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Durham v. Berryhill

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

March 7, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.



         This action is before the court for judicial review of the final decision of the defendant Acting Commissioner of Social Security denying the application of plaintiff Johnny Durham for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401- 434, 1381-1385. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the final decision of the Commissioner is affirmed.

         I. BACKGROUND

         Plaintiff was born in 1962 and was 51 years old at the time of his hearing. (Tr. 55.) He filed his applications alleging a June 1, 1997 onset date, later amended to September 30, 2011. (Tr. 54, 136-151.) In his Disability Report, he alleged disability due to asthma, arthritis in his spine, chronic obstructive pulmonary disease (COPD), sleep apnea, and a learning disorder. (Tr. 208.) His applications were denied initially, and he requested a hearing before an Administrative Law Judge (ALJ). (Tr. 82-86.)

         On April 28, 2014, following a hearing, the ALJ issued a decision concluding that plaintiff was not disabled under the Act. (Tr. 35-45.) The Appeals Council denied his request for review. (Tr. 1-6.) Thus, the decision of the ALJ stands as the final decision of the Commissioner.


         During 2011 plaintiff was seen on a monthly basis at the Steele Family Rural Health Clinic (SFRHC) for back pain and other conditions. On August 10, 2011, plaintiff was seen at SFRHC for back pain, which had improved since an injury, and was prescribed Norco, for moderate to severe pain. (Tr. at 475.) On September 6, 2011, plaintiff saw Judith Haggard, a family nurse practitioner (FNP), for acute sinusitis and was prescribed Vicodin and antibiotics. (Tr. at 404-05.) He was seen again at SFRHC on September 14, 2011 for an upper respiratory infection. (Tr. at 471-73.)

         Plaintiff was seen at SFRHC on October 10 and 14, 2011, for a cough, asthma, and lower back pain. He was continued on Norco. (Tr. at 469, 473.) He was seen again at SFRHC on December 14, 2011, and diagnosed with osteoarthritis, asthma, and lower back pain. (Tr. at 461.)

         On January 1, 2012, plaintiff was seen as a walk-in at the emergency room at Twin Rivers Medical Center for wheezing, chest pain, and congestion. (Tr. at 382-83.) He was diagnosed with chronic asthmatic bronchitis and prescribed an antibiotic, a steroid inhaler, and cough and cold medication. (Tr. at 381.)

         In 2012, plaintiff was seen on a monthly basis for back pain, asthma, and degenerative disc disease. He was prescribed Norco. (Tr. at 425-58.) On November 7, 2012, plaintiff saw Burl McKenzie, physician's assistant (PA), for lower back pain after reinjuring his back while helping his brother work on a tractor. He reported pain from the injury for two weeks and had been unable to work. (Tr. at 423.) He was diagnosed with lumbago, sciatica, chronic airway obstruction, chronic pain syndrome, osteoarthritis, asthma, and COPD. He was prescribed Norco, Medrol, a corticosteroid hormone, and Celebrex. (Tr. at 424-25.) Follow-up two days later indicated that his back pain had improved and he needed a letter to return to work. (Tr. at 599.)

         In a function report dated November 10, 2012, plaintiff reported no difficulty performing self-care activities. He described fairly normal daily activities, including preparing meals, watching television, and performing some household chores such as taking out the trash, doing laundry, mowing the lawn with a riding mower, and checking the mail. He could drive alone and left his home several times a day. His hobbies included going for short nature walks, reading magazines, and listening to music. He visited friends or family on a weekly basis. (Tr. 221-28.)

         On November 19, 2012, plaintiff saw Nurse Practitioner Amanda Smallmon for muscle cramps in the left side of his lower back. He received an injection of Ketorolac Tromethamine, for short-term treatment of moderate to severe pain, and was prescribed Ultram, a narcotic-like pain reliever, and ibuprofen. He was instructed to avoid straining and heavy lifting for the next two weeks. (Tr. at 642-43.) On November 21, 2012, plaintiff reported his back pain continued. Ms. Smallmon discussed the possibility of the need for an MRI to evaluate the bulging disc in his back and which plaintiff said he could not afford. (Tr. at 640.)

