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Marlin Ford v. Carolyn W. Colvin

April 10, 2013


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


Plaintiff Marlin Ford, by his attorney, Sengthiene Bosavanh, 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. Following a review of the complete record and applicable la w, the undersigned finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based upon proper legal standards, and recommends that the Court affirm the Commissioner's denial of benefits.

I. Procedural History

Plaintiff claims he has been disabled since May 8, 2007. On June 13, 2007, he applied for benefits. The agency denied benefits, as did ALJ Sandra K. Rogers in an opinion dated May 29, 2009. The Appeals Council remanded. A second hearing occurred on March 23, 2011, before ALJ Laura Speck Havens. Plaintiff appeared and testified. Also testifying were Stephen Schmidt, an 2 impartial vocational expert, and Joseph Jensen, M.D., an impartial medical expert. On May 6, 2011, 3 the ALJ denied Plaintiff's application. The Appeals Council denied review. Plaintiff appealed. 4

II. Factual Record 5

A. Plaintiff's Testimony

Plaintiff was born in 1962, educated through high school, and worked for the US Postal Service for 27 years. He became disabled in May 2007, when back, shoulder, and knee impairments 8 made continuing work impossible. He also had hypertension and diabetes.

Plaintiff testified that he could handle most personal care, but he needed help with his socks sometimes. He could not help with chores, but sometimes cooked or accompanied his wife shopping. He slept during the day, maybe five hours at night, and watched football. He did not have a driver's license due to "tickets," but had applied for a new one. In terms of side effects of medication, he did not take Vicodin "too much" because it made him want to throw up. He told his doctor this but the dosage was not changed. His blood sugar was not controlled but he had not been hospitalized for diabetes.

He could walk or stand up to 45 minutes and sit up to 45 minutes at a time. He could "maybe" lift ten pounds. He had pain in his lower back, right shoulder and left knee. His knee pain felt like someone was stabbing him with an ice pick. He could not raise his arm overhead. He could reach in front of him but could not grab anything without his shoulder hurting. He had constant back pain. On average, with medication, his pain was 6 to 7 out of 10. His back pain extended to his left leg. He weighed 215 pounds, his normal weight. His diabetes caused dry mouth, so he drank and used the restroom a lot. He had diarrhea a lot which he treated with over the counter medication. This had been going on for a couple months. Because of pain, he had a marijuana card for a couple years, to help him sleep.

B. Medical Record

On April 8, 2002, an MRI of the lumbar spine revealed multilevel degenerative disc disease with disc bulge/protrusion from L5-S1, causing slight to moderate central stenosis. On April 25, 2006, an MRI of the lumbar spine revealed degenerative disc disease at L1-L2 through L5-S1 2 with disc herniation at L2-3 through L5-S1. 3

On April 13, 2007, Dr. Waters noted that Plaintiff reported "off and on" back pain. He said 4 he had extreme pain for 2 weeks, but it was currently better. He denied radiation or numbness to his 5 legs. On May 1, 2007, Plaintiff said he had been off work since April 20, 2007 due to low back pain. 6

Dr. Waters noted that Plaintiff had seen a neurosurgeon "but neurosurgery was not an option at that 7 time that he was first seen." The assessment was lumbar disc syndrome with chronic low back pain. 8

On May 14, 2007, Plaintiff was now getting episodes of pain down the right leg. He could only work 9 for four hours and then had to leave. Dr. Waters wrote, "I discussed the need for a more definitive approach to this problem. Advised that he needs to return to see a neurosurgeon at this time."

