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Smith v. Berryhill

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

July 31, 2017

ANDREW SMITH, Plaintiff,
NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.



         This is 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.

         I. Factual Background

         A. Plaintiff's Testimony Before the ALJ

         Plaintiff 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).

         Plaintiff 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. 41).

         On bad 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. 39).

         On a 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).

         B. Plaintiff's Medical Records

         Plaintiff's 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).

         Plaintiff's 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).

         II. Procedural Background

         On 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 Administration.

         III. Standard for Determining Disability Under the Act

         To be 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. § 423(d)(2)(A).

         To 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 ...

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