United States District Court, N.D. Texas, Amarillo Division
REPORT AND RECOMMENDATION TO AFFIRM THE DECISION OF
CLINTON E. AVERITTE, UNITED STATES MAGISTRATE JUDGE
Louis Degrate brings this cause of action pursuant to 42
U.S.C. § 405(g), seeking review of a final decision of
defendant NANCY A. BERRYHILL, Acting Commissioner of Social
Security (Commissioner), denying plaintiffs application for
disability insurance benefits (DIB) and Social Security
Income benefits (SSI). For the reasons hereinafter expressed,
the undersigned United States Magistrate Judge recommends the
Commissioner's decision finding plaintiff not disabled
and not entitled to benefits be AFFIRMED.
filed an application for DIB and SSI on March 15, 2012,
alleging a disability onset date of September 22, 2010. (Tr.
11, 182-94, 211, 214). Plaintiffs claim was denied initially
and on rehearing. Plaintiff requested an administrative
hearing, which was held March 21, 2014. (Tr. 24-38, 99-106,
109-114). The ALJ issued an unfavorable decision on May 6,
2014, finding plaintiff not disabled. (Tr. 11-18). The ALJ
found plaintiff had the following severe impairments:
degenerative disc diseases of the lumbar spine, status post
back surgery, and degenerative joint disease of the knees.
(Tr. 13). He determined none of plaintiff s impairments met
or equaled the severity of a listed impairment. (Tr. 14). The
ALJ next evaluated plaintiffs RFC, reaching the conclusion he
was able to perform the "full range of light work as
defined in 20 CFR 404.1567(b) and 416.967(b). Plaintiff was
determined to be able to lift and/or carry 20 pounds
occasionally and 10 pounds frequently. In an 8-hour workday,
he can stand and/or walk at least 6 hours and sit at least 6
hours. Stooping, kneeling, crouching, and crawling are
occasional." (Id.). The ALJ found plaintiff was
unable to perform his past relevant work as a salvage yard
order puller, which the vocational expert testified is heavy
and semiskilled work. (Tr. 16). The ALJ found that
considering the claimant's age, education, work
experience, and residual functional capacity, there were jobs
that existed in significant numbers in the national economy
that the claimant can perform. (Tr. 16-17). Specifically, the
ALJ noted plaintiff could perform the requirements of
occupations such as a fast food worker. (Tr. 17).
the Appeals Council's denial of plaintiff s request for
review on July 17, 2015, the ALJ's determination that
plaintiff was not under a disability during the relevant time
period became the final decision of the Commissioner.
(Tr.1-3, 8-18). Plaintiff now seeks judicial review of the
denial of benefits pursuant to 42 U.S.C. § 405(g).
medical record shows the following:
was treated at the Wyatt Services Clinic from April 15, 2009
through May 7, 2012. (Tr. 259-352). He was primarily seen
with complaints of back or knee pain. (Id.).
S. Pickens, MD, saw plaintiff on April 22, 2009, when he
presented complaining of low back pain at a level of 8/10 for
the last four months. (Tr. 263). He stated the pain radiated
to his left hip and down his knee. (Id.). A
lumbosacral examination showed tenderness over the left
lumbosacral joint, forward flexion of 90 degrees,
hyperextension of 5 degrees, right lateral bend of 30
degrees, left lateral bend of 30 degrees, positive lying and
sitting straight leg raises on the left side only, abnormal
toe walking on the left side only, and normal heel walking
performed the same day showed no acute fracture or
subluxation within the lumbar spine. (Tr. 266). Multilevel
degenerative changes were noted which were most pronounced at
the L4 level, where large anterior osteophytes were observed.
April 28, 2009, plaintiff called Dr. Pickens office and
stated the Flexeril and Naprosyn were not helping the pain.
(Tr. 267). He was proscribed Tramadol. (Id.). An MRI
was scheduled. (Id.).
was performed on April 30, 2009, which showed (1) moderately
severe spinal stenosis at ¶ 4-5 due to diffuse disc
bulging and facet/ligamentum flavum hypertrophic changes, (2)
mild AP canal stenosis at ¶ 4-5 due to diffuse disc
bulging and bilateral facet and ligamentum flavum
hypertrophy, and (3) mild neural foraminal narrowing
bilaterally at ¶ 3-4 and L4-5, contacting, but not
displacing or flattening existing nerve roots at both levels.
Pickens reviewed the MRI and noted some spinal stenosis and
stated he might benefit from physical therapy and if not, he
would need to be evaluated by a surgeon. (Tr. 270). Plaintiff
underwent physical therapy but eventually was referred to a
neurosurgeon. (Tr. 273).
underwent a lumbar laminectomy L4-5 and discectomy L4-5, L5-6
performed by Dr. Errington in September 2009. (Tr. 291, 296).
was seen by Dr. Pickens on December 29, 2009. (Tr. 295-98).
He stated he was still not doing better. (Id.). He
could do some walking but no lifting and had radicular pain
in both legs, left more than right. (Id.). It ...