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Leonard v. Berryhill

United States District Court, E.D. Missouri

May 8, 2019

DAVID B. LEONARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE.

         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying the application of David B. Leonard (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II, 42 U.S.C. §§ 401, et seq. Plaintiff filed a brief in support of the Complaint (ECF 7), and Defendant filed a brief in support of the Answer (ECF 12).

         I. PROCEDURAL HISTORY

         Plaintiff filed his application for DIB under Title II of the Social Security Act on May 7, 2015 (Tr. 152-153). Plaintiff was initially denied relief on July 20, 2015, and on August 19, 2015, he filed a Request for Hearing before an Administrative Law Judge (“ALJ”) (Tr. 84-92). After a hearing, by a decision dated April 14, 2017, the ALJ found Plaintiff was not disabled (Tr. 10-20). Plaintiff filed a Request for Review of Hearing Decision on June 15, 2017 (Tr. 151). On March 6, 2018, the Appeals Council denied Plaintiff's request for review (Tr. 1-3). Plaintiff appealed to the United States District Court for the Eastern District of Missouri on May 3, 2018 (ECF 1). As such, the ALJ's decision stands as the final decision of the Commissioner.

         II. DECISION OF THE ALJ

         The ALJ determined Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2020, and Plaintiff has not engaged in substantial gainful activity since January 7, 2015, the alleged onset date of his disability (Tr. 12).

         The ALJ determined Plaintiff has the severe impairments of degenerative disc disease of the cervical and lumbar spine with radiculopathy[1], obesity, depression, adjustment disorder[2], and anxiety (Tr. 12). The ALJ also found Plaintiff has the medically determinable impairments of diabetes mellitus, hypertension, and mild bilateral carpal tunnel syndrome, but the impairments either do not cause more than a minimal limitation on Plaintiff's ability to perform work activities, or do not satisfy the durational requirements for the purposes of disability, and are therefore non-severe (Tr. 12). The ALJ found no impairment or combination of impairments which meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 13).

         The ALJ conducted a hearing with Plaintiff, Plaintiff's attorney, and a vocational expert, Barbara Myers, on January 25, 2017 (Tr. 33). Plaintiff was 42 years old at the time of hearing, and testified he became disabled on January 7, 2015 (Tr. 35). Plaintiff completed twelfth grade (Tr. 35). He was employed at Northeast Correctional Center, and had to resign as a result of his back pain (Tr. 37). Plaintiff testified he is 5'10” and weighs 315 pounds (Tr. 36). He also testified he has “put on probably 30 pounds” since January 2015, because he is unable to exercise (Tr. 36).

         Plaintiff has neck pain two to three times a day for approximately an hour to two, which originated prior to his back surgery in 2015(Tr. 38). As a result of his neck pain, Plaintiff testified he has a tight squeezing sensation as well as numbness and tingling in both of his arms approximately two to three times a day, for approximately 15 or 20 minutes (Tr. 38-39). When Plaintiff experiences numbness in his hands, he cannot grip things, use a keyboard, and can occasionally drop cups (Tr. 40). Plaintiff has gotten three sets of steroid injections in his neck, with the last one occurring three years ago (Tr. 41).

         Plaintiff has non-insulin dependent diabetes (Tr. 42). He takes metformin for the diabetes, which causes him to have diarrhea once a week (Tr. 42). This diarrhea causes him to take three trips to the restroom, with each trip taking about five to ten minutes (Tr. 42). Plaintiff experiences drops in blood sugar about once every two weeks, which causes shakiness and requires him to take a glucose tablet (Tr. 49). Plaintiff's shakiness occurs for approximately three to five minutes, and requires a five to ten minutes of recovery time after the shakiness subsides (Tr. 50).

         Plaintiff had back surgery on January 8, 2015, which resulted in him feeling better for about a month and a half, only to relapse into worse pain after the first month and a half (Tr. 42-43). Plaintiff experiences lower back pain about four inches above his belt line, which occurs about two the three times a day, for about two to three hours at a time (Tr. 43-44). This pain radiates into Plaintiff's legs causing a tight squeezing, and then a sharp sensation (Tr. 44) The pain is worse in Plaintiff's left leg (Tr. 44).

