United States District Court, D. Nebraska
JOSHUA D. KOCHEN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.
MEMORANDUM AND ORDER
SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion for an Order
Reversing the Commissioner's Decision, ECF No. 11, filed
by Plaintiff Joshua D. Kochen, and the Motion to Affirm
Commissioner's Decision, ECF No. 12, filed by Defendant
Nancy C. Berryhill. For the reasons stated below, the Motion
for an Order Reversing the Decision will be denied and the
Motion to Affirm the Decision will be granted.
filed for Title II benefits on February 20, 2014. Tr.
His claim was denied initially on April 7, 2014, and again on
reconsideration on July 16, 2014. He requested a hearing,
which was held on November 2, 2015. The Administrative Law
Judge (ALJ) issued a written opinion denying benefits on
December 14, 2015.
is required to follow a five-step sequential analysis to
determine whether a claimant is disabled. See 20
C.F.R. § 404.1520(a). The ALJ must continue the analysis
until the claimant is found to be “not disabled”
at steps one, two, four or five, or is found to be
“disabled” at step three or step five. See
id. Step one requires the ALJ to determine whether the
claimant is currently engaged in substantial gainful
activity. See 20 C.F.R. § 404.1520(a)(4)(i),
(b). The ALJ found that Kochen had not engaged in substantial
gainful activity since February 6, 2013. Tr. 21.
two requires the ALJ to determine whether the claimant has a
“severe impairment.” 20 C.F.R. §
404.1520(c). A “severe impairment” is an
impairment or combination of impairments that significantly
limits the claimant's ability to do “basic work
activities, ” 20 C.F.R. § 404.1520(a)(4)(ii) &
(c), and satisfies the “duration requirement.” 20
C.F.R. § 404.1509 (“Unless your impairment is
expected to result in death, it must have lasted or must be
expected to last for a continuous period of at least 12
months.”). Basic work activities include
“[p]hysical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, or
handling”; “[c]apacities for seeing, hearing, and
speaking”; “[u]nderstanding, carrying out, and
remembering simple instructions”; “[u]se of
judgment”; “[r]esponding appropriately to
supervision, co-workers and usual work situations”; and
“[d]ealing with changes in a routine work
setting.” 20 C.F.R. § 404.1521(b). If the claimant
cannot prove such an impairment, the ALJ will find that the
claimant is not disabled. See 20 C.F.R. §
404.1520(a)(4)(ii), (c). The ALJ found that Kochen had the
following severe impairments: Degenerative disc disease of
the cervical and lumbar spine; small disc bulge; status post
lumbar fusion; status post cervical arthroplasty; and
obesity. Tr. 21.
three requires the ALJ to compare the claimant's
impairment or impairments to a list of impairments.
See 20 C.F.R. § 404.1520(a)(4)(iii), (d);
see also 20 C.F.R. Part 404, Subpart P, App'x 1
(20 C.F.R. §§ 416.920(d), 416.925 and 416.926). If
the claimant has an impairment “that meets or equals
one of [the] listings, ” the analysis ends and the
claimant is found to be “disabled.” See
20 C.F.R. § 404.1520(a)(4)(iii), (d). If a claimant does
not suffer from a listed impairment or its equivalent, then
the analysis proceeds to steps four and five. See 20
C.F.R. § 404.1520(a). The ALJ found that Kochen did not
have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments. Tr. 22.
four requires the ALJ to consider the claimant's residual
functional capacity (RFC) to determine whether the impairment or
impairments prevent the claimant from engaging in “past
relevant work.” See 20 C.F.R. §
404.1520(a)(4)(iv), (e), (f). If the claimant is able to
perform any past relevant work, the ALJ will find that the
claimant is not disabled. See 20 C.F.R. §
404.1520(a)(4)(iv), (f). The ALJ found that Kochen had the
residual functional capacity to perform “sedentary
work” as defined by 20 C.F.R. 404.1567(a), “but
with additional limitations.” Tr. 22. The ALJ found
that Kochen could only perform work “that does not
require foot controls with the right leg/foot; or greater
than frequent crouching, stooping, kneeling, or
crawling;” and work “that does not involve
concentrated and/or sustained vibration.” Id.
Ultimately, the ALJ concluded that Kochen was unable to
perform any past relevant work. Tr. 32.
five, the ALJ must determine whether the claimant is able to
do any other work considering the claimant's RFC, age,
education, and work experience. 20 C.F.R. § 404.1520(g).
