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Ziemann v. Berryhill

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

October 23, 2017

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



         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 Dennis A. Ziemann for disability insurance benefits during the period from July 21, 2009 to December 31, 2010 under Title II of the Social Security Act, 42 U.S.C. §§ 401- 434. The action was referred to the undersigned United States Magistrate Judge for review and a recommended disposition under 28 U.S.C. § 636(b).

         For the reasons set forth below, the undersigned recommends that the decision of the administrative law judge (ALJ) be affirmed.

         I. BACKGROUND

         Plaintiff was born in 1955. (Tr. 33.) He alleged a July 21, 2009 onset date, at which time he was 54 years old, and alleged disability due to psoriatic arthritis, osteoarthritis, and limited mobility from prior surgeries. (Tr. 125, 163.) His application was denied, and he requested a hearing before an ALJ. On March 6, 2015, following a hearing, an ALJ found that plaintiff was not disabled under the Act. (Tr. 12-17.) On May 17, 2016, the Appeals Council denied his request for review. (Tr. 1-3.) Thus, the ALJ's decision stands as the final decision of the Commissioner subject to judicial review. (Tr. 1-4.)


         In July 2009, plaintiff had pain and swelling in the small joints of his upper extremities due to rheumatoid arthritis, which was exacerbated by stress. He had a rash on the elbows, knees, and distal lower extremities. Review of systems at that time noted headache, muscle pain, hand swelling, joint pain, and neck and back pain. He was diagnosed with psoriatic arthritis and started on methotrexate, a chemotherapy agent and immune system suppressant used to treat rheumatoid arthritis. (Tr. 206-07.)

         In August 2009, plaintiff was seen for follow up. He was stiff in the morning and complained of pain and swelling in his hands. His skin rash was improving. He reported no problems with his medications. In October 2009, he had pain in the hands, wrists, toes, neck and back but no swelling. He reported that his joints were much better with methotrexate and that his psoriasis was improved. Stephen Ross, M.D., his rheumatologist, evaluated his disease as 1/10 on the “Global Assessment of Disease Activity” Scale. (Tr. 212-14.)

         In February 2010, plaintiff reported that the methotrexate had helped his psoriasis and arthritis without adverse effects. He was exercising three times per week and had some lower back pain. (Tr. 216.) In May 2010, records again noted morning stiffness. He had pain with work but “not bad.” (Tr. 218, 264.) In August 2010, records noted morning stiffness, fatigue, and pain in his hands, right shoulder, neck and low back. (Tr. 220.)

         In November 2010, his hands were doing well and his psoriasis was almost gone. He had low back pain without radiation that had been more painful in the past two months. He also had neck pain. Records further noted x-rays revealing lumbosacral disc space narrowing in the low back, as well as osteophytes, or bony outgrowths associated with the degeneration of cartilage at joints. (Tr. 222-23.)

         In April 2013, records noted backache. (Tr. 355.) An April 2013 MRI of plaintiff's lumbar spine revealed no recurrent disc herniation and minimal degenerative changes in plaintiff's spine. (Tr. 377-78.) He underwent steroid injections for back pain in May 2013 and August through November 2014. (Tr. 275, 278, 285, 291, 322.) In July 2014, he had morning stiffness and complained of joint pain and swelling. However, an a general examination indicated that his joints showed no swelling, no tenderness, normal range of motion, and no instability; he was in no acute distress; he exhibited normal muscle strength and no atrophy; and he had normal mental affect. (Tr. 235.)

         In a February 18, 2015 letter, treating physician John Ellena, M.D., an internist, stated that plaintiff was diagnosed with degenerative disc disease prior to May 2007, and in one sentence that in his opinion plaintiff was disabled as a result of back pain. (Tr. 326). Dr. Ellena also provided a source statement regarding plaintiff's limitations prior to December 31, 2010, indicating limitations including standing for one hour, walking for one hour, sitting for one hour, and no bending/stooping, lifting, or carrying. (Tr. 327-28.)

         ALJ Hearing

         On February 25, 2015, plaintiff appeared and testified to the following at a hearing before an ALJ. (Tr. 28-63.) He previously owned and managed a hair salon and has also worked as a restaurant host. (Tr. 35-38.)

         In 2009, burning pain from his psoriatic arthritis started down his right hip and leg. His pain at that time ranged from 6 to 8 on a ten-point scale. He was limited to lifting fifteen pounds. He took methotrexate for many years until 2014 and experienced diarrhea as a side effect. (Tr. 40-42.)

         He underwent a lot of physical therapy and exercised a couple of times a day. He has had nine nerve innervations in the past eight months that helped a little with walking, although he still has acute pain. He is currently limited to lifting ten pounds. He can walk on a flat surface although walking up or down hill is difficult. He can walk on a flat surface for one hour before he needs to sit down, and rarely walks for more than one hour at a time. He has difficulty tying his shoe laces and does not wear shoes with laces. He cannot open jars. (Tr. 44-47.)

         He exercises for 15 to 20 minutes on a typical day. He brushes his teeth and drinks coffee. He does errands and “piddles around the house.” (Tr. 48.) He used to do heavy gardening six or seven years ago but cannot do that anymore. He can wash dishes but cannot vacuum or make a bed. He sits and reads a lot. He goes to the grocery store every day and can prepare meals. He goes out to dinner twice a week with friends. He no longer attends theater because he cannot sit for two to three hours at a time. He stopped doing volunteer work in 2008 or 2009, although he volunteered and assisted at a women's fashion show for about two hours about one year ago. He is able to pay bills and manage his money. If he is having a bad day he must cancel his social ...

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