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Terry v. Berryhill

United States District Court, W.D. Tennessee, Western Division

August 2, 2019

ROBERY A. TERRY, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          ORDER AFFIRMING DECISION OF THE COMMISSIONER

          THOMAS L. PARKER, UNITED STATES DISTRICT JUDGE.

         Plaintiff appeals Defendant's denial of his claim for a period of disability and disability insurance benefits. (ECF No. 9-3 at PageID 53.) The Court affirms the Commissioner's decision for the reasons below.

         BACKGROUND

         I. Procedural History

         Plaintiff applied for a period of disability and disability insurance benefits in 2014 under Title II, sections 216(i) and 223(d), respectively, of the Social Security Act (ECF No. 9-3 at PageID 53; Transcript. 17), [1] alleging disability because of a herniated disk in his back; multi-joint, neck, and back pain; nerve damage; arthritis; bilateral pulmonary emboli; and leg weakness. (ECF No. 9-7 at PageID 219; Tr. 179.) The relevant time for Plaintiff's Title II claim is from the alleged onset date of May 15, 2014, until December 31, 2014, the date when his insured status expired. (ECF No. 9-3 at PageID 53; Tr. 17.) The Administrative Law Judge (“ALJ”) applied a five-step sequential evaluation process to determine whether Plaintiff is disabled under 20 C.F.R. § 404.1520(a). (ECF 9-3 at PageID 53-54; Tr. 18-19.)

         Applying that process, the ALJ determined that Plaintiff suffered from lumbar and cervical degenerative disk disease. (ECF 9-3 at PageID 54; Tr. 19.) These conditions are severe impairments under 20 C.F.R. § 404.1520(c). Even so, the ALJ found that he did not have an impairment or combination of impairments listed in or medically equal to one in 20 C.F.R. part 404, subpart P, appendix 1 (“appendix 1”). (ECF No. 9-3 at PageID 57; Tr. 22.) The ALJ also found that Plaintiff had the residual functional capacity (“RFC”) to perform light work under 20 C.F.R. § 404.1567 and; therefore, denied his application. (ECF No. 9-3 at PageID 58, 63; Tr. 23, 28.) The Appeals Council denied Plaintiff's request for review (ECF No. 9-3 at PageID 37-41; Tr. 1-5.)

         Plaintiff now appeals to this Court arguing that the ALJ made a procedural error in processing the application. (ECF No. 11 at PageID at 602.) Plaintiff alleges the ALJ did not have a legitimate basis to deny disability benefits, erred in applying the law, and that the ALJ's decision is unsupported by substantial evidence. (Id.)

         II. Relevant Medical Evidence

         A. Back Pain-Medication and Treatment History

          Plaintiff took a variety of pain medications to address his alleged back pain over the years. Plaintiff alleges he suffered from severe back pain along with radicular pain in his left leg and arm that he describes as “spiking.” (ECF No. 9-3 at PageID 84-85; Tr. 48-49.) His physician, internal medicine specialist Dr. N. Shekoni, treated him from 2012 until May 2014. (ECF No. 9-8 at PageID 382, 421; Tr. 341, 380.) Dr. Shekoni took a conservative approach to the pain management, having Plaintiff return to the clinic every few months and prescribing several pain medications. (ECF No. 9-3 at PageID 57; ECF No. 9-9 at PageID 362-98, 433-38 551-52; Tr. 22, 324-60, 392-97, 509-10.) That said, Plaintiff reported being in higher levels of pain at times, but Dr. Shekoni told him to continue his existing medications-even when in “extreme distress”-rather than providing Plaintiff new prescriptions, increasing dosages, ordering additional treatment, or requiring Plaintiff to return to the clinic more often. (ECF No. 9-8 at PageID 337-61; Tr. 296-320.) There is nothing the record to suggest this treatment was insufficient. In fact, pharmacy records show that Plaintiff failed to fill his prescription for one of the medications on its scheduled dates. (ECF No. 9-9 at PageID 551-52.; Tr. 509-510.) He also reported medication usage inconsistent with his refill history to his consulting physician, family medicine specialist Dr. Randall Wisdom, when telling how he addressed pain which radiated to his left foot, perineal region, and both arms (ECF No. 9-8 at PageID 461; Tr. 420.)

         B. Mental Impairments

         In 2015, clinical psychologist Dr. Yvonne Osborne evaluated Plaintiff's mental condition. (ECF No. 9-8 at PageID 475; Tr. 434.) She noted that Plaintiff had mild impairments in socially interacting and concentrating; persisting or maintaining pace; and a moderate impairment in adapting to changes in a work setting. (ECF No. 9-3 at PageID 55-57, 474-77; Tr. 20-22, 434-37.) Yet Plaintiff's admission in his function report during the relevant period describing himself as “mutable” and that he handled stress “fairly well” contradicts Dr. Osborne's later finding of moderate impairment. (ECF No. 9-7 at PageID 237; Tr. 197.) The consulting medical examiner Dr. Janise Hinson largely concurred with Dr. Osborne's findings, except that she found Plaintiff had only a mild impairment in adapting to changes. (ECF No. 9-4 at PageID 129-130; Tr. 91-92.)

         C. Physical Impairments

         Plaintiff's lumbar issues began in 2009 when he underwent an L4-L5 discectomy. (ECF No. 9-8 at PageID306; Tr. 265.) Later, additional imaging taken when Plaintiff was in a car accident revealed minimal C5-6 intervertebral disc space narrowing and mild L4-5 degenerative disk disease. (Id.) An MRI of the lumbar spine revealed a minor, stable perineural scar at the L4-5 vertebrae and a slight progression of his degenerative disk disease. (ECF No. 9-8 at PageID 302-07; Tr. 261-66.) That said, the central canal and right foramen were normal, and the upper lumbar segments had no disk abnormality. (Id.) An MRI of the of the cervical spine showed mild C5-6 spondylosis with no significant canal stenosis, no significant compromise of the right neural foramen, and that the left neural foramen was widely patent. (Id.)

         During the period at issue in 2014, Plaintiff participated in a consultative examination with Dr. Wisdom. (ECF No. 9-8 at PageID 460; Tr. 419.) Among other findings, Dr. Wisdom noted Plaintiff had a normal range of motion in both the upper and lower extremities, had good muscle strength and 5/5 grip strength, and could reach overhead in all directions. (ECF No. 9-8 at PageID 460-70; Tr. 419-29.)

         But Plaintiff alleges his pain did not improve. So he sought emergency treatment in 2014 due to back pain. (ECF No. 9-9 at PageID 563; Tr. 521.) Medical imaging performed at the time revealed degenerative changes in the lumbar spine without acute findings. (Id.) That same month, a cervical x-ray revealed early degenerative disk disease with normal curvature and no acute findings. (ECF No. 9-8 at PageID 458; Tr. 417.) And a lumbar x-ray showed moderate degenerative disk disease with minimal scoliotic curve in the lumber spine. (ECF No. 9-8 at PageID 459; Tr. 418.) The ALJ found that since these images showed no compromise of a nerve root or spinal cord, the treatment records did not support Plaintiff's allegations of pain and the limitations that comes with them. (ECF No. 9-3 at PageID 62; Tr. 26.)

         Plaintiff also argues that he had a shoulder injury in 2015. But the ALJ properly chose not to consider Plaintiff's alleged shoulder injury since the relevant period ended on December 31, 2014. (ECF No. 9-3 at PageID 56; ECF No. 9-9 at PageID 556; Tr. 20, 514.)

         STANDARD ...


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