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Davis v. Saul

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

August 21, 2019

TERRY R. DAVIS, Plaintiff,
v.
ANDREW M. SAUL, [1]Commissioner of Social Security Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Terry R. Davis, seeks review of the decision by Defendant Social Security Commissioner Andrew M. Saul, denying his applications for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act. Because the Court finds that substantial evidence supports the decision to deny benefits, the Court affirms the denial of Plaintiff's applications.

         I. Procedural History

         On January 29, 2015, Plaintiff, then thirty-eight years old, filed applications for Disability Insurance Benefits and Supplemental Security Income, alleging he became disabled on July 6, 2012[2] due to “invert[ebral] lumbar disc myelopathy, lumbago, lumbar/thoracic radiculitis, and acquired spondylolisthesis.” (Tr. 79, 159, 188) 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. 91, 98)

         On July 11, 2017, the ALJ conducted a hearing at which Plaintiff and a vocational expert testified. (Tr. 34-64) In a decision dated November 21, 2017, the ALJ found that Plaintiff “has not been under a disability, as defined in the Social Security Act, from November 8, 2013, through the date of this decision[.]” (Tr. 24) Plaintiff filed a request for review of the ALJ's decision with the SSA Appeals Council, which denied review. (Tr. 1-4) Plaintiff has exhausted all administrative remedies, and the ALJ's decision stands as the SSA's final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         II. Evidence Before the ALJ

         A. Hearing

         The ALJ held a hearing on July 11, 2017. (Tr. 36) Plaintiff testified that he completed twelfth grade and was most recently employed in the shipping department of a Dollar General distribution center in Fulton, Missouri. (Id.) Plaintiff was terminated from that job because he missed a “substantial amount of work” due to back pain, staying home “probably close to a week a month.” (Id.) Plaintiff testified that, on the days he missed work, he was “laying [sic] in bed taking prescribed medication to relieve” his pain. (Tr. at 39) Plaintiff stated that two doctors encouraged him to undergo a complete spinal fusion of the L5/S1, but he lost his insurance when he was terminated and could not afford the procedure. (Id.)

         Plaintiff testified that, with his current medications, he still felt pain in his lower back and right leg that impacted his ability to walk and stand. (Tr. 41) He explained that the pain limited him to walking one city block or standing for one hour and that, after standing for one hour, he would feel “excruciating pain and numbness” in his right leg and need to lie down. (Tr. 41-42) Plaintiff testified that whether he was primarily sitting, standing, or walking, he needed to lie down for about an hour three or four times through the course of an average day. (Tr. 42-44) Plaintiff testified that the maximum amount of time he could do anything without lying down was four hours. (Tr. 57) At the time of the hearing, Plaintiff was taking hydrocodone/acetaminophen and gabapentin. (Tr. 40) He was also using a nicotine patch system and had decreased his smoking habit from “about a pack a day” to “about three quarters of a pack a day.” (Id.)

         Plaintiff testified that he experienced back pain daily. (Tr. 52) He stated that though the pain was always there, sometimes it hurt more than other times. (Id.) The ALJ asked Plaintiff to describe what it felt like when his pain was at its very worst, and Plaintiff responded, “I feel like crying.” (Tr. 54) Plaintiff stated that he did not experience the very worst pain every day but estimated that he felt the worst pain “at least three times a week.” (Tr. 55-56) He stated that there were times when his back pain was so severe that he was unable to leave the house even to ride in the car. (Tr. 55) For example, the previous week when his friends asked him to go fishing, his back hurt too much to join. (Tr. 56) Plaintiff testified that he went fishing “just a couple times a year.”

