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Suarez v. Berryhill

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

March 8, 2017

ALEX SUAREZ, 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 Alex Suarez 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). 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 filled an application for Disability Insurance Benefits on March 8, 2012, alleging a disability onset date of December 1, 2011. (Tr. 120). Plaintiffs claim was denied initially and on rehearing, and plaintiff requested a hearing. (Tr. 55-58, 63-67). A hearing was held on March 21, 2014, before Administrative Law Judge Lantz McClain. (Tr. 26-45). The ALJ issued an unfavorable decision on April 25, 2014, finding plaintiff not disabled. (Tr. 10-21). The ALJ found plaintiff had the following severe impairments: mild degenerative disc disease of the cervical spine; mild peripheral neuropathy; status post, left shoulder surgery; history of knee pain. (Tr. 12). He determined none of plaintiffs impairments met or equaled the severity of a listed impairment. (Tr. 13). The ALJ next evaluated plaintiffs RFC, reaching the conclusion he was able to perform "light work as defined by 20 CFR 404.1567(b) with the following limitations. The claimant is able to occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, stand and/or walk at least six hours in an eight-hour workday, and sit at least six hours in an eight-hour workday. The claimant is only occasionally able to climb such things as ramps or stairs, kneel, crouch, or crawl. He is frequently able to balance or stoop, and he needs to avoid work above shoulder level." (Id.). The ALJ found he was able to perform his past relevant work as a mail clerk, DOT Code 209.687-026, unskilled work (SVP of 2) at the light level of exertion. (Tr. 20).

         Upon the Appeals Council's denial of plaintiff s request for review on July 20, 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). Plaintiff now seeks judicial review of the denial of benefits pursuant to 42 U.S.C. § 405(g).

         The medical record shows the following:

         High Plains Clinic treated plaintiff from January 14, 2010 to March 8, 2010. (Tr. 198-204). Plaintiff saw providers John C. Turner, MD and Robert A. Murphy, PA-C. Robert Murphy prescribed plaintiff with pain medications. Plaintiff presented with complaints of back pain, neck pain, chest wall pain, shoulder pain, and increased cholesterol.

         Marc Henson, MD, at Panhandle Family Medicine Specialists, treated plaintiff from March 25, 2010to August 23, 2011. (Tr. 188-96). He was treated primarily for back and neck pain, left shoulder pain, and right knee pain. (Id.). He was also diagnosed with cervical degenerative disc disease and peripheral neuropathy. (Id.). At some point, Dr. Henson referred plaintiff to Victor Taylor, MD, who saw plaintiff and continued prescribing plaintiffs pain medications.

         Dr. Taylor diagnosed him with peripheral neuropathy, in addition to cervical spondylosis with arthritis and some diffuse degenerative changes in the cervical spine. (Id.). Plaintiff had a diffuse sensory deficit to light touch in lower extremities but a normal circulatory response for capillary refill and good dorsalis pedis and posterior tibial pulses. (Id.). Plaintiff had 2 symmetric reflexes in both lower and upper extremities and 5/5 muscle strength. (Id.). Dr. Taylor's plan was to schedule a bilateral lumbar sympathetic block and if approved by his insurance, do an RF nuerotomy of those areas. (Id.). If not, a spinal cord stimulator would be considered. (Id.).

         Much of plaintiffs primary care occurred through the Veterans Affairs (VA) clinic. On October 18, 2011, x-rays of the cervical spine were performed that indicated moderate disc space narrowing with moderate marginal spurring anteriorly. (Tr. 211). The impression was degenerative changes without fracture, spondylolisthesis, or evidence of spondylolysis. (Id.). Bilateral shoulder x-rays were performed that showed only a calcific density but no other abnormalities, including no fracture, dislocation, or subluxation. (Tr. 212). A lumbar-sacral spine x-ray was also performed that showed only minor abnormalities: There were mild degenerative end plate changes at the upper lumbar spine as well as at the L5 inferior end plate with associated mild to moderate intervertebral disc space narrowing. (Tr. 210). The impression was mild degenerative changes without fracture, spondylolisthesis, or evidence of spondylolysis.

         Plaintiff had several x-rays of his knees performed at the VA clinic. On July 7, 2011, bilateral knee x-rays showed no abnormalities, and on March 16, 2013, a left-knee x-ray also showed no abnormality. (Tr. 215, 233). On July 13, 2013, weight-bearing bilateral knee x-rays were performed that showed mild right knee osteoarthritis involving predominantly the patellofemoral joint and an unremarkable left knee. (Tr. 662-63).

         An EMG was performed on February 15, 2012, as a result of plaintiff complaining of painful, burning feet for the last eight years. (Tr. 234). A normal study resulted, with a "clinical picture consistent with small fiber peripheral neuropathy." (Id.).

         On March 20, 2012, the VA occupational therapy records show plaintiff presented with complaints of left shoulder pain after having worked in his yard. (Tr. 235-36). Examination demonstrated a full functional range of motion and good strength of bilateral shoulders, though plaintiff stated he felt pain in certain positions. (Id.). It was noted that patient was independent with activities of daily living. (Id.). He was educated about a home program of stretches, strengthening exercises, and pain management. (Id.).

         On April 9, 2012, plaintiff saw Rush A. Snyder, Jr., MD, a neurologist at the VA, who performed a neurological examination that was intact except for some diminished sensation. (Tr. 443). He diagnosed plaintiff with small fiber peripheral ...


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