United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
THOMAS C. MUMMERT, III, Magistrate Judge.
This 42 U.S.C. §§ 405(g) and 1383(c)(3) action for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the applications of Larry Johnson (Plaintiff) for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. § 401-433, and for supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. § 1381-1383b, is before the undersigned United States Magistrate Judge by written consent of the parties. See 28 U.S.C. § 636(c).
Plaintiff applied for SSI in August 2008, alleging he was disabled as of June 26, 2006, by a back injury and back spasms. (R. at 200-03, 293.) His application was denied and his untimely request for a hearing was dismissed. (Id. at 71-72, 74-77, 84-85, 88-92.) Plaintiff applied again in August 2010 for DIB and SSI, alleging he was disabled as of September 2008 by a back injury and five bulging discs in his back. (Id. at 214-16, 222-25, 347.) His applications were denied initially and after a May 2012 hearing and a September 2012 hearing held before Administrative Law Judge (ALJ) William E. Kumpe. (Id. at 12-24, 32-64, 84-85, 94-98.) The Appeals Council then denied Plaintiff's request for review, thereby adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-4.)
Testimony Before the ALJ
Plaintiff, represented by counsel, and James Bordieri, Ph.D., testified at the first administrative hearing. At that hearing, Plaintiff amended his alleged onset date to January 22, 2009. (Id. at 255.)
Plaintiff has one year of college, is currently taking two classes, and has never been in special education. (Id. at 39, 42.)
Plaintiff has only one criminal law violation, i.e., he was charged and fined in 2008 for unlawful use of drug paraphernalia. (Id. at 35.) After testifying that he uses marijuana once or twice a week to relieve his pain and depression, the ALJ decided to send him for a psychological evaluation and advised him to stop using marijuana before that evaluation. (Id. at 36.) The ALJ also decided to send Plaintiff for a physical evaluation. (Id. at 40.)
Dr. Bordieri, testifying as a vocational expert (VE), described Plaintiff's past relevant work in terms of its skill and exertional requirements. (Id. at 41-42.)
Plaintiff; J. Stephen Dolan, M.A., C.R.C.; Lee A. Fischer, M.D.; and Karyn B. Perry, Ph.D., testified at the second hearing.
Mr. Dolan, testifying as a VE, described Plaintiff's past relevant work as a mechanic as skilled and heavy, as a machinist as skilled and medium, and as a convenience store cashier as unskilled. (Id. at 52.) This last job was usually light but was heavy as Plaintiff described it because he had to unload a supply truck once a week. (Id.) His skills as a machinist and mechanic would transfer to the light level. (Id. at 53.)
Plaintiff testified that he last smoked marijuana two weeks earlier. (Id.) Before then, he was smoking it two or three times a week. (Id.) He has monthly appointments at the Advanced Pain Center (APC). (Id. at 56.) He does not use an assistive device such as a cane or walker. (Id. at 56, 63.) His pain medication "takes care of a lot of the pain but not all of it." (Id. at 56.) He can get around, but not repetitively and not for "very long periods of time." (Id.) He has a fifty-pound lifting restriction. (Id.) He is currently participating in a vocational rehabilitation program, but the only thing the program could do that would benefit him is help him financially to return to college. (Id. at 56-57.) He was then taking nine semester hours. (Id. at 62.) He sits down when his pain is bad enough. (Id. at 63.) He does not receive any special accommodations in class. (Id.)
Dr. Fisher testified that Plaintiff has low back pain, lumbo-sacral degenerative disc disease, and laminectomy syndrome. (Id. at 54.) The latter he described as being "a chronic pain syndrome related to the low back." (Id.) These impairments did not meet or medically equal an impairment of listing-level severity. (Id.)