         Plaintiff testified that he lived with his mother and twelve-year-old daughter and stated that he did not “have to do much to take care of” his daughter. (Tr. 44) Plaintiff explained that, while he helped prepare meals, his mother did most of the cooking and his daughter washed the dishes. (Tr. 44-45) Plaintiff testified that he did his own laundry but did not fold the clothes because “it create[d] pain and discomfort” in his back and arms. (Tr. 45) He stated that he had difficulty reaching because it caused pain in his back and he was able to lift five pounds without pain. (Tr. 46) Plaintiff attempted to mow the lawn on a riding mower the previous week but, because of his back pain, he had to stop after fifteen minutes. (Tr. 54) Plaintiff left home about once a week to go to church, the store, visit with friends, or attend his daughter's school events. (Tr. 51)

         A vocational expert testified by telephone. (Tr. 58) The ALJ asked the vocational expert the following:

[A]ssume a hypothetical individual 40 years of age, a high school education, no relevant past work. Assume the individual will be able to perform sedentary exertional work as that term is defined. The individual would be able to lift or carry ten pounds occasionally, five pounds frequently. Stand and/or walk for two hours of an eight-hour day. Sit for six hours in an eight-hour day. Further assume no climbing. Occasional stooping. No. kneeling, crouching or crawling. I'd like you to further assume the hypothetical individual I'm describing could frequently reach. I would like you to further assume the hypothetical individual would need to avoid hazards such as dangerous machinery or unprotected heights.
… [W]ould that hypothetical individual be able to perform any unskilled occupations in the national economy?

(Tr. 60) The vocational expert responded that such a hypothetical individual would be able to perform the duties of three representative occupations: circuit board screener, eyewear assembler, and document preparer. (Id.) The vocational expert stated that his answers were consistent with the Dictionary of Occupational Titles (“DOT”). (Tr. 60-61)

         The ALJ then asked the vocational expert to consider the same hypothetical individual but assume he “would need to alternate from a sitting to a standing position” for five minutes every hour but could remain on task. (Tr. 61) The vocational expert stated that the three occupations identified would still be appropriate and representative. (Id.) The vocational expert testified it would not change his analysis if the intervals were every thirty minutes instead of sixty. (Tr. 62)

         The ALJ asked, “[w]hat if the individual on either hypothetical question had to take additional unscheduled breaks occurring approximately twice per work day? This would be in addition to regularly provided breaks. And they would last for approximately [thirty] minutes.” (Id.) The vocational expert stated that in his opinion such an individual would not be able “to perform any unskilled occupations on a competitive basis.” (Id.) Additionally, if the individual were absent on a weekly basis “[t]hat would eliminate all positions.” (Id.) Plaintiff's counsel asked the vocational expert if an individual limited to “occasional reaching” would be able to perform the earlier identified jobs. (Tr. 62-63) The vocational expert responded, “no… the reaching is required to [sic] frequent levels…” (Tr. 63)

         B. Medical Records

         In July 2012, Plaintiff's primary care physician, Dr. Beahan referred Plaintiff to Dr. Farmer at the Columbia Orthopedic Group for an evaluation of “low back pain radiating into the right leg for the past month.” (Tr. 294) Dr. Farmer examined Plaintiff and observed “very guarded range of motion with some right-sided spasms” in the lower back and “a significant amount of irritation to []his lumbar spine.” (Id.) Plaintiff was taking hydrocodone and Flexeril, and he recently finished a Medrol Dosepak but did “not see[] significant improvement.” (Id.) Dr. Farmer ordered an MRI, which revealed an annular tear at the L5-S1 disc with retrolisthesis, and referred Plaintiff to Dr. Parker for a surgical consultation. (Tr. 295)

         In August, Dr. Parker assessed Plaintiff with “severe degenerative disc disease at ¶ 5-S1 with severe right low back pain but also some right lower extremity radicular complaints.” (Tr. 296) Dr. Parker noted that while Plaintiff had a “hard time doing any prolonged standing or walking” his neurological exam was normal and he had a negative straight leg test in both legs. (Id.) Dr. Parker recorded that Plaintiff was “adamantly opposed” to surgery because he had already used five weeks of medical leave and “he cannot be off work any longer, especially since he just got custody of his seven year old daughter.” (Id.) Dr. Parker referred Plaintiff to Dr. Meyer for an epidural steroid injection.

