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Cox v. Colvin

United States District Court, M.D. Tennessee, Northeastern Division

March 25, 2015

MICHAEL EUGENE COX,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security.

REPORT AND RECOMMENDATION

JULIET GRIFFIN, Magistrate Judge.

The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's claim for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"), as provided by the Social Security Act.

Upon review of the Administrative Record as a whole, the Court finds that the Commissioner's determination that the plaintiff is not disabled under the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g) and that the plaintiff's motion for judgment on the administrative record (Docket Entry No. 15) should be DENIED.

I. INTRODUCTION

On June 29, 2009, the plaintiff protectively filed for SSI and DIB, alleging a disability onset date of March 15, 2009, due to back pain and high blood pressure. (Tr. 19, 116-25, 144, 148.) His applications were denied initially and upon reconsideration. (Tr. 53-61, 71-76.) On December 9, 2010, the plaintiff appeared and testified at a hearing before Administrative Law Judge Frank Letchworth ("ALJ"). (Tr. 31-52.) The ALJ entered an unfavorable decision on January 12, 2011. (Tr. 19-26.) On May 18, 2012, the Appeals Council denied the plaintiff's request for review, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6.)

II. BACKGROUND

The plaintiff was born on February 3, 1968, and he was 41 years old as of his alleged disability onset date. (Tr. 144.) He graduated high school and has worked as an assembly line worker and supervisor, emergency medical technician ("EMT"), and car salesman. (Tr. 36-38, 49, 176-79, 184.)

A. Chronological Background: Procedural Developments and Medical Records

From 1988 to 1990, Dr. Paul McCombs performed three surgeries to correct recurrent disc herniation of the plaintiff's lumbar spine at L4-L5. (Tr. 222-26, 239-46.) After each surgery, the plaintiff received follow-up care from Dr. McCombs. (Tr. 222-26.) In August 1993, the plaintiff reported to Dr. McCombs that he had been "doing well" until a month earlier when he was in an automobile accident. (Tr. 222.) A CT scan showed no evidence of a disc rupture, and Dr. McCombs opined that the plaintiff had "strained [his] back and ha[d] some irritated nerves." (Tr. 237.)

The plaintiff returned to Dr. McCombs in October 1999 with pain in his back, right hip, and right leg that he reported had gotten "progressively worse despite conservative management." (Tr. 221.) Myelograms and CT scans taken at this time showed disc bulging at L3-L4, disc degeneration with spinal stenosis at L4-L5, and a "transitional type L5-S1 disc." (Tr. 221, 228-30, 233-36.) Between November 1999 and January 2000, the plaintiff received a series of three epidural steroid injections ("ESIs"). (Tr. 219-20, 227, 231-32.) In March 2000, the plaintiff reported that he had "made [i]mprovement after his last ESI, " and Dr. McCombs instructed him to return if he had a "significant recurrence of his symptoms." (Tr. 219.) He did not return until February 2009, when he presented with increasing pain in his back and right hip over the previous year, and Dr. McCombs scheduled a lumbar MRI. (Tr. 270.)

The plaintiff presented to Dr. Samantha McLerran in March 2009 with chronic low back pain and difficulty sleeping. (Tr. 310-14.) On March 20, 2009, he reported that he had recently gone to the emergency room and been hospitalized with "acute worsening" of his low back pain. (Tr. 304.) Dr. McLerran administered a Demerol injection and prescribed Percocet and Hydrocodone-Acetaminophen.[1] (Tr. 306.) An April 2009 MRI showed canal stenosis and foraminal narrowing that was moderate at L3-L4 and moderate to severe at L4-L5. (Tr. 267, 317.) An April 2009 x-ray showed "[m]inimal lumbar scoliosis" and "[m]oderate degenerative bony and disk space changes at L4-5 and L5-S1." (Tr. 266.) Dr. McLerran continued to see the plaintiff for low back pain in April 2009, and she prescribed Percocet, Prednisone, and Zanaflex and encouraged him to exercise.[2] (Tr. 250-65, 297, 364-67.)

On May 19, 2009, the plaintiff presented to Dr. William Schooley, a neurologist, who diagnosed him with lumbar spondylosis, lumbar radiculopathy, post-laminectomy syndrome, and lumbar stenosis. (Tr. 326.) Dr. Schooley referred the plaintiff to pain management under the care of Dr. William Leone, who prescribed, inter alia, Oxycontin, Lortab, Robaxin, and Percocet and performed a series of three ESIs in June and July 2009.[3] (Tr. 321, 326, 344-61.) Dr. Leone also administered two lumbar medial branch nerve blocks in September 2009 and a lumbar medial branch nerve rhizotomy in November 2009. (Tr. 347, 350, 352.)

In June 2009, Dr. Schooley recommended an electrophysiological evaluation of the plaintiff's legs, which returned normal with "no evidence... for a recurrent nerve entrapment syndrome or peripheral neuropathy." (Tr. 327, 331-32.) A lumbar myelogram in June 2009 revealed "[s]mooth anterior extradural filling defects [at] L3-L4 and L4-L5, " "[n]erve root sleeves... symmetrically opacified, " and "[n]o intradural filling defect or mass." (Tr. 328, 438.) A post-myelogram CT scan showed probable disc bulging at T11-T12; mild disc bulging at L1-L2 and L2-L3; mild stenosis and disc protrusion at L3-L4; severe degenerative disc disease, moderate facet arthropathy, and moderate bilateral foraminal stenosis at L4-L5; and a "[t]ransitional sacralized L5 segment." (Tr. 329-30.)

