to the emergency room for back pain was “[a]bout a month ago.” (Tr. 137). Plaintiff rated his neck pain at an eight, and stated that it radiated to the top of his head. (Tr. 138, 145). Plaintiff's neck pain was also “pretty consistent off and on all day.” (Tr.145).

         Plaintiff testified that he could: walk approximately one and a half blocks before needing to sit and rest; stand in place for five to ten minutes; and lift five to ten pounds. (Tr. 138-39). Due to problems with his wrists, Plaintiff tended to drop things, such as his coffee mug and cigarettes.[2] (Tr. 139). Additionally, “if I'm talking on the phone it - within five minutes my arm will go numb.”

         Plaintiff explained that, on a typical day, he would “just stay around the house and try to nap and relax and keep my muscles from tensing up. Seems like if I try to do a lot, then it really puts me down and [sic] where I'm bedridden.” (Tr. 140). He napped one to three times per day for approximately thirty minutes. (Id.). Plaintiff took medication to help him sleep at night. (Tr. 141). To control his pain, he used a heating pad two times per day for thirty to forty-five minutes. (Tr. 142). Plaintiff stated that his wife helped him dress and get in and out of the shower. (Tr. 139). Plaintiff had a driver's license and was able to drive. (Id.).

         In regard to his mental impairments, Plaintiff stated that he was diagnosed with bipolar disorder and ADHD. (Tr. 142, 144). Plaintiff experienced “manic” episodes, which lasted one to three days, about four times per month. (Tr. 142-43). During these times, Plaintiff was “[v]ery hateful and saying things I probably shouldn't.” (Tr. 143). Plaintiff also suffered panic attacks “at least probably six times a month, ” but, when he took his medicine, “[i]t'll smooth me out enough that I'm not freaking out.” (Id.). As a result of his ADHD, Plaintiff had “trouble focusing and staying on task.” (Tr. 144). For example, when helping his third-grade daughter with her homework, “I'll get frustrated” and “even if I read the instructions, I can't comprehend it.” (Id.).

         Vocational expert James Lanier also testified at the hearing. (Tr. 146). Mr. Lanier testified that Plaintiff previously worked as a cook, order filler, and roofer. (Tr. 148). The ALJ asked Mr. Lanier to consider a hypothetical individual with: Plaintiff's age, education, and work experience; ability to perform sedentary work with a sit/stand option; limitations to occasional overhead reaching with the left extremity and occasional handling and fingering; ability to perform “simple” work defined as “routine, and repetitive tasks with no strict production quota, with the emphasis being on a per-shift rather than a per-hour basis”; and limitations to occasional interaction with the public and coworkers. (Tr. 148-49). Mr. Lanier testified that such individual could not perform Plaintiff's past work, but could work as a document preparer, call-out operator, or circuit board touchup screen assembler. (Tr. 149). The following additional limitations on the hypothetical individual would preclude work at all exertional levels: being off task fifteen percent of the day or greater in addition to regularly scheduled breaks; two or more unexcused or unscheduled absences per month on a continuing basis; or two or more unexcused or unscheduled breaks per workday. (Tr. 150-51). Likewise, if such individual “is not able to carry on in a normal [or appropriate] fashion, ” then he would “eventually be terminated.” (Tr. 152).

         B. Relevant medical records

         1. Prior to June 30, 2011, the date last insured.

         On September 28, 2008 Plaintiff saw his primary care physician, Dr. John Memken for medication management. (Tr. 382). Plaintiff reported that “everything is just pretty much about the same, ” and Dr. Memken continued Plaintiff on Cymbalta. (Tr. 382). Plaintiff saw his rheumatologist, Dr. Imeda Cabalar the same day. (Tr. 383). Plaintiff was taking Vicodin and Flexeril for his degenerative disc disease, and he informed Dr. Cabalar that “he still has diffuse muscle pain but better compared to before.” (Id.).

         Plaintiff returned to Dr. Memken's office on October 27, 2009, after “an extremely long hiatus.” (Tr. 385). Plaintiff informed Dr. Memken that he had been seeing Dr. Lieb for pain medicine.[3] (Id.). Plaintiff reported that, about one week prior, he was standing up and riding on the back of a four-wheeler when it was intentionally struck by a pick-up truck, causing Plaintiff to sustain an acute injury to his back. (Id.). Dr. Memken “admonished the patient” and agreed to prescribe a limited supply of hydrocodone, but warned that “I am not going to give him any more pain medicine, and I am going to communicate with Dr. Lieb about this.” (Id.).