         Dr. Meyer assessed Plaintiff one week later and administered a lumbar epidural steroid injection. (Tr. 334-38) He noted Plaintiff's gait was “somewhat limping” and recorded a positive straight leg test on the right and negative on the left. (Tr. 336) Dr. Meyer prescribed Vicodin but instructed Plaintiff to “keep the Vicodin usage to a minimum if at all possible.” (Tr. 334) When Plaintiff returned to Dr. Parker's office in late August 2012, he reported “having much less leg pain but still has some back pain.” (Tr. 297) Dr. Parker prescribed Tramadol. (Id.)

         Plaintiff received a repeated epidural steroid injection in September 2012. (Tr. 339) In December 2012, Plaintiff and Dr. Markovitz, another pain doctor in Dr. Meyer's office, discussed alternatives to surgery, and Dr. Markovitz prescribed “physical therapy with TENS unit, ” added Neurontin, and recommended Plaintiff wear a back brace while working. (Tr. 359)

         In December 2012, began physical therapy. (Tr. 276) At the time of his visit Plaintiff was working full time and “manage[d] to work with severe pain at his job in the warehouse of Dollar General Distribution.” (Id.) The physical instructed Plaintiff in the “independent performance of a home exercise program” and gave him a TENS unit for pain management. (Tr. 277) Plaintiff was “a little better” in January 2013, but returned the TENS unit because it was not effective. (Tr. 281)

         When Plaintiff saw Dr. Markovitz in January 2013, he “continue[d] to be in moderate pain, but stable” and reported that physical therapy “has not been helpful.” (Tr. 363) In March, Plaintiff informed Dr. Markovitz “overall…the pain is getting worse.” (Tr. 368) Dr. Markovitz reported:

[H]ad a frank discussion with [Plaintiff] that I commend him on taking actions on his behalf, but on the otherhand [sic] if his pain is not improving, it is not in his best interest to continue on long term Vicodin use. He asked what will I do? I stated he simply may have to decide on surgery… I loaned him the book Defeat Chronic Pain Now.

(Tr. 368-69) In April, Dr. Markovitz said he “admire[d] [Plaintiff]'s perseverance in the face of pain that feels debilitating to him” and encouraged Plaintiff to focus on his exercises. (Tr. 376) In May, Dr. Markovitz observed that Plaintiff “continues to have significant right lower extremity and back pain, and wrote that “epidural steroid injections and P.T., and medications have not offered profound relie[f].” (Tr. 380) Plaintiff informed Dr. Markovitz that he was seeking a second opinion from an orthopedic surgeon. (Id.)

         When Plaintiff returned to Dr. Meyer's office in July 2013, he continued to “complain of fairly significant right low back and right lower extremity pain with parethesias into the right lower leg.” (Tr. 390) Dr. Meyer administered a palliative right L5-S1 interlaminar epidural steroid injection and right-sided palliative sacroiliac joint injection, which provided “modest, but not significant relief.” (Id.) Dr. Meyer noted that Plaintiff had “reached a point where he is willing to accept the fact that he is going to need to undergo a lumbar interbody fusion.” (Id.)

         In September 2013, Dr. Parker reviewed another MRI and diagnosed Plaintiff with “severe degenerative disc disease at ¶ 5-S1 with severe right sided back pain but really no significant evidence of a radiculopathy.” (Tr. 300) Dr. Parker wished to schedule a lumbar fusion but noted that “unfortunately, ” Plaintiff wanted to wait until July 2014 “because of his child support and not wanting to lose his job.” (Id.) In October of 2013, Plaintiff informed Dr. Markovitz that he was scheduled for surgery with Dr. Parker in February 2014 and was attempting to secure more approved medical leave. (Tr. 404, 409) Dr. Markowitz urged Plaintiff to cease smoking before surgery.[3] (Id.)

         In June 2014, Plaintiff returned to Dr. Beahan's office with “severe” symptoms and requested a referral to pain management. (Tr. 459) A nurse practitioner's examination revealed: “moderate bilateral diffuse paraspinal tenderness to palpation” in the thoracic, lumbar, sacral region, mildly reduced lumbar spine-flexion extension, and paraspcinal muscle strength and tone within normal limits. (Tr. 460) The ...


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