         For his lower back pain, Plaintiff testified he uses a heating pad about four times a day for about fifteen minutes (Tr. 45-46). He experiences swelling in his right ankle about twice a week which requires elevation (Tr. 47). Plaintiff has walked with a cane since January 2015, to reduce the risk of falling (Tr. 48). Even with the cane, he falls approximately twice a month and stumbles but does not fall approximately two to three times a week (Tr. 48).

         Plaintiff sleeps with a CPAP[3] machine (Tr. 49). Plaintiff also testified he had gastric bypass surgery in August 2013 (Tr. 50). After losing 100 pounds following the surgery, Plaintiff testified he has gained back 30 pounds since January 2015, as a result of his inability to exercise (Tr. 36, 50). Plaintiff takes one nap a day for approximately an hour and a half, and lays down usually twice a day for a half hour at a time to relieve pain (Tr. 51).

         Plaintiff testified he sees a psychiatric nurse practitioner for depression, mood swings, and post-traumatic stress disorder (“PTSD”) (Tr. 52). The PTSD occurred after Plaintiff served as a prison guard, and causes him to have dreams where he is getting assaulted and stabbed (Tr. 52). Plaintiff has difficulty driving a car and can only drive about ten miles because of the numbness in his leg (Tr. 53-54). Plaintiff also has difficulties riding in a car because of his back and leg pain (Tr. 54). His back pain wakes him up approximately three times a night (Tr. 54).

         In a typical day, from 9:00 a.m. to 5:00 p.m., Plaintiff reclines or lies down approximately three hours a day, including naps (Tr. 55-56). He is able to sit comfortably for about thirty minutes at a time, totaling approximately two hours a day (Tr. 56). With his cane, Plaintiff is able to walk about 100 yards before resting, and only about 50 yards without his cane (Tr. 56). He is able to list about 10 pounds without pain in his lower back (Tr. 56-57).

         The vocational expert, Barbara Myers, testified Plaintiff's past work includes work as a corrections officer - a medium exertional level, semi-skilled position (Tr. 65). Ms. Myers testified Plaintiff is not able to perform any of his past work; however, he was able to do light, unskilled work including as a collator operator, an addressing clerk, and a document preparer (Tr. 65-66).

         After considering the entire record, including Plaintiff's testimony, the ALJ determined Plaintiff has the Residual Functioning Capacity (“RFC”) to perform sedentary work (Tr. 14). Plaintiff can frequently reach overhead and in all other directions bilaterally; he can frequently bilaterally handle and finger; he can occasionally balance, stop, knee, crouch, and crawl; he should never be expose to unprotected heights, moving mechanical parts, or vibration; he should not operate a motor vehicle as part of his job duties; he may have occasional exposure to extreme cold or heat; he is limited to simple routine tasks and making simple work-related decisions; and, he can have occasional interaction with supervisors, coworkers, and the public (Tr. 14).

         The ALJ found Plaintiff is unable to perform any past relevant work[4] (Tr. 19). The ALJ also found there are jobs, which exist in significant numbers in the national economy, Plaintiff can perform, including as an addressing clerk, and a document preparer (Tr. 20). Thus, the ALJ's conclusion for Plaintiff was “not disabled” (Tr. 20).

         Plaintiff appeals, argues first, the ALJ failed to afford adequate weight to the opinion of Plaintiff's treating physician, Dr. Lent Johnson, and the ALJ's determination of Plaintiff's RFC is not supported by substantial evidence.

         III. LEGAL STANDARD

         Under the Social Security Act, the Commissioner must follow a five-step process for determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “If a claimant fails to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, first the claimant cannot be engaged in “substantial gainful activity” to qualify for disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as “any impairment or combination of impairments which significantly limits [claimant's] physical or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may be terminated at step two, only when the claimant's impairment or ...


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