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Girshner v. Berryhill

United States District Court, W.D. Missouri, Southern Division

July 3, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.

         I. Background

         Girshner 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.

         A. Medical history

         In 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.

         In 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.

         In 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.

         On May 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.

         At 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.

         At 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 test.

         B. Expert opinions

         Thomas 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.

         Arthur 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.

         C. Additional History Submitted to the Appeals Council

         On 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.

         D. Hearing Testimony

         Girshner 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 own use.

         Girshner 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 ...

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