         On January 25, 2010, Plaintiff went to the emergency room for vomiting caused by pain in his head. (Tr. 355). Plaintiff also stated that his neck and back had been hurting since the four-wheeler accident about two months prior. (Id.). Doctors administered intravenous medications, ordered a CT scan and x-rays, and prescribed Ultram. (Id.). Plaintiff's head CT and chest x-ray were normal, while the x-rays of his thoracic spine revealed “slight loss of vertebral body heights in the mid thoracic region.” (Tr. 364-65). Plaintiff followed up with Dr. Memken on January 29, 2010, and reported “exacerbation of all of his symptoms.” (Tr. 387). Plaintiff stated that he was “smoking cigarettes like crazy” and “even…used a little controlled substance because he was so tensed up.” (Id.). Dr. Memken offered to refer Plaintiff to Dr. Luvell Glanton for pain management. (Id.).

         On March 10, 2010, Plaintiff called Dr. Memken requesting a refill on his hydrocodone because “Dr. Glanton would not fill this for him, and he does not want to go back down to Dr. Lieb.” (Tr. 388). Dr. Memken prescribed 100 hydrocodone. (Tr. 388).

         Plaintiff returned to Dr. Memken's office on November 3, 2010 “with a derangement to his left shoulder which occurred about 3 months ago” when he “tripped getting out of the truck[.]” (Tr. 389). Plaintiff was experiencing “numbness and tingling in both of his arms and he is having a big popping sensation and pain in his left shoulder.” (Tr. 389). Dr. Memken observed “what appears to be almost complete dislocation of his scapula with a huge step off, dramatic winging in the back, ” and ordered an MRI scan. (Id.). The MRI revealed “[p]artial tears of the supra- and infraspinatus tendons” and “[m]ild acromioclavicular joint osteoarthritis.” (Tr. 379). An MRI of Plaintiff's cervical spine, taken on February 25, 2011, revealed “small disc bulge at ¶ 6-C7 without significant canal or foraminal narrowing.” (Tr. 347).

         2. After the June 30, 2011 date last insured.

         Plaintiff visited Dr. Memken on July 1, 2011 after “an episode yesterday of some vomiting of blood.” (Tr. 391). Plaintiff explained that “he was working out in the heat” and became overheated. (Id.). Dr. Memken noted: “[Plaintiff] said that he is extremely nervous. He has been working for Kevin Lionberger. He says that Kevin just has him doing all kinds of things and is keeping him on edge all the time.” (Id.). Dr. Memken prescribed lorazepam and ordered CT scans of his abdomen and pelvis, which were unremarkable. (Tr. 391, 378).

         When Plaintiff followed up with Dr. Memken on July 13, 2011, he was “doing fine” but continued “to have his low down abdominal pain.” (Tr. 392). Plaintiff informed Dr. Memken that “[h]e is not working much at all, because he feels that this is just stressing him out too much.” (Id.). Dr. Memken reviewed Plaintiff's CT scan, which showed Plaintiff was missing his right kidney but revealed no other abnormalities. (Id.). Dr. Memken referred Plaintiff to Dr. Katbamna for a colonoscopy, but Plaintiff did not present for that appointment. (Tr. 392).

         On September 9, 2011, Plaintiff visited Dr. Memken due to “gravel in his eye.” (Tr. 393). Plaintiff “was working on remodeling a house and evidently was doing some chipping on a floor and some debris flew up striking him in his right eye.” (Id.). On September 21, 2011, Plaintiff saw Dr. Memken for shoulder pain. (Tr. 394). Dr. Memken diagnosed rotator cuff syndrome and administered injections of lidocaine and Celestone. (Id.).

         After a motor vehicle accident on December 29, 2011, Plaintiff arrived at the emergency room by ambulance reporting abdominal and lower back pain. (Tr. 328). CT scans of his head, spine, and chest were normal. (Tr. 334-38).

         On May 3, 2012, Dr. Memken refilled Plaintiff's hydrocodone-acetaminophen and lorazepam and prescribed Duragesic patches. (Tr. 396). Dr. Memken noted that Plaintiff was a “[c]urrent everyday smoker.” (Tr. 396). Plaintiff informed Dr. Memken that he “made a trip down to St. Louis, ” and “[t]hey told him that there is nothing they could do for his spine, other than completely fuse it, which would kind of immobilize his spine kind of badly. They have predicted that he will continue to deteriorate and will be completely an invalid and in a wheelchair within five years, which kind of depressed him.” (Tr. 397).

         Plaintiff returned to Dr. Memken's office on June 4, 2012. (Tr. 398). Plaintiff's wife accompanied him and informed Dr. Memken that Plaintiff was “having trouble accepting his diagnosis, which is terminal back syndrome, and cannot accept the fact that he will never be able to work for the rest of his life.” (Id.). Dr. Memken refilled Plaintiff's hydrocodone-acetaminophen, increased his Duragesic patches, and prescribed Citalopram. (Id.).

