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Burns v. Berryhill

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

June 23, 2017

JAMES ADAM BURNS, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court for review of an adverse ruling by the Social Security Administration.

         I. Procedural History

         On January 23, 2014, plaintiff James Adam Burns filed applications for a period of disability, disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of October 31, 2013.[2] (Tr. 217-23, 224-29). After plaintiff's applications were denied on initial consideration (Tr. 160, 161), he requested a hearing from an Administrative Law Judge (ALJ). Following a video hearing on April 20, 2015, (Tr. 66-110), the ALJ issued a decision denying plaintiff's applications on May 15, 2015. (Tr. 14-59). The Appeals Council denied plaintiff's request for review on August 5, 2016. (Tr. 1-7). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability Application Documents

         In a Disability Report dated January 23, 2014, plaintiff reported that he was unable to work due to a malformed spine, bipolar disorder, manic depressive disorder, borderline schizophrenia with psychotic tendencies, social avoidant personality disorder, major anger issues with intermittent aggression, chronic pain in back and left hip, sleep apnea, night terrors, tingling and numbness in legs, right leg is shorter than left leg, and headaches - head trauma. (Tr. 243-44). He worked as a general laborer and trash collector and had been self-employed in the construction and scrap industries. Plaintiff's prescriptions included a muscle relaxer and an opioid to treat back pain, medication to treat migraines, a sleep aid, an antidepressant, and an anxiolytic. (Tr. 246). On July 17, 2014, and March 11, 2015, plaintiff reported that he was taking medications for bipolar disorder, anxiety, high cholesterol, and pain. (Tr. 290, 296).

         In a Function Report completed on February 2, 2014, plaintiff reported that he lived with and helped care for his father, who had Parkinson's disease. (Tr. 254-64). Plaintiff and his father shared responsibility for laundry, cooking, and housework, as well as caring for a pet. Plaintiff prepared meals and did yard work when able. He spent time networking on Facebook and playing games. He also worked as a “prayer warrior” and youth counselor. (Tr. 261). He stated that pain interfered with his ability to fall asleep and complete personal hygiene. His hobbies included tattooing, body piercing, and shooting pool, which he engaged in as often as possible, although his hands did not work as well as they used to. He went out at least once a day, but not alone, because he had social avoidant disorder and did not deal well with others. He did not have a driver's license. Plaintiff was able to pay bills, count change, and manage bank accounts. He had difficulty following written and spoken instructions, completing tasks, and handling changes in routine. When he became too stressed, he blacked out, repeated words, and behaved strangely. He had been fired from a job for constantly arguing with fellow employees. He had problems with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, talking, hearing, seeing, memory, completing tasks, concentration, understanding, following instructions, using his hands, and getting along with others. He did not walk if he could avoid it. In an updated report completed on March 18, 2014, plaintiff stated that his back and hip pain had worsened and he had been diagnosed with bipolar disorder (borderline) and schizophrenia (borderline) with psychotic features. (Tr. 267-73).

         B. March 4, 2014 Disability Determination

         Based on a review of the medical records, State disability evaluator Geri Spears found that plaintiff had the medically determinable impairment of degenerative disc disorder. (Tr. 136-47; 148-59). She opined that plaintiff could frequently lift or carry up to 10 pounds and occasionally lift or carry up to 20 pounds; could sit, stand, and walk for a total of 6 hours in an 8-hour work day, with normal breaks; could frequently climb ramps, stairs, ladders, ropes, and scaffolds; and could occasionally stoop, kneel, crouch, or crawl. Psychologist James W. Morgan, Ph.D., found that plaintiff's medically determinable impairments were affective disorder, anxiety-related disorder, and substance addiction disorder. Medical records showed that plaintiff demonstrated very good concentration and attention but had poor insight and judgment. He reported adequate energy and mood. Dr. Morgan opined that plaintiff was moderately limited in the abilities to understand, remember, and carry out detailed instructions; make simple work-related decisions; maintain concentration and persistence for extended periods; perform activities within a schedule, maintain attendance, and be punctual; complete a normal workday and workweek without interruptions from psychologically based symptoms and work at a consistent pace without unreasonable breaks; interact appropriately with the public and coworkers; respond appropriately to changes in the work setting; and set realistic goals or make plans independently of others. Plaintiff's allegations of disabling mental conditions were partially credible, in that he had “some limitations but his concentration and mood are good [and] he is able to function to do many activities.” (Tr. 140). Dr. Morgan concluded that plaintiff was not disabled on the basis of his mental impairments.

