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Berger v. Berryhill

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

April 4, 2019

MARK BERGER, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner Operations, Social Security Administration Defendant.



         Plaintiff Mark Berger seeks review of the decision by the Deputy Commissioner of Operations, Social Security Administration, Nancy Berryhill (“Defendant”), denying his applications for Disability Insurance Benefits (“DIB”) under the Social Security Act.[1] The Court has reviewed the parties' briefs and the administrative record, including the hearing transcript and medical evidence. For the reasons set forth below, the Court affirms Defendant's denial of Plaintiff's application.

         I. Background & Procedural History

         On April 18, 2016, Plaintiff, then fifty-one years old, filed an application for Disability Insurance Benefits alleging that he was disabled as of April 15, 2016 due to: fusion and deteriorating cervical neck vertebrae C1 to C7; severe and pinched nerves in the neck causing severe headaches; some paralysis, dizziness, with severe pain; and right shoulder trauma from torn rotator cuff surgery. (Tr. 145-46) The Social Security Administration (“SSA”) denied Plaintiff's claims, and he filed a timely request for a hearing before an administrative law judge (“ALJ”). (Tr. 75-79; 82-83). The SSA granted Plaintiff's request for review and conducted a hearing on July 7, 2017, at which Plaintiff appeared and testified. (Tr. 27-60)

         In a decision dated August 29, 2017, the ALJ applied the five-step evaluation set forth in 20 C.F.R. § 404.1520(a) and concluded that Plaintiff “has not been under a disability within the meaning of the Social Security Act from April 15, 2016, through the date of this decision.” (Tr. 15) Plaintiff filed a request for review of the ALJ's decision with the SSA Appeals Council, which denied review on November 24, 2017. (Tr. 143-44; 1-6) Plaintiff has exhausted all administrative remedies, and the ALJ's decision stands as the Commissioner's final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000) (citing 20 C.F.R. §§ 404.900(a) (4)-(5), 404.955, 404.981, and 422.210(a)).

         II. Evidence before the ALJ

         A. Testimony at the ALJ Hearing

         At the hearing, Plaintiff testified that he was fifty-one years old and had worked for more than twenty years as a journeyman carpenter. (Tr. 32, 48) He described his work in residential construction as encompassing various roles, most recently focusing on the installation of vinyl siding and managing a crew of carpenters. (Tr. 48-52) In these positions, Plaintiff performed heavy manual labor which entailed standing, climbing ladders, and regularly lifting between fifty and one hundred pounds of siding and other equipment. (Tr. 49)

         Plaintiff testified that he had been aware of his congenital neck and back condition, diagnosed as Klippel-Fell cervical deformity, for most of his life, and Dr. Yoon had advised him fifteen years ago to stop working because of this condition. (Tr. 40) However, Plaintiff explained that he continued to work because: “I loved my job. I was a carpenter and I was a lead man. I ran my own work and I had a family to support.” (Tr. 40) Plaintiff testified that, after he injured his back and neck at home in April 2016, the pain rendered him unable to continue working as a carpenter. (Tr. 39-40)

         In response to questions from the ALJ, Plaintiff described his condition as: an inability to move his neck and constant pain. (Tr. 34-35) Plaintiff explained that he took as many as six Percocet daily to control his pain. (Tr. 36) Plaintiff also described some side effects from the Percocet, including drowsiness. (Tr. 36) Plaintiff explained that he had sought treatment for this condition from his primary care physician, Dr. Bain, and a neurosurgical specialist, Dr. Yoon. (Tr. 40-41) Dr. Yoon had recommended surgery, but Plaintiff had decided against the procedure because he was concerned about the risks. (Tr. 41-42)

         At the hearing, Plaintiff also explained that he was able to drive, including to church twice a week and to Kansas City, with his wife, once every few months. (Tr. 33-34) Plaintiff explained that he was able to lift and carry about twenty to thirty pounds, roughly the weight of a bag of dog food, from his car to the house. (Tr. 36-37) Plaintiff testified that he was able to stand for about two hours and sit for thirty to forty minutes. (Tr. 37) Plaintiff also described needing to take a nap every day for one to two hours. (Tr. 38)

         Plaintiff testified that, in a typical day, he performed household chores, including yard work. (Tr. 38) In response to the ALJ's question about an injury to Plaintiff's shoulder in February 2017 that occurred while attempting to stack firewood, Plaintiff responded that, “[t]he headaches was slacking off . . . I had things around my house to do. I had wood outside that I was wanting to re-stack . . . I only picked up little amounts, but I did it for like an hour . . . [t]he next day . . . I couldn't move my neck for two weeks.” (Tr. 45-46)

         A vocational expert, Karen Crist-Terrill, participated in the hearing via telephone. (Tr. 47) Ms. Crist-Terrill explained that Plaintiff's previous work installing siding was semiskilled and required medium to heavy exertion. (Tr. 54) Ms. Crist-Terrill also classified Plaintiff's previous employment as a carpenter as a skilled occupation requiring heavy exertion. (Tr. 54)

         In a question posed to the vocational expert, the ALJ described a hypothetical individual who:

can lift up to 20 pounds occasionally; lift/carry up to ten pounds frequently; stand/walk for about six hours and sit for up to six hours in an eight-hour workday with normal breaks . . . can occasionally climb ramps or stairs, but never climb ladders, ropes or scaffolds. This hypothetical individual can occasionally balance, stoop, kneel, crouch, but never crawl. This hypothetical individual should avoid concentrated exposure to excessive vibration and . . . should avoid exposure to unprotected heights and exposure to hazardous machinery.

