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Cross v. Colvin

United States District Court, W.D. Missouri, Western Division

February 3, 2017

JOEY L. CROSS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          NANETTE K. LAUGHREY United States District Judge.

         Plaintiff 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.

         I. Background

         Cross 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.

         A. Medical history

         In July 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 obesity.

         Robert 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 recommended.

         Dr. 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.

         Cross 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.

         Dr. 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.

         On 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.

         Dr. 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 scheduled.

         Cross 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.

         Dr. 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 distribution.

         Dr. 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.

         Cross 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.

         On 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.

         On 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.

         Dr. 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 ...

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