         C. Testimony at the April 20, 2015 Hearing

         Plaintiff was 42 years old at the time of the hearing. (Tr. 74). He lived in a mobile home with his girlfriend and his father. He had a daughter who was a college student in Wisconsin and with whom he was in regular communication. He had completed high school and was able to read, write, and do simple math. (Tr. 75). He had no vocational training. Plaintiff was chiefly supported by his father and girlfriend and he received food stamps. (Tr. 76). He and his girlfriend also collected scrap metal about twice a month. (Tr. 77). Plaintiff's driver's license had been revoked five years earlier; he would be eligible to have it reinstated in another year. (Tr. 75).

         Plaintiff previously worked as a trailer finisher, installing floor boards and axles. At the same time, he worked part-time as a trash collector. In 2007, he sustained a work-related back injury. (Tr. 77-79). Between 2009 and 2012, he did construction work for his brother-in-law. He testified that his “back was really bad then” and that he could not lift more than 20 pounds. (Tr. 80-81). At the time of the hearing, plaintiff was able to sit and stand between 10 and 20 minutes before he needed to change positions, and walk for about 20 minutes before he needed to rest. (Tr. 94).

         Plaintiff testified that he suffered from constant back pain, arising from a congenital spine malformation and subsequent injury. (Tr. 83). He said that when cooking meals he stood for five minutes at a time with intervals of rest. It took him four days to complete yard work, after which he spent two days in bed. (Tr. 84). Following his back injury in 2007, he had 6 months of chiropractic treatment. More recently, he received injections which reduced the pain enough to allow him to be more active. In addition, he had just been prescribed hydrocodone by a pain management center. The medication “takes the edge off” the pain but he still experienced stabbing, burning and pinching sensations, especially in his left hip. (Tr. 84-85). He also had pain in his knees, which he attributed to injuries he sustained in a car accident when he was a teenager. He underwent arthroscopic procedures at the time of the original injury. (Tr. 85-86). Finally, he experienced loss of sensation and motor control in his hands due to pinched nerves, causing him to drop things on a daily basis. (Tr. 87).

         Plaintiff testified that he had mental health issues that interfered with his ability to work. He began cutting himself when he was five years old in response to familial stress. He testified that he did not get along well with others and had issues with anger and aggression when he worked with others. (Tr. 87-88). He regularly experienced auditory and visual hallucinations. In the past, he had been treated with various medications, including lithium and Thorazine, without much benefit. He was presently receiving treatment from a psychiatrist and three different counselors. His medications reduced the duration of his hallucinations and had stabilized his mood somewhat. (Tr. 90-91).

         Plaintiff had a history of alcohol and marijuana abuse. (Tr. 92). He testified that he began using substances to cope and “to feel normal.” His current psychotropic medications eliminated the need to abuse alcohol and marijuana. It had been over a month since he last used alcohol and more than three months since he used marijuana. He had used cocaine in the past, citing a host of triggers, including finding his mother's dead body and the stillbirth of a child. (Tr. 93). He denied ever abusing prescription medications, although he had recently tested positive for Xanax and been discontinued from his pain management care. (Tr. 94, 42). He asserted that the test was incorrect and reported that he had become quite upset. (Tr. 97) (testifying, “it was not a pretty sight.”). He testified that he underwent regular drug screens as a condition of probation, which he was scheduled to finish within a year.

