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Hammond v. Berryhill

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

August 28, 2017

TERRY HAMMOND, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM

          David D. Noce, UNITED STATES MAGISTRATE JUDGE

         This action is before the court for judicial review of the final decision of the defendant Commissioner of Social Security denying the applications of plaintiff Terry Hammond for disability insurance benefits (DIB) and supplemental security income benefits (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401- 434, 1381-1385. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the final decision of the Commissioner is affirmed.

         I. BACKGROUND

         Plaintiff was born in 1965 and was 49 years old at the time of his hearing. (Tr. 32.) He filed his applications on January 18, 2013, alleging a November 23, 2011 onset date. (Tr. 10, 270-75, 304, 310-11.) Plaintiff's insured status under Title II of the Act expired on December 31, 2011.[2] In his Disability Report, he alleged disability due to back problems, including degenerative disc disease, neck and right knee problems, and right shoulder problems. (Tr. at 335.) His applications were denied, and he requested a hearing before an ALJ. (Tr. 4, 128-36.)

         On December 22, 2014, following a hearing, an ALJ found that plaintiff was not “under a disability” as defined in the Act. (Tr. 10-22.) The Appeals Council denied his request for review. (Tr. 1-3.) Thus, the decision of the ALJ stands as the final decision of the Commissioner.

         II. MEDICAL AND OTHER HISTORY

         On January 31, 2012, plaintiff saw Jose R. Remo, M.D., an internist, for back pain and hypertension. Plaintiff described his back pain as worsening and radiating down the left buttock. He stated that his symptoms worsened with climbing stairs, bending, changing positions, and daily and other activities. Dr. Remo recommended back stretching exercises and refilled a prescription for Norco (hydrocodone), for moderate to severe pain. Examination revealed tenderness of the spine, but no other abnormalities. (Tr. at 385-87.)

         Plaintiff saw Dr. Remo again on February 27, 2012, and he recommended a low-fat diet and increased exercise. In addition to Norco, plaintiff's medications included Diovan and Lopressor, for high blood pressure; Flexeril, a muscle relaxant; Naprosyn, an NSAID; and Trazadone, an antidepressant. (Tr. at 392.)

         Plaintiff saw Dr. Remo again on April 23, 2012, for worsening back pain in poor control. He had been helping a friend work in the garden. He stated that the pain worsened with bending, sitting, and standing, and that his symptoms were relieved by ice. Examination revealed moderate tenderness to the lumbar spine with motion and an unsteady gait. Dr. Remo prescribed Flexeril and Naprosyn and encouraged back exercises. (Tr. at 382-84.)

         On June 20, 2012, plaintiff saw Dr. Remo for back pain in poor control that seemed to be worsening. The pain was aggravated by bending, daily activities, extension, flexion, lifting, standing, and walking with no relieving factors. Examination revealed tenderness in the back and decreased thoracic and lumbar mobility. Dr. Remo prescribed Flexeril and Naprosyn, encouraged him to perform daily back exercises, and referred him to physical therapy for modality treatments. (Tr. at 378-80.)

         Plaintiff saw Dr. Remo on July 18, 2012, for back pain in poor control that plaintiff reported was worsening. The pain was aggravated by bending, changing positions, lifting, sitting, standing, and walking. Examination revealed tenderness to the thoracic spine that was moderate with motion, decreased thoracic mobility, decreased lumbar mobility, and positive posterior tenderness. (Tr. at 374-76.) Dr. Remo recommended physical therapy and refilled his prescriptions. (Tr. at 370.) A lumbar spine x-ray taken the next day revealed postoperative changes at the L5-S1 level and mild scoliosis and degenerative changes. (Tr. at 388.)

         On October 3, 2012, plaintiff saw Dr. Remo for refills. He reported his back pain was worsening. The pain was aggravated by bending, daily activities, extension, flexion, lifting, standing, twisting, and walking, and he had no relieving factors. Examination revealed lumbar spine tenderness that was moderate with motion, with no other abnormalities. Plaintiff was encouraged to perform back exercises. (Tr. at 370-72.) At an October 16, 2013 visit, Dr. Remo recommended a low-fat diet and increased exercise. (Tr. at 390.)

         Plaintiff saw Dr. Remo on February 5, 2013 for lumbago or pain in the muscles and joints of the lower back, with fair control, and osteoarthritis of the lower extremities with poor control. He rated his back pain as 6/10 and his knee pain as 7/10, stating that both were worsening. Examination revealed thoracic and lumbar spine tenderness that was moderate with motion, right knee tenderness that was moderate with motion, and an unsteady gait with weakness. Dr. Remo refilled his prescriptions and encouraged various stretching exercises. (Tr. at 366-68.)

         Plaintiff saw Dr. Remo again on May 15, 2013, for follow-up on his back pain. Examination revealed tenderness, tightness, and limited range of motion in his back. Dr. Remo diagnosed chronic mixed dyslipidemia (elevated cholesterol) with fair control, and chronic, stable, lumbar spinal stenosis or narrowing. He prescribed Norco and Flexeril and recommended back stretching exercises as often as possible. Plaintiff saw Dr. Remo on June 17, 2013, for shoulder pain after throwing a football. Examination of the right shoulder revealed mild tenderness, moderate pain with motion, and no crepitus or cracking. Dr. Remo diagnosed acute rotator cuff syndrome and encouraged stretching exercises. (Tr. at 428-32.)

         On July 15, 2013, plaintiff saw Dr. Remo for back pain, stating that his pain medications were stolen from a campground that weekend. Examination showed moderate tenderness with motion. Dr. Remo diagnosed chronic lumbar spinal stenosis without neurogenic claudication in poor control, stable hypertension, and stable dyslipidemia. Dr. Remo recommended keeping medications in a safe place and performing back stretches as often as possible. (Tr. 432-34.)

         Plaintiff saw Dr. Remo on September 15, 2013, for routine check-up and worsening back pain despite increased pain medication. Examination showed moderate tenderness with palpation and motion. Dr. Remo noted that his spinal lumbar ...


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