If the claimant is able to do other work, the claimant is not
disabled. The ALJ determined that there are jobs that exist
in significant numbers in the national economy that Kochen
could perform, and, therefore, Kochen was not disabled from
February 6, 2013, to the date of the decision, December 14,
2015. Tr. 32-33.
Medical Opinion Evidence
February 6, 2013, Kochen was seen in an emergency room with
increasing left chest wall and thoracic spine pain after an
injury at work while driving a large loader. Tr. 336. Xrays
of his chest and thoracic spine showed no acute issues.
See Tr. 346- 48. Kochen was discharged with
prescriptions for Anaprox, Flexeril and Percocet, and
instructed to follow up with an occupational health provider,
his primary physician, and “back surgeon.” Tr.
337. On February 11, 2013, Kochen saw Dr. David Hoeft, M.D.
Tr. 368. Dr. Hoeft's note stated that Kochen's injury
resulted from the collapse of the air bladder in the seat of
his front-loader, causing him to land hard on the metal
underneath. Tr. 368. Kochen had not returned to work since
his injury and his pain had not improved. Id.
had low back pain when he sat or stood, but he felt better
when lying down. Id. An x-ray showed Kochen's
prior lumbar fusion was intact, so Dr. Hoeft continued the
medications from the emergency room and “reassured him
that in the absence of neurological signs or symptoms and a
good x-ray, that there was no need to see orthopedic surgery
at this time.” Tr. 369. On February 18, 2013, Kochen
returned to Dr. Hoeft. Tr. 366. He still had low back pain
and left-side chest pain, shortness of breath, and pain
around his left side to the middle of his back. Id.
Dr. Hoeft thought Kochen was having “mostly muscle
spasms of the chest wall, ” which “over time
should improve, ” or that Kochen may have had “a
thoracic nerve impingement” that might improve with an
injection from a pain doctor. Tr. 367. Dr. Hoeft referred
Kochen to Dr. James P. Devney for evaluation for thoracic
spine injections. Id.
February 25, 2013, Kochen saw Dr. Devney. Tr. 661. Dr. Devney
noted Kochen's pain ranged from 7 to 8 out of 10.
Id. Dr. Devney noted Kochen's injury occurred
when his “[a]irbag under seat failed while driving
large utility truck over bum[p]s in road. Slammed hard into
seat causing instant pain in back.” Id. Dr.
Devney noted that Dr. Phillips had performed back surgeries
in 2008 and 2010, to Kochen's lumbar and cervical spine,
respectively. Tr. 662. On exam, Kochen was tender over his
lower thoracic spine, his L4 and L5, and over his left
costochondral junction from ribs 4 through 8. Id.
Lumbar spine extension of two degrees caused pain.
Id. The clinical findings revealed Kochen had no
gross deformities of his spine and no muscle spasms; he could
flex forward 50 degrees without pain; he had 5/5 motor
function; and he had normal muscle tone and bulk throughout
his lower extremities. Tr. 662-63. He had normal sensation,
“2 and symmetric” reflexes, negative sitting and
cross-legged straight leg raises, he ambulated independently
with a normal gait pattern, and he had no difficulty tandem
walking or heel-and-toe walking. Tr. 663. Dr. Devney
recommended two weeks of physical therapy, weaning off
Percocet, switching from Flexeril to Tizanidine, and
continuing other medications. Tr. 664. Kochen was to remain
off work until further notice. Tr. 667.
March 8, 2013, Kochen saw Dr. Alicia Feldman. Tr. 657. His
pain was increasing, with mild low back pain and numbness in
his left foot, and physical therapy was not providing any
relief. Id. Naproxen was upsetting his stomach.
Id. Percocet, which he was taking up to five times a
day, was “just tak[ing] the edge off” his pain.
Id. Kochen moved about the room without hesitation
or facial grimace. Tr. 657. He could forward flex to 70
degrees with pain, had 5/5 motor function, and had normal
muscle tone and bulk throughout his lower extremities. Tr.
658. Kochen demonstrated symmetrical reflexes, negative
sitting and cross-legged straight leg raises. Id. He
ambulated independently with a normal gait pattern, and he
had no difficulty tandem walking or heel-and-toe walking.
Id. Dr. Feldman planned a thoracic MRI to further
evaluate Kochen's work injury. Tr. 658. She also switched
Kochen from Naproxen to Celebrex, refilled his Lidoderm and
Percocet, and kept him off work pending the results of the
planned MRI. Tr. 659-60. The subsequent thoracic spine MRI
showed a right paracentral disc protrusion at ¶ 7-T8,
which contacted the ventral aspect of the spinal cord. Tr.
March 13, 2013, Kochen returned to Dr. Devney. Tr. 652. Dr.
