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Mischke v. Berryhill

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

February 14, 2018

KENNETH D. MISCHKE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIGT UNITED STATES DISTRICT JUDGE

         This action is before this Court for judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff Kenneth Mischke was not disabled, and thus not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. For the reasons set forth below, the decision of the Commissioner will be affirmed.

         BACKGROUND

         Plaintiff, who was born on August 29, 1982, protectively filed his application for benefits on November 18, 2013, alleging disability beginning March 18, 2013, due to continued back and leg pain following spinal surgery. Plaintiff suffered a work-related injury to his low back in October 2012, and had spinal surgery to address his back pain on March 18, 2013, the disability-onset date. On January 10, 2014, Plaintiff's application was denied at the initial administrative level, and he thereafter requested a hearing before an Administrative Law Judge (“ALJ”).

         A hearing was held on May 12, 2015, at which Plaintiff, who was represented by counsel, and a vocational expert (“VE”) testified. By decision dated August 10, 2015, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform “light work” as defined by the Commissioner's regulations, except that Plaintiff was limited to only occasional stooping, kneeling, crouching, crawling, and climbing of ladders, ropes, and scaffolds; and Plaintiff should avoid hazards such as unprotected heights or dangerous machinery.

         The ALJ next found that Plaintiff could perform certain light unskilled jobs listed in the Dictionary of Occupational Titles (“DOT”) (cashier, housekeeper, and collator operator), which the VE testified that a hypothetical person with Plaintiff's RFC and vocational factors (age, education, work experience) could perform and that were available in significant numbers in the national economy. Accordingly, the ALJ found that Plaintiff was not disabled under the Social Security Act. Plaintiff filed a timely request for review by the Appeals Council of the Social Security Administration and submitted additional evidence from a consultative neurologist, Raymond Cohen, D.O., who had previously examined Plaintiff in connection Plaintiff's workers' compensation claim arising out of his October 2012 work-related injury, and whose prior report the ALJ had considered. Plaintiff's request for review by the Appeals Council of the Social Security Administration was denied on August 10, 2016. Plaintiff has thus exhausted all administrative remedies, and the ALJ's decision stands as the final agency action now under review.

         Plaintiff argues that the ALJ failed to properly evaluate Plaintiff's RFC in that the ALJ stated that there “was no imaging [performed] post-surgery to support changes that would reasonably cause the level of ongoing symptoms alleged” (Tr. 18), even though there was a post-surgery x-ray of the lumbar spine taken in October 2013 revealing degenerative changes, and the ALJ also failed to properly evaluate the limitations from extreme obesity on Plaintiff's RFC. Plaintiff further argues that the ALJ failed to properly evaluate the medical opinion evidence provided by Plaintiff's treating physician, Mary Mason, M.D., and by Dr. Cohen. Finally, Plaintiff contends the decision of the ALJ is contrary to the weight of the evidence currently of record, including the supplemental evidence provided by Dr. Cohen.

         Agency Records, Medical Records, and Evidentiary Hearing

         The Court adopts the statement of facts set forth in Plaintiff's Statement of Uncontroverted Facts (ECF No. 18), as amended by Defendant (ECF No. 25-1), and in Defendant's unopposed Statement of Additional Facts (ECF No. 25-2). These statements provide a fair description of the record before the Court. Specific facts will be discussed as needed to address the parties' arguments.

         ALJ's Decision Under Review (Tr. 10-27)

         The ALJ concluded that Plaintiff's medically determinable impairments of “degenerative disc disease of the lumbar spine status post-surgery” could reasonably be expected to cause his alleged symptoms of back and leg pain, but that Plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely credible. The ALJ noted that Plaintiff underwent an L5-S1 laminectomy with discectomy and decompression of cauda equine and spinal nerve root in March 2013, after failing conservative treatment with epidural injections, physical therapy, and activity modification. The surgeon was Donald A. deGrange, M.D. The ALJ found that after the surgery, Plaintiff still had symptoms, but they were much less severe. As indicated above, the ALJ noted that there was no imaging performed post-surgery to support changes that would reasonably cause the level of ongoing symptoms alleged.

         The ALJ also cited Dr. deGrange's treatment records and noted that, post-surgery, Plaintiff continued to have a decreased range of motion of the lumbar spine, but had no significant tenderness to palpation. Exams showed his straight leg test was repeatedly negative and only mildly positive with increased activity. Plaintiff had good strength in his lower extremities and no sensory deficits. He attended physical therapy with an improvement in back pain and 50% improvement in left lower extremity symptoms. By the end of May 2013, Plaintiff was not taking any medication, and after he was released from his surgeon's care at the end of June 2013, he still had no lumbar tenderness and had a normal range of motion, strength, and sensation. Although Plaintiff appeared in mild pain and walked with a limp, he could perform a heel and toe walk and continued to have normal posture and a non-tender back in September 2013.

         The ALJ also noted that Plaintiff received very little treatment with no consistent medical visits between December 2013 and February 2015, and did not fill his pain medication again until February 2015. Although, without medication, Plaintiff had tenderness to palpation and an antalgic gait, his back and leg pain improved with medication. Moreover, during the evidentiary hearing before the ALJ, Plaintiff testified that medication helped to alleviate his back pain and also dulled or numbed the nerve pain in his leg.

         The ALJ found that treatment notes from Dr. deGrange indicated that Plaintiff recovered to maximum medical improvement three months post-surgery, and at this time, the only work-related limitation imposed was a 50-pound limit on lifting and carrying, which was consistent with light work. The ALJ noted that Plaintiff was obese and stated that he considered Plaintiff's obesity in evaluating the RFC, but that, even with obesity, Plaintiff had ...


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