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Hays v. Saul

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

September 30, 2019

MIKEL HAYS, Plaintiff,
v.
ANDREW M. SAUL, Commissioner Social Security Administration Defendant.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE.

         Plaintiff Mikel Hays brings this action pursuant to 42 U.S.C. §§ 405(g) seeking judicial review of the Commissioner's decision denying his application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. Because the Commissioner's final decision is supported by substantial evidence on the record as a whole, I will affirm the decision of the Commissioner.

         BACKGROUND [1]

         Plaintiff Mikel Hays asserts that he is disabled based on his lower back and leg pain, hypertension, anxiety, and his post-traumatic stress disorder (PTSD). His back injury originates from a fall on the ice. His PTSD originates from Hays' witnessing a friend shoot himself while they were in the military.

         On October 19, 2011, Hays saw Dr. Jerry Meyers at the Breakthrough Pain Relief Clinic. Hays reported that he had low back pain and a history of a herniated pulposus at ¶ 5-S1. The diagnosis was chronic back pain and herniated nucleus pulposus L5-S1 by history. Dr. Meyers proscribed Percocet and Valium.

         On December 28, 2011, Hays was seen by Dr. Meyers regarding his back pain. Hays had recurrent symptoms secondary to operating a Bobcat and lifting, Hays was doing concrete and roofing work.

         On December 26, 2013, Hays was seen by Dr. Meyers who indicated that Hays had recurrent back pain. Hays was able to flex to 60° extend 15° and rotate left and had positive lower extremity symptoms. Percocet and Flexeril were prescribed.

         From August through November 2014, Hays was an inmate in the St. Charles County Department of Corrections. He reported lower back pain radiating to hips and legs. Hays' had an initial psychiatric evaluation in the jail on September 12, 2014. Hays reported that he had been subjected to physical and emotional abuse and at age 2 had a broken jaw. He reported that did not do well in confined spaces, had nightmares about people raping him, and that another soldier had shot himself. His mood and affect were depressed and anxious but he was fully oriented to place, had fair insight, and good to fair judgment. Hays was diagnosed with anxiety disorder, depression, and PTSD and prescribed Buspar. While Hays was in jail he was approved for inmate work status. Hays' initial counseling intake form, dated September 9, 2014, notes that Hay's had been diagnosed with PTSD after seeing a friend kill himself in the 1980s. He was tearful and sobbing during the exam and was counseled regarding coping skills but Hays was scarcely interested in the counselor's attempts to discuss coping strategies. In October 2014, he was prescribed Paxil and Clonidine.

         On December 3, 2014, Hays went to St. Anthony's Medical Center's ER with complaints of back pain indicating he had run out of Percocet and Valium the prior day. He was diagnosed with chronic back pain and hypertension. He was prescribed hydrochlorothiazide (HCTZ) for his high blood pressure.

         On March 2, 2015, Hays presented himself to the emergency room at Mercy Hospital in St. Louis. He complained of chronic back pain and reported that he had stopped taking his pain medications the prior week. He reported that his lower back pain had become exacerbated on August 7, 2014 and had progressively gotten worse. He stated that he injured his L5-S1 vertebrae in 1997 when he had slipped and fell on the ice. He described his pain as a 10 on a scale of 10. An examination revealed lower back pain with no gait problems, no neck pain or neck stiffness. The exam was also negative for any neurological or psychiatric problems. Hays had a normal range of motion of the back with tenderness, no edema, tenderness to L3L4, amd straight leg raising being negative bilaterally. The diagnosis included degenerative disc disease, arthritis, stain or sprain.

         On July 7, 2015, Hays filled out a function report in support of his social security disability claim. In that report Hays claimed that he used a back brace only sometimes if he could not stop or lay down to ease lower back pain. He reported that generic valium gave him bad headaches. He stated that he could not stand to be around large crowds or loud noises. Hays indicated that he could not sit or stand for more than 15-30 minutes; no driving of a light vehicle or heavy equipment; and he does not sleep more than 1 to 2 hours per night. He reported that his days are spent sitting and walking but mostly laying around to try to ease the pain in his lower back. He could prepare small meals once or twice a day and does housework including doing dishes but his mother and girlfriend do his laundry. He does not do household repairs or mowing. He gets out of the house everyday and can drive or ride in a car but not for longer than 15-30 minutes. He can shop for himself for food, clothes, and personal hygiene items but makes a list so he can get what he needs and get out in 5 to 15 minutes. Hays reports he can talk with family and friends and reiterated he “can't stand” to be around crowds. He asserts that he cannot lift more than 5 pounds due to his back pain. He can only walk 50 to 100 feet before having to rest. He can only pay attention for 5-10 minutes, has a problem following anything, and does not get along with authority figures because of his PTSD. He indicated that his condition affects his ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, climb stairs, concentrate, complete tasks, his memory, his ability to follow instructions, the use of his hands, and getting along with others. Hays reported that he does not handle stress and is short tempered. His ability to handle a change in routine is “so-so.” He is able to pay bills, handle a savings account, count change, and use a checkbook.

         On August 14, 2015, state agency psychologist James Morgan Ph.D. reviewed the evidence in Hays' file in connection with his disability application. He concluded that Hays had a severe impairment of hypertension and non-severe affective and anxiety disorders. The affective and anxiety disorders did not result in any restrictions in the activities of daily living; created mild restrictions in maintaining social functioning; mild restrictions in maintaining concentration, persistence, and pace; with no repeated episodes of decomposition. Morgan found Hays' statements regarding his condition to be partially credible because they were partially supported by the totality of the findings in the file. He noted that Hays had a limited treatment history and did not currently receive any formal mental health attention. Given Hays' lack of treatment and his most recent mental status, Morgan concluded that Hays' mental impairment was non-severe.