         On December 7, 2012, plaintiff saw PA McKenzie and was diagnosed with chronic airway obstruction, chronic pain syndrome, and asthma. He was prescribed Norco and instructed to return in one month. (Tr. at 597-98.)

         On January 7, 2012, plaintiff saw PA McKenzie for chronic back pain and asthma. He was seen on February 7, 2013, for back pain, lumbago, chronic pain syndrome, and osteoarthritis. He was treated for an ear infection on March 7, 2013. Plaintiff continued on Norco. (Tr. at 585, 589, 593.)

         On April 9, 2013, plaintiff saw Timothy W. McPherson, D.O. Plaintiff described his pain as severe enough to cause him to walk with a limp and to cause “difficulty with his activities of daily living.” Dr. McPherson observed that plaintiff had a very limited range of motion in the lumbar spine, difficulty standing from a chair and sitting on a table, with walking, and that he walked with an obvious limp. He was unable to bend and touch his toes or do calf raises. (Tr. at 579-81.)

         On April 9, 2013, Dr. McPherson completed a Medical Source Statement - Physical form, stating that plaintiff was not capable of performing sustained work in several categories on a regular and continuing basis. Dr. McPherson opined that plaintiff could lift and/or carry frequently less than 5 pounds, lift and/or carry occasionally 10 pounds; stand and/or walk continuously for less than 1 hour, stand and/or walk throughout an 8 hour day for less than 1 hour; sit continuously without a break for 30 minutes, sit throughout an 8 hour work day for 2 hours; push and/or pull for an unlimited time. Dr. McPherson believed that plaintiff could never climb, balance, stoop, or crouch, and that he could occasionally kneel or crawl. He opined that plaintiff was capable of frequently reaching, handling, fingering, feeling, seeing, speaking, and hearing. He should avoid any exposure to extreme cold, dust/fumes, hazards, and heights, avoid moderate exposure to extreme heat and wetness/humidity, and avoid concentrated exposure to weather and vibration. Dr. McPherson believed that if plaintiff has pain, he should lie down for thirty minutes at a time three times during an 8-hour work day to alleviate symptoms. Finally, Dr. McPherson believed that plaintiff's use of medication “did not cause a decrease in concentration, persistence, or pace, or any other limitations.” (Tr. at 522-23.)

         On April 24, 2013, Jennifer Lawrence, FNP, diagnosed plaintiff with asthma and an adjustment disorder with mixed emotional features. Plaintiff felt depressed and anxious due to stress. He could not find a job, had been denied disability, and financial concerns were “getting the best of him.” (Tr. at 634.) He was prescribed a steroid inhaler and referred to a psychiatrist for consultation. (Tr. at 634-36.)

         Plaintiff saw Dr. McPherson in May and June 2013 for chronic pain, low back pain, and difficulty swallowing. Dr. McPherson assessed thyroid enlargement, an increased risk of diabetes, and a high probability of obstructive sleep apnea. (Tr. at 569-78.)

         On August 22, 2013, plaintiff underwent an initial psychiatric evaluation with Erica Smith, M.D., a psychiatrist. He had lost his job at Wal-Mart seven months earlier and thought his chronic back pain and asthma had played a role. He reported depressed mood, decreased energy level, and change in appetite. His anxiety level was somewhat higher than it is normally. He was taking Paxil, an antidepressant, prescribed by Ms. Lawrence, but did not really have a response to it and wanted to try a similar medication to help with mood and anxiety. (Tr. at 622.)

         Plaintiff's mental examination showed he was not in any acute distress. He had good concentration, focus, and attention. He reported his mood was “okay.” Dr. Smith noted his history of chronic back pain and asthma. She diagnosed depression, not otherwise specified, and chronic back pain and asthma. Dr. Smith prescribed Zoloft, an antidepressant, and instructed plaintiff to return in six weeks. (Tr. at 624.)

         Plaintiff saw Dr. Smith again on October 1, 2013. He had stopped taking Zoloft because it caused diarrhea and did not help his mood. He continued to experience depressive symptoms, including decreased energy and appetite, and depressed moods. Dr. Smith ...

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