Devney performed a T7-T8 transforaminal epidural injection,
and released Kochen “back to sedentary work.” Tr.
654-56. Dr. Devney “had a lengthy, sit-down
conversation” with Kochen and his significant other and
pointed out that “several yellow flags are
obvious” and there certainly “is some element of
symptom magnification.” Tr. 654.
March 21, 2013, Dr. Devney noted Kochen had failed to respond
well to the thoracic spine epidural injection. Tr. 647.
During the examination, Kochen moved about the room without
hesitation or facial grimace, had no muscle spasm or spinal
deformities, and ambulated independently with a normal gait
pattern. Tr. 647-48.
wanted to see Dr. Eric Phillips, the surgeon that had treated
his prior low back and neck issues. Tr. 648. Dr. Devney's
note stated that “[i]n an effort to satisfy
[Kochen's] desire, referral provided.” Id.
Dr. Devney stopped Kochen's pain medication, Percocet,
because Dr. Devney believed Kochen's pain complaints were
out of sync with the objective findings, and released Kochen
from his care. Id. Kochen was to continue with the
“same work restrictions” until he saw Dr.
Phillips. Tr. 650.
March 28, 2013, Kochen saw Dr. Phillips. Tr. 399. Kochen was
having right leg weakness with prolonged standing, in
addition to his left leg pain. Id. Kochen's
thoracic and lumbar spine “exhibited tenderness on
palpation.” Tr. 401. He had pain with flexion and
extension of his lumbosacral spine. Tr. 402. Waddell's
sign testing was negative. Id. Kochen did not appear
uncomfortable, had a normal posture, and had no pain on
motion of the thoracic, cervical, and lumbar spines. Tr. 401.
Kochen's motor strength was 5/5, and his muscle bulk was
normal. Tr. 402. His reflexes were 2 throughout, and his
gait and stance were normal. Id. Dr. Phillips
planned for another MRI of Kochen's thoracic spine and an
MRI of his lumbar spine. Tr. 403. Dr. Phillips prescribed
Lyrica and continued Celebrex and Lidoderm patches. Tr.
403-04. Dr. Phillips found Kochen could not return to work.
April 8, 2013, Kochen's thoracic spine MRI showed a small
right paracentral disk protrusion at ¶ 7-8 with mild
effacement of the thecal sac. Tr. 481. His lumbar spine MRI
showed a small right foraminal disk protrusion at ¶ 3-4
with mild right foraminal stenosis at that level. Tr. 482. On
April 11, 2013, Dr. Phillips went over the MRI results with
Kochen. Tr. 409. Lyrica had helped temporarily, but Kochen
seemed to trend back to baseline. Id. Most of his
pain was in the thoracic region in the midline and came from
the lumbosacral area of his lower back and radiated into his
right leg to his toes. Id. His pain was aggravated
by “standing, twisting, [and] sitting in a chair
without a back rest.” Id. On examination,
Kochen had 5/5 motor strength throughout, symmetric reflexes,
normal sensation, no spinal tenderness to palpation, and
normal gait and stance. Tr. 410. Dr. Phillips ordered
“conservative, non-operative care, ” and noted
that Kochen might benefit from further injections and pain
management. Tr. 411. Dr. Phillips referred Kochen to Dr. John
Massey to try a right-sided T8-9 thoracic epidural.
Id. Kochen was to remain off work for the next two
months. Tr. 413.
April 11, 2013, Dr. Massey, performed the right T8-9 thoracic
transforaminal epidural steroid injection. Tr. 408. On April
25, 2013, Kochen returned to Dr. Massey and reported his
symptoms had not improved. Tr. 414. Dr. Massey noted that
“[Kochen] is describing that the radiating pain into
the thoracic distribution intermittently on the left side and
on the right side has been reduced substantially and
consistently, but the axial back pain in the midthoracic
region is really unchanged.” Id. This pain was
aggravated with sitting and standing for long periods of time
or activity. Id. Lyrica had been of some benefit
“with very little in the way of adverse effects . . .
.” Id. Dr. Massey described the etiology of
First, the disk at the T7-8 level leads to radiating pain in
the thoracic distribution involved and this is what we would
expect to improve with the epidural steroid injection under
transforaminal approach. The Lyrica is also beneficial for
this and it is consistent with what we would expect when he
described telescoping of his pain more into the thoracic
axial distribution rather than a radicular pattern. Second,
however, we also see discogenic pain which is also consistent
with what we would expect.
Tr. 417. Dr. Massey also noted that Kochen had not been
satisfied with Dr. Devney's care. Id. Dr. Massