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Barnard v. Berryhill

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

May 15, 2018

ALAN BARNARD, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE.

         Alan Barnard (Plaintiff) seeks review of the decision of Defendant Nancy Berryhill, Deputy Commissioner of Operations, Social Security Administration (SSA), denying his application for a period of disability and Disability Insurance Benefits under the Social Security Act.[1] Because the Court finds that substantial evidence supports the decision to deny benefits, the Court affirms the denial of Plaintiff's application.

         I. Background and Procedural History

         In February 2013, Plaintiff filed an application for a period of disability and Disability Insurance Benefits. (Tr. 129-130). The SSA denied Plaintiff's claims, and he filed a timely request for a hearing before an administrative law judge (ALJ). (Tr. 70-76). The SSA granted Plaintiff's request for review and conducted a hearing on February 2, 2015. (Tr. 33-42). In a decision dated April 13, 2015, the ALJ found that Plaintiff had not been under a disability, as defined in the Social Security Act, through September 30, 2014, the date last insured. (Tr. 22). The SSA Appeals Council denied Plaintiff's subsequent request for review of the ALJ's decision. (Tr. 1-5). Plaintiff has exhausted all administrative remedies, and the ALJ's decision stands as Defendant's final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         II. Evidence Before the ALJ

         A. ALJ Hearing

         Plaintiff, then forty years of age, appeared with counsel at the administrative hearing on February 2, 2015. (Tr. 35). Plaintiff stated that he had been unable to work since November 2011 due to issues with “mobility and pain.” (Tr. 32, 37). Plaintiff stated that he could not stand for more than thirty minutes without pain and he only felt relief when lying down. (Tr. 37-39). Plaintiff had to lie down five to six times per day, and even after lying down to sleep, he woke up in pain. (Id.). Plaintiff stated that the most he could lift was five to ten pounds. (Tr. 39). Plaintiff explained that Dr. Alan Morris and Physician's Assistant Ryan Rogers assigned him significant workplace limitations. (Tr. 35).

         In regard to activities of daily living, Plaintiff stated that he was unable to perform yard work or vacuum. (Tr. 40). Plaintiff testified that he experienced both good and bad days, but generally had two to three bad days per week. (Tr. 40). Plaintiff explained that even if he had a sit-down job, there would be days he could not work or would have to go home early. (Id.).

         The ALJ briefly questioned Plaintiff about a Cooperative Disability Investigation (CDI).[2](Id.). Specifically, the ALJ examined Plaintiff in regard to the CDI investigator's observations that Plaintiff “was using the cane one hand to the other.” (Id.). Plaintiff explained that he “shifted” the cane between hands because he was right-handed so, when he had to “carry something, ” he moved the cane from his right hand to his left hand but “surgery on my left shoulder makes it a little uncomfortable. . . when I have to put weight on my cane . . . . It hurts so I switch sides . . . .” (Id.).

         B. Relevant Medical Records

         On February 15, 2012, Plaintiff saw Dr. Jennifer Szalkowski, his primary care physician, and complained of the following: (1) intermittent middle- and lower-back pain radiating to both thighs; (2) numbing and tingling in his legs; (3) insomnia for several months; and (4) a bulge in his abdomen upon straining. (Tr. 252-253). Dr. Szalkowski's objective examination revealed “bilateral thoracic tenderness, paravertebral muscle spasm, bilateral thoracic tenderness, and bilateral lumbosacral tenderness.” (Tr. 255). Dr. Szalkowski ordered an x-ray of Plaintiff's lumbosacral spine and prescribed him Mobic, Robaxin, and Ambien. (Tr. 255-258). The x-ray of Plaintiff's lumbar spine revealed no radiographic abnormality. (Tr. 352).

         On May 21, 2012, Plaintiff visited Dr. Dale Klein at Pain Management Rehabilitation, complaining of worsening back and leg pain that had caused him to discontinue employment. (Tr. 238). Plaintiff also said that his pain was exacerbated when he stood for extended periods and was relieved through rest. (Id.). Plaintiff reported that over-the-counter analgesics provided little relief and hydrocodone provided mild relief. (Id.). Dr. Klein diagnosed Plaintiff with lumbar radicular syndrome and myofascial pain syndrome, and he noted possible facet arthropathy. (Tr. 241). On May 29, 2012, Plaintiff returned to Pain Management Rehabilitation to review his MRI, which showed mild disc bulging and facet osteoarthritis. (Tr. 237, 242). Dr. Klein recommended “conservative therapies” and noted that Plaintiff “desires to have a prescription for a controlled substance. At this time, I do not feel comfortable providing a prescription for a controlled substance analgesic.” (Tr. 242-43). When Plaintiff saw Dr. Szalkowski on May 31, 2012, he reported “issues with Dr. Klein” and said he was “now looking for a new pain provider.” (Tr. 274).

         On June 28, 2012, Plaintiff saw Dr. Szalkowski for back pain, renal impairment, and ear pain, and Dr. Szalkowski increased his Tramadol. (Tr. 280). On August 8, 2012, Plaintiff complained of worsening back pain, and Dr. Szalkowski changed Plaintiff's medication from Robaxin to Skelaxin. (Tr. 287-89). In September 2012, Plaintiff saw Dr. Szalkowski two more times for back pain, abnormal kidney function, elbow pain, and depression. (Tr. 299, 403, 407). On September 25, 2012, he reported that he was “overall pain free” and displayed normal mobility of his back. (Tr. 403).

         On October 26, 2012, Plaintiff presented to the emergency room at Barnes-Jewish St. Peters Hospital due to “traumatic” back pain. (Tr. 356). Plaintiff stated that he injured his back while moving his grandfather, who was quadriplegic. (Tr. 357). The doctor diagnosed him with sciatica and prescribed Vicodin. (Tr. 357).

         On February 18, 2013, Plaintiff saw Dr. Margaret Grisell, an orthopedic surgeon, for back pain. (Tr.433). Dr. Grisell noted that her examination was “limited by his being in pain that is out of proportion to the exam[.]” (Tr. 437). Plaintiff returned to Dr. Grisell on April 15, 2013, and she noted that Plaintiff “continues to have pain that is out of proportion to the examination.” (Tr. 442). Dr. Grisell wrote: “I again reviewed his imaging with him, and we talked about his diffuse degenerative changes in his low back and the fact that these are really very mild.” (Tr. 443). She concluded she had “no surgical intervention to offer him” and referred him to pain management. (Id.).

         Plaintiff saw Dr. Richard Gahn, a pain medicine specialist on April 30, 2013, complaining of “persistent low back pain radiating into the left buttock and posterior aspect of the left leg intermittently as far down as the calf and ankle.” (Tr. 453) Plaintiff's MRI revealed “moderate disc degeneration at ¶ 3-4, L4-5, and L5-S1.” (Tr. 455). On May 7, 2013, Dr. Gahn administered a lumbar steroid injection. (Tr. 456).

         On August 20, 2013, Plaintiff underwent an MRI of the cervical spine without contrast, which showed “small right paracentral disc protrusion at ¶ 3-C4 with mild right uncovertebral joint osteoarthritis with mild right neural foraminal narrowing.” (Tr. 488). An MRI of Plaintiff's lumbar spine without contrast showed mild degenerative disc disease at ¶ 4-S1. (Id.).

         On September 10, 2013, Plaintiff presented to the emergency room at St. Joseph Hospital West with neck, back, and leg pain after a fall. (Tr. 578). Plaintiff exhibited normal range of motion and tenderness in his midline upper lumbar area. ...


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