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Robert L.S. v. Saul

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

June 13, 2019

ROBERT L.S., JR., Plaintiff,
v.
ANDREW M. SAUL, [1]Commissioner of Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court for review of an adverse ruling by the Social Security Administration. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

         I. Procedural History

         On April 1, 2015, plaintiff Robert L. S., Jr., protectively filed an application for supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of February 19, 2008.[2] (Tr. 223-26, 142). After plaintiff's application was denied on initial consideration (Tr. 155-59), he requested a hearing from an Administrative Law Judge (ALJ). (Tr. 164-65).

         Plaintiff and counsel appeared for a hearing on January 26, 2017. (Tr. 64-105). Plaintiff testified concerning his disability, daily activities, functional limitations, and past work. The ALJ also received testimony from vocational expert Barbara Myers, M.S. The ALJ issued a decision denying plaintiff's applications on April 21, 2017. (Tr. 18-28). The Appeals Council denied plaintiff's request for review on December 19, 2017. (Tr. 1-5). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability and Function Reports and Hearing Testimony

         Plaintiff, who was born on August 22, 1965, was 42 years old on the alleged onset date. He lived alone in a house in walking distance of the homes of his parents and one of his sons. (Tr. 86). He completed high school and had a mixture of regular and special education classes. (Tr. 69-70). He previously worked as a truck driver and a farm laborer. (Tr. 70, 255).

         When plaintiff applied for disability benefits in 2015, he listed his impairments as rib fracture, bulging discs, knee problems, shoulder problems, neck problems, and sleep disorder. He was 5-feet, 11-inches tall and weighed 358 pounds. (Tr. 246). In a Function Report completed in May 2015 (Tr. 263-70), plaintiff stated that he had a substantial amount of pain, which affected his abilities to walk, stand, sit, lift, and sleep. He used a cane around the house. He struggled to manage cooking, cleaning, bathing, and completing household tasks and relied on his son to do more labor-intensive chores. Plaintiff also took care of small dogs, although his son delivered dog food for him. His hobbies and interests included reading and watching television. He used to be able to work, hunt, fish, and pursue other recreational activities. As a result of his impairments, he was unable to stand for very long and all of his daily tasks took longer to complete. He struggled to dress and bathe. He did not sleep well at all due to pain and apnea. His lack of sleep affected his mood and ability to get along with others. He had a driver's license and borrowed his father's truck to go to medical appointments, the lawyer's office, and grocery shopping. He had difficulty concentrating, finishing tasks, and following instructions. He got along “very, very poorly” with authority and did not handle stress or changes in routine well. (Tr. 268-69). Plaintiff had difficulty with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, stair climbing, completing tasks, concentrating, understanding, following instructions, using his hands, and getting along with others. He could walk “a matter of feet” before he needed to rest for a few minutes. In a narrative portion, plaintiff stated that he was in constant pain and did not sleep well. All his prior work had been as a laborer and he did not have any skills he could transfer to another field. Plaintiff's son David also completed a Function Report that is largely consistent with plaintiff's report. (Tr. 274-81). David added, however, that plaintiff was completely dependent on his son and parents for financial support and their capacity to help was being strained. David visited twice a week to bring supplies and help with chores. He stated that his father was in constant pain and had sleep apnea, was very difficult and stubborn, and was not capable of working. Furthermore, he added, “no one in their right mind would hire him.” (Tr. 281).

         Plaintiff traced his impairments to an injury in 2008.[3] Over time, his condition had deteriorated and he had pain from the time he got up in the morning and it worsened throughout the day. He testified that he had radiating pain from mid-back to his right knee. He felt pain after standing or sitting for 15 to 20 minutes. His primary care physician had told him that he was not a good candidate for back surgery. (Tr. 81). He spent a large portion of the day lying on the floor to get some relief. He also did low impact stretching and, in the summer, swimming. He was able to walk to his father's home, a distance of about 300 feet, to watch the news before returning home to stretch on the floor again. Plaintiff had also sustained several injuries to his right knee which popped and caused pain if he took a long stride. In addition, he had previously broken his ankle. He was able to walk about 30 to 40 minutes before he experienced knee or ankle pain. (Tr. 72-73). He avoided climbing stairs because it caused pain. (Tr. 98).

         Plaintiff's right rotator cuff was torn and he had a bone spur. As a consequence, lifting weights as light as a coffee cup caused pain. He had recently discussed surgery to address the tear in the rotator cuff and remove part of his collar bone. (Tr. 77-78). He was undecided about whether to have the surgery. He testified that, due to pain in his right knee, he needed both arms to get up in the morning or rise from a chair and he did not know how he would manage to take care of himself after surgery if he could not use his right arm. (Tr. 78-79). He described his left shoulder as worn out from factory work and testified that he had bursitis. Plaintiff had been treated with steroid injections, but the effects eventually wore off. He also had stiffness in his neck and nerve pain in his left arm. (Tr. 77). He had been prescribed medicines, but they “didn't work for [him] inside [and] affect[ed his] mental part a little bit.” He took Naproxen, which dulled the pain somewhat. (Tr. 80, 308-09, 312).

         Plaintiff testified that he had hypersomnia and had suffered from sleep apnea most of his life. He began CPAP treatment in 2011 or 2012. (Tr. 84). He tossed and turned all night and catnapped on the floor during the day. He often woke gasping for air. Plaintiff also had depression attributed to the decline in his physical health. He did not have an active social life, pursue hobbies, or have friends. He interacted with his son, who lived next door, and his parents, who lived half a block away; he also went to town meetings, where he was generally one of very few people in attendance. (Tr. 81-82, 86, 91, 93). He was not able to concentrate long enough to watch a movie and had been diagnosed with attention deficit disorder (ADD/ADHD). (Tr. 91). His physician prescribed medication for the condition but discontinued it when it did not appear to be helping. (Tr. 91-92). Finally, he was obese and had tinnitus. (Tr. 82-83, 91).

         In response to questions from the ALJ, plaintiff testified that he was able to prepare and clean up simple meals. His parents had a vegetable garden that he picked from and he had what he called “a green patch” in his yard that produced “tender greens” and “turnip greens.” It reseeded itself each year and he did not till it or weed it. (Tr. 89-90). He used a rider mower to mow the lawn, a task that took about 40 minutes, after which he was “done for the day.” (Tr. 90). In addition, he drove to appointments about once a month. After 20 minutes of driving, he had a burning sensation in his tailbone and his left leg went to sleep. (Tr. 87-88). He got a stiff neck from holding the steering wheel and had pain in his shoulder and nerve pain in his left arm.

         Vocational expert Barbara Myers was asked to testify about the employment opportunities for a hypothetical person of plaintiff's age, education, and work experience who was limited to light work, who could frequently reach overhead in all directions bilaterally; who could never climb ladders, ropes, or scaffolds; could occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl; could occasionally operate a motor vehicle and be exposed to vibration; and could work in a moderate noise environment. According to Ms. Myers, such an individual would not be able to perform plaintiff's past work, but could work as a cashier or a collator operator. (Tr. 101-02). There would be no work available if the individual were further restricted to only occasional reaching in all directions bilaterally. Similarly, there would be no work available if the individual needed additional breaks during the work day to elevate his legs or would be off-task 20% of the work day due to severe pain. (Tr. 102-03).

         B. Medical Evidence

         The administrative transcript includes records of plaintiff's medical treatment as far back as 2011. During the period under review, plaintiff had complaints of pain in his neck, low back, and shoulders, for which he was treated with medications, injections, and osteopathic manipulations. He was also diagnosed with and treated for sleep apnea, diabetes type II, gout, depression, anxiety, and attention deficit disorder. He was morbidly obese and was provided with dietary advice and exercise goals. In December 2013, he underwent a laparoscopic appendectomy. Plaintiff's primary argument is that the ALJ failed to address his complaints of shoulder pain and improperly concluded that he was capable of reaching overhead and in all directions frequently. Accordingly, the Court here discusses medical records bearing on this issue.

         On April 15, 2013, plaintiff sought treatment at the Northeast Missouri Health Council, Inc., from primary care physician Melanie S. Grgurich, D.O., for pain in his right shoulder.[4] He reported that he felt it twist and pop while he was planting a garden. (Tr. 740-42). At that time, he refused imaging studies, pain medications, or referrals. A month later, he complained of bilateral shoulder pain that was aggravated by lifting and pushing. (Tr. 736-39). He experienced numbness, popping, locking, weakness, and tingling in his arms. He also complained of decreased mobility and insomnia. On examination, Dr. Grgurich noted that plaintiff had tenderness of the lumbar spine and shoulders. She gave plaintiff an injection of Toradol and encouraged him to go to a pain clinic. X-rays of the right shoulder showed normal glenohumeral articulation, mild downsloping acromion, and minimal osteoarthritis. With respect to the rotator cuff, the x-rays showed a small ossicle or the distal clavicle projecting over the rotator cuff, predisposing plaintiff to impression on the cuff. There was also suspected calcific tendinosis of the rotator cuff. (Tr. 332-33). On June 4, 2013, he continued to have reduced range of motion and tenderness in his shoulders. (Tr. 733-35). Dr. Grgurich administered a steroid injection to his left shoulder. Two weeks later, he reported that the injection provided pain relief for two days.

         Plaintiff saw pain specialist Theresa T. Rickelman, D.O., on June 20, 2013. (Tr. 334-36). Plaintiff reported that he had pain in his neck, left arm and shoulder, low back, and legs. He also had numbness in his left arm and left leg, a sharp ache in his hands, and shooting pain in his left leg. On examination, Dr. Rickelman noted that plaintiff appeared to be in distress and was unable to sit in one position for any length of time. He needed assistance to heel-toe walk and squat. Forward and backward bending increased his low back pain and any movement of the left arm caused increased pain, especially in the shoulder. Dr. Rickelman noted that plaintiff's MRIs were very difficult to interpret due to his size but stated that it appeared he had degenerative disease in the low back and facet arthritis and degenerative disease in the cervical spine. Plaintiff complained that steroids made him jittery, so she prescribed Neurontin and Mobic. She directed him to exercise in water. Although he would have benefited from ...


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