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Ostrander v. Astrue

September 23, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's request for Disability Insurance Benefits under Title II of the Social Security Act ("Act") and Supplemental Security Income under Title XVI of the Act.*fn1 Plaintiff contends that the Administrative Law Judge ("ALJ") erred by: (1) rejecting the opinion of plaintiff's treating physician without a legitimate basis for doing so; (2) rejecting plaintiff's testimony regarding his pain and functional limitations as not entirely credible without a legitimate basis for doing so; and (3) failing to properly assess plaintiff's residual functional capacity ("RFC") and thus posing a legally inadequate hypothetical question to the vocational expert. (Dkt. No. 20.) The Commissioner filed a cross-motion for summary judgment. (Dkt. No. 23.)

For the reasons that follow, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.


A. Procedural Background

On July 26, 2005, plaintiff filed an application for Disability Insurance Benefits. (Administrative Transcript ("AT") 145, 171.) On July 27, 2005, plaintiff filed an application for Supplemental Security Income. (AT 414, 171.) In both applications plaintiff alleged a disability onset date of March 30, 2003. (AT 194, 415.) Following an initial denial of his claims, plaintiff filed a Request for Reconsideration which was subsequently denied on February 7, 2006. (AT 224, 409, 185, 183, 177.) Plaintiff timely filed a request for a hearing and the ALJ conducted hearings on March 22, 2007, September 12, 2007, November 14, 2007, and January 29, 2008. (AT 18, 40, 71, 106, 127.) The ALJ heard testimony from plaintiff, medical expert David C. Richwerger, Ed. D., and vocational expert ("VE") Susan Creighton-Clavel. (AT 40, 72, 106, 121.)

In a decision dated February 22, 2008, the ALJ denied plaintiff's applications, finding that plaintiff could return to his past work with some limitations in his residual functional capacity.*fn2 (AT 23-24.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 25, 2008. (AT 5-7.) Plaintiff seeks judicial review of the denial of his applications.

B. Summary of Relevant Medical History and Evidence

At the time of his March 22, 2007 hearing before the ALJ, plaintiff was 29 years old, and had not worked since March 30, 2003. (AT 43-44.) Plaintiff had completed high school and had never received any specialized vocational training. (AT 43, 398.) He had worked at a call center for an insurance company where his duties included answering phones and processing changes to insurance policies. (AT 44.) Prior to that job, plaintiff worked as a supervisor for an answering service call center, taking telephone orders for various products and services. (AT 45-46.) Plaintiff also worked as a plumbing service dispatcher and for a fast food restaurant. (AT 46-47.) Plaintiff claims that he was fired from his last job for missing too much work due to symptoms caused by back pain, anxiety, and irritable bowel syndrome ("IBS"). (AT 288, 290, 398.)

Plaintiff first sought treatment on November 10, 1999, with Michael H. Robbins, M.D. (AT 252.) Plaintiff reported pain in his upper back and lower thoracic area, as well as pain across his low back. (Id.) Plaintiff described an area of numbness on the back part of his left arm. (Id.) However, Dr. Robbins noted that he was unable to detect radiculopathy*fn3 in that area or into plaintiff's legs. (Id.) Dr. Robbins reported that his examination revealed no deficits and that plaintiff's problems were non-surgical. (Id.)

On December 20, 1999, Joe T. Hartzog, M.D. sent a letter to both Dr. Robbins and Thomas I. Revesz, M.D. describing Dr. Hartzog's evaluation of plaintiff. (AT 377.) Dr. Hartzog wrote that he first saw plaintiff when plaintiff was 17 years old, and at that time plaintiff presented complaining of one to two years of low back pain of variable character, intensity, and location. (Id.) Dr. Hartzog reported that at the time of plaintiff's first visit, plaintiff occasionally had some numbness in his right leg that would extend to the knee. (Id.) Dr. Hartzog reported that plaintiff had treated with medication and that plaintiff had seen Laura Anderson, M.D., who did not feel that plaintiff required surgery. (Id.) Dr. Hartzog relayed that Dr. Anderson's opinion was based on plaintiff's MRI scan which revealed minimal disc desiccation*fn4 of L4-5 and L5-S1 with a bright signal of the posterior annulus at L5-S1. (Id.)

