United States District Court, E.D. Missouri, Southeastern Division
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.
an action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
for judicial review of the final decision of Defendant
Carolyn W. Colvin, the Acting Commissioner of Social
Security, denying the application of Plaintiff Timothy Dean
(“Plaintiff”) for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security
Act, 42 U.S.C. §§ 401 et seq., and for
Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act, 42 U.S.C. §§ 1381,
et seq. (the “Act”). The parties
consented to the jurisdiction of the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(c). (Doc. 18). Because
I find the decision denying benefits was supported by
substantial evidence, I will affirm the Commissioner's
denial of Plaintiff's application.
hearing before an Administrative Law Judge
(“ALJ”) on March 7, 2013, Plaintiff testified as
follows. (Tr. 460-71). Plaintiff was born on August 10, 1956,
and has a master of arts degree in English. (Tr. 465). He
stopped working in 2004 after his right shoulder was injured
at work. (Tr. 465). He developed arthritic pain in his lower
neck and upper spine around the same time. (Tr. 466-67). He
had surgery in 2006, which did not completely alleviate the
pain he had in his shoulder. (Tr. 466). In January 2008, he
began to seek medical treatment from Dr. Kurt Zimmer for his
back and neck, because the pain was becoming worse. (Tr.
467). It was a burning pain that would intensify and become a
stabbing pain, making it difficult to do anything but lie
down. (Tr. 467). Dr. Zimmer referred him to a neurologist,
who referred him to a pain doctor. (Tr. 467-68). In the
beginning of 2008, he began receiving injections for his
lower neck and upper spine. (Tr. 468). The injections
temporarily alleviated his symptoms for about 24 to 72 hours.
(Tr. 469). From 2008 to 2010, his condition remained about
the same. (Tr. 469).
most recent hearing before an ALJ, on December 11, 2014,
Plaintiff testified as follows. (Tr. 480-508). During the
November 2006 to April 2010 time frame, he had a driver's
license. (Tr. 491). He drove an automatic pickup truck, was
able to get in and out himself, could fasten his own seat
belt, could pump his own gas, could check his tire pressure
and add air if necessary, and could check his oil and add oil
if necessary. (Tr. 492-93). He was able to make food for
himself. (Tr. 494). He could cast his fishing rod, reel in
average sized bass and crappie, fillet the fish, and cook the
fish. (Tr. 494-96). He used a hand-held leaf blower, but he
worked in increments of about 30 minutes because he would be
in pain. (Tr. 498). He used a riding lawn mower, which he
steered with his left hand. (Tr. 499-500). He could go to the
post office and bank on days when he felt up to it. (Tr.
499). Around April 2007, he probably had half of his normal
range of motion and lifting ability, and his range of motion
and lifting ability diminished after that due to his
arthritis. (Tr. 501). With his arthritic pain, he had good
days and bad days. (Tr. 502). He also testified that cold and
damp conditions made his arthritis flare up. (Tr. 502-03). He
testified that he kept a cane in his car trunk in case he
needed help walking. (Tr. 503). Plaintiff testified that
during the relevant time period, he got injections in his
neck, shoulder, and middle back, and once in a while in his
lower back. (Tr. 507). Plaintiff testified that although he
gets seizures, he takes Gabapentin to control them, and that
if he takes the medicine as prescribed, he is “cured of
that basically.” (Tr. 508).
medical records show that during the relevant 2006 through
2010 time frame, Plaintiff sought regular treatment for neck,
shoulder, and back pain (Tr. 311-13, 342-43, 397-98, 399-409,
410-17, 420-24, 430-34, 822-24, 835-43); had X-rays showing
disc degeneration in the cervical spine (Tr. 403); had an MRI
showing mild disc bulges in the cervical spine (Tr. 396); had
lumbar spine imaging showing spondylosis, moderate
degenerative disc space narrowing, and mild disc space
narrowing (Tr. 395); received diagnoses including shoulder
joint pain, cervical spondylosis, cervical disc degeneration,
cervicalgia, arthralgias in multiple sites, lumbar
spondylosis, lumbago, enthesopathy, and obesity (Tr. 343,
399, 403, 405, 407, 409, 411, 413, 430, 431, 432, 433,
790-91, 822, 824); was prescribed medications including
naproxen, Gabapentin, hydrochlorothiazide-lisinopril,
Skelaxin, and a Lidoderm patch (Tr. 399, 403, 407, 410, 413,
420, 431, 434, 494, 791, 822, 823, 835-36, 839, 840, 843);
and received regular injections for pain control in his neck
(Tr. 411, 412, 413, 414, 417, 430, 431, 432, 434, 822, 823,
record includes opinion evidence from several sources. On
October 11, 2006, consultative examiner Shawn L. Berkin,
D.O., opined that Plaintiff had a permanent partial
disability of 35% in the right upper extremity at the level
of the shoulder; that Plaintiff should have a 65-pound
lifting restriction from the floor to the waist as a single
event; that Plaintiff should have a 50-pound lifting
restriction from the waist to the shoulder; that Plaintiff
should avoid lifting with his right arm extended from his
body; that Plaintiff should avoid excessive lifting or
working with his right arm above the level of the shoulder;
and that if Plaintiff was required to perform exertional
activities for an extended period, he should be permitted
frequent breaks. (Tr. 306-07).
