United States District Court, D. Nebraska
MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISIONO F THE COMMISSIONER OF SOCIAL SECURITY
WARREN K. URBOM, Senior District Judge.
Caylin Thomas Brown filed a complaint on February 28, 2013, against Michael J. Astrue, who was then serving as Commissioner of the Social Security Administration. (ECF No. 1.) Brown seeks a review of the Commissioner's decision to deny his application for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq. The defendant has responded to the plaintiff's complaint by filing an answer and a transcript of the administrative record. (See ECF Nos. 11, 12). In addition, pursuant to my order of June 3, 2013, (ECF No. 14), each of the parties has submitted briefs in support of his or her position. (See generally Pl.'s Br., ECF No. 15; Def.'s Br., ECF No. 20). After carefully reviewing these materials, I find that the Commissioner's decision must be affirmed.
Brown initially applied for disability benefits on September 29, 2010, alleging an onset date of January 28, 2010. (See ECF No. 12, Transcript of Social Security Proceedings (hereinafter "Tr.") at 157). After his application was denied initially and on reconsideration, (id. at 58-61, 70-73) Brown requested a hearing before an administrative law judge (hereinafter "ALJ"). (Id. at 7, 79-80). This hearing was conducted on April 30, 2012. (Id. at 24-46.) In a decision dated May 3, 2012, the ALJ concluded that Brown was not entitled to disability insurance benefits. (Id. at 8-23). The Appeals Council of the Social Security Administration denied Brown's request for review. (Id. at 1-6.) Thus, the ALJ's decision stands as the final decision of the Commissioner, and it is from this decision that Brown seeks judicial review.
II. SUMMARY OF THE RECORD
Brown, whose date of birth is January 15, 1988, testified that he injured his back in January 2010 when he was lifting a headboard. (Id. at 29-30). He herniated several discs in his back. (Id. at 30). About six months later, he had a lumbar laminectomy. He had a second surgery in August 2010 after he fell and reherniated the discs. (Id. at 30-31). Brown had not been employed full-time since the initial injury. (Id. at 30).
A. Medical Evidence
After Brown injured his back in January 2010, he began treatment for recurrent back pain with David Lindley, M.D. (Id. at 275). On February 2, 2010, Lindley noted that Brown showed tenderness in the paralumbar muscles on the left side and reported pain shooting down his left leg. Lindley stated that Brown "[a]lmost certainly" suffered from discogenic issues, but "[h]e really can't afford further investigation." Lindley stated that he talked to Brown about weight loss because he weighed 408 pounds at that time. (Id.).
Brown returned to Lindley on March 8, 2010, reporting "horrible right leg pain again." (Id.). Lindley reported that the pain was recurrent with markedly reduced straight leg raising on the right side, pain shooting down the back of the leg, and tenderness in the paralumbar muscle in the right side. Lindley noted that prednisone had worked the previous time, but Brown was "[b]etween a rock and a hard place without any insurance." Lindley prescribed prednisone, Percocet, ibuprofen, and Flexeril. Lindley asked Brown to consider having an MRI and again addressed the need for Brown to lose weight. (Id.).
Brown continued to see Lindley for treatment. On April 4, 2010, Lindley noted that Brown had markedly reduced straight leg raising and some tingling down his leg. Lindley stated that Brown clearly had sciatica secondary to disc entrapment. Lindley stated that Brown was struggling to take any action about his weight, had not been able to go to work, and had not been out of the house for two weeks. Lindley reported that he completed paperwork to obtain Medicaid since Brown needed an MRI of his lumbar spine as he had failed to obtain relief with anti-inflammatories and pain medications. Because prednisone had helped some, Lindley refilled Brown's prescriptions for it and Percocet. (Id. at 275-76).
Lindley saw Brown in April and May 2010 and continued to prescribe Percocet. (Id. at 276). On May 18, 2010, Brown had an MRI. (Id. at 279, 356). The report on the MRI indicated that Brown had large disc herniations at L3-L4 and L4-L5 causing severe central stenosis impinging the intrathecal nerve roots, large central L5-S1 disc herniation without anatomic impingement, and mild left paracentral T12-L1 subligamentous disc herniation abutting the anterior conus. (Id. at 279). He was diagnosed with L3-4 and L4-5 herniated disc, lumbar radiculitis, lumbar spondylosis, and lumbar degenerative disc disease. (Id. at 282).
Omar Jimenez, M.D., performed a lumbar discectomy at L3-4 and L4-5 on June 25, 2010. (Id. at 282). Brown reported that he did well initially after surgery, but six days later, he fell and had worsening pain in his right lower extremity. (Id. at 328). On July 6, 2010, Brown returned to Jimenez. Brown also reported that he had spent five hours sitting at the races four days earlier and that his symptoms progressed after that. He reported pain shooting down his right leg, but it was more like a muscle ache than the intense pain he had before surgery. He did not have any numbness. (Id.). Jimenez ordered a lumbar x-ray, which showed no fracture of the spine. (Id. at 349). The notes indicate that the examination was limited due to Brown's "body habitus." (Id.). An MRI (Id. at 280, 353) indicated postsurgical changes at L3-L4, including persistent large disc extrusions, which caused moderate canal stenosis at L3-L4 but had mass effect along nerve roots at that level. There was severe canal stenosis at L4-L5 with complete obliteration of the CSF space. (Id. at 280). There was subligamentous disc extrusion at T12-L1 which deformed the anterior aspect of the conus. (Id. at 281, 354). After another MRI on July 27, 2010, showed recurrent disc herniations at L3-4 and L4-5, Jimenez recommended re-exploration and a discectomy at those levels. Jimenez told Brown that the injury could recur, and if it did, he might need a fusion of the spine. (Id. at 327). The second discectomy of L3-4 and L4-5 was completed on July 28, 2010. (Id. at 299-300, 309). After the second surgery, Brown continued to have leg pain posterior to his ankles. A CT lumbar spine showed no abnormalities. (Id. at 300, 315). Before he left the hospital, he was being seen by physical therapy, but his progress was slow. (Id. at 300).
