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Hensley v. Colvin

United States Court of Appeals, Eighth Circuit

July 18, 2016

Marcus J. Hensley Plaintiff-Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Defendant-Appellee

          Submitted: January 14, 2016

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before LOKEN, GRUENDER, and KELLY, Circuit Judges.

          LOKEN, Circuit Judge.

         Marcus Hensley suffered a serious knee injury while deployed by the United States Army in Iraq combat in 2005. In September 2007, he underwent right knee surgery, and the Department of Veterans Affairs ("VA") awarded him benefits for service-connected disability. He then applied for Social Security disability insurance benefits, claiming as severe impairments: posttraumatic stress disorder ("PTSD"), back pain, right knee pain, and facial twitching. The Commissioner denied the application, ruling that Hensley was not disabled as of May 19, 2011. Hensley sought judicial review; the denial was affirmed. Hensley v. Colvin, No. 4:12CV00352, Mem. & Order (E.D. Ark. Aug. 23, 2013).

         Hensley filed this second application for disability insurance benefits in August 2012, while his appeal from the first denial was pending. He alleged the same severe impairments and a disability onset date of May 20, 2011. His earnings record limited him to insurance coverage through September 30, 2011. See 20 C.F.R. § 404.131. After an August 2013 hearing at which Hensley and a vocational expert ("VE") testified, the ALJ denied the application, concluding that Hensley's impairments were severe but he retained the residual functional capacity ("RFC") to perform certain sedentary work during the relevant period, May 20 to September 30, 2011. The Appeals Council denied further review, the district court[1] upheld the denial of benefits, and Hensley appealed. It was established in the prior proceeding that Hensley was not disabled prior to the alleged May 20 onset date. Thus, the question is whether he met his burden to show that he became disabled during the four-month period at issue. Concluding that substantial evidence on the administrative record as a whole supports the ALJ's contrary determination, we affirm. See Welsh v. Colvin, 765 F.3d 926, 927 (8th Cir. 2014) (standard of review).

         I. Background

         A. The Medical Evidence Relating to Physical Impairments.

         In May 2011, Hensley saw his primary-care VA physician, Richard McKelvey, complaining of worsening low back pain and pain in his left knee, reporting that his surgically repaired right knee had improved. Dr. McKelvey observed that Hensley appeared well, was in "no acute distress, " and had a "normal" knee exam and gait. Dr. McKelvey ordered x-rays of the lumbar spine and left knee, and an MRI of the lumbar spine. The spine x-ray showed "very mild spurring in the lower thoracic region" but was "otherwise unremarkable." The left knee x-ray was "normal." X-rays of Hensley's right knee, taken in 2010, showed "small suprapateller joint fluid collection, " but were otherwise "normal" and "unremarkable."

         On July 13, 2011, Jose Escarda, M.D., reviewed the MRI of Hensley's lumber spine. Dr. Escarda determined Hensley had "elements of strain from a pelvic malignment" and recommended a home exercise program with physical therapy ("PT"). He also noted that Hensley's knee assessment was "normal, " he had "full knee range, good lower limb and spinal flexibility, " and he was no longer using a cane. Hensley received PT in July and August of 2011 and reported his pain fell from seven or eight on a ten-point scale to four. He also used a "TENS" unit and heat pack to manage his pain. At his final PT session, Hensley said his pain that morning was "minimal" and he had no pain at times; the physical therapist concluded Hensley was "in alignment." In September 2011, Dr. McKelvey noted Hensley was "doing very well, " had "full flexion" in his lower back, and his back pain was "stable" due to the home exercises and PT. Dr. McKelvey also reported that Hensley's facial tics were "very well controlled" with medication.

         At a May 2012 disability exam, Dr. McKelvey noted that Hensley was "well appearing, " in "no acute distress, " "with no restriction in mobility, " and "[f]ully alert and oriented." Dr. McKelvey summarized his exam findings in a "To Whom It May Concern" letter. The letter reported that Hensley's back pain had "been stable for the past year" though severe at times; he was no longer using a cane; and he had "full forward flexion, " normal strength, and a normal gait. Dr. McKelvey reported that Hensley's right knee pain was "stable" and the knee was less painful on palpation, had a full range of motion, flexion, and extension, and could bear weight without a brace or crutch. Treatment of Hensley's facial tics was continuing, thus far with "limited results." His symptoms of PTSD and depression were being treated with two medications and were "stable, " though he complained of nightmares.

         B. The Medical Evidence Relating to Mental Impairments.

         The VA first diagnosed and treated Hensley for PTSD and depression between 2007 and 2009. In July 2011, he returned to the VA's mental health clinic for the first time since April 2009 and saw Sandra Ellis, M.D., complaining of "intrusive thoughts, nightmares, hypervigilance and depression." Dr. Ellis confirmed the prior diagnosis of PTSD and major depressive disorder. She assessed a Global Assessment of Functioning ("GAF") score of 51, increased the dosage of an antidepressant, and referred Hensley to outpatient PTSD group therapy. Hensley agreed with the referral and attended the first therapy orientation session, where he "was attentive and asked questions." When he missed the last three sessions, the clinic notified him on September 20 that he was being discontinued from the program.

         Hensley returned to the VA Mental Health Management unit in late August 2012, meeting with Advanced Practice Nurse Penelope Pollock. Hensley reported that he was sleeping five hours per night with fewer nightmares, was willing to decrease the dosage of his antidepressant, and was "interested in enrolling in treatment programming." Nurse Pollock again scheduled him in the outpatient PTSD therapy program. He cancelled the initial session, failed to show for the next session, and was discontinued from the program for lack of attendance on October 2, 2012.

         C. The Hearing Testimony.

         At the administrative hearings, Hensley testified that depression and PTSD were the primary reasons he felt disabled. He explained that those conditions made it difficult to "adapt to certain environments, " though he had no problem functioning with supervisors or coworkers. He testified that antidepressant medication provided stability, and he felt better and "more stable" after the increased dosage in July 2011. He outlined his typical activities, which included driving his children around town, helping with homework, running quick errands, attending church twice a month, and assisting with family finances and chores such as mowing the lawn. The ALJ asked:

         Q. Tell me why you can't get a job where it's mostly sitting all day and just do it.

A. My mental state. I used to be a very social guy. After the stuff I've been through and I've seen, it's hard ...

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