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Whittington v. Saul

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

July 15, 2019

ANDREW M. SAUL, [1]Commissioner of Social Security, Defendant.



         This action is before the Court for judicial review of the final decision of the defendant Commissioner of Social Security denying the application of plaintiff Bernard Whittington for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. The parties have consented to the exercise of plenary authority by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

         For the reasons set forth below, the decision of the Commissioner is reversed and the case remanded for further proceedings.

         I. BACKGROUND

         Plaintiff was born on August 20, 1971, and was 45 years old at the time of his hearing before the Administrative Law Judge. He filed his DIB application on March 3, 2015, alleging a March 4, 2004 onset date and disability due to a back injury, severe depression, a concussion, and impairments in both knees, his elbow, his ankles, his jaw, and his wrist, insomnia, and sleep apnea. (Tr. 180-81, 230.) Plaintiff's application was denied, and he requested a hearing before an Administrative Law Judge (ALJ). (Tr. 72, 79-80.)

         On April 19, 2017, plaintiff and vocational expert Delores Gonzalez (VE) testified before an ALJ. On May 22, 2017, the ALJ issued a decision that plaintiff was not disabled under the Act, as of the date he was last insured under Title II, December 31, 2008. (Tr. 13-23.) The Appeals Council denied plaintiff's request for review. (Tr. 1-4.) Thus, the decision of the ALJ stands as the final decision of the Commissioner.


         The following is a summary of the administrative record relevant to this action.

         On August 23, 2006, plaintiff saw Michael Einbund, M.D., for an examination related to his worker's compensation claim. (Tr. 679.) Dr. Einbund noted that plaintiff had limited range of motion in his fingers resulting from some deformities and weakness of the fingers. (Tr. 685.) He concluded that plaintiff had full range of motion and no motor weakness in his right shoulder. (Tr. 684.) Dr. Einbund observed restricted range of motion in plaintiff's right elbow, small right finger, and left thumb. (Tr. 685.) He found that plaintiff had normal lower extremity sensation, normal gait, and could walk on his heels and toes; had full range of motion in the hips, knees, and ankles; and had normal bilateral straight-leg raising at 90 degrees. (Tr. 685-86.) Dr. Einbund found that plaintiff had normal strength in both quadriceps, hamstrings, plantar flexors/extensors, and extensor hallucis longus muscles. (Tr. 686.) Dr. Einbund noted that plaintiff's patellar and Achilles reflexes were 2/4, bilaterally. (Tr. 686.)

         Dr. Einbund included x-ray findings in his examination of plaintiff. (Tr. 687.) X-rays of plaintiff's pelvis showed “both hips to be well-seated, ” with no evidence of degenerative change. The sacroiliac joints showed no evidence of sclerosis. X-rays of plaintiff's cervical spine showed no evidence of fracture or dislocation, but revealed degeneration at C6-C7. Further, x-rays of the lumbosacral spine showed no evidence of fracture or dislocation, but revealed mild anterior osteophyte formation. (Tr. 687.)

         Dr. Einbund concluded plaintiff required work restrictions from repetitive work above shoulder-level. (Tr. 698.) Regarding plaintiff's elbows and hands, Dr. Einbund recommended plaintiff avoid repetitive gripping and grasping. With regard to plaintiff's knees and ankles, Dr. Einbund recommended avoiding prolonged standing and walking, and repetitive squatting and kneeling. (Tr. 698.)

         Also on August 23, 2006, plaintiff saw Robert Rose, M.D., for a neurologic examination. (Tr. 701.) Dr. Rose conducted an electromyogram and nerve conduction velocity studies. (Tr. 714.) Based on these studies, Dr. Rose diagnosed “nerve root irritation” at L4-L5 and L5-S1. (Tr. 715.) Contrary to Dr. Einbund's finding, Dr. Rose documented a positive straight leg test. (Tr. 711.) Further, Dr. Rose noted diffuse weakness in the upper and lower extremities, and weakness in the back. (Tr. 712.) Dr. Rose reported deep tendon reflexes were trace to absent throughout. (Tr. 713.) He concluded plaintiff must avoid lifting greater than 50 pounds or carrying greater than 50 pounds due to the conditions in his back, knees, and ankles, and difficulties with both of his arms. (Tr. 724.) Dr. Rose further opined that plaintiff should avoid situations requiring the operation of arm levers or leg and foot pedals, as well as situations involving significant temperature changes. (Tr. 724.)

         On April 17, 2007, plaintiff underwent MRI testing. (Tr. 737.) The MRI scans of plaintiff's lumbar spine revealed 2 to 3 mm. central and posterior disc protrusion. (Tr. 739.) At L5-S1, moderate hypertrophic facet changes were present. Further, the MRI scans indicated that “the neural foramina appear patent, ” throughout L2-L3, L3-L4, and L5-S1. (Tr. 739.) The term “patent, ” means “open and unobstructed, ” referring to the neural foramina being open and not encroaching on the respective nerves.[2]

         The Disability Determination Service conducted its review on July 15, 2015, concluding that plaintiff was not disabled. (Tr. 68-70.) The review included the assessment of Psychological Consultant Linda Skolnick, Psy.D., regarding plaintiff's impairments. (Tr. 66-68.)

         ALJ Hearing

         On April 19, 2017, plaintiff appeared with counsel and testified to the following at a hearing before the ALJ. (Tr. 29-61.) Plaintiff is a former professional football player in the National Football League. (Tr. 34.) Plaintiff lives alone. (Tr. 36.) His parents come to his home during the week to help him cook, and a maid comes to his home to clean. He sits in a hot tub approximately three times a day for twenty minute periods and, sees a neurologist, a psychologist, and a psychiatrist. (Tr. 36.) Plaintiff completes physical therapy twice a week, sees a chiropractor once a week, and sees a masseuse twice a month. (Tr. 36-37.) He can drive to the pharmacy and the chiropractor, because they are less than one mile away. For longer distances, he calls a taxi cab or his parents. (Tr. 51.)

         Plaintiff testified he was self-employed as a project manager from 2004 until 2008. The work he performed included purchasing properties, hiring subcontractors to renovate the properties, and then selling the properties. (Tr. 39.) Plaintiff testified that during this time period, he flipped three houses in total. (Tr. 42.) In 2015, plaintiff sold another property. (Tr. 42.)

         Plaintiff is 6 feet, 6 inches tall and weighs about 265 pounds. Plaintiff has back pain that began at the end of his playing career in the National Football League with the Cincinnati Bengals. During his playing career, he received a shot of Toradol to relieve the back pain. Plaintiff testified that the back pain began seriously affecting him in 2003, which affected his ability to sit down. His back pain caused his retirement from the NFL. (Tr. 44-45.) He was unable to lift the heavy weights he would ordinarily lift during his NFL career, and all he could do was light jogging. (Tr. 46.) During the time period, he experienced regular headaches. (Tr. 47.) Plaintiff walks slowly and with a limp. (Tr. 48.)

         Plaintiff testified that the range of motion in his neck is very limited, that he has limited range of motion in his right hand and right elbow due to surgeries. (Tr. 48.) Further, the range of motion in his left shoulder is limited, as well as in both of his knees, hands, and wrists, and all fingers and thumbs. (Tr. 49.) He testified that he has suffered ...

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