United States District Court, W.D. Missouri, Western Division
JOEY L. CROSS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
NANETTE K. LAUGHREY United States District Judge.
Joey Cross appeals the Commissioner of Social Security's
final decision denying his application for disability
insurance benefits under Title II of the Social Security Act.
The decision is affirmed.
was born in 1972. He alleges he became disabled beginning
10/18');">8');">8');">8');">8');">8');">8');">8/2012. He last worked in heavy construction in 2012. The
Administrative Law Judge held a hearing on 6/12/2014 and
denied his application on 2/24/2015. The Appeals Council
denied his request for review on 4/21/2016.
2012, Cross saw Anthony Gunn, M.D. and complained of severe
back pain that started three to four weeks prior to his
visit. The pain was exacerbated when lying down and was
associated with numbness in Cross's legs. Lumbago and
lumbar radicular pain were diagnosed. Dr. Gunn's
diagnoses included essential benign HTN, hyperlipidemia, and
Drisko, M.D. examined Cross in November 2012 after Cross
complained of back pain with radiation to both legs. He had
neurogenic claudication type symptoms and had failed
conservative treatment. Previous x-rays and MRI revealed
lateral recess stenosis at ¶ 4-L5 and spondylolisthesis
at ¶ 5-S1. Surgery and EBI bone stimulator were
Jenny also examined Cross in November 2012. He had been
admitted for lumbar decompression to help treat right lumbar
radiculitis. He had daily pain in his low back, right
buttock, right hip, and right posterior thigh. His pain was
worse with prolonged sitting, standing, walking, and
activity. Driving for a period of time caused a “sleep
tingling” sensation in his right calf and entire foot.
Dr. Jenny's exam revealed normal proprioception and gait,
good lumbar ROM with slight flat back upon arising, intact
heel and toe walking, decreased reflexes in the upper limbs
and knees, and absent reflexes in the ankles.
was hospitalized on November 19, 2012, for decompression and
fusion surgery at ¶ 4-5 and L5-S1 with bone stimulator
insertion. Cross had “some mild anxiety”
pre-surgery, but “[n]o significant depression.”
Cross left the hospital on November 22, 2012.
Drisko examined Cross on December 4, 2012. He was walking up
to half a mile a day, and he was not taking any pain
medication. When Dr. Drisko saw Cross on January 3, 2013,
Cross's back pain and radicular symptoms were improved.
He did have radicular pain in his right forearm into his
thumb, which started after his surgery. In addition, his
battery was causing him pain, he had discomfort in his
anterior thighs, and midline lumbar tenderness was noted.
January 9, 2013, Dr. Reddig completed an electromyography of
the right upper extremity. Findings included right median
neuropathy at the wrist, sensory and demyelinating, mild.
Cross was examined by Dr. Drisko the next day. The recent EMG
revealed right carpal tunnel syndrome. Symptoms in his right
hand would wake him up at night, and his hand would go numb
when he was carrying his phone or reading a book. He also
stated that the battery on the right side of his back was
prominent and painful. He had difficulty getting comfortable
in bed, when sitting in a chair, or when riding in a car.
Cross also experienced right hip pain. It was very difficult
to flex his hip, and he had difficulty going up and down
stairs. His pain had worsened since he began walking more
since his back surgery. Tenderness was noted in the right
lumbar spine at the level of the battery and at the right
greater trochanter. A steroid injection was administered to
the right wrist.
Drisko saw Cross on January 31, 2013. He was still having
significant low back pain that radiated down his anterior
thighs with numbness in both thighs. His pain was worse with
activity. Plaintiff also reported right wrist pain that was
continuous. A previous wrist injection made his symptoms
worse, and the pain radiated up to his shoulder. Exam
revealed antalgic gait, right lumbar tenderness (at the level
of the battery), and negative straight leg raise. In the
right hand, pain was noted in the median nerve distribution.
Tinel's, Phalen's, and carpal tunnel compression
tests were positive. Right CTS was diagnosed, and surgery was
was examined by Dr. Drisko on February 4, 2013. He complained
of severe pain in the area of his EBI bone stimulator battery
with symptomatic right carpal tunnel. He had been managed
with splinting and anti-inflammatories, which had not been
effective. The EBI bone stimulator battery was causing
significant discomfort, sleep deprivation, and was
interfering with rehab. Dr. Drisko performed a right carpal
tunnel release and removed the bone stimulator battery. At
his follow-up appointment one week later, Cross was doing
well with his wrist and back, but he continued to have sharp
right hip pain that radiated down his leg.
Drisko examined Cross on February 14, 2013. He had severe
back pain that radiated into his right leg. He was having a
significant radicular flare and neurogenic claudication type
symptoms. Dr. Drisko noted weakness and pain with extension.
Two weeks later, Cross presented with low back pain, right
hip pain, and bilateral thigh numbness that had not improved
since the previous visit. The right hip pain, which started
in his low back, was severe and affected his gait. He
appeared to have neurogenic claudication type symptoms. He
was in mild distress and had an antalgic gait. Sensation to
light touch was decreased over the left L1 and L2
Drisko saw Cross again in March 2013. His pain was in the
bilateral anterior lateral thighs. Exam revealed antalgic
gait, decreased sensation in the distribution of the lateral
femoral cutaneous nerve, normal flexion, and restricted
extension. Plaintiff did not want to have any injections, and
Dr. Drisko referred him to physical therapy, which he began
the following week.
was evaluated by R. Kelling, DPT, on March 26, 2013. Since
surgery, Cross had suffered from bilateral hip numbness and
tingling with pain in to the right hip. Prolonged walking,
prolonged sitting, supine and prone lying, and forward
bending exacerbated his pain. He rated his pain 6/10. Cross
displayed very slow, guarded movement and increased stance
time on the right lower extremity during ambulation.
Tenderness was noted in the bilateral lumbar paraspinals,
surgical incisions, and right gluteus maximus. Plaintiff
attended seven physical therapy appointments from March 26
through April 29, 2013, but failed to report for an
additional six appointments.
April 30, 2013, Cross was examined by Dr. Drisko. He
continued to have significant low back pain. He went to
physical therapy and stated that it made him feel worse. His
pain was continuous, sore, and moderate. Exam revealed
antalgic gait, bilateral lumbar tenderness, and restricted
lumbar flexion and extension. Cross did heavy
construction-type work and Dr. Drisko stated that he was not
able to return to that work at that time.
referral, Dr. Scowcroft examined Cross at a pain clinic on
May 8');">8');">8');">8');">8');">8');">8');">8, 2013. He suffered from lower back pain that radiated
to the bilateral hips and legs with numbness. He rated his
pain 4-5/10, which was aggravated by exercise and lifting.
Exam revealed tenderness, normal range of motion, normal
muscle strength, and negative straight leg raise. An MRI of
the lumbar spine on May 13, 2013 revealed mild spondylosis,
which is a general term for degenerative changes due to
osteoarthritis. Dr. Scowcroft performed a lumbar epidural
steroid injection on May 15 but Cross reported no significant
improvement. Plaintiff was examined by Dr. Gunn on May 16,
2013 for severe back pain. His depression was increased due
to chronic pain and requested a change in his medication.
Scowcroft performed insertion of a spinal cord stimulator on
June 10, 2013. Dr. Scowcroft examined Cross one week later.
His leg pain was more than 70% improved with the spinal cord
stimulator, and he wanted implantation of the stimulator. On
July 19, 2013, Dr. Scowcroft implanted a spinal cord
stimulator and a post-operative discharge instruction
indicated that Plaintiff could perform normal activity. Ten
days later, Plaintiff was doing well, but ...