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Dean v. Berryhill

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

May 25, 2017

TIMOTHY DEAN, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.

         This is 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.

         I. Factual Background

         At a 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).

         At the 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).

         Plaintiff's 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, 824).

         The 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).

         On 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).

         On or 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).

         On 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).

         On 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.

         On 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).

         II. Procedural Background

         On 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.

         III. Standard for Determining Disability Under the Act

         To be 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 ...


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