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Rich v. Berryhill

United States District Court, W.D. Missouri, Western Division

July 20, 2018

DOLAN R. RICH, JR., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE

         Plaintiff Dolan R. Rich, Jr. appeals the Commissioner of Social Security's final decision that he was not under a “disability” prior to March 28, 2016, but granting his applications for disability insurance and supplemental security income benefits under Titles II and XVI of the Social Security Act as of his fiftieth birthday, 3/28/2016. For the reasons set forth below, the Court affirms the decision.

         I. Background

         Rich alleges that he became disabled on 1/11/2011 due to severe mental impairments of generalized anxiety disorder and PTSD, and severe physical impairments including lumbar and cervical degenerative disc disease, lumbar dextroscioliosis, cholelithiasis status post cholecystectomy, hypertension, and uncontrolled diabetes. He filed his initial applications for disability insurance and supplemental security income benefits on 5/9/2012. The ALJ held a hearing on 3/12/2014 and subsequently issued a partially favorable decision finding Rich disabled as of the date of his fiftieth birthday, 3/28/2016. Rich appealed the onset date to the Appeals Counsel, which declined review in a letter dated 6/5/2017. Rich subsequently appealed to this Court.

         A. Medical History

         Rich's disability claim is based primarily on lumbar and cervical degenerative disc disease, lumbar dextroscioliosis, cholelithiasis status post cholecystectomy, hypertension, uncontrolled diabetes, generalized anxiety disorder, and PTSD.

         In July 2011, Rich was diagnosed with Type II diabetes. Tr. 353-54. Lantus insulin, Metformin, and Vitamin D were prescribed. Tr. 344.

         In April 2012, Rich saw Randall, FNP. He reported low back pain due to working with heavy lifting. He experienced tingling in his feet. He was diagnosed with lumbago and diabetes mellitus (DM) type II (uncontrolled). Tr. 364. X-rays of the lumbar spine on 4/20/2012 revealed a transitional vertebra suspected at ¶ 12, minimal dextroconvex lumbar scoliosis, limbus vertebra suspected at ¶ 1, and question of cholelithiasis. Tr. 407. X-rays of the thoracic spine showed mild levoconvex scoliosis in the thoracic spine and mild dextroconvex scoliosis in the lumbar spine, as well as moderate degenerative disc disease, particularly between T6 and T10 with accentuated dorsal kyphosis. Tr. 408. X-rays of the cervical spine were significant for moderate degenerative disc disease at ¶ 5-C6 and C6-C7 and suspected prominent transverse processes at ¶ 7 bilaterally. Tr. 409.

         In May 2012, Randall, FNP, examined Rich again. Rich reported continuous back pain. His blood sugar readings ranged 200-400, and had been as high as 600. Tr. 358. Imaging showed a suspected gallstone, and he was referred for an ultrasound. He was referred for diabetes education and to orthopedics for back pain. Tr. 360. An ultrasound of Rich's abdomen on 5/18/2012 showed cholelithiasis, fatty infiltration of the liver, and hypoechoic hepatic mass in the margin of the right hepatic lobe (likely representing a hemangioma). Tr. 406.

         Over the next several months, Rich reported continuous pain in his chest, abdomen, and back. Tr. 395. Right upper quadrat abdominal pain was consistent with gallstones, but he wanted to wait until he had insurance to get his gallbladder removed. Tr. 396. Tylenol Arthritis was recommended. Tr. 385-86.

         In February 2013, Randall, FNP, examined Rich. Rich reported pain in his neck, hernia pain, headaches, and swelling in his feet and ankles. Tr. 412. Randall advised him “not to sit for long periods of time with [his] feet dependent” and to sleep with his feet elevated; diabetic support hose were recommended to prevent swelling. Diagnoses included DM type II (uncontrolled), mixed hyperlipidemia, elevated liver enzymes, and degeneration of intervertebral disc. Lantus and Pravastatin were prescribed. Tr. 414.

         In December 2013, Dr. Bustle examined Rich for diabetes and back pain. Rich described his low back pain as persistent but stable; he rated his pain an 8/10. Tr. 418, 422. Dr. Bustle noted moderate musculoskeletal pain with motion and pain radiating down Rich's legs with movement. Blood sugars were running in the low 200s after restarting Lantus. DM type II (uncontrolled), lumbago, and cervicalgia were diagnosed. Lantus, Metformin, and Tramadol were prescribed. Tr. 420, 425. An MRI of Rich's lumbar spine on 12/16/13 showed diffuse hypointense marrow signal intensity. Tr. 429. An MRI of the cervical spine revealed mild cervical spondylosis without significant disc abnormality, moderate to severe left neural foraminal stenosis at ¶ 5-C6, and diffuse hypointense marrow signal. Tr. 431.

