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Payne v. Saul

United States District Court, W.D. Wisconsin

November 18, 2019

ANDREW M. SAUL, Commissioner of Social Security, Defendant.



         Pursuant to 42 U.S.C. § 405(g), plaintiff Andrew Thomas Payne seeks judicial review of a final determination that he was not disabled within the meaning of the Social Security Act. Payne contends that remand is warranted because the administrative law judge (“ALJ”) erred in assessing his credibility. The court held a telephonic hearing on plaintiff's appeal on November 15, 2019. Because the the ALJ built a logical bridge between the evidence and her discounting of Payne's testimony of his limitations, the court will affirm the denial of benefits.


         A. Overview of Claim

         Plaintiff Andrew Payne applied for social security disability benefits and supplemental social security income on March 30, 2015, originally claiming an alleged onset date of March 23, 2015. However, on March 2, 2017, almost two years later, Payne amended his claimed onset date to April 29, 2013, more than two years earlier. (AR 267.) Regardless, with a birth date of July 16, 1977, Payne was “a younger individual” on both his original and amended onset dates. Payne has past relevant work as tow truck driver, construction worker and auto technician. He claimed disability based on degenerative disk disease. (AR 225.)

         B. ALJ's Decision

         ALJ Diane S. Davis held a video hearing on April 12, 2017, at which Payne appeared personally and by counsel. As of the alleged onset date, the ALJ found that Payne suffered from the following severe impairment: “degenerative disc disease status post cervical fusion.” (AR 18.)[2] Even with his severe impairment, the ALJ determined that Payne has the residual functional capacity (“RFC”) to perform “light work” with the following, additional restrictions: “he can never climb ladders, ropes, and scaffolds; can never perform commercial driving; and he can only occasionally perform overhead work.” (AR 19.)

         In crafting the RFC, the ALJ acknowledged Payne's testimony that he “could only drive for up to 15 minutes at a time”; “spent most of a typical day sitting in a reclining chair”; “frequently lost circulation in his arms and they became weak when he extended above his waist or above his head”; was “unable to tilt his head up or down”; and claimed that “he had headaches ‘pretty well constant.'” (AR 19.) However, the ALJ discounted this testimony, finding them inconsistent with the medical evidence and other record evidence. As for the former, the ALJ relied on medical evidence from 2013, in which Payne's physical examination showed “no acute distress, with normal neck range of motion, normal strength and sensation in the extremities and normal posture.” (AR 20.) The ALJ also noted that his April 15, 2013, x-ray only showed “‘mild' disc space narrowing at ¶ 5-C6, ” although the ALJ subsequently noted the MRI study that same month showing “multilevel degenerative disc disease.” (AR 20.) The ALJ also pointed to Payne's epidural steroid injections, the first of which offered improvement. In addition, the ALJ cited numerous references in the medical records of Payne continuing to work, albeit on a much reduced schedule, well after his alleged amended onset date and even into late 2014. Next, the ALJ pointed out the gap in medical treatment between October 2013 and February 2015. She also pointed to the March 2015 MRI, which showed “no significant change from previous studies.” (AR 21.)

         Post-surgery, the ALJ further relied on medical notes describing the surgery as successful, as well as the fact that Payne's surgeon released him from care in June 2015 and that Payne sought no further treatment until May 2016. At that time, Payne reported that he had “done well since surgery, ” but recently experienced neck pain again. Even then, Payne's next scheduled appointment was not until April 5, 2017, when he reported neck pain and headaches.

         As for other evidence, the ALJ relied on Payne's testimony to being “able to care for his autistic son, and . . . able to travel with his family, including [his] non-verbal, autistic son, over a two-week time period to the Philippines in 2016.” (AR 21-22.) The ALJ also placed little weight on the opinions of the state agency medical consultants, since both doctors reviewed Payne's medical record in mid-2015, following his surgery, and found that Payne was not disabled because his symptoms should resolve within 12 months. (AR 70 (Dr. Khorshidi's May 4, 2015, report); AR 87-88 (Dr. Foster's June 25, 2015, report).)

         Ultimately, the ALJ concluded on the record before her that Payne could not perform any past relevant work, finding those jobs were at least medium exertion level jobs. Relying on the expert testimony of the vocation expert, however, the ALJ determined that Payne could perform light, unskilled work that could accommodate his additional, exertional restrictions, including mailroom clerk, cashier and counter clerk jobs.

         C. Medical Record

         For ease of discussion, the court divides Payne's relevant medical records into three phases: (1) initial complaints of pain and numbness in 2013; (2) follow-up appointments and surgery in 2015; and (3) subsequent complaints of pain and headaches in 2016 and 2017.

         1. 2013

         On March 15, 2013, Payne saw Erin L. Maslowski, M.D., with the Neuroscience La Crosse clinic, for a consultative examination at the request of Payne's treating physician Patricia Swasko. At that point, Payne complained of pain and tingling in his shoulders and arms for approximately the past two months. After reviewing his record, including references to thoracic outlet surgery in 2004 and 2005, Maslowski conducted a physical exam and recommended physical therapy. She also suggested Payne recheck with a PA-C in her office in 4 weeks. (AR 323-24.)

         On April 15, 2013, Payne did just that, seeing Corinne L. Weiss, PA-C for shoulder and arm pain. He agreed to start taking gabapentin and restart physical therapy. Weiss also ordered an x-ray and MRI. The x-ray of Payne's cervical spine taken that day revealed “abnormal kyphosis” and “mild disk space narrowing at ¶ 5-C6.” (AR 315; AR 347 (X-ray results).) An MRI dated April 29, 2013, showed “multilevel degenerative disk changes resulting in some degree of canal and foraminal stenosis at multiple levels, ” and “broad-based disk osteophyte complex ...

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