Dr. Fisher further testified that Plaintiff would be limited to light physical exertional work. (Id.) Plaintiff had postural limitations of being able to occasionally bend, stoop, and climb stairs. (Id.) He should never kneel, crouch, crawl, or climb ladders, ropes, or scaffolds. (Id.) He should avoid unprotected heights. (Id.) He has no other physical limitations. (Id.) Dr. Fisher disagreed with the assessment of Dr. Kim that Plaintiff cannot do a combined eight-hour day between sitting, standing, and walking. (Id.) He thought such assessment was apparently based on Plaintiff's history and not on Dr. Kim's examination findings. (Id. at 55.) Dr. Fisher noted that Plaintiff's gait had been normal in June 2012. (Id.) He also did not believe that pain would cause Plaintiff to miss two or more days of competitive work in a thirty-day period. (Id.)
Asked about the reference in Plaintiff's medical records to positive straight leg raises, Dr. Fisher described the test as one that depends on a claimant's subjective symptoms. (Id. at 57-58.) He does not "put much stock" in the test. (Id. at 58.) Asked to identify in the record what he is relying on when concluding that Plaintiff does not experience such pain that he would miss two or more days of work a month, Dr. Fisher replied that there was nothing and that "[i]t's just that [he] [doesn't] know how anybody can predict how somebody would miss work." (Id.)
The ALJ then asked the VE to assume a hypothetical person of Plaintiff's age, education, and past work experience with the limitations described by Dr. Fisher and who is limited to light work. (Id. at 59.) Asked if such a person can perform any of Plaintiff's past relevant work, the VE replied that the maintenance and mechanic jobs would be eliminated. (Id.) The cashier job as described by Plaintiff would also be eliminated, but not as described in the Dictionary of Occupational Titles (DOT). (Id. at 59-60.) Other available jobs were cashiers, fast food counter workers, and housekeeping cleaners. (Id. at 60.)
Dr. Perry testified that Plaintiff has a pain disorder and another disorder, the identity of which is not transcribed. (Id. at 61.) She opined that the applicable Listing was 12.04 (depression), but concluded that the disorder was not of the required severity. (Id.) He had no difficulties in his activities of daily living and only mild difficulties in social functioning and in concentration, persistence, or pace. (Id. at 62.) He had not had any episodes of decompensation. (Id.) Asked about a reference in the medical records to Plaintiff being recently diagnosed with anxiety, she testified that the diagnosis would not change her evaluation of how well Plaintiff was functioning. (Id. at 63.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms Plaintiff completed as part of the application process, documents generated pursuant to his applications, records from health care providers, and assessments of his physical and mental functional capacities.
On a Function Report, Plaintiff described what he does during the day. (Id. at 355.) He gets up at approximately 6:30 a.m., takes his morning medication, either stays up or goes back to bed for awhile depending on how well he slept, gets ready for college, attends classes most of the day, returns home, rests, does homework, watches television, and goes to bed around 10:00 p.m. (Id.) If he is having a bad day, he lies down occasionally throughout the day. (Id.) He washes the clothes of his son, a senior in high school, along with his and cooks supper for them both and for his father. (Id. at 356.) He is frequently waken at night by pain and spasms. (Id.) He does not have any problem taking care of his personal hygiene. (Id.) He does household chores of laundry, cleaning, and some mechanical repairs. (Id. at 357.) He does not do any yard work. (Id. at 358.) He goes grocery shopping once or twice a week for one to two hours each time. (Id.) He does not have any problems getting along with others. (Id. at 360, 361.) His impairments adversely affect his abilities to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, and complete tasks. (Id. at 360.) He cannot walk farther than two or three hundred feet before having to stop and rest for five to ten minutes. (Id.) He does not have any problems paying attention or following written or spoken instructions. (Id.) The only problem with his mental capacity is his depression and feelings of worthlessness. (Id.) He is always under stress, but can usually handle it okay. (Id. at 361.) Sometimes, however, he breaks down. (Id.)
