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Melvin M. v. Berryhill

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

March 11, 2019

MELVIN M., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE.

         This action is before the Court pursuant to the Social Security Act, 42 U.S.C. §§ 401, et seq. (“the Act”). The Act authorizes judicial review of the final decision of the Social Security Administration denying Plaintiff Melvin M.'s (“Plaintiff”) application for supplemental security income under Title XVI, see 42 U.S.C. §§ 1381 et seq.[1] All matters are pending before the undersigned United States Magistrate Judge with the consent of the parties, pursuant to 28 U.S.C. § 636(c). Substantial evidence supports the Commissioner's decision, and therefore it is affirmed. See 42 U.S.C. § 405(g).

         I. Procedural History & Summary of Memorandum Decision

         On June 27, 2014, Plaintiff filed an application for disability benefits, arguing that his disability began on June 27, 2014, [2] as a result of hepatitis C, lower back issues and arthritis, arthritis in the hip, right foot, neck, mild disc degenerative disease C4 and C5, depression, stress, right leg damage, arthritis in the pelvis, pain in right elbow, long term and short term memory loss.[3] (Tr. 85, 139-44, 158) On November 4, 2014, Plaintiff's claims were denied upon initial consideration. (Tr. 85-89) Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). Plaintiff appeared at the hearing (with counsel) on July 26, 2016, and testified concerning the nature of his disability, his functional limitations, and his past work. (Tr. 345-68) The ALJ also heard testimony from Dolores Gonzales, a vocational expert (“VE”). (Tr. 47-52, 225-28) The VE opined as to Plaintiff's ability to secure other work in the national economy, based upon Plaintiff's functional limitations, age, and education. (Id.) After taking Plaintiff's testimony, considering the VE's testimony, and reviewing the rest of the evidence of record, the ALJ issued a decision on September 26, 2016, finding that Plaintiff was not disabled, and therefore denying benefits. (Tr. 10-22)

         Plaintiff sought review of the ALJ's decision before the Appeals Council of the Social Security Administration (“SSA”). (Tr. 1-5) On September 26, 2017, the Appeals Council denied review of Plaintiff's claims, making the September 26, 2016, decision of the ALJ the final decision of the Commissioner. Plaintiff has therefore exhausted his administrative remedies, and his appeal is properly before this Court. See 42 U.S.C. § 405(g).

         In his brief to this Court, Plaintiff raises two related issues. First, he argues that the ALJ's Residual Function Capacity (“RFC”) determination is not supported by substantial evidence. Second, he argues that the ALJ failed to properly consider third-party evidence and Plaintiff's hearing testimony. The Commissioner filed a detailed brief in opposition.

         As explained below, the Court has considered the entire record in this matter. Because the decision of the Commissioner is supported by substantial evidence, it will be affirmed.

         II. Third Party Statements (Tr. 167-74, 230-31)

         The administrative record before this Court includes two third-party letters, one from Jarrett McKinney, Plaintiff's son, and one from Rochelle Dixon, Plaintiff's friend, both dated July 25, 2016, and a Function Report Adult - Third Party completed by Rosella McKinney, his aunt. (Tr. 167-74, 230-31) There is also a Function Report - Adult completed by Kimberly Byrd, a family friend, with Plaintiff providing the answers to the questions.[4] (Tr. 187-94)

         Mr. McKinney stated that he takes care of his father daily, and his duties include assisting with meal preparation, cleaning dishes, taking out the trash, doing laundry, changing bed linens, and medication reminders. (Tr. 230) Ms. Dixon provided “an overview of how [she has] watched the decline of once a healthy man to a person who can barely do the basic functions of life.” (Tr. 231) Ms. Dixon further stated that she witnessed Plaintiff soil himself as well as having frequent incontinence. Ms. Dixon's letter discusses Plaintiff's financial and personal hardships. (Tr. 231)

         Ms. McKinney completed a Function Report Adult - Third Party on October 13, 2014. (Tr. 167) Ms. McKinney indicated that Plaintiff does not need reminders to take his medicine, and he can go out alone and drive a car. (Tr. 169-70) Ms. McKinney listed reading and watching television at Plaintiff's hobbies. (Tr. 171) Ms. McKinney indicated that Plaintiff has no problem handling stress or changes in his routine, and he wears a brace/splint not prescribed by a doctor. (Tr. 173) Ms. McKinney indicated that Plaintiff has problems with bowel movements and stays in the bathroom for long periods of time. (Tr. 168)