Dr. Hartzog's evaluation revealed that plaintiff was neurologically intact and Dr. Hartzog did not find any evidence of significant root tension signs. (Id.) While plaintiff demonstrated restricted range of motion in his back, Dr. Hartzog opined that the pain was discogenic*fn5 in nature and recommended physical therapy. (Id.) Dr. Hartzog reported that plaintiff's pain was made worse by bending, walking on hard floors, or by laying or sitting on hard surfaces for too long a period of time. (Id.) Dr. Hartzog reported that his impression was chronic pain syndrome, probably of discogenic origin. (Id.) While Dr. Hartzog recommended a repeat MRI scan of plaintiff's lumbar spine, he did not feel that plaintiff was a surgical candidate. (AT 379-80.)

Plaintiff's January 12, 2000 MRI scan revealed normal findings at levels L1-2, L2-3, L3-4, and L4-5. (AT 376.) The scan revealed a disc bulge at the L5-S1 level with a very small left paracentral protrusion without root compression. (Id.) The interpreting doctor concluded that plaintiff showed mild degenerative changes in his lower lumbar spine without canal stenosis*fn6 or root compression. (Id.)

On March 14, 2002, plaintiff presented to Dr. Revesz with symptoms of IBS for which plaintiff was prescribed a drug called Lonox. (AT 374.)

On December 17, 2002, plaintiff presented to Dr. Revesz and was given an injection of Ketorolac.*fn7 (AT 373.) It is unclear from the record what symptoms this injection was intended to treat. (Id.) This procedure was performed again on February 3, 2003. (Id.)

On March 13, 2003, plaintiff returned to Dr. Revesz's office complaining of IBS and increased lower back pain. (Id.) Plaintiff reported tingling and numbness in his lower left extremities, and Dr. Revesz noted that plaintiff had decreased range of motion. (Id.) Plaintiff was again given Ketorolac. (Id.)

On May 5, 2003, plaintiff presented to Dr. Revesz complaining of back pain and left knee pain brought on by exercise. (Id.) Dr. Revesz theorized that the knee pain was caused by tendinitis and plaintiff was prescribed rest, heat, and ACE bandage support. (Id.)

On July 22, 2003, plaintiff presented to Dr. Revesz to follow-up on plaintiff's left knee pain and back pain and complained that his "IBS [is] going crazy." (AT 369.) Dr. Revesz noted that plaintiff visited on May 20th for an injury he suffered after going up and down the stairs. (Id.) Plaintiff reported that his left knee was getting better and that while he continued to have IBS symptoms, he felt that Lonox helped and would like to be prescribed more. (Id.) Plaintiff was also given an injection of Toradol and was prescribed Vicodin. (Id.)

On September 15, 2003, plaintiff again met with Dr. Revesz regarding pain in his lower back. (AT 364.) Plaintiff returned to Dr. Revesz on November 25, 2003, complaining of "back and knee pain." (AT 360.) Dr. Revesz ordered imaging scans of plaintiff's knee, sacrum, and lumbar spine. (AT 360, 358.) With regard to plaintiff's sacrum, Dr. Revesz's referral slip described plaintiff's history as "fell down stairs on rearend." (AT 358.) With regard to the MRI scans of plaintiff's left knee and lumbosacral region respectively, Dr. Revesz described plaintiff's history as "chronic pain since approx[imately] 1999." (AT 359.)

A January 12, 2004, MRI scan of plaintiff's left knee revealed an impression of a discoid lateral meniscus with Grade II/III mucoid degeneration with the most severe involving the posterior horn. (AT 356.) The interpreting doctor also reported an unremarkable medial meniscus and an intact cruciate and collateral ligament. (Id.) Plaintiff's lumbar MRI scan revealed low grade degenerative disc disease at L4-L5 and L5-S1 with posterior bulge annuli, but no evidence of focal disc protrusion. (AT 357.) The scan also revealed a minimally displaced fracture of the proximal coccyx. (Id.)

