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Howard v. Colvin

United States District Court, S.D. Alabama, Northern Division

July 31, 2014

TOMMIE LEE HOWARD, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER

SONJA F. BIVINS, Magistrate Judge.

Plaintiff Tommie Lee Howard (hereinafter "Plaintiff") brings this action seeking judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. On April 15, 2014, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 13). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby ORDERED that the decision of the Commissioner be AFFIRMED.

I. Procedural History

Plaintiff protectively filed an application for a period of disability and disability insurance benefits income on September 8, 2009. (Doc. 15 at 1; Tr. 105-08). Plaintiff alleges that he has been disabled since June 19, 2009 due to a back injury, carpal tunnel syndrome, feet problems, arthritis in his knees, and high cholesterol. (Tr. 144). Plaintiff's applications were denied and upon timely request, he was granted an administrative hearing before Administrative Law Judge Jerome L. Mumford (hereinafter "ALJ") on May 9, 2011. The hearing was attended by Plaintiff, his attorney, and a vocational expert (hereinafter "VE"). ( Id., at 34). On June 20, 2011, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. ( Id., at 13-26). The Appeals Council denied Plaintiff's request for review on January 25, 2013. ( Id., at 1-3). Thus, the ALJ's decision dated June 20, 2011 became the final decision of the Commissioner. The parties waived oral argument (Docs. 14, 16), and agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

II. Issue on Appeal

Whether substantial evidence supports the ALJ's RFC assessment.

III. Factual Background

Plaintiff was born on November 25, 1955, and was 55 years of age at the time of his administrative hearing on September 16, 2010. (Tr. 49). Plaintiff testified at the hearing that he graduated from high school and worked for the city of Demopolis, Alabama for 26 years. According to Plaintiff, during the last 15 - 18 years with the city, he worked as a street sweeper. ( Id., at 33, 36). Plaintiff testified that he retired from the city in January 2009, and although he found another job, he quit the job in June 2009 because he hurt his back in April 2009. ( Id., at 50). Plaintiff testified that on a regular day, his lower back pain is an eight (8) out of ten (10) on the pain scale and it radiates down to his left leg in varying degrees of severity. ( Id., at 37-38). He also testified that he cannot perform any work, including a job that would allow him to sit or stand even without any lifting due to the pain in his back. ( Id., at 42-43).

On Plaintiff's function report, he reported that his daily activities include taking care of his personal needs and grooming, watching television, feeding his dogs, raising his chickens, and watching the news. ( Id., at 135, 139). He further reported that he has no limitations with regard to his personal care, that he prepares breakfast, sandwiches, and frozen dinners, that he washes dishes daily, and that he drives a car. ( Id., at 136-37). Plaintiff also reported that he is able to lift up to 45 - 50 pounds. ( Id., at 140).

In addition to the foregoing facts, the ALJ made the following relevant findings:

3. The claimant has the severe impairments of back pain and carpal tunnel syndrome (20 CFR 404.1520(c)).[1]
The claimant's prior treatment history reflects nerve conduction studies from 2008 that revealed findings indicative of mild right ulnar neuropathy across the elbow, compatible with but not indicative of right medial neuropathy at the wrist. The claimant subsequently underwent right endoscopic carpal tunnel release and right ring finger trigger release to address ongoing complaints of right hand pain and paresthesia. No surgical complications were indicated...
Medical records for DCH Medical Center beginning in May 2009 reflect the claimant was treated for low back pain subsequent to injuring his back while cutting/lifting firewood in April 2009. The treatment notes indicated the claimant's pain level was increasing and remained unabated with pain medications. An x-ray of the lumbar spine taken May 2, 2009 revealed straitening of the lumbar spine was present. There was no evidence of fracture of subluxation. Disc space and intervertebral body heights were normal. The claimant underwent an intrathecal injection/lumbar myelogram followed by a CT scan in July 2009. Findings from the CT revealed the claimant had a left-sided disc bulge or protrusion, which filled the left neural foramina resulting in the crowding of the nerve root as it exited the neural foramen. No spinal stenosis was identified. The remainder of the study demonstrated mild disc bulge in the lower lumbar spine without evidence of foraminal stenosis or spinal stenosis. X-rays of the lumbar spine also taken in July 2009 revealed no acute abnormality. The claimant's diagnosis included low back pain, left lower extremity radiculitis, L4-5, L5-S1 disc abnormality, and failure of conservative care...
Records from the SpineCare Center reflect the claimant was referred for evaluation, testing and consideration of injection therapy on May 5, 2009 in relation to complaints of low back pain subsequent to cutting/lifting firewood in April 2009. The claimant described his pain as aching, stinging, sharp, severe, and constant in nature. On a pain scale of 1 to 10, his pain level was rated as an 8/10 and at a 10/10 at its worst. The report noted the claimant experienced pain radiation into the lateral aspect of the left lower extremity. The objective findings of the report showed his lumbar examination was normal to inspection. Range of motion testing revealed he experienced increased pain with flexion at 45 degrees. There was palpation tenderness in the mid-lumbosacral region and left paraspinous muscles with increased tone. Examination of the bilateral upper and lower extremities revealed no atrophy or edema. His hand grasp was 5/5. Strait leg raise was negative but with increased pain to the low back at 90 degrees. Muscle strength was 4/5 in the left leg and 5/5 in the right leg. The diagnostic impressions of the claimant included low back pain; left extremity radiculitis; probable lumbar disc herniation; and failure of conservative treatment. The claimant under a L4-5 and L5-S1 transforaminal epidural injection with fluoroscopy on May 14, 2009 and a caudal epidural injection under fluoroscopy with intraoperative epidurogram on May 28, 2009 without complication. Treatment notes dated May 29, 2009 reflect the claimant presented with complaint of a constant dull aching pain in his left lower extremity radiating down to his left ankle as well as low back pain subsequent to lifting a heavy log firewood in April 2009. The treatment note indicates ...

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