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Joseph S. v. Berryhill

United States District Court, S.D. Indiana, New Albany Division

September 14, 2018

JOSEPH S., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.

          JENNER, PATTISON, HENSLEY & WYNN, LLP SOCIAL SECURITY ADMINISTRATION Kathryn E. Olivier UNITED STATES ATTORNEY'S OFFICE

          ENTRY ON JUDICIAL REVIEW

          TANYA WALTON PRATT, JUDGE

         Plaintiff Joseph S. (the “Claimant”) requests judicial review of the final decision of the Deputy Commissioner for Operations of the Social Security Administration (the “Deputy Commissioner”), denying his application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”). For the following reasons, the Court AFFIRMS the decision of the Deputy Commissioner.

         I. BACKGROUND

         A. Procedural History

         On April 16, 2014, Claimant filed an application for DIB, alleging a disability onset date of July 5, 2013, due to bulging discs, arthritis in the back, back pain, and hearing loss. His application was initially denied on September 12, 2014, and again on reconsideration in October 2014. Claimant filed a written request for a hearing on October 23, 2014, and a hearing was held before Administrative Law Judge James J. Kent (the “ALJ”), on February 23, 2016. Claimant was present and represented by counsel. Norman Abeles, a vocational expert (the “VE”), also appeared and testified at the hearing. On March 23, 2016, the ALJ denied the application for DIB. Following this decision, on May 27, 2016, Claimant requested review by the Appeals Council. The Appeals Council denied the request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Deputy Commissioner for purposes of judicial review. On September 1, 2017, Claimant filed this action for judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         B. Factual Background

         Claimant was born in 1960 and was fifty-two years old at the time of his alleged disability onset date. He is a high school graduate. Prior to the alleged onset of his disability, he worked as a warehouse supervisor until 2011 and then as a shipping and receiving coordinator from January to July 2013, where he prepared and packed orders of medical supplies for shipping.

         In June 2013, Claimant began seeing Troy Smith (“Smith”), a chiropractor, to address his back pain. During the initial visit, Smith noted tenderness to palpation in the lower back and a slight limitation in flexation in the lumbar spine. An x-ray showed narrowed disc spaces but was otherwise unremarkable (Filing No. 13-8 at 3-4). During a follow-up visit two days later, Smith noted that Claimant suffered from “[p]ain and dysfunction due to subluxation complex, complicated by degenerative disc disease at L4 and L5 and pelvic unleveling of 7 mm on the left.” Id. at 6. Smith had Claimant perform several chiropractic adjustments and therapeutic exercises to increase his mobility and circulation and to decompress tissues. Id. Claimant reported a slight improvement in his lower back pain two days later. Id. at 7.

         Smith provided similar treatments on several occasions between June and August 2013. Claimant consistently reported that the treatments were helping reduce his lower back pain. Smith recorded throughout the treatment notes that Claimant's prognosis was good with continued treatment. Smith's treatment records reflected Claimant's reports of increased passive joint motion and decreased symptoms after starting treatment. Id. at 8-20. On July 15, 2013, which was ten days after the alleged disability onset date, Claimant told Smith that he felt good since his last visit a week earlier but noted that he had been on vacation and planned to return to work that day. Id. at 16. The following week, Claimant reported that he felt better since his prior visit and that he “had some mid back tightness at work but stretched it out.” Id. at 17. His last treatment with Smith was on August 27, 2013. Id. at 20.

         Nearly a year later, on July 16, 2014, Smith provided a medical statement on behalf of Claimant. Smith noted that Claimant's “condition improved while he continued to work. He felt better, but he was not ‘cured.'” (Filing No. 13-8 at 2.) Smith further noted that Claimant “had been dealing with chronic lower back pain for approximately 7 years prior to” beginning treatment with Smith, and an MRI showed Claimant had bulging discs. Id. Smith noted the different methods used to treat Claimant's pain and that Claimant had taken prescription pain medication at some point, but “he stopped taking these meds approximately 1 year prior to coming to our office and had only been using OTC pain medication such as Aleve and Tylenol, since.” Id. Smith opined that “any job involving long term sitting” of more than one hour at a time “would be difficult and result in recurring back pain.” Id. He also opined that “heavy or repetitive lifting would be difficult and painful.” Id.

         On October 9, 2013, Claimant saw his primary care physician, John Karl Grimm, D.O. (“Dr. Grimm”), for his annual physical examination and for complaints of chronic back pain. Claimant requested a prescription for pain medication. Dr. Grimm's physical examination revealed normal findings (Filing No. 13-8 at 21-24).

         On August 1, 2014, as part of the disability application process, consultative examiner Marc B. Willage, M.D. (“Dr. Willage”), evaluated Claimant, who reported that his main complaint was low back pain that radiated down his left leg. Claimant stated that this pain started eight years earlier and had gotten progressively worse. He explained to Dr. Willage that at his last job he frequently had to lift more than fifty pounds and was required to be on his feet for nine to eleven hours each day. He also reported that he had hearing loss in his left ear because of calcified bones. Dr. Willage observed that Claimant could not hear a whisper in his left ear from five feet away, and had no trouble getting on and off the examination table and into and out of a chair. Claimant had full strength in all of his extremities and full grip strength. Dr. Willage performed a range of physical examinations and the results were normal except for some tenderness in the spine. Dr. Willage opined that Claimant could stand or walk up to two hours per day; could bend, crawl, kneel, or climb for less than one hour per day; and could lift or carry up to twenty pounds occasionally and ten pounds frequently (Filing No. 13-8 at 28-33).

         On September 8, 2014, x-rays were taken of Claimant's spine and compared to prior imaging from 2008. The comparison found mild progression in “some mild anterior endplate spurring” and “mild degenerative disc narrowing” in Claimant's lumbar spine. Id. at 35.

         State agency reviewing physician, B. Whitley, M.D. (“Dr. Whitley”), offered an opinion on September 10, 2014, that Claimant was capable of lifting or carrying twenty pounds occasionally and ten pounds frequently, standing or walking for up to six hours per day, and sitting for up to six hours per day (Filing No. 13-3 at 6). Dr. Whitley opined that Claimant could frequently climb ramps or stairs, balance, stoop, kneel, crouch, or crawl, and occasionally climb ladders, ropes, or scaffolds. He reported that Claimant was limited in his hearing and needed to avoid concentrated exposure to noise, but he found no ...


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