United States District Court, W.D. Missouri, Southern Division
DAVID J. GIRSHNER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
David Girshner appeals the Commissioner of Social
Security's final decision denying his application for
disability insurance benefits and supplemental security
income under Title II of the Social Security Act. The
decision is affirmed.
was born in 1953. He alleges that he became disabled
beginning 8/12/2013. His date last insured was 3/31/2014.
Following a hearing, the Administrative Law Judge denied
Girshner's application on 10/6/2015. The Appeals Council
denied his request for review on 9/20/2016. In this appeal,
Girshner challenges the ALJ's residual functional
capacity (“RFC”) assessment and the ALJ's
finding that he can perform past relevant work.
August 2012, Girshner saw Marsha Taylor, M.D., for chronic
lower back pain and lumbar disc strain. Dr. Taylor
characterized the pain as intermittent and noted that
Girshner treated it with Acetaminophen and Aleve. Dr.
Taylor's examination noted midline spinal tenderness in
the lumbar region, decreased extension, decreased lateral
bending, a positive crossed straight leg raise, and a
negative straight leg raise.
April 2013, Girshner again saw Dr. Taylor for chronic lower
back pain, described as moderate in severity and intermittent
in frequency. His range of motion, including lateral bending,
was normal, except for mildly decreased extension, and he
tested negative on a straight leg raise test. Dr. Taylor
diagnosed lumbar disc degeneration and recommended an MRI of
the lumbar spine. In addition, she “stressed the
importance of regular exercise.” Tr. 262.
November 2013, Girshner visited Dr. Taylor for his wellness
exam and requested medication refills for his osteoarthritis
prescription. He complained of a decreased range of motion
and morning stiffness in his shoulders, back, and knees. At
this visit, there was no specific mention of any back pain,
aside from his concerns about osteoarthritis.
16, 2014, Girshner again saw Dr. Taylor for chronic back
pain, described as moderate in severity and constant in
frequency. Girshner described his status as worse but did not
complain of nighttime pain. Dr. Taylor described his only
attempted treatment as “rest.” Girshner's
examination revealed midline spinal tenderness and paralumbar
tenderness in the lumbar region with moderately decreased
extension. Girshner had a positive straight leg raise test
and was prescribed Norco for pain. Dr. Taylor diagnosed
lumbar spondylosis and ordered an MRI of the lumbar spine.
The May 29, 2014 MRI revealed “mild subacute to chronic
degenerative spondylosis of the lumbar spine, most severe at
the level of L4-5.” Tr. 252.
Girshner's May 30, 2014 appointment, Dr. Taylor noted his
back pain as “better” in status. Dr. Taylor again
characterized the pain as moderate in severity and constant
in frequency, as well as with radiation in the left leg below
the knee. Girshner also reported having several weeks of left
foot pain, aggravated by walking. Dr. Taylor diagnosed
plantar fasciitis and recommended Girshner not wear flip
flops and use indepth soles with adequate cushion. She noted
that walking and bending aggravated the pain, and rest and
muscle relaxers alleviated it.
Girshner's follow up appointment on October 31, 2014, Dr.
Taylor described the status of the pain as “symptoms
are stable” with alleviating factors noted as rest,
NSAIDs, and muscle relaxers. Tr. 281. Dr. Taylor recorded the
pain as moderate in severity and intermittent in frequency
with radiation in the left leg above the knee. Bending was
the only factor noted as aggravating the pain. Tr. 281.
Girshner again tested positive on the straight leg raise
Corsolini, M.D., a non-treating specialist, performed a
physical consultative examination on 7/15/2014. Dr. Corsolini
reported that Girshner had negative straight leg raising and
that he was able to “walk smoothly without a limp or
hesitation and is able to squat independently.” Tr.
276. Girshner's upper extremity strength was also full.
Tr. 276. Dr. Corsolini opined that Girshner had “some
abnormality” in the lower back. Tr. 277. He further
opined that, although he did not have Girshner's MRI
scans, based on his clinical examination and how Girshner
“appears at this time, ” Dr. Corsolini did not
believe he needed any limitations on standing or walking, and
that he was “capable of lifting and carrying at least
20 pounds on an occasional basis.” Tr. 277.
Brovender, M.D., a non-examining, non-treating orthopedist
who testified as an expert at the hearing opined that
Girshner did not have a severe impairment meeting listing
1.04(a) and that Girshner could lift fifty pounds
occasionally and twenty pounds frequently. Dr. Brovender
assessed the severity of Girshner's spondylosis as
“mild.” Tr. 17. Dr. Brovender testified that
Girshner had no limitations in standing, walking, and
sitting; that he could occasionally climb stairs, ladders,
ramps, and scaffolds; he could occasionally stoop, kneel,
crouch, and crawl; he could occasionally push and pull with
his arms, and that his reaching, handling, fingering, and
feeling had no limitations.
Additional History Submitted to the Appeals Council
11/18/2015, several weeks after the hearing, Paul Glynn,
D.O., issued a medical source opinion. He opined that
Girshner could lift and carry ten pounds frequently and
twenty pounds occasionally; that he could stand and/or walk
two hours and sit for two hours out of an eight hour work
day; that he would be limited in pushing and pulling; that he
should limit his stooping, crouching, crawling, and kneeling
to occasional use; that he should only occasionally use
stairs and never ladders; that he would need to take
unscheduled breaks in an eight hour work day due to pain and
fatigue; and that the claimant would be limited in his
ability to concentrate and that he would miss work due to his
severe impairments. Tr. 290-92.
testified that he was fifty-eight years old and completed two
years of college education. He is able to read, write, and do
simple arithmetic. He has not worked either part-time or
full-time since 8/12/2013. He lives by himself, does the
cooking, washes the dishes, does his laundry, and sweeps,
mops, and vacuums his home. When he goes to the grocery
store, he generally goes by himself and is able to carry his
grocery bags inside. He still mows his yard with a riding
mower, feeds his chickens, and gathers chicken eggs. He also
maintains a fifteen by fifteen foot vegetable garden for his
testified that his back and foot pain were the most likely to
prevent him from working, which he rated as a severity of
four on a constant basis. He characterized his pain as
shooting up as high as an eight when walking, bending over,
or lifting things. He testified that because of the pain, he
drives less than before but can still drive up to one hour
before needing to rest and can sit for approximately one
hour. He estimated that he can walk and stand for no more
than fifteen minutes before having to stop and rest, and when
he has to walk further than 100 ...