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Degrate v. Berryhill

United States District Court, N.D. Texas, Amarillo Division

March 8, 2017

LOUIS DEGRATE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION TO AFFIRM THE DECISION OF THE COMMISSIONER

          CLINTON E. AVERITTE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. THE RECORD

         Plaintiff 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).

         Upon 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).

         The medical record shows the following:

         Plaintiff 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.).

         Jeffrey 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 bilaterally. (Id.).

         X-rays 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. (Id.).

         On 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.).

         An MRI 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. (Tr. 269).

         Dr. 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).

         Plaintiff underwent a lumbar laminectomy L4-5 and discectomy L4-5, L5-6 performed by Dr. Errington in September 2009. (Tr. 291, 296).

         Plaintiff 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 ...


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