United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of an adverse ruling by
the Social Security Administration.
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. (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
Evidence Before the ALJ
Disability Application Documents
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).
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).
March 4, 2014 Disability Determination
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.
Testimony at the April 20, 2015 Hearing
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).
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).
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).
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).
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.
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).
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.
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.
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.
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.
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).
was seen at Cape Spine and Neurosurgery on November 21,
2014.(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.
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.
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, ...