February 23, 2007, Dr. Paulo S. Bicalho, M.D., who had been
treating Plaintiff for at least several months, noted that
Plaintiff had 5/5 strength in his shoulder and had a full
range of motion; stated that he could continue full duty
work; and stated, “I do not think he will have any
disability from this injury.” (Tr. 311-13).
around January 30, 2008-when he had just begun treating
Plaintiff-Dr. Kurt Zimmer completed a Medical Report from the
Missouri Department of Social Services Family Support
Division. (Tr. 869-70). He noted that Plaintiff had right
shoulder pain. (Tr. 869). He opined that Plaintiff had a
disability that prevents him from engaging in that employment
or gainful activity for which his/her age, training,
experience or education will fit him and that the disability
would be permanent. (Tr. 870).
March 20, 2008, Plaintiff was examined by Patrick J. LeCorps,
M.D. (Tr. 391). Dr. LeCorps noted that Plaintiff had
limitation of motion, mainly abduction and external rotation,
and that his passive range of motion was full. (Tr. 391). Dr.
LeCorps opined that Plaintiff had a disability that prevented
him from engaging in that employment or gainful activity for
which his age, training, experience or education would fit
him, and that the expected duration of the disability was two
months. (Tr. 393).
November 4, 2010 (several months after the relevant time
period had ended), Dr. Zimmer wrote a letter stating that
Plaintiff's primary disabling conditions were
intervertebral disc degeneration and spondylosis of the
lumbar spine, as well as spondylosis of the cervical spine.
He stated that Plaintiff required frequent changes of
position and must periodically rest during the day, and
periodically has pain that require him to stay on the couch.
He stated that Plaintiff's low back was stiff and sore
and that he had some difficulty bending and stooping. He
stated that lifting and carrying objects weighing more than
20 pounds more than occasionally would be ill-advised. Dr.
Zimmer stated that Plaintiff's neck was stiff and sore,
with a reduced range of motion, and that he had to turn his
head in a careful and controlled fashion to avoid significant
pain. He stated that those conditions were not amenable to
employment. (Tr. 873). Dr. Zimmer also completed a physical
residual functional capacity assessment form for Plaintiff in
which he opined that Plaintiff could lift 20 pounds
occasionally and 10 pounds frequently; could stand and/or
walk for a total of at least 2 hours in an 8-hour workday;
could sit for less than about 6 hours in an 8-hour workday;
could do unlimited pushing and pulling; could occasionally
climb ramps and stairs; could occasionally balance, stoop,
kneel, and crouch; could never climb a ladder, rope, or
scaffold; and could never crawl. (Tr. 861-62). He found that
Plaintiff had no limitations in reaching in all directions
(including overhead), handling (gross manipulation),
fingering (fine manipulation), and feeling (skin receptors).
(Tr. 863). He found Plaintiff had visual limitations with
regard to near acuity and accommodation. (Tr. 863). He found
Plaintiff should avoid all exposure to extreme cold, wetness,
and hazards, noting that he was a “fall hazard”
and that “cold weather effects pain.” (Tr. 864).
He provided no other explanations for his opinions.
February 28, 2013, Dr. Zimmer wrote a letter stating that
Plaintiff was, “to a reasonable degree of medical
certainty, permanently and totally disabled as of January 14,
2008.” (Tr. 872).
January 11, 2008, Plaintiff applied for DIB and SSI, alleging
that he had been unable to work since March 17, 2004. (Tr.
90-96, 97-99). His application was initially denied. (Tr.
46-57). On October 1, 2009, after a hearing, an ALJ issued a
decision finding Plaintiff was disabled from March 17, 2004
through October 31, 2006, but was not disabled after that
date. (Tr. 532-44). The Appeals Council denied
Plaintiff's request for review. (Tr. 545-48). Plaintiff
sought judicial review, and on January 4, 2012, the United
States District Court remanded the case to the Commissioner.
(Tr. 550). In the interim, on April 30, 2010, Plaintiff filed
a second application for SSI benefits, and he was found
disabled as of that date. (Tr. 579). On May 8, 2013, after a
second hearing, an ALJ issued a decision noting that
Plaintiff had been found disabled from March 17, 2004 through
October 31, 2006, but finding that Plaintiff was not disabled
from November 1, 2006 through April 29, 2010. (Tr. 560-70).
On June 5, 2013, Plaintiff filed written exceptions to that
decision, and the Appeals Council remanded the case to the
ALJ. (Tr. 579-81). On January 14, 2015, after a third
hearing, an ALJ issued a decision finding Plaintiff was not
disabled from November 1, 2006, through April 29, 2010. (Tr.
442-50). Plaintiff has exhausted all administrative remedies,
and the decision of the ALJ stands as the final decision of
the Commissioner of the Social Security Administration.
Standard for Determining Disability Under the Act
eligible for benefits under the Social Security Act, a
claimant must prove he or she is disabled. Pearsall v.
Massanari,274 F.3d 1211, 1217 (8th Cir. 2001);
Baker v. Sec'y of Health & Human Servs., 955
F.2d 552, 555 (8th Cir. 1992). The Social Security Act
defines as disabled a person who is unable “to engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
twelve months.” 42 U.S.C. §§ 423(d)(1)(A);
1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d
734, 738 (8th Cir. 2010). The impairment must be “of
such severity that [the claimant] is not only unable to do
his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national ...