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Peters v. Colvin

United States District Court, D. Nebraska

January 13, 2014

DARREN M. PETERS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, District Judge.

This matter is before the Court on the denial, initially and on reconsideration, of the Plaintiff's disability insurance benefits ("DIB") under the Social Security Act ("Act"), 42 U.S.C. §§ 401, et seq., and supplemental security income ("SSI") benefits under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq.

PROCEDURAL HISTORY

Plaintiff Darren M. Peters ("Plaintiff") filed an application for DIB under the Act (Tr. 182-188) and for SSI (TR 189-193) on June 25, 2010, and July 12, 2010. The claims were denied initially on August 26, 2010 (Tr. 94-97), and on reconsideration December 22, 2010 (Tr. 102-112). On October 7, 2011, following a hearing, an Administrative Law Judge found that Plaintiff was not under a "disability" as defined in the Social Security Act. (Tr. 8.) On November 5, 2012, (Tr. 1) the Appeals Council of the Social Security Administration denied Plaintiff's request for review. After the decision of the Appeals Council, the decision of the ALJ, at that time, stood as the final decision of the Secretary, subject to judicial review under 42 U.S.C. § 405(g).

FACTUAL BACKGROUND

A. Documentary Evidence

Plaintiff alleges he became disabled on September 23, 2009, because of migraine headaches, foot pain, and back problems. (Tr. 182, 217.) Plaintiff is a high school graduate and completed two years of college. (Tr. 217.) He worked as a mechanic until September 2006. (Tr. 218.) On the date of the ALJ's decision, Plaintiff was forty-six years old. (Tr. 88.) The record also includes medical treatment notes that pre-date Plaintiff's alleged disability. Emergency room records show Plaintiff was admitted on September 14, 2006, after someone assaulted him with a baseball bat. (Tr. 355.) Plaintiff was diagnosed with a cerebral contusion and scalp lacerations. (Tr. 355, 357, 387.) The hospital discharged Plaintiff on September 22, 2006. (Tr. 387.)

On January 9, 2007, Plaintiff underwent a discectomy procedure to repair a cervical-disk herniation. (Tr. 394-95.) Beginning in May 2009, Plaintiff received treatment at a pain clinic. (Tr. 285.) His treatment included therapeutic injections and prescriptions for a muscle relaxer and Oxycodone (Tr. 288, 289, 290, 291, 292, 293, 296.) On October 20, 2009, Plaintiff met with J. Meyer, M.D., a physician at the pain clinic. (Tr. 297-99.) Plaintiff complained of low back pain that worsened over the course of the day. (Tr. 297.) Dr. Meyer noted that Plaintiff's Oxycodone did not control his pain very well, and prescribed morphine. (Tr. 298.) During a follow-up appointment on November 18, 2009, Plaintiff reported that his current medications did not work very well. (Tr. 300, 301.)

During a January 12, 2010, appointment with Dr. Meyer, Plaintiff reported feeling "wired" on his current medications. (Tr. 303.) Dr. Meyer observed mild to moderate lumbar muscle spasms, and mild to moderate tenderness in Plaintiff's spine. (Tr. 305.) Dr. Meyer noted that Plaintiff planned to see a spine surgeon. (Tr. 305.)

Peter Lennarson, M.D., a neurosurgeon, examined Plaintiff on February 19, 2010. (Tr. 272-73.) Dr. Lennarson said he could not complete a "disability form" because he was not Plaintiff's regular doctor. (Tr. 272-73.) Dr. Lennarson diagnosed Plaintiff as having pseudo-arthritis. (Tr. 272.) He advised Plaintiff that updated diagnostic scans would be needed. (Tr. 272.)

Plaintiff returned to the pain clinic and saw Burt McKeag, M.D., on July 21, 2010. (Tr. 306-08.) Dr. McKeag noted that Plaintiff was stable on his current medications, although pain relief remained inadequate. (Tr. 307.) He refilled Plaintiff's prescriptions. (Tr. 307.)

Paul Sheets, a physical therapist, completed a consultative examination for the agency on August 18, 2010. (Tr. 315-17.) Plaintiff said he had to lie down for most of the day because of back pain. (Tr. 315.) Plaintiff also said he mowed his yard with a riding mower, and helped care for his two-year-old child. (Tr. 316.) During testing, Mr. Sheets observed that Plaintiff had full arm and leg strength. (Tr. 316.) A seated straightleg-raise test was negative. (Tr. 316.) Mr. Sheets noted that Plaintiff changed positions several times during the evaluation, and leaned to the right while sitting. (Tr. 317.)

Jerry Reed, M.D., a non-examining agency medical consultant, reviewed Plaintiff's medical records on August 23, 2010. (Tr. 318-26.) Dr. Reed assessed Plaintiff with pseudo-arthritis of the lumbar spine. (Tr. 318.) He determined Plaintiff could lift up to 20 pounds occasionally and up to 10 pounds frequently, and could stand or walk at least two hours and sit for about six hours in an eight-hour workday. (Tr. 319.) Dr. Reed added that Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl, but should not be exposed to hazards. (Tr. 320, 322.)

Dr. McKeag examined Plaintiff at the pain clinic on October 21, 2010. (Tr. 332-33.) Plaintiff said he could not take some pain medications because they caused migraines. (Tr. 332.) Dr. McKeag prescribed a muscle relaxer and Oxycodone. (Tr. 333.) Glen Knosp, M.D., a second non-examining medical consultant, reviewed Plaintiff's ...


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