         On June 6, 2012, Plaintiff saw Dr. Theodore Choma in regard to his back condition. (Tr. 441). Dr. Choma noted that he had previously diagnosed Plaintiff with multilevel disc degeneration and had treated him with an epidural steroid injection, “which gave him some relief.” (Id.). Plaintiff stated that he had recently undergone shoulder surgery and “was referred back to me for evaluation of his arm numbness.” (Tr. 442). Dr. Choma ordered Plaintiff an epidural steroid injection, referred him to a neurologist, and “strongly counseled smoking cessation.” (Id.). An x-ray of Plaintiff's cervical spine revealed “no significant disc space narrowing” but “suggest[ed] at least slight prominence of soft tissues [sic] the adenoidal region.” (Tr. 443). Plaintiff “stated that his symptoms were improved immediately post [injection].” (Tr. 447).

         Dr. Goldman completed a psychiatric evaluation for Plaintiff on June 12, 2012. (Tr. 409). Dr. Goldman observed that Plaintiff, who presented with his wife, was “adequately groomed, ” “polite and cooperative, ” “maintained good eye contact throughout the interview, ” and was “spontaneously conversant.” (Id.). Dr. Goldman also noted that Plaintiff “demonstrated a mild processing delay” and “displayed some body movements that were mildly jerky and almost tic like.” (Id.). Plaintiff informed Dr. Goldman that, while he no longer drank, he had a history of alcohol abuse, including two DUIs, and was “currently smoking three packs per day.” (Tr. 409, 432). Plaintiff complained of difficulty sleeping, poor memory and concentration, lack of appetite, low energy, and mood swings. (Tr. 410). Dr. Goldman diagnosed Plaintiff with “bipolar disorder type I, most recent episode depressed, moderate” and “anxiety disorder/social phobia, ” and he prescribed Saphris. (Tr. 410-11).

         Plaintiff met with his community support specialist, Josh Smith, for two hours on June 22, 2012, to “assess his mood and situation.” (Tr. 430). Plaintiff reported that he was “still somewhat agitated, ” but “overall he has noticed a significant improvement” and the medication had “helped considerably” in reducing his “anger outbursts.” (Id.). Mr. Smith noted that Plaintiff “has to deal with the fact that he is unable to work as much as he once did due to his degenerative back disease . . . .” (Id.).

         On June 26, 2012, Plaintiff presented to Dr. Miguel Chuquilin, a neurologist, for treatment of the numbness in his hands. (Tr. 448). Plaintiff stated he quit smoking two weeks ago. (Tr. 450). Dr. Chuquilin ordered an EMG nerve conduction study to determine the cause of the numbness. (Tr. 451). The EMG study revealed “mild to moderate right median neuropathy at the wrist.” (Tr. 452-53).

         Plaintiff returned to Dr. Goldman on June 28, 2016 and stated that he was “doing better” with his medications, but felt “hungover when I first get up.” (Tr. 408). In a session with the support specialist, Mr. Smith, on July 9, 2012, Plaintiff reported that he was “doing well” overall and “doing better in regards to not blowing up or becoming overly angry.” (Tr. 429). Plaintiff informed Mr. Smith that he had “been able to do small jobs and look at expanding some business options [with his brother-in-law] as a way to keep busy and look at generating some degree of income that will assist him.” (Id.).

         Dr. Barbara Markway, a state agency psychological consultant, completed a psychiatric review technique for Plaintiff on July 6, 2012. (Tr. 161-63). Dr. Markway diagnosed Plaintiff with an affective disorder but, because Plaintiff had failed to complete a function report, she found there was insufficient evidence to evaluate the effect of his impairment on his activities of daily living, social functioning, or concentration, persistence or pace. (Tr. 162).

         In a visit with Dr. Goldman on July 25, 2012, Plaintiff's wife stated that he was “severely, severely, severely depressed, ” and Dr. Goldman adjusted Plaintiff's dosage of Saphris. (Tr. 407). Plaintiff spoke to Mr. Smith by telephone on August 1, 2012 and reported that “his medications are effective for him at this time….he has been exploding less and feels the medication is effective with fewer side effects at this time.” (Tr. 427). Plaintiff also informed Mr. Smith that he “continues to experience a great deal of back pain but has been able to keep busy with his brother-in-law in various activities.” (Id.).

         Plaintiff saw Dr. Memken for back pain on August 7, 2012. (Tr. 572). Plaintiff informed Dr. Memken that “the Duragesic is working good, but it made him way too moody…and he just felt like he needed to get off of it.” ...

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