         In his Function Report - Adult, completed on October 25, 2014 with the assistance of Ms. Byrd, Plaintiff asserted that his impairments limit his abilities to stand, walk, sit, lift, squat, reach, bend, kneel, climb stairs, and hear and affect his memory and concentration, and his ability to complete tasks, concentrate, and follow instructions. Plaintiff stated that he uses the bathroom with great frequency and has frequent accidents. Plaintiff reported that he needs assistance caring for his children because he cannot do anything. Plaintiff reported that he could prepare simple meals and heat food in the microwave. Plaintiff indicated that he could leave the house alone but he does not. Plaintiff does not drive because of his medications.

         III. Medical Records

         The administrative record before this Court includes medical records concerning Plaintiff's health treatment from July 17, 2013, through June 7, 2016. The Court has reviewed the entire record. The following is a summary of pertinent portions of the medical records relevant to the matters at issue in this case.

         A. Barnes Jewish Hospital (Tr. 253-91, 352-495, 497-739)

         Between July 17, 2013, and June 7, 2016, a number of doctors on staff in the emergency room at Barnes Jewish Hospital and on the staff at the Medicine Clinic at Barnes Jewish Hospital treated Plaintiff.

         On July 17, 2013, Plaintiff received treatment in the emergency room. Plaintiff reported having left heel numbness and a recent Achilles tendon injury. Depression and hepatitis C are listed as his medical history. Musculoskeletal examination showed a normal range of motion with no tenderness.

         Plaintiff presented as a new patient and for follow-up emergency department treatment with Dr. Seth Bloom. Plaintiff's medical history included depression, chronic abdominal pain, and urinary incontinence. Plaintiff reported working on receiving disability benefits due to his psychological issues. On September 27, 2013, Dr. Bloom's examination showed Plaintiff to be in no acute distress and his musculoskeletal strength normal. Dr. Bloom found Plaintiff had normal affect and mood and oriented x3. Plaintiff reported having chronic neck pain and not seeing his psychiatrist recently but he had an appointment scheduled in the following few months. Plaintiff indicated that he was currently unemployed and lived with his father and two children. Examination showed Plaintiff had 5/5 strength and a normal range of motion.

         In follow-up treatment on December 23, 2013, Plaintiff reported having low back pain and no increase or worsening symptoms of his urinary incontinence. Plaintiff noted that he not see his psychiatrist recently but had an appointment scheduled. Examination showed Plaintiff had normal range of motion of his neck and upper extremities and 5/5 strength. Dr. Bloom noted that Plaintiff's mood was stable. Plaintiff returned on May 20, 2014, for evaluation of his back pain. Plaintiff reported continued right sided upper back and lower back pain but he experience relief within ten minutes of taking ibuprofen. Plaintiff reported urinating on himself four days earlier but not remembering a prior event of incontinence. Dr. Bloom found Plaintiff's neck and back to be neurologically intact on examination. Plaintiff reported his fecal incontinence being persistent but only occurring occasionally when urinating.

         In follow-up treatment on August 25, 2014, Plaintiff reported urinary incontinence occurring a few times a month and fecal incontinence occurring during urination. Dr. Bloom found Plaintiff's neck and back to be neurologically intact on examination. On October 3, 2014, Plaintiff reported having urinary accidents three to four times a week. Dr. Bloom noted that Plaintiff “is somewhat a poor historian and seems somewhat unsure about many of his answers.” (Tr. 253)

         Plaintiff presented in the emergency room at Barnes Jewish Hospital on November 9, 2014, complaining of lower back pain for a month. Plaintiff reported that his lower back pain was usually controlled with his baseline medication, ibuprofen, but he ran out of his prescription ibuprofen so he was seeking a refill. Psychiatric examination showed Plaintiff had normal affect and mood and behavior were appropriate. After reviewing his medical clinic records, the treating doctor noted that Plaintiff's incontinence was stable. The doctor ordered a refill of Plaintiff's ibuprofen and hydrocodone prescriptions.

         Plaintiff returned on November 14, 2014, and reported recently running out of ibuprofen causing increased chronic back pain. An x-ray of Plaintiff's lumbar spine revealed mild degenerative disk disease. Dr. Jonathon Baker noted that Plaintiff's fecal incontinence was stable and only occasionally occurred when urinating.