By August 20, 2010, Lindley reported that Brown was doing very well and that his back pain had improved significantly. (Id. at 326). Brown stated that he had mild discomfort when he bent forward and slight pain in the right hip. He had normal sensation to light touch in both legs. Lindley recommended Brown begin physical therapy twice a week for four weeks and renewed the prescription for Percocet. (Id.). By September 8, 2010, Brown reported some persistent back pain but less pain in his legs. (Id. at 276). Lindley prescribed Norco in order to wean Brown off of Percocet. (Id.).
Brown continued to see Lindley periodically, reporting continued back pain. On April 18, 2011, Brown stated that he was having "horrible back pain" and that his legs at times became numb and caused him to "drop to the floor." (Id. at 386). Lindley stated that he talked to Brown about weight loss. Lindley was not sure of any other treatment for Brown, who did not have medical insurance, and Lindley was reluctant to continue prescribing pain medications. Lindley referred Brown to Jimenez. (Id.).
On June 7, 2011, Jimenez reported that Brown said he had never completely been 100 percent better after surgery, but he had improved about 70 or 80 percent. (Id. at 387). However, his back pain had returned. The new lumbar MRI showed there was a slight recurrence of a herniated disc at L3-4, L4-5, but it was not as large as it had been previously. Jimenez recommended physical therapy, but Brown stated he did not have funds to pay for it. Jimenez also talked to Brown about the possibility of injections, but again he was worried about having no insurance. Brown had full strength in both lower extremities. Jimenez stated that if Brown was not progressing by June 17, 2011, he would try to get Brown some interventional treatments including injections. (Id.). The record does not show any additional treatment by Jimenez.
Brown saw Lindley on July 22, 2011, (Id. at 386) and November 22, 2011, for a recheck of his back pain. Brown reported that the pain was persistent and constant. (Id. at 383). Pain medications were prescribed. (Id. at 385-86).
B. Medical Opinion Evidence
Jerry Reed, M.D., completed a physical residual functional capacity (RFC) assessment of Brown on November 19, 2010. (Id. at 367-74). Reed determined that Brown could occasionally lift or carry 20 pounds and frequently lift or carry 10 pounds. (Id. at 368). He could stand and/or walk and sit for about six hours in an eight-hour workday. Brown was unlimited in his ability to push and/or pull. (Id. at 368). He could occasionally climb, balance, stoop, kneel, crouch, and crawl. (Id. at 369). Reed noted that Brown reported mild discomfort when he bent forward, but he had normal sensation to light touch in both legs and his reflexes were normal. (Id.). Brown had no manipulative, visual, or communicative limitations. (Id. at 370-71). It was recommended that Brown avoid concentrated exposure to extreme cold, vibrations, or hazards. (Id. at 371).
Reed noted that although physical therapy had been recommended, there was no evidence that Brown had followed through with it. (Id. at 374). Brown admitted to decreased pain and improved symptoms after surgery, but his report of activities of daily living reflected a different story with quite exaggerated symptoms compared to the most recent medical records. Reed stated that Brown seemed to be quite active when visiting friends and family on a daily basis. He reported using a motorized cart for shopping, but there was no mention of decreased mobility and it was unclear if he used the cart for convenience. (Id.). Reed reported that a third party indicated that Brown had no problem with independence and was able to keep his house clean and to care for his pets. Reed stated that Brown was considered to be partially credible due to inconsistencies in his activities of daily living. Brown continued to seek pain medications, but the medical records showed improvement in his symptoms following two surgeries. It was likely that he would continue with pain medications while he fully healed from the surgery. Overall evidence indicated that Brown was capable of working as outlined in the RFC. (Id.).
Glen Knosp, M.D., affirmed Reed's RFC. (Id. at 377). Knosp noted that Brown's statements to his medical providers contradicted his disability allegations. He had reported he was doing well with significant improvement in his pain level, to the point it was almost gone, and he had no discernable weakness. He had been released from care, but had failed to start physical therapy as directed. (Id. at 378). Brown's morbid obesity was a chronic condition, but Brown was able to move about independently and care for his own personal needs. (Id.).
C. Hearing Testimony
At a hearing on April 30, 2012, (Id. at 26) Brown testified that he did not complete high school because he did not have enough credits by the time he was 21 years old, so he voluntarily withdrew and later obtained a GED. (Id. at 28-29). From the time he was 15 until he was 19 he worked as a carpet installer. He had also previously ...