         Vocational expert Roxane Minkus, Ph.D., testified that plaintiff's previous employment as a trailer assembler was performed at the medium level of exertion and had a specific vocational preparation (SVP) of 3; his previous employment as a construction worker was performed at the light level and had an SVP of 4. (Tr. 99). The ALJ asked Dr. Minkus about the employment opportunities for an individual of plaintiff's age, education, and work history who was limited to light exertional level work; who was limited to occasional climbing stairs and ramps, stooping, kneeling, crouching and crawling; could have only occasional interaction with the public and coworkers; and was limited to work that required only occasional decision making and changes in work setting. Dr. Minkus testified that such an individual would not be able to perform plaintiff's past relevant work but could perform nationally-available work as a housekeeper, bench assembler, and electrical equipment sub-assembler. (Tr. 101). These three jobs would still be suitable for an individual who could have no interaction with the public. If the hypothetical individual were restricted to sedentary work, he could perform work as a small-product or bench assembler, a surveillance systems monitor, or product sorter. (Tr. 103-04). Each of these positions would accommodate the need to change positions once an hour. An individual who was off-task 20 percent of the day, due to pain or mental health issues, would be unable to maintain employment without special accommodation. (Tr. 105-06). Similarly, there would be no work available in the competitive labor market for an individual who became aggressive in the workplace. (Tr. 107).

         D. Medical Records

         Between October 31, 2013, the alleged onset date, and May 15, 2015, when the ALJ issued the decision in this case, plaintiff regularly saw his primary care physician, Daniel G. Domjan, M.D. He also received pain management services, chiefly from the Saint Francis Medical Center. He received psychiatric and counseling services from Bootheel Counseling Services.

         1. Primary Care

         Plaintiff saw Dr. Domjan ten times between March 2013 and November 2014. His initial visit occurred shortly after his release from a six-month term of imprisonment for a parole violation. (Tr. 510-17). He complained of pain in the lower spine which he attributed to a congenital spine malformation, a motor vehicle accident in 1988, and years of manual labor. He also experienced numbness and tingling in his left foot. In addition, plaintiff suffered from migraine headaches, which were well-controlled with medication. Plaintiff reported that he was presently using marijuana and had a history of using cocaine and hallucinogens. He had not used alcohol for six months. Plaintiff reported that he did a lot of walking. Dr. Domjan described plaintiff as alert and in no acute distress and his mood was euthymic; he denied suicidal ideation. On examination, plaintiff had multiple arthralgias of the shoulders, wrists, hands, and knees, with mild tenderness of the lumbosacral spine on palpation; straight-leg raising test was positive on both sides. Plaintiff was able to touch his ankles. He displayed normal reflexes, stance, gait, and sensation. Dr. Domjan assessed plaintiff's conditions as inadequately controlled lumbago, well-controlled migraine headaches, alcohol abuse in remission, and depression with anxiety. Dr. Domjan advised plaintiff to stop smoking and start a swimming program to treat his back pain.

         Over the course of the next eight office visits, plaintiff's weight trended higher, albeit with some fluctuation, and he stopped exercising. He continued to demonstrate tenderness of the lumbosacral spine on palpation and, starting in May 2014, displayed a limp. (Tr. 501, 499, 497). He began consuming modest amounts of beer. (Tr. 507, 505, 503). Starting in October 2013, Dr. Domjan prescribed tramadol for pain, (Tr. 508, 502, 500), and by December 2013, plaintiff was being treated for GERD. (Tr. 505, 503). In December 2013 and January 2014, plaintiff reported blackouts and dizziness. Id. At the last visit in February 2015, Dr. Domjan noted that plaintiff was limping on the right side, but he did not have any sensory abnormalities or motor dysfunction. In Dr. Domjan's assessment, plaintiff's GERD was well-controlled, his obesity was stable, his migraine was improving, his depression with anxiety was stable, and his alcohol abuse was in remission. (Tr. 495). His lumbago remained unchanged and he suffered from chronic pain.

         2. Pain Management

         Plaintiff received treatment for lumbar pain from Carmen Keith, M.D., at the Saint Francis Medical Center between August 2013 and March 2015, when he was discharged for failing a drug screen. Plaintiff presented with complaints of lumbago that radiated up into his head and down both legs, with numbness and weakness in both legs. An MRI completed on August 6, 2013, confirmed plaintiff's report that he had a congenital malformation of the lower spine, showing that the L5 vertebra was partially sacralized. (Tr. 341). In addition, plaintiff had a severe loss of disc height at ¶ 4-L5 with disc desiccation and discogenic endplate irregularity and endplate changes. Plaintiff also had moderate disc extrusion causing stenosis at multiple levels, ranging from mild to marked, with a herniated disc at ¶ 4-L5 extending along the course of the L5 nerve root.