         On November 21, 2014, Dr. Tammy Ho treated Plaintiff's urinary incontinence. Plaintiff reported that he did not wear pads and that he experienced incontinent episodes every couple of days. Psychiatric examination showed Plaintiff had normal affect and mood and oriented x3. Dr. Ho noted that Plaintiff's voiding diary[5] showed infrequent voids and some bowel incontinence. Dr. Ho found that Plaintiff had lower urinary tract symptoms (“LUTS”) with occasional urge incontinence and recommended time voiding every four hours.

         A February 9, 2015, MRI of Plaintiff's lumbar spine showed normal alignment and lumbar spondylosis at L4-L5 and L5-S1 with a right paracentral disk protrusion at L4-L5 abutting and descending right L5 nerve root. In routine follow-up on February 23, 2015, Plaintiff reported having a stressful week because his cousin was murdered but he was otherwise not actively depressed. Dr. Bloom noted that the recent MRI showed some disk protrusion and nerve root displacement probably accounting for some but not all of Plaintiff's symptoms. Dr. Bloom also noted that Plaintiff's mood was stable.

         Plaintiff presented in the emergency room at Barnes Jewish Hospital on March 8, 2015, complaining of right eye pain. Examination showed a superficial corneal abrasion. On May 1, 2015, Plaintiff presented in the emergency room complaining of increasing headache with no relief from ibuprofen.

         On May 22, 2015, Plaintiff returned for six month follow-up and medication review. Plaintiff reported no incontinence episodes but still experienced urgency. Plaintiff indicated that his medication regimen was working. Dr. John Brockman noted Plaintiff's affect was flat, normal mood, and he was oriented x3. Plaintiff presented in the emergency room on May 28, 2015, complaining of lower back pain flaring up without any relief from ibuprofen and requesting pain medication. Plaintiff was discharged from the emergency room with crutches.

         Plaintiff returned on June 1, 2015, as follow-up from emergency room treatment for low blood pressure and reported some improvement with medications. Plaintiff reported rare urinary and fetal incontinence on his medication regimen. Dr. Bloom noted that Plaintiff's MRI showed some disk protrusion and right L5 nerve root displacement which accounted for some but not all of his back pain symptoms. Dr. Bloom found Plaintiff's mood to be stable and although he had a lot of external stressors, Plaintiff did not seem depressed. As to his functional capacity, Plaintiff reported not having difficulty walking, getting dressed, bathing/grooming, with his memory, and with activities of daily living including cooking, cleaning, shopping, and driving.

         During treatment on July 16, 2015, Plaintiff reported occasional low back pain and rare urinary and fecal incontinence. Dr. Nhila Jagadeesan, his new primary care physician, found Plaintiff's fecal incontinence to be stable. Although Plaintiff reported a lot of stressors, Dr. Jagadeesan found his mood to be stable and he did not appear to be depressed. On July 17, 2015, Ashwin Kamath, a neurosurgeon, evaluated Plaintiff for lumbar spondylosis. Dr. Kamath observed that Plaintiff ambulated without difficulty. Plaintiff reported a chronic urinary and fecal incontinence for twenty plus years and denied any recent changes in his back pain or bowel or bladder incontinence. Examination showed Plaintiff to be alert and oriented x3 and good movement of all extremities, with 5/5 strength and normal gait. Dr. Kamath found Plaintiff would likely not benefit from any surgical intervention on his spine. Dr. Kamath noted that Plaintiff had not tried physical therapy and noted that he would provide a referral to help Plaintiff's back pain.

         In follow-up treatment on October 15, 2015, Dr. Karen Winters adjusted Plaintiff's medication regimen by adding Naprosyn and noted that Plaintiff arrived ambulating with a steady gait and required no assistance. Plaintiff reported experiencing chronic pain in his lower back. Plaintiff returned on December 15, 2015, for a routine visit and reported no lower back pain but only neck pain. Plaintiff reported improvement in his back pain after the medication adjustment and requested a prescription for diapers for his fecal incontinence.

         During treatment on April 13, 2016, Dr. Jagadeesan observed Plaintiff arrived ambulating with a steady gait and required no assistance. Plaintiff reported not experiencing any pain on that day. Dr. Jagadeesan noted that the medications for Plaintiff's urinary continence had been discontinued most likely because ...


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