On May 23, 2007, Dr. Waters completed a report to the Federal Employees' Retirement System. In the report, he mentioned that Plaintiff had seen a neurosurgeon for his back. Plaintiff told the neurosurgeon that he was not in pain when he was off work, but work aggravated his pain. The neurosurgeon suggested he lose weight and continue physical therapy in an attempt to prevent surgery. Plaintiff was reluctant to consider surgery at that time and no further neurosurgical evaluation was forthcoming. In the report, Dr. Waters also discussed an MRI of the spine from March 2002. It showed a diffuse disc bulge narrowing the thecal sac, most severely at L5-S1. There was also a disc bulge at L3-L4 with arthritic changes in the facet joint. At L4-LS, the disc was slightly narrowed and appeared desiccated with the diffuse disc bulge in addition to a central broad-based disc protrusion. The conclusion was multi-level degenerative disc bulge protrusion from L2 to S1, causing slight to moderate central stenosis, most severely at the L5-S1 level. Since that time, Plaintiff "continued to have" intermittent back discomfort, which improved with rest and immobility but would reoccur with improper movements. His hypertension was controlled, but he was gaining weight progressively. Dr. Waters diagnosed lumbar disc syndrome, a herniated nucleus pulposus, labile blood pressure, and diabetes mellitus type 2. He concluded,

[E]ach time that he returns to work, he is able to work only for a limited period of time before experiencing a reinjury to his back. Surgical intervention has been suggested as therapy, but at this time the patient has not been convinced that this is the route that he wishes to take. As a consequence, he misses many days of work and it is anticipated that if he continues to have more episodes of back pain that his disability is going to become even more severe, resulting in probable neurologic damage to his lower extremities. At this time, I have asked that he stay off work, if at all feasible, until such time that his back symptoms subside. It may be of some benefit if a daytime type job would be available for him, in as much as the irregular or late hours that he works places an added burden on him because of the greater difficulty in controlling his blood sugars as a result of his diabetes mellitus. I do not see that he is able to return to any type of gainful employment in view of his current back status. Perhaps if he were to pursue a more aggressive course of therapy, which might include surgery, he could obtain some greater and prolonged relief of discomfort from his back, but there is no assurance that that can necessarily be assured at this time.

In an attached form, Dr. Waters stated that Plaintiff was disabled, but found "moderate limitation of 7 functional capacity; capable of clerical/administrative or sedentary activity." Subsequent forms 8 completed by Dr. Waters state that Plaintiff was precluded from performing any full time work, even 9 at the sedentary exertional level.

On June 29, 2007, Plaintiff submitted a statement regarding his disability claim. He reported that he took his children to school, fed and watered pets, watched television, and took his children to football practice. He lifted dishes and grocery bags, went grocery shopping, drove for an hour, and pruned bushes. He slept seven hours. His activities were all limited by pain. He had diarrhea from medication. Food goes "right through" him. He said a doctor suggested that he have back surgery.

On September 29, 2007, Plaintiff had a consultative examination with Dr. Feng Bai, who is board-certified in Physical Medicine and Rehabilitation. Plaintiff drove himself to the exam. He reported that sitting, standing, walking, bending, and lifting increased his pain. Physical examination revealed that Plaintiff could sit and stand with a normal posture and there was no evidence of any tilt or list. He could rise from a chair without difficulty, and ambulated with normal gait. He had difficulty with tiptoe and heel walking. Range of motion of the lumbar spine was decreased due to pain. There was no pain with range of motion and axial rotation of the trunk. Straight leg raising test was negative bilaterally in the sitting position. Peripheral joints had full range of motion, as did the bilateral upper extremities except the right shoulder. The right shoulder had decreased range of motion due to back pain; however, ranges of motion of the shoulder were within normal limits. Impingement signs in the shoulders were negative bilaterally. There was diffuse tenderness at the lower lumbar paraspinal area and tenderness in the right front shoulder at the biceps tendon insertion area. Neurological examination revealed no focal weakness and normal sensation. He had strength, although the right shoulder had mild give-way weakness. MRI studies of the lumbar spine 2 indicated degenerative disc disease at L4-5, and L5-S1, disk protrusion, and facet arthropathy. 3

Based on his examination Dr. Bai concluded that Plaintiff could lift and carry 20 pounds 4 occasionally, 10 pounds frequently, stand/walk up to six hours and sit for six in an eight hour 5 workday, with postural limitations to include climbing, stooping, kneeling, and crouching, as well as 6 limitation on the right shoulder to occasional overhead activity and avoiding very forceful pushing 7 and pulling activities with the right hand due to biceps tendonitis. He wrote that Plaintiff also "needs 8 to alternate sitting, standing, and changing position and for every two hours of constant standing and 9 walking with constant sitting position."