The relevant medical records before the ALJ are summarized below in chronological order and begin on June 21, 2006, when Plaintiff went to the emergency room at the Poplar Bluff Regional Medical Center after experiencing low back pain when lifting an object weighing approximately 150 pounds at work. (Id. at 407-18, 648-66.) His past medical history included back surgery. (Id. at 411.) His pain was an eight on a ten-point scale. (Id. at 412.) X-rays of his lumbar spine revealed moderate spurring at L1-L2; moderate narrowing, spurring, and sclerosis at L5-S1; mild degenerative joint disease elsewhere; and no fracture. (Id. at 412, 418.) He was given an injection of Toradol, a nonsteroidal anti-inflammatory drug (NSAID), diagnosed with acute sciatica, and discharged with instructions to follow up with his primary care physician in two days. (Id. at 410, 41-13.) Also, he was given prescriptions for Flexeril (a muscle relaxant), Lortab (a combination of acetaminophen and hydrocodone prescribed for the relieve of moderate to severe pain), and Naprosyn (an NSAID). (Id. at 410, 412-13.) At discharge his pain was a zero. (Id. at 409.)
Six days later, Plaintiff consulted a nurse in the offices of L.J. Plunkett, Jr., M.D., for his low back pain that had started on June 21 and was radiating to the back of his left leg. (Id. at 425, 633.) His condition was mild; his symptoms were stable. (Id.) Authorization for a magnetic resonance imaging (MRI) of his back was obtained from his employer's worker's compensation carrier. (Id.) The MRI revealed degenerative changes in the L4-L5 and L5-S1 discs and asymmetrically narrowed neural foramen at L5-S1. (Id. at 427-30, 588-89.) There was no evidence of spinal canal or neural foraminal stenosis at the other levels. (Id. at 429.)
After seeing the nurse at Dr. Plunkett's office again on July 3 for complaints of continuing muscle spasms and severe low back pain, Plaintiff was referred to a neurosurgeon for a consultation and prescribed Vicodin (a combination of acetaminophen and hydrocodone) and Soma (a muscle relaxer). (Id. at 431-32, 632.)
Subsequently, on August 10, Plaintiff saw Jeffrey A. Kornblum, M.D. (Id. at 435-37.) He complained of back pain and bilateral leg pain, worse on the left than the right. (Id. at 435.) His back pain was worse than his leg pain. (Id.) He had been out of medication for the past week and a half and was unable to get refills. (Id.) He walked with a "significant[ly] guarded and antalgic gait." (Id.) He could not toe walk on his left side. (Id.) He had shortness of breath on exertion, which he attributed to smoking one pack of cigarettes a day. (Id.) Dr. Kornblum recommended a structured physical therapy course, refilled his prescriptions for pain medication and a muscle relaxer, and prescribed a steroid dose pack. (Id.)
Plaintiff was evaluated for physical therapy on August 22 and was to participate in that therapy three times a week for three weeks. (Id. at 542-46.) Plaintiff had physical therapy on August 24, 27, 31, September 5, and 6, but did not return thereafter. (Id. at 547-55.)
Plaintiff returned to Dr. Kornblum on September 7, reporting continuing back pain radiating to his left buttock and, occasionally, to his left leg. (Id. at 438.) He had run out of his medications and was regularly doing the exercises shown him by the physical therapist. (Id.) On examination, his gait was guarded but not as antalgic as before. (Id.) Straight leg raises were positive, more on the left than on the right. (Id.) His strength was 5/5. (Id.) His reflexes were asymmetrical; he had a diminished left Achilles reflex. (Id.) Various treatment options, including surgery, were discussed; David L. Phillips, M.D., was to be consulted about the surgical procedure. (Id.)
Plaintiff's gait was less guarded when he saw Dr. Kornblum on October 24, but his range of motion in his lumbar spine was decreased, his straight leg raises were positive, and his reflexes were asymmetrical. (Id. at 439-40.) He was to have an L5 anterior lumbar interbody fusion. (Id. at 439.)
Plaintiff underwent the fusion, performed by Drs. Kornblum and Phillips, on November 6. (Id. at 443-49, 590-601.)
On December 12, Plaintiff went to the emergency room at Ripley County Memorial Hospital (Ripley) with complaints of a right earache. (Id. at 620-23.) His current medications were Tylenol, Flexeril, and hydrocodone. (Id. at 621.) He was treated with an antibiotic and discharged. (Id. at 623.)