         On October 26, 2015, Hays presented himself for the first time to the Pacific Primary Clinic. He reported to Dr. Heather Gjorgjievski, OD that he had lower back pain. Hays stated that the most discomfort was in his lower left and right lumbar spine with pain radiating to his legs. He said this condition was intermittent, moderate in intensity. He reported that this was a chronic problem with essentially constant pain which began more than 15 years ago when he fell on ice while he was at work. He stated that he saw a micronuerologist who advised against surgery. Hays told Dr. Gjorgjievski that he stopped seeing a pain management doctor 2 years ago but has seen different urgent care doctors. He also told Dr. Gjorgjievski that he had PTSD beginning 29 years ago that is of moderate intensity. He estimated that he experienced symptoms several times a day but that the duration of an episode was quite variable. Aggravating factors included crowds. An associated symptom was insomnia. He reported that his symptoms were relieved with medication. His hypertension was discovered a year ago by a jail doctor. He controls his hypertension with diuretic HCTZ and lisinopril. He takes his medication regularly and had no associated symptoms. He has smoked cigarettes for 30 years and is down to smoking one pack a day from three packs a day. An examination revealed normal results including blood pressure, cardiovascular functions, and psychiatric state. The diagnosis was low back pain, PTSD, hypertension, cigarette smoking. Hays was prescribed the antidepressant venlafaxine, clonidine for hypertension, a refill of the muscle relaxant cyclobenzaprine, oxycodone/acetaminophen for pain, a refill of the diuretic HCTZ, a refill of lisinopril for high blood pressure, and meloxicam a nonsteroidal anti-inflammatory medication.

         On November 23, 2015, Hays had a follow-up visit with Dr. Gjorgjievski and had his prescriptions refilled. On December 21, 2015, Hays was seen by Dr. Gjor for a follow-up visit. He reported being able to go out to lunch with his mom and dad even though he had to leave halfway through but saying that was an improvement due to his difficulty in dealing with crowds. His prescriptions were refilled. On January 19, 2016, Hays had a follow-up visit with Dr. Gjorgjievski for lower back pain and PTSD. His prescriptions were refilled. On February 17, 2016, Hays attended a follow-up visit with Dr. Gjorgjievski for hypertension, low back pain, and insomnia. His mood was stable and he was feeling good psychiatrically. His prescriptions were refilled. On March 11, 2016, Hays had a follow-up appointment with Dr. Gjorgjievski for his PTSD which was of moderate intensity. He was now going to the stores late at night which he had not been able to do before. He had insomnia and was having some bad dreams but he was not always on edge anymore. He complained of lower back pain. His prescriptions were refilled.

         Hays continued to have follow-up appointments with Dr. Gjorgjievski from April 15, 2016 through January 10, 2018. Each time Hays complained of back pain and sometimes pain in his legs. His anxiety symptoms were much the same as in past visits. In addition to his normal prescriptions being refilled he was prescribed Xanax and Lamictal in early 2017 which helped his anxiety and anger issues. On February 1, 2018, Dr. Gjorgjievski wrote a letter stating that Hays does not work secondary to chronic pain and PTSD with agoraphobia. She states that Hays is dependent on his mother for financial support, food, clothing, shelter, transportation, and all medical expenses for 2016.[2]

         Application for benefits

         On February 19, 2015, Hayes filed a Title II application for a period of disability and disability insurance benefits. He also protectively filed a Title XVI application for supplemental security income on the same date. He alleged that his disability began on September 1, 1995. On August 17, 2015, the agency denied Hays' claims. Hays requested a hearing before an Administrative Law Judge (ALJ) to challenge the denial of his claims. On April 18, 2017, Hays, accompanied by counsel, attended the hearing before the ALJ. On October 18, 2017, the ALJ issued her decision finding that Hays was not under a disability. On June 26, 2018, the Appeals Council denied Hays' request for review.

         At the hearing before the ALJ, Hays testified that he was 48 years old, a high school graduate, and lived with his mother. Hays had worked intermittently in the past as a general contractor and auto mechanic. He trained in the military as a chef.

         Hays testified that his medical conditions kept him from being able to work. He said he bursts out crying or in anger for no reason. Walking on concrete caused him severe pain in his lower back, hips, and knees. Sitting too long and standing too long hurt his back. Too long sitting would be 30 to 35 minutes. He would then need to walk around or lay down to ease his lower back pain. Standing too long would be 15 to 30 minutes. He would need to sit down or lay down. He asserts that he spends 40 percent of his day laying down.

         Hays testified that it causes him severe pain to walk more than 50 yards. When he mows the grass he has to get off the mower every 15 minutes to lay down and ease his back pain. When asked about his anger issues, Hays related a story where he hit a fellow inmate in jail in 2014 because the inmate kept saying that the inmate was in a minority. He testified that on a daily basis he can get angry to the point where he yells and screams and throws things. The sort of things that set him off are crowds and hearing people complain about anything. So it is hard for him to go to restaurants. When he goes with his family to a restaurant he has get up and go outside several times to relieve his mood and ultimately has to leave. He does not like strangers to sit behind him or to the right and left of him because the noise makes him feel trapped. He feels threatened around strangers but not around family. When he feels nervous he concentrates on what makes him ...


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