         In April 2014, Dr. Bustle examined Rich. Rich reported that he was not able to afford his pain medication but was able to afford insulin and Metformin. Tr. 470. He rated his pain a 9/10. Tr. 472. Diagnoses included acute sinusitis, DM (uncontrolled), and hyperlipidemia. An injection of Rocephin was given, and Amoxicillin was prescribed. Tr. 473.

         In July 2014, Dr. Bustle examined Rich again. Rich reported low back pain and that his feet and legs were numb and sometimes swollen. Tr. 482. He rated his pain a 9/10. He could not afford Hydrocodone and was using Tylenol for pain. An exam confirmed mild pain with motion. Tr. 485. Diagnoses were DM (uncontrolled) and lumbago. Farxiga, Lantus insulin, and Metformin were prescribed. Tr. 485.

         In September 2014, Rich presented to the ED with back pain, rated an 8/10. An exam revealed tenderness of the right thoracic and lumbar costovertebral angle. Tr. 514. CT of the abdomen showed cholelithiasis and non-obstructing left lower pole renal calculi. Thoracic strain was diagnosed, and Vicodin was administered. Voltaren, Soma, and Tramadol were prescribed. Tr. 515. Rich saw Dr. Bustle for follow-up on 9/18/2014, again reporting back pain rated at ¶ 8/10. His blood sugars ranged 82-200s. Tr. 496, 499. Invokana was prescribed. Tr. 500. Dr. Bustle examined Rich again on 9/25/2014. Rich reported feeling better on Invokana and that his blood sugars were running 80-141. He continued to have chronic low back pain. Tr. 491. Rich was referred to endocrinology, and Hydrocodone was prescribed. Tr. 494.

         In November 2014, Dr. Miller examined Rich. Rich was having numbness over his entire body. Tr. 675. An exam revealed positive Chvostek's sign bilaterally with light tapping. Tr. 677. Diagnoses were iatrogenic hypocalcemia and hypomagnesemia. Magnesium replacement was started, and calcium replacement was increased. Tr. 678.

         In January 2015, Dr. Bustle examined Rich based on reported pain in his back, knees, and feet. Tr. 739. Hydrocodone was prescribed. Tr. 740.

         In April 2015, Dr. Bustle examined Rich for reported back pain, chest discomfort, and abdominal pain in the upper right quadrant. Tr. 726. Rich rated his pain a 9/10. An exam revealed lumbar pain with motion. Tr. 730. Hydrocodone was refilled. Tr. 731. A hepatobiliary scan on 4/20/2015 showed no evidence of acute cholecystitis. Tr. 723. Ultrasound of the abdomen showed cholelithiasis without biliary ductal dilation. Tr. 724.

         In May 2015, Rich saw Dr. Joyce for gallbladder issues. He reported right upper quadrant abdominal pain that radiated to the epigastric area and right chest, and occasional attacks of severe abdominal pain. Tr. 771. He rated his pain a 10/10. Tr. 775. Diagnoses included symptomatic cholelithiasis. Tr. 777.

         In June 2015, Rich presented to the ED with back pain in the bilateral thoracic area. He reported symptoms worse with movement, twisting and walking. Tenderness was noted in the right thoracic and midline thoracic areas. Tr. 787. X-rays of the thoracic spine showed thoracic spondylosis. Tr. 784 -85. Morphine and Phenergan were administered; Percocet was prescribed. Tr. 790. Dr. Bustle conducted a follow-up examination, during which Rich reported worsening back pain. He had not filled his ED prescription for Percocet due to finances. Tr. 761. An exam revealed thoracic spine tenderness and moderate lumbar spine pain with motion. Tr. 764. Diagnoses included lumbar radiculitis, thoracic spine pain, and constipation. Hydrocodone and Colace were prescribed. Tr. 765.

         An MRI of Rich's thoracic spine on 7/6/2015 revealed thoracic scoliosis and spondylosis, epidural lipomatosis posterior and to the left of the cord, which created deformity of the cord throughout the upper and mid aspect of the thoracic ...


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