United States District Court, E.D. Missouri, Northern Division
CURTIS M. LEWIS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.
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
Background and Procedural History
2012, Plaintiff filed an application for Disability Insurance
Benefits alleging he was disabled as of July 1,
2007. (Tr. 230-41). The Social Security
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
Evidence Before the ALJ
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).
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).
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. (Tr. 139). Additionally, “if I'm
talking on the phone it - within five minutes my arm will go
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
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.”
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.”
Relevant medical records
Prior to June 30, 2011, the date last insured.
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.”
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. (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.”
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
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).
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).
After the June 30, 2011 date last insured.
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).
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).
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.
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).
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).
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.).
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].”
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).
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.).
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).
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.”
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.
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
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.”