         On October 22, 2014, plaintiff told Dr. Keith that he had pain in his lower cervical spine and lower lumbar spine, his left leg, and knees. He rated the pain at level 7 on a 10-point scale. (Tr. 420). He also reported dizziness, headaches, and numbness in his left leg and hand. On examination, plaintiff was alert and oriented, with appropriate affect and demeanor. He had normal deep tendon reflexes and intact sensory responses. His gait was affected by a left leg limp and the use of a cane. He had decreased range of motion and back pain with flexion and extension, and straight leg raising was positive on the left. He also had tenderness in the lumbar spine and facet pain with extension. Muscle testing revealed at least 10 pounds of tone and strength at the L2 through L4 levels. (Tr. 422). The assessment was lumbar radiculopathy with progressively worsening left leg pain and lumbar axial pain which Dr. Keith proposed to treat with a lumbar epidural steroid injection. When plaintiff returned on October 29, 2014, he rated his pain at level 7, and reported that the pain had begun radiating into his hips. (Tr. 406). A lumbar steroid injection was administered. (Tr. 408).

         Plaintiff was seen at Cape Spine and Neurosurgery on November 21, 2014.[3](Tr. 455-58). He reported that he had low back pain which he rated at level 7. He denied feeling weak or dizzy. He stated that he used a cane when walking farther than 50 feet. On examination, plaintiff performed heel- and toe-walking with difficulty. Straight leg raising was positive on the right, while thigh-thrust and Patrick's tests were negative. Plaintiff had full ranges of motion, normal reflexes, and intact sensation. (Tr. 457). Plaintiff was assessed with herniated lumbar disc, degeneration of the lumbar disc (worsening), and spinal stenosis in the lumbar region, without neurogenic claudication. Plaintiff reported that the October 2014 injection provided 80 percent pain relief and resolved his bilateral radiculopathy and pain radiation; he was scheduled for a second injection in January 2015. Plaintiff was encouraged to continue treatment with Dr. Keith because the injections dramatically improved his pain. Further, “[i]f he no longer receives pain relief, he is to call our office and we will order a new MRI . . . [and] discuss surgical intervention.” (Tr. 458). There is no record that plaintiff re-contacted Cape Spine and Neurosurgery for another MRI or further treatment.

         On December 12, 2014, Dr. Keith noted that Dr. Domjan had asked her to take responsibility for prescribing plaintiff's pain medications. Plaintiff's left leg pain had resolved but his medication provided only minimal relief for his back pain. (Tr. 446). On examination, plaintiff had a left leg limp and tender points in the lumbar region. However, he had intact sensation and scored four on a five-point scale on tests of muscle strength and tone. (Tr. 448). Plaintiff received another lumbar injection that day. At follow-up on December 29, 2014, plaintiff reported complete improvement in his left leg pain, but not his back pain, which he rated at level 5. (Tr. 438, 436). He also reported suicidal thoughts a week earlier. On examination, he had a left leg limp and tender points in the lumbar region; sensation was intact. Dr. Keith prescribed a new muscle relaxer, ordered a urinalysis, and referred plaintiff for a psychological evaluation.

         Mark H. Kinder, Ph.D., completed a psychological evaluation on January 7, 2015. (Tr. 479-84). Dr. Kinder noted that plaintiff's chronic leg and back pain was complicated by his psychiatric history of a thought disorder and substance abuse. Plaintiff acknowledged having suicidal thoughts in the recent past, but he identified appropriate deterrents to suicide and presented a low risk for suicide. Plaintiff participated in a dual diagnosis treatment program through which he saw a psychiatrist, a counselor, and two caseworkers who came to his home. Plaintiff claimed to have abstained from alcohol use for six months and marijuana use for four months. He denied that pain caused deficits in his self-care and he was able to complete household chores, ...


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