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Geary v. Colvin

United States District Court, D. Kansas

September 30, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


J. THOMAS MARTEN, Chief District Judge.

Plaintiff Douglas Geary seeks review of a final decision by defendant, the Commissioner of Social Security ("Commissioner"), denying plaintiff's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"). Plaintiff alleges that the Commissioner's determination of impairment and residual functioning capacity ("RFC") was not supported by substantial evidence. Upon review, the court finds that the Commissioner's decision is supported by substantial evidence contained in the record. Accordingly, the Commissioner's final decision on the matter is affirmed.

I. Background

A. Medical History

Plaintiff's medical issues seem to date back to a work-related back injury in early 2000. Dkt. 14, at 2. He had back surgery to alleviate the problem in July of 2000. Dkt. 14, at 2. After the surgery, plaintiff presented on several occasions to his primary physician, Dr. Richard L. Hull, D.O., complaining of back pain. Dkt. 9-9, at 2-42. Dr. Hull noted on July 3, 2003, that plaintiff had "incapacitating back pain" and was "incapacitated for any job presently." Dkt. 9-9, at 18. On July 22, 2003, Dr. Hull noted "good pain control" and dramatically improved functional capacity. Dkt. 9-9, at 19. Plaintiff returned to work in 2003, working as many as three part-time jobs at once between 2003 and 2009. Dkts. 9-3, at 37; 14, at 3. Dr. Hull again noted improvement in plaintiff's back pain on February 3, 2004. Dkt. 9-9, at 36. Plaintiff continued seeing Dr. Hull for primary medical care until February 17, 2006. Dkt. 9-8, at 5.

Plaintiff was terminated from his last job in August 2008 for poor attendance. Dkt. 9-3, at 37. Plaintiff attributes his poor attendance to back and leg pain. Dkt. 9-3, at 37. However, an agent of the employer reported that plaintiff was fired because he was unreliable. Dkt. 9-7, at 82. The employer's agent specifically noted that plaintiff "always had somewhere else he had to be" and "needed supervision or would fiddle the day away." Dkt. 9-7, at 82-83. The employer's agent also noted that plaintiff frequently arrived late, left early, and did not follow through with job duties even after being shown what to do. Dkt. 9-7, at 81-83.

Plaintiff did not resume medical treatment until February 23, 2011, when he was treated by Timothy Spears, D.O. Dkt. 9-10, at 2. Dr. Spears opined that "it would be hard for [plaintiff] to work." Dkt. 9-10, at 2. On March 5, 2011, a consulting medical examination was performed for Disability Determination Services ("DDS") by Shawn Morrow, D.O. Dkt. 9-8, at 16-19. Dr. Morrow reported limited range of motion with paravertebral spasms and "moderate to severe difficulty with orthopedic maneuvers." Dkt. 9-8, at 18. A consultative RFC assessment was performed by Dr. Nisha Singh, M.D., on April 8, 2011, which opined occasional postural limitations but no limitations when reaching in all directions, handling, fingering, or feeling. Dkt. 9-8, at 22. On April 9, 2011, Kevin S. Hughes, D.O., read an MRI of plaintiff's lumbar spine and noted "[l]umbar degenerative disc disease worse at L4-L5 and L5-S1 with small bulging disk at L5-S1." Dkt. 9-8, at 33.

On June 8, 2011, plaintiff was examined by neurosurgeon Phillip Hylton, M.D., at the University of Kansas Comprehensive Spine Center. Dkt. 9-8, at 38-41. Dr. Hylton noted that plaintiff complained of whole spine pain from his neck to his feet, involving both legs and both arms from shoulder to elbow. Dkt. 9-8, at 38. MRI testing showed what Dr. Hylton classified as "mild-to-moderate degenerative changes at L4-L5 with no neurologic compression, " and "moderate stenosis and postsurgical changes at L5-S1 to the left, otherwise negative exam." Dkt. 9-8, at 38. Dr. Hylton concluded that plaintiff had no musculoskeletal abnormalities that required surgery, but that he had "impressive comprehensive myofascial pain syndrome, which is rather diffuse." Dkt. 9-8, at 39.

In a DDS consultative report on July 26, 2011, C.A. Parsons, M.D., concluded that "there is not sufficient [medical records] to assess the [plaintiff's] functioning prior to DLI." Dkt. 9-8, at 43. Plaintiff was subsequently treated by Kevin Latinis, M.D., on September 26, 2011. Dkt. 9-9, at 48-49. Dr. Latinis diagnosed plaintiff with osteoarthritis, low back pain, and fibromyalgia syndrome. Dkt. 9-9, at 49. However, Dr. Latinis noted that plaintiff had no overt inflammatory arthritis in any of his extremities. Dkt. 9-9, at 48. Dr. Latinis also recorded that plaintiff arrived wearing a back corset, left wrist brace, and bilateral knee braces. Dkt. 9-9, at 48. On October 18, 2011, plaintiff returned to Dr. Spears, who prescribed a quad cane for instability and weakness. Dkt. 9-10, at 10. In response to interrogatories dated April 3, 2012, Dr. Spears testified that plaintiff had been disabled since at least February 2010. Dkt. 9-10, at 40.

Plaintiff claims he is only able to walk one hundred feet, that he needs assistance doing errands and housework, and that his daily activities are limited to "waking up depending on the day." Dkt. 9-7, at 14-15. Plaintiff claims he experiences pain daily from the time he gets up until the time he lays back down. Dkt. 9-7, at 13. Plaintiff's wife, Gina Veerkamp-Geary, submitted a Third Party Function Report on June 4, 2011. Dkt. 9-7, at 72. Veerkamp-Geary similarly indicated that plaintiff has very limited daily function because of pain; notably, that she has to help him put on socks, get onto his feet, and bathe. Dkt. 9-7, at 73.

B. Procedural History

On October 5, 2010, plaintiff filed application for DIB with disability allegedly beginning April 1, 2010. Dkt. 9-3 at 10. Plaintiff's claim was denied on May 10, 2011, and again upon reconsideration on July 27, 2011. Dkt. 9-3, at 10. Plaintiff timely filed a request for an administrative hearing, which took place on May 23, 2012, before an Administrative Law Judge ("ALJ"). Plaintiff, represented by counsel, appeared and testified. Dkt. 9-3, at 29-65. The ALJ determined that plaintiff: was last insured on September 30, 2010; did not engage in substantial gainful activity between April 1, 2010, and September 30, 2010; suffered the severe impairments of myofascial pain syndrome/fibromyalgia and disorders of the back; and did not have an impairment or combination of impairments equal to a listed impairment. The ALJ then proceeded with an RFC determination and concluded that, during the time in question, plaintiff had:

the residual functional capacity to perform sedentary work... involving lifting and/or carrying 10 pounds occasionally and less than 10 pounds frequently; walking and/or standing two hours out of an eight-hour workday; and sitting for six hours out of an eight-hour workday. He can occasionally climb stairs; but never climb ropes, scaffolds or ladders. The claimant can occasionally balance, stoop, crouch, kneel and crawl. He must avoid prolonged exposure to vibrating machinery. He must avoid unprotected heights and moving machinery. Secondary to reported chronic pain and potential side effects of medications, he is limited to jobs that do not demand attention to details or complicated job tasks or instructions.

Dkt. 9-3 at 14. The ALJ's narrative noted that his RFC determination was based on an evaluation of all of plaintiff's symptoms, the objective medical evidence, and all other evidence in the record. Dkt. 9-3, at 14. The ALJ's ruling stands as the Commissioner's final decision ...

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