The plaintiff returned to Dr. McLerran in August 2009 with complaints of elevated blood pressure, and Dr. McLerran diagnosed him with benign essential hypertension and, in October 2009, with insomnia. (Tr. 370-73, 379.) Dr. McLerran continued to treat the plaintiff, primarily for hypertension and insomnia, through September 2010, during which time she prescribed Captopril-Hydrochlorothiazide, Norvasc, Opana, Zanaflex, Lunesta, and Xanax.[4] (Tr. 370-87, 396-98, 441-61.)

The plaintiff completed a Function Report in August 2009 in which he indicated that he was able to "help with house work and yard work." (Tr. 167-74.) He reported that he could not stand for longer than 15 to 20 minutes, could not "lift anything heavy, " and could not walk for more than a quarter of a mile "without pain." (Tr. 168.) He also reported that he had difficulty bending to put his shoes on and that he could not "climb more than three stairs." (Tr. 168, 172.) He indicated that he watched television, visited with friends, and went fishing and boating once a month. (Tr. 171.)

On October 20, 2009, Dr. John Netterville, a nonexamining Tennessee Disability Determination Services ("DDS") consultative physician, completed a physical Residual Functional Capacity ("RFC") assessment. (Tr. 335-43.) Dr. Netterville opined that the plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk about six hours in an eight-hour workday; and sit about six hours in an eight-hour workday. (Tr. 336.) He opined that the plaintiff could push and/or pull in unlimited amounts; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs; and never climb ladders, ropes, or scaffolds.[5] (Tr. 336-37.)

The plaintiff continued to see Dr. Leone through October 2010 and was prescribed Oxycontin and Lortab. (Tr. 404-36, 462-81.) A thoracic spine x-ray in January 2010 showed "[m]ild to moderate spondylosis" and "[m]ild anterior wedging/compression fractures at T-11 and T-12." (Tr. 393.) In a treatment note on January 14, 2010, Dr. Leone indicated that, "per Dr. Schooley, " the plaintiff had an "inoperable disc bulge [at] this point" and was "[u]nable to work" due to low back pain. (Tr. 432.) In March and April 2010, Dr. Leone administered three ESIs at L3-L4 and prescribed Neurontin in addition to Oxycontin and Percocet.[6] (Tr. 413, 417, 424-25.) A lumbar spine MRI in April 2010 showed levoscoliosis, "[t]ransitional anatomy" in the form of a "sacralized L5 segment with a rudimentary L5/S1 disc space, " central disc protrusion at T11-T12, mild central stenosis and moderate foraminal stenosis at L3-L4, and post-surgical changes with mild central stenosis and moderate to severe bilateral foraminal narrowing at L4-L5. (Tr. 436.)

On April 30, 2010, Dr. McCombs completed a Medical Source Statement assessing the plaintiff's ability to do work-related physical activities. (Tr. 400-03.) Dr. McCombs opined that the plaintiff could lift and/or carry less than ten pounds occasionally and frequently, stand and/or walk less than two hours in an eight-hour workday, and sit about four hours in an eight-hour workday. (Tr. 400.) He opined that the plaintiff's ability to push and/or pull was limited in his lower extremities and that he would need to periodically alternate sitting and standing. (Tr. 401.) Dr. McCombs based these conclusions on the plaintiff's history of three previous lumbar surgeries and a "current physical exam." Id. Dr. McCombs also opined that the plaintiff would frequently experience pain severe enough to interfere with attention and concentration, that he was "[i]ncapable of even low stress jobs, '" that he would need to take unscheduled breaks every two hours, that he would need to elevate his legs with prolonged sitting, and that he would likely be absent from work more than four times a month. Id. Finally, Dr. McCombs opined that the plaintiff could never balance, crawl, or climb ramps, stairs, ladders, ropes, or scaffolds; could occasionally kneel and crouch; and was limited reaching in all directions including overhead. (Tr. 402.)

On June 16, 2010, Dr. Leone performed a fluoroscopically guided L3-L4, L4-L5, and L5-S1 provocative lumbar discography. (Tr. 408.) A post-discogram CT scan showed "[t]ransitional lumbosacral anatomy with a sacralized L5 vertebral segment" and "[c]entral canal, lateral recess and biforaminal stenosis at L3-L4 and L4-L5." (Tr. 435.)

On June 21, 2010, the plaintiff presented to Dr. McLerran for follow up, reporting that he had been to the emergency room after burning his leg with a motorcycle. (Tr. 442.) His mother reported that he was "confused" and "talking to sons who [were] not there." Id. Dr. McLerran diagnosed him with a second degree lower limb burn, altered mental status, and cellulitis and abscess of leg. (Tr. 449.) The plaintiff continued to be seen by Drs. Leone and McLerran through October 2010 for hypertension, insomnia, and low back and leg pain. (Tr. 404-07, 446-81.)

B. Hearing Testimony

At the plaintiff's hearing on December 9, 2010, the plaintiff was represented by counsel, and both the plaintiff and Edward Smith, a vocational expert ("VE"), testified. (Tr. 31-52.) The plaintiff testified that he lives with his mother, is separated from his wife, and has two adult children. (Tr. 34-35.) He testified that he has worked as an assembly line worker, assembly line supervisor, EMT, construction worker, and car dealer, and he explained that he had difficulty performing each of these jobs because of back pain from standing and walking. (Tr. 35-38.)

The plaintiff testified that Dr. McCombs performed surgery on his back three times in the 1980's and 1990's. (Tr. 41-42.) The plaintiff explained that he had returned to Dr. McCombs approximately two years before the hearing but had stopped going to Dr. McCombs because he did not accept TennCare. (Tr. 40, 42.) The plaintiff said that Dr. McCombs did not examine him in April 2010 when he completed his Medical Source Statement. (Tr. 42.) He related that Dr. McCombs had referred him to Dr. Schooley, who had told him that he needed another surgery but that "it wouldn't help" and "might ...


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