On October 10, 2007, the non-examining State agency physician concluded that Plaintiff could perform light work, occasionally climb ramps or stairs, never climb ladders, ropes or scaffolds, and occasionally stoop, kneel, crouch or crawl. He had limited overhead use of the right upper extremity. He had to avoid even moderate exposure to vibration.

Chiropractic notes dated October 25, 2007 indicated Plaintiff's pain was 8/10. Standing, walking and sitting were "somewhat limited." On November 29, 2007, Dr. Waters noted that Plaintiff had tenderness on palpation of his lower spine. The assessment included chronic low back pain with a herniated disc by history.

On December 4, 2007 Dr. Waters completed a questionnaire in which he precluded Plaintiff from any full time work, even at a sedentary exertional level. He based this opinion on the impairments of herniated lumbar disc, lumbar radiculopathy, diabetes, and hypertension. He felt that Plaintiff could sit 2 hours intermittently and stand or walk up to 2 hours in an 8-hour workday. He felt that Plaintiff met the requirements of "Listing l.04."

On January 31, 2008, Dr. Waters noted that Plaintiff continued to report back pain. He said his back was "giving him more problems" because he had been trying to walk to lose some weight. He said that he was still could not work because of his back. On February 6, 2008, Dr. Waters completed another form indicating that Plaintiff was incapable of even sedentary work. On February 29, 2008 Dr. Waters noted that Plaintiff "continues to have low back discomfort. This is bothersome, but he is addressing it with increased activity with walking in an attempt to lose weight." A TENS unit was prescribed for "low back strain with chronic pain." On March 24, 2008 Dr. Waters 2 completed another form indicating that Plaintiff was incapable of even sedentary work. 3

On April 8, 2008, Dr. Waters saw Plaintiff in regard to a persistent cough. No mention of

4 back pain was noted. The only pain medication was Ibuprofen 800 mg. On April 30, 2008, Plaintiff 5 saw Dr. Waters in regard to a sore throat and cough. Upon examination, he had pain on flexion of 6 the left leg at the hip and knee. The assessment was bronchitis, chronic low back pain and lumbar 7 disc syndrome. On May 1, 2008, Dr. Waters completed another form indicating that Plaintiff was 8 incapable of even sedentary work. 9

On June 2, 2008, Plaintiff was in no acute distress. An x-ray of the right shoulder dated June 2, 2008 revealed no evidence of fracture or dislocation. An inferior spur of the acromion was noted which "can cause impingement syndrome." Clinical correlation was suggested. On June 12, 2008 Dr. Waters completed another form indicating that Plaintiff was incapable of even sedentary work.

On August 25, 2008, Plaintiff had an initial visit with Dr. Lan, a Veterans' Administration doctor. Plaintiff told Dr. Lan that his back was first injured in 1985, when he was in the Air Force. A 500-pound door swung shut on his back, injuring two lumbar discs. In addition to back pain, Plaintiff described intermittent associated lower extremity symptoms consisting of numbness and tingling which primarily involves the back of his leg. His right shoulder also bothered him. He was diagnosed with diabetes about two years ago and was trying to lose weight. He reported regular physical activity of 30 minutes 3 or more times a week. He was prescribed Ibuprofen and Vicodin.

On September 5, 2008, Dr. Waters opined that Plaintiff had severe limitation of functional capacity, and was incapable of minimal, sedentary activity. His disability was "stable and static."

On October 23, 2008, Plaintiff saw Dr. Lan after reporting an exacerbation of his back pain, including some lower left extremity radiculopathic symptoms initially. Neither Ibuprofen nor Vicodin relieved the symptoms. A topical analgesic provided some relief. He experienced muscle tension particularly when changing position after staying immobile for a while such as when getting out of the car. His shoulders were also ...

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