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Groves v. Commissioner of Social Security

August 4, 2010


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Donald Groves, proceeding in forma pauperis , by his attorneys, Law Offices of Jeffrey Milam, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following a review of the complete record and applicable law, this Court concludes that the ALJ properly found Plaintiff ineligible for benefits.

I. Administrative Record

A. Procedural History

On June 26, 2006, Plaintiff filed protectively for a period of disability and disability insurance benefits. AR 14. His claims were initially denied on December 6, 2006, and upon reconsideration, on March 23, 2007. AR 14. On April 23, 2007, Plaintiff filed a timely request for a hearing. AR 14. Plaintiff appeared and testified at a hearing on December 4, 2007. AR 26-49. On March 26, 2008, Administrative Law Judge William C. Thompson, Jr., denied Plaintiff's application. AR 14-22. The Appeals Council denied review on February 6, 2009. AR 1-4. On March 20, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

B. Factual Background

Plaintiff Donald Groves, born January 21, 1958, alleges permanent disability arising from chronic pain in both feet. Plaintiff also has a history of coronary artery disease, which he does not allege as the primary basis for his disability. Records pertinent to his coronary artery disease and related treatment are included in the record at AR 242-285; 349-50; 381-83; 413.

Plaintiff's Pain Questionnaire. On July 30, 2006, Plaintiff prepared a pain report. AR 30, 112-14. Before he developed pain in his feet, Plaintiff worked as a truck driver, attended family sports activities, did yard work, and went shopping. AR 113. Afterward, Plaintiff was able walk for five minutes or one-half block, stand for five minutes, and sit all day. AR 114. Other people drove Plaintiff and did errands for him. AR 114.

Plaintiff's foot pain began in 2003 and began to affect his activities on August 15, 2004. AR 112-13. The pain was constant and felt like "freezer burn," "electrical shock," " bruised," and "tender." AR 112. It spread to his back and hips. AR 112. His daily pain medications included the fentanyl patch (200 mg.),*fn2 Neurontin® (3000 mg.),*fn3 nortriptyline (20 mg.),*fn4 and vicodin (#10).*fn5 AR 112-13. The medication had "very little" effect on relieving the pain and lasted three to four hours. AR 112.

Medical Records. Plaintiff's medical records set forth the course of his treatment from early 2005. On March 24, 2005, Dr. Harish P. Porecha conducted electrophysiological testing on Plaintiff's feet. AR 239. Non-fasting blood tests performed at Dr. Porecha's request revealed that Plaintiff's mean blood glucose (130 mg/dL) was above the non-diabetic range (70-115 mg/dL). AR 237. Plaintiff's blood also had a level of creatine kinase (395 U/L) above the reference range (0-200 U/L). Ar 227, 237. Porecha diagnosed diabetic neuropathy in the peroneal nerves of both feet and possibly in the right superficial peroneal nerve sensory fibers. AR 226; 229-30; 233; 239. He prescribed vicodin for pain and suggested that Carlson refer Plaintiff to an endocrinologist. AR 234.

Results of lab tests performed at Kaiser Permanente, dated July 1, 2005, showed high cholesterol (247 mg/dL: normal range ends at 239 mg/dL) and very high triglycerides (1299 mg/dL: normal range runs to 199 mg/dL). AR 174. The triglyceride levels were so extreme that the lab repeated the test to confirm the initial results. AR 174. The report directed the physician to confirm that the patient was fasting. AR 174.

On August 2, 2005, Plaintiff had a pre-operative appointment with orthopedist Paul Braaton, who was to surgically lengthen Plaintiff's right heel tendon. AR 221, 223. Plaintiff reported sporadic smoking and alcohol use, and denied illicit drug use. AR 221. Plaintiff reported a history of cardiac disease, including per cutaneous transluminal coronary angioplasty with placement of stents. AR 221. His medications included Mevacor®,*fn6 Isordil®,*fn7 Plavix®,*fn8 Coreg®,*fn9 Lasix® with potassium,*fn10 Digitek®,*fn11 Duragesic patches, and Protonix®.*fn12 AR 221.

Braaton's consultation report, dated August 15, 2005 (AR 192-201), noted that Plaintiff had suffered a forklift accident about two months earlier, which had aggravated his symptoms. AR 199. Although Plaintiff previously had a narcotic addiction problem, he now required Vicodin® to tolerate his foot pain. AR 199. On September 1, 2005, Braaton evaluated Plaintiff's feet in the presence of Dr. Porecha's EMG reports. AR 191.

