United States District Court, E.D. Missouri, Eastern Division
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
an action under 42 U.S.C. § 405(g) for judicial review
of the final decision of Defendant Nancy A. Berryhil, the
Acting Commissioner of Social Security, denying the
application of Plaintiff Andrew Smith
(“Plaintiff”) for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security
Act, 42 U.S.C. §§ 401 et seq. (the
“Act”). The parties consented to the jurisdiction
of the undersigned magistrate judge pursuant to 28 U.S.C.
§ 636(c). (Doc. 8). Because I find the decision denying
benefits was supported by substantial evidence, I will affirm
the Commissioner's denial of Plaintiff's application.
Plaintiff's Testimony Before the ALJ
was thirty-five years old when he applied for DIB. (Tr. 31,
55). He has an eleventh grade education and previous work
experience as a repair technician, carpenter, and assembly
line worker. (Tr. 31-32). He testified that he is unable to
work because of constant pain, occurring ninety percent in
his lower back, and ten percent in his neck. (Tr. 32).
Plaintiff has sought treatment for his pain including
injections, nerve blocks, epidurals, and other procedures,
and he had a TENS unit implanted on his spine for a one-week
trial. (Tr. 32-33). His doctors have not recommended surgery
to remove his disc because they say Plaintiff's condition
is “not bad enough that we want to remove the
disc.” (Tr. 33).
testified that his daily activities include getting his son
ready for school and walking him about 100 yards to the bus
stop, and doing household chores such as folding laundry and
loading the dishwasher. (Tr. 35-38). He will sometimes ride
his son's bicycle home from the bus stop. (Tr. 36). He
can sit for about thirty minutes and can stand for about
forty-five minutes to one hour, and he frequently changes
positions. (Tr. 36-37). Plaintiff can drive a car for about
thirty minutes before needing to stop to change positions.
(Tr. 36). He goes grocery shopping, but his girlfriend lifts
the heavy items. (Tr. 38). Plaintiff can lift eight to ten
pounds a few times if he does not twist while lifting. (Tr.
days, Plaintiff can hardly move, twist or bend, and he lies
down most of the day. (Tr. 34). He experiences trouble
sleeping, stating he gets three or four hours of sleep per
night. (Tr. 34). He takes Trazadone as a sleep aid, and he
takes two naps of forty-five minutes each during the day.
(Tr. 35). Plaintiff takes Gabapentin and Percocet for pain,
and also places ice packs on his back for fifteen to twenty
minutes, three to four times per day for pain relief. (Tr.
scale from one to ten, Plaintiff experiences pain on a
constant basis at a level of five to seven out of ten. (Tr.
39). Treating doctors have not recommended any type of
assistive devices for walking, such as a cane or a walker,
nor has Plaintiff tried any such device. (Tr. 40). Plaintiff
tried going to physical therapy, but his doctor terminated it
because it seemed to make his condition worse. (Tr. 40).
Plaintiff's Medical Records
medical records show that he has been receiving treatment for
back pain since at least 2010, including a surgery in May of
that year to relieve nerve compression at ¶ 4-L5. (Tr.
207). Plaintiff was referred to Dr. Suresh Krishnan for pain
management and visited him regularly beginning in February of
2012. (Tr. 231). Dr. Krishnan's notes during the alleged
disability period indicate that Plaintiff regularly
complained to Dr. Krishnan of moderate to severe pain in his
back and neck, often with radiation to the arms and legs (Tr.
221-22, 225-26, 299-300, 336-38, 340-41, 344, 347-48, 351-52,
); was assessed as having conditions including back pain
likely due to degenerative disc disease, post-laminectomy
syndrome lumbar region, and radiculopathy likely related to
bulging disk (Tr. 225, 229, 302, 339, 343, 346, 350, 354);
and was treated with medications including Percocet,
Neurontin, and tramadol. (Tr. 225, 230, 302, 339, 343-44,
346, 350, 354). Plaintiff's findings on objective
examination were mixed, with regular findings of positive
straight leg raise tests and decreased range of motion in the
lumbar and cervical spine, but also regular findings of
normal gait, normal sensation, normal reflexes, normal motor
strength, ability to heel and toe walk, and no atrophy. (Tr.
223-24, 228-29, 302, 338, 342-43, 345-46, 349-50, 353).
treating physician often described Plaintiff's pain as
“disabling” (Tr. 239, 247, 256, 265, 269, 278,
283, 287), but he did not offer any opinions about
Plaintiff's functional limitations. The record contains
an opinion from a non-examining state agency physician, Q.
Michael Ditmore, M.D., who reviewed Plaintiff's records
in April 2013. (Tr. 50-54). Dr. Ditmore found that Plaintiff
had a severe impairment of “disorders of
back-discogenic and degenerative” but did not meet
Listing 1.04A. (Tr. 50). He found Plaintiff's reported
symptoms “partially credible” and found that
Plaintiff could lift and/or carry 20 pounds occasionally and
10 pounds frequently; could sit for a total of about six
hours in an eight-hour workday; could stand and/or walk for
about six hours in an eight-hour workday; could climb ramps,
stairs, ladders, ropes, and scaffolds only occasionally;
could stoop occasionally; could balance, crouch, and crawl
frequently; and had no manipulative, visual, communicative,
or environmental limitations. (Tr. 51-52).
March 4, 2013, Plaintiff applied for DIB, alleging that he
had been unable to work since January 10, 2013 due to
disorders of the back. (Tr. 55). His application was
initially denied. (Tr. 58). On May 3, 2013 Plaintiff filed a
Request for Hearing by Administrative Law Judge (ALJ) (Tr.
65-66). After a hearing, the ALJ issued an unfavorable
decision on October 24, 2014. (Tr. 11-18). Plaintiff filed a
Request for Review of Hearing Decision with the Social
Security Administration's Appeals Council, and the
Appeals Council denied the request for review on February 19,
2016. (Tr. 1-5). Plaintiff has exhausted all administrative
remedies, and the decision of the ALJ stands as the final
decision of the Commissioner of the Social Security
Standard for Determining Disability Under the Act
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);
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 economy, regardless of whether such
work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.” 42 U.S.C.
determine whether a claimant is disabled, the Commissioner
engages in a five-step evaluation process. 20 C.F.R. §
404.1520(a); see also McCoy v. Astrue, 648 F.3d 605,
611 (8th Cir. 2011) (discussing the five-step process). At
Step One, the Commissioner determines whether the claimant is
currently engaging in “substantial gainful
activity”; if so, then he is not disabled. 20 C.F.R.
§ 404.1520(a)(4)(i); McCoy, 648 F.3d at 611. At
Step Two, the Commissioner determines whether the claimant
has a severe impairment, which is “any impairment or
combination of impairments which significantly limits [the
claimant's] physical or mental ability to do basic work
activities”; if the claimant does not have a severe
impairment, he is not disabled. 20 C.F.R. §§
404.1520(a)(4)(ii), 404.1520(c); McCoy, 648 F.3d at
611. At Step Three, the Commissioner evaluates whether the
claimant's impairment meets or equals one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1 (the “listings”). 20 ...