At a follow-up visit to Dr. Kornblum two days later, Plaintiff reported that he was continuing to have intermittent left-sided pain when he sits and relaxes, but not when he is "up and around." (Id. at 450-51.) He had been out of narcotic pain medication for four to five days. (Id. at 450.) His gait appeared to be normal; his motor examination was 5/5. (Id.) He was given a prescription for Flexeril and for hydrocodone. (Id.) The latter was to be taken intermittently and not round the clock. (Id.) Dr. Kornblum informed Plaintiff that he should not do the lifting required by his job - 50 to 100 pounds - for six to twelve months after the surgery. (Id.) X-rays showed "[s]atisfactory anterior compression plate and screw and interbody fusion at L5-S1" and "[m]ild degenerative disc disease at L4-L5 and L1-L2." (Id. at 451.)
Plaintiff was described by Dr. Kornblum when he saw him on January 25, 2007, as "doing quite well." (Id. at 452-53, 607.) He was encouraged to stop smoking, restricted to lifting no more than thirty pounds, and was not to do any repetitive lifting. (Id.) X-rays showed the fusion to be as before and also revealed "[m]oderate degenerative disc disease at T12-L1 and L1-L2." (Id. at 453.)
In April, Plaintiff reported to Dr. Kornblum that he had been having significant increasing pain in his low back and in his left leg and flank in the past one to two months. (Id. at 470-73, 606.) On examination, his gait was "reasonably brisk, " but appeared to be guarded on his left side. (Id. at 470.) Straight leg raises were positive; a Fabere maneuver was negative. (Id.) His motor examination was 5/5 throughout his lower extremities. (Id.) Dr. Kornblum prescribed Zanaflex (a short-acting muscle relaxer) and Ultram (a pain reliever). (Id.) X-rays revealed scoliosis and degenerative disc disease at L1-2 in addition to the fusion. (Id. at 471-72.) Plaintiff was to return to Dr. Kornblum after undergoing a computed tomography (CT) scan of his lumbar spine. (Id. at 470.)
On June 22, Plaintiff was seen by John David Graham, M.D., of the Pain Treatment Center, Inc. (Id. at 477-503, 505.) Plaintiff reported that he was "doubling up" on the Zanaflex and Ultram and was occasionally also taking hydrocodone tablets he got from his father. (Id. at 478.) On examination, he had, "[a]t most, " mild tightness in his lumbar paraspinous musculature. (Id. at 479.) He had a good range of motion in his back, symmetrical reflexes in his knees and ankles, and negative straight leg raises to 80 degrees bilaterally in a seated position. (Id.) He could stand on his toes and heels without difficulty. (Id.) Dr. Graham expressed concern about Plaintiff's use of his medications and his failure to stop smoking, noting that he ran an increased risk of failed fusion by doing so. (Id.) He construed these behaviors as indications that Plaintiff was not "willing to work with the medical providers to maximize his recovery." (Id. at 480.) He recommended that Plaintiff start on a brief course of Darvocet to be taken as needed for pain and Elavil to be taken at bedtime. (Id.) If the test scheduled for the next week showed evidence of fusion, the Darvocet was to be discontinued and Plaintiff was to be prescribed Ultram. (Id.) He strongly recommended that Plaintiff stop smoking. (Id.) He noted that a self-administered psychologic test, the Symptom Checklist-90-Revised, given to Plaintiff showed "an elevation into the clinical range of his somatization scale, his depression scale, and anxiety scale." (Id.) These could make his subjective complaints out of proportion to the objective findings. (Id. at 481.) A urine screen was positive for benzodiazepines, oxycodone, marijuana, and tramadol; however, no prescriptions for any were listed and, as to the marijuana, second hand smoke would be insufficient to produce the result. (Id. at 502.)
Six days later, Plaintiff returned to Dr. Kornblum. (Id. at 506-10, 604-06.) The CT scan revealed a normal alignment of Plaintiff's lumbar spine; maintained vertebral body heights; mild disc space narrowing at the L1-L2 level with mild anterior spondylotic ridging/marginal spurs; left posterolateral spurring and moderate facet arthropathy bilaterally at L5-S1; and subtle broad-based central and questionable minimally right paracentral protrusion at L4-L5. (Id. at 508-09.) On examination, Plaintiff moved well, although he appeared to be uncomfortable, had positive straight leg raises, and had 5/5 strength in his lower extremities. (Id. at 506.) He was started on Elavil. (Id.) Physical therapy was recommended, and an electromyogram (EMG) nerve conduction study was to be performed. (Id.) The study, performed on July 5, was normal. (Id. at 511-14, 602-03, 612.)
Plaintiff was seen again by Dr. Graham on July 16, reporting that he had discontinued the Elavil without notifying the office. (Id. at 515-27.) Dr. Graham noted that Plaintiff's previous urine screen was positive for Valium, Percocet, hydrocodone, Ultram, and marijuana. (Id. at 515.) Plaintiff had reported that he had not used Ultram or hydrocodone in several days; consequently, they should not have shown up in his urine. (Id.) The Valium and Percocet should not have shown up because he had no history of taking either and had no explanation for their presence. (Id.) Dr. Graham expressed concern about Plaintiff being noncompliant and not being truthful. (Id.) He noted that the CT scan had no significant findings. (Id. at 516.) Plaintiff was started on Naprosyn and given a prescription for Ultram. (Id. at 516, 527.) Another urine drug screen was performed. (Id. at 516-23.) Plaintiff was found to be at maximum medical improvement and was released to return to work "without restriction from pain management." (Id. at 526.)
Plaintiff was evaluated again for physical therapy on July 13 and participated in twenty sessions between July 17 and September 26, inclusive. (Id. at 556-82.)
While doing physical therapy, Plaintiff saw Dr Kornblum on July 19. (Id. at 528, 561.) He was feeling somewhat better "overall, " but still had back discomfort. (Id.) His right leg had been bothering him recently; his left leg and hip had been bothering him worse than the right. (Id.) His strength was 5/5; his straight leg raises were negative. (Id.)
On September 1, Dr. Kornblum released Plaintiff from work until November 1. (Id. at 529.)
Five days later, Plaintiff underwent an orthopedic evaluation by Michael C. Chabot, D.O., at the request of the worker's compensation insurance carrier. (Id. at 531-36, 615-19.) Plaintiff reported having low back pain that radiated to both extremities, was a five on a ten-point scale, and was aggravated by sitting, lying down, and resting. (Id. at 531.) On examination, Plaintiff did not walk with a limp, could heel and toe walk, and did not use a cane or walker. (Id. at 534.) He had 5ﾟ motor strength bilaterally. (Id.) Straight leg raises and a Fabere's test were negative. (Id.) He could forward flex his lumbar spine to 90 degrees, extend to 30, and side bend to 60. (Id.) His deep tendon reflexes were symmetric. (Id.) Dr. Chabot's impression was of back pain and status-post anterior lumbar interbody fusion at L5-S1. (Id. at 535.) He recommended that Plaintiff undergo a lumbar myelogram and a post-myelogram CT with sagittal and coronal reconstructions in order to evaluate him for additional neural compression and to evaluate the prior fusion. (Id.) He also recommended that Plaintiff participate in a work-hardening program. (Id.)
When seeing Dr. Kornblum in November, Plaintiff reported continuing backaches, for which he took Tylenol, albeit not on a daily basis, because he had run out of his Ultram in September. (Id. at 537-40, 608-09.) He continued to smoke. (Id. at 537.) Dr. Kornblum noted that Plaintiff had some "secondary issues of depression" but resisted taking any medication for it. (Id.) Plaintiff was advised to see a psychologist or psychiatrist, maintain his exercise program, and add twenty minutes of aerobic activity to his exercise regimen. (Id.) He was restricted to lifting no more than fifty pounds. (Id. at 537, 540.) X-rays showed ...