The report of Braaton's pre-surgical physical examination on October 12, 2005, is mostly illegible. AR 218-20. Plaintiff's chief complaint was right heel cord contractures. AR 218. Braaton performed per cutaneous tendo Achilles lengthening on Plaintiff's right leg on October 18, 2005. AR 217.

On October 31, 2005, seven weeks after the operation to lengthen his right achilles tendon, Plaintiff was using fentanyl patches and experiencing no pain and a decrease in tingling and numbness. AR 189. On January 9, 2006, Plaintiff still experienced numbness and could not do a "toe-off" because of the arthritis and rigidity of his first metatarsophalangeal joint. AR 186-87.

On February 10, and March 21, 2006, Braaton examined Plaintiff before a right metatarsal-phalangeal hemiarthroplasty and tarsal tunnel release of Plaintiff's right foot. AR 205-07; 208-10. Plaintiff reported that he smoked a pack a day and used alcohol occasionally but denied illicit drug use. AR 205, 209. His current medications were Mevacor, Isordil, Plavix, Coreg, Prinivil®,*fn13 Lasix with potassium, Digitek, Duragesic (fentanyl) patches, hydrocodone,*fn14 and Protonix. AR 205, 208. Braaton diagnosed:

1. Hallux deformity of the right lower extremity.

2. First metatarsophalangeal arthritis of the right lower extremity.

3. Probable tarsal tunnel syndrome of right lower extremity.

4. Pes cavus deformity of the right foot.

5. Mild claw and hammering of the left toes on the right foot.

AR 206, 210.

On February 23, 2006, Plaintiff met with Dr. James Carlson, his supervising physician, to resolve problems with MS contin®,*fn15 which was making him sick, and to secure medication for his psoriasis. AR 184. Carlson prescribed Vicodin® and Duragesic® patches. AR 184. Plaintiff returned on March 3, 2006, complaining of an inability to get the 25 mcg. fentanyl patches to stick to his skin. AR 183. Carlson prescribed 50 mcg. patches and reduced Plaintiff's Vicodin® dosage. AR 183. Plaintiff also sought medication for involuntary leg movement and was referred to Dr. Braaton. AR 183.

On March 20, 2006, Carlson noted that medications prescribed so far had been ineffective in controlling Plaintiff's foot pain. AR 436. Accordingly, he prescribed fentanyl patches (50 mcg/hour) and Vicodin® as needed for breakthrough pain. AR 436.

On March 21, 2006, Braaton performed (1) a bunionectomy with arthroplasty, and (2) tarsal tunnel release, right foot. AR 202-04. Plaintiff received post-surgical follow-up on April 3, 2006. AR 182. Braaton noted that Plaintiff was requesting refills of pain medications both from his office and from Carlson. AR 182. In a dictated memorandum of a phone conversation dated April 4, 2006, Braaton's physician assistant, Stacy Garrison, noted:

Apparently, Mr. Groves has been receiving pain prescriptions from both our office and his primary care office. Specifically, he has been receiving Percocet and Norco 10 from our office, and Percocet, Norco 10, Fentanyl Patches, and Darvocet N-100 from his primary care physician. The patient continues to complain of pain, and following a long conversation with the physician assistant at Dr. Carlson's office, we have decided at this point to refer him to a pain management clinic. Hopefully, this will provide him with better pain management. This will also obviously clear up some of the confusion as to who is in charge of managing Mr. Groves' pain. In the meantime, he was given a prescription for Percocet 5/325 1-2 tablets p.o. 4-6 hours p.r.n. pain #30, no refills at this last visit on 04/03/06 by myself, Stacy Garrison, PA-C. In the event that this prescription runs out before he can have his pain management consultation, I will provide him with another refill of Percocet. Otherwise, in the future following his contract with pain management, we will not be providing him with any more pain medications.

AR 181.*fn16

On April 4, 2006, Dr. Hansen's assistant also noted the issue with Plaintiff's pain management:

S. The patient has had a joint replacement surgery by Dr. Berryton's [ sic ] office. At this point, he has been getting pain management from both Dr. Berryton and us, which I have told him is not allowed. He has gotten a bottle of Percocet and a bottle of Norco from them right after the surgery, which is on the 20 th of March. He then got a bottle of Percocet from Dr. Carlson of # 30. He then stated that he was not getting pain control from that so he came back in and spoke to Dr. Hansen and myself, and we gave him # 20 OxyContin. After that point, he went to Dr. Berryton's office, who told them that they were going to be doing his pain management instead of us and got another bottle of Percocet from them. I have told him that he really needs to stop going back and forth and that his pain management needs to come from one place. We spoke to Dr. Berryton's office and they are willing to do it; therefore, we will defer his pain management to them.

P: At this point, however, he states that he wants to get a pain doctor because he is in pain all the time and is taking a lot of pain medication to get it under control. Therefore, we will process a referral to Kaiser Pain Management, but in the interim, he is not to get pain management from us. He needs to speak to Dr. Berryton over his office.

AR 434.*fn17

At the surgical follow-up appointment on April 10, 2006, Plaintiff continued to complain of chronic pain but was "unable to ascertain the origin in the foot since he has pain in his bilateral lower extremities." AR 180.

On April 15, 2006, after two surgeries on his feet, Plaintiff complained to Carlson of chronic foot pain and depression. AR 173. Plaintiff could not walk barefoot. AR 166. Plaintiff described two types of pain: (1) combinations of freezing and burning, and shocking pain, and (2) a deep pain akin to a bone bruise. AR 165. Carlson requested a specialist consultation with Dr. LeFevre, a chronic pain management specialist. AR 167. Plaintiff was taking Duragesic® and Norco®, which helped him cope with the pain but did not stop it; Neurontin®, which caused him excessive sleepiness; Naprosyn®;*fn18 lisinopril; and Coreg®. AR 166.

Plaintiff advised Carlson that he had been a long-term abuser of marijuana*fn19 and methamphetamine,*fn20 whose drug of choice was methamphetamine when the pain began. AR 166. Plaintiff believed that methamphetamine initially masked the foot pain. AR 166.

Plaintiff also saw an internist, Dr. Greene on April 15, 2006. AR 171-72. Greene diagnosed foot pain and depression, and prescribed Norco®, Naprosyn®, and Effexor®.*fn21 AR 172.

On April 30, 2006, Plaintiff saw Dr. Robert Abatecola, who questioned whether Plaintiff was pre-diabetic. AR 170. Abatecola ordered lab tests and prescribed Neurontin® and MS (10 mg.)*fn22 with Phenergan® (25 mg).*fn23 AR 170.

On May 4, 2006, Carlson recorded concerns regarding Plaintiff's use of pain medication: S: This patient need his pain medications refilled. He is on Fentanyl patches

50 mcg/hour. He also takes Vicodin 10 mg. up to eight per day. I suggested that he get to the pain control physician as soon as possible. He is not getting pain medication from Dr. Braaton anymore, but he is still getting the Fentanyl patches.

P: We will make a contract with him today and I told him if he does not stick to the contract, we will terminate him from our practice, in other words he understands the agreement. In the meantime, we will try to control his pain with over using. He is using Neurontin, but he is only on half of 300 mg tablet twice a day at present time, working up slowly.

AR 430.

On May 10, 2006, Braaton reported that Plaintiff had improved sensation on the plantar surface of his foot and his range of motion was 20-30 degrees dorsiflexion and 10 degrees plantar flexion. AR 178.

On June 14, 2006, Plaintiff complained of significant pain and numbness from the ball of his foot distally. AR 177. The pain was so bad that Plaintiff had been unable to stop using the fentanyl patch, even though he needed to discontinue its use to return to truck driving. AR 177. Plaintiff was also taking Neurontin®, which he reported was also ineffective. AR 177. "These are all essentially new complaints, which were evaluated today," observed Braaton. AR 177.

Although the tarsal tunnel release had improved the sensation in Plaintiff's foot and relieved the pain he had felt in the sole of his foot, Plaintiff had developed arthrofibrosis in the first metatarsophalangeal joint and was experiencing gastrocnemius contracture in his right leg. AR 176. Alternatives included prescription Lyrica®*fn24 or Lyrica┬« combined with a custom orthotic and metatarsal pad. AR 176. Because of the limitations in his insurance coverage, Plaintiff himself would be responsible ...

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