(Tr. 55) According to the vocational expert, this hypothetical individual could not perform any of the past work performed by the Plaintiff. (Tr. 55) But, such a hypothetical individual could perform “light/unskilled jobs” that were available in the national economy such as a routing clerk, a photocopy machine operator, or a shipping and receiving weigher. (Tr. 55-56)

         The ALJ then modified the hypothetical question keeping the same limitations, but describing an individual who could “stand/walk for about six hours and sit up to four hours in an eight-hour workday.” (Tr. 56) According to the vocational expert, the reduced ability to sit would not impact the availability of jobs, and this hypothetical individual could perform the three jobs identified in the previous hypothetical question. (Tr. 56) The ALJ again modified the hypothetical question to an individual who could stand/walk for four hours and sit for six hours. (Tr. 57) The vocational expert explained that the representative jobs that she had provided would still be available. (Tr. 57) In response to questions from counsel, the vocational expert opined that a two-hour rest break “would be outside the normal standards allowed for break time so it would preclude employment.” (Tr. 58)

         B. Relevant Medical Records[2]

         On March 21, 2016, Plaintiff called the office of Dr. Kelly Bain, his primary care physician, describing a severe headache and requesting an appointment that day to see Dr. Bain. (Tr. 253) Dr. Bain spoke with Plaintiff on the phone, but was unable to see him. (Tr. 253) Later that evening, Plaintiff presented to the emergency room at Mercy Hospital, where he saw Dr. Lawrence Prablek. (Tr. 250) Dr. Prablek noted that Plaintiff reported a headache lasting for four days and described the severity of his pain as a five out of ten. (Tr. 251) Dr. Prablek prescribed hydrocodone for Plaintiff's pain, but did not make a diagnosis. (Tr. 253)

         Two days later, on March 23, 2016, Plaintiff saw Dr. Bain regarding his headaches. (Tr. 249, 460) Plaintiff described the pain as “throbbing, stabbing, and sharp, ” and rated the severity as a ten out of ten. (Tr. 249) Dr. Bain noted that pain medications, including hydrocodone, provided Plaintiff some pain relief. (Tr. 249) Dr. Bain diagnosed the headaches as torticollis (stiff neck) related to Plaintiff's degenerative disc disease. (Tr. 462) Dr. Bain prescribed Flexeril, administered a trigger point lidocaine injection, and scheduled a follow-up appointment. (Tr. 462-63)

         A few weeks later, on April 5, 2016, Dr. Bain ordered an MRI of Plaintiff's cervical spine, which revealed several “congenital fusion anomalies in the cervical spine.” (Tr. 452) A previous MRI performed in September 2014 had similarly found “multilevel congenital deformities of the cervical spine with near complete osseous fusion at ¶ 4-C5, C6-C7, and C7- T11.” (Tr. 461) The April 2016 MRI confirmed the previous findings, and Dr. Bain found Plaintiff's “degenerative disease [ ] relatively unchanged since the study of September of 2014.” (Tr. 453) On April 7, 2016, Plaintiff saw Dr. Bain to follow-up on the MRI results. (Tr. 245) At this appointment, Plaintiff reported “shooting pain down the neck into the shoulder, ” such that “the pain [was] waking him up at night” and the pain medications were not providing relief. (Tr. 245) The pain had forced Plaintiff to leave work that week and he had not since returned to work. (Tr. 245)

         On April 11, 2016, Dr. Bain referred Plaintiff to Dr. Peter Yoon, a neurosurgical specialist, for his ongoing neck pain and headaches. (Tr. 588) At the appointment with Dr. Yoon, Plaintiff described his pain as constant and rated its severity as a seven to eight out of ten. (Tr. 588) Dr. Yoon reviewed Plaintiff's MRIs and his medical history, and opined that Plaintiff's headaches “could be related to the degenerative changes” that resulted from Plaintiff's congenital disc deformity. (Tr. 594) Dr. Yoon recommended surgery, a cervical fusion, which, if performed, would “obviously exclude him from any type of gainful employment.” (Tr. 594) Dr. Yoon also referred Plaintiff to a pain management specialist. (Tr. 594)

         On April 13, 2016, Plaintiff saw Dr. Stephen Schmidt, a pain management specialist. (Tr. 516-21) Plaintiff described severe, throbbing neck pain that had “gotten worse with time, ” and made it difficult for him to move his neck. (Tr. 516) Dr. Schmidt recommended bilateral facet joint injections to provide pain relief. (Tr. 519) On April 21, 2016, Dr. Schmidt administered the first of these injections. (Tr. 522)

         On April 25, 2016, Plaintiff saw Dr. Bain, and reported that his neck pain had worsened since their last appointment, rating his pain's severity as a ten out of ten. (Tr. 601) Plaintiff reported that medications had been adequately controlling his pain “until he did some weed[- eating] over the weekend.” (Tr. 601) Plaintiff denied experiencing weakness, diminished grip strength, and lack of coordination. (Tr. 601) Dr. Bain reviewed imaging and observed developmental anomalies of the craniocervical junction and cervical spine including degenerative endplate disease and slightly dyplastic bony foramen. (Tr. 601) Dr. Bain diagnosed Plaintiff with degenerative disc disease and chronic intractable headaches of an unspecified type. (Tr. 602) Dr. Bain ...

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