Plaintiff presented to Dr. Revesz on January 19, 2004, and was administered an injection of Ketorolac. (AT 353.) Plaintiff was again prescribed Vicodin. (Id.)

On February 18, 2004, plaintiff presented to Paul M. Sasaura, M.D. complaining of left knee pain since April of the previous year. (AT 348.) Dr. Sasaura noted that plaintiff had been doing a lot of moving at the onset of his knee pain and that heat and ACE brace treatment had not alleviated his symptoms. (Id.) Dr. Sasaura's physical examination of plaintiff revealed pain during range of motion testing. (AT 349.) Dr. Sasaura's impression paralleled the MRI scan findings and, based on plaintiff's symptoms, Dr. Sasaura recommended arthroscopy and partial meniscectomy. (Id.)

Surgical records pertaining to plaintiff's left knee are not part of the record. However, plaintiff's March 18, 2004 post-operative follow-up with Dr. Sasaura reported that while plaintiff was still in considerable pain, his symptoms were resolving. (AT 346.) On March 26, 2004, ultrasound imaging revealed no evidence of deep vein thrombosis. (AT 287.)

On May 10, 2004, plaintiff presented to Dr. Sasaura complaining of significant pain in his left knee. (AT 343.) Dr. Sasaura reported that plaintiff was hypersensitive during range of motion testing and concluded his pain symptoms "may be a type of RSD."*fn8 (Id.)

On October 27, 2004, plaintiff presented to Dr. Revesz complaining of sciatica*fn9 flare-up brought on by car and air travel. (AT 337.) Plaintiff described the pain as 9/10 with symptoms traveling down both legs. (Id.) Dr. Revesz noted that all aspects of plaintiff's range of motion were limited with respect to his back. (Id.) Plaintiff was given a Toradol injection, a prescription for Vicodin, and was referred to Craig N. Pfeiffer, M.D., a neurosurgeon. (Id.)

On November 8, 2004, plaintiff presented to Dr. Revesz complaining of moderate distress due to chronic back pain. (AT 336.) Plaintiff was given a Toradol injection and his Vicodin prescription was refilled. (Id.)

On November, 22, 2004, Dr. Pfeiffer conducted a neurological consultation with plaintiff. (AT 250.) Dr. Pfeiffer described plaintiff's clinical history as having diffuse low back pain since age 17, with radiation into his legs. (Id.) Plaintiff explained that sitting for long periods of time was uncomfortable and that he was bothered by pain even while lying down. (Id.) Dr. Pfeiffer reported that plaintiff previously had two epidural injections, physical therapy, and TENS*fn10 unit therapy (Id.) Dr. Pfeiffer wrote that plaintiff's only injury occurred the previous January when he fell down the stairs and fractured his coccyx, from which he had fully recovered. (Id.) Dr. Pfeiffer found that plaintiff walked stiffly and complained of pain in his right and left lumbosacral regions. (Id.) Plaintiff's extension was zero degrees while his flexion was "only 60 degrees due to back pain." (Id.) Dr. Pfeiffer reported that performing "toe walk" caused plaintiff radiating right leg pain. (Id.) Dr. Pfeiffer examined plaintiff's MRI scan and noted moderate degeneration of the lumbar spine at L4-5 and L5-S1 and a coccyx fracture. (Id.) Dr. Pfeiffer reported that plaintiff's imaging scan did not explain his chronic pain. (Id.) Dr. Pfeiffer diagnosed plaintiff with chronic low back pain which he described as "genuine," but "so far unexplained." (Id.) Dr. Pfeiffer declared that he saw no role for neurosurgery in plaintiff's treatment course regardless of etiology. (Id.)

Dr. Pfeiffer referred plaintiff for an isotope scan on December 9, 2004. (AT 334.) A whole body bone scan and a SPECT*fn11 scan of the lumbar spine revealed no abnormalities. (Id.)

On February 16, 2005, plaintiff received a repeat lumbar epidural steroid injection at Mercy General Hospital. (AT 276.) Plaintiff described his pain as constant and throbbing, usually starting in the mid lower back, radiating downward bilaterally to his legs. (Id.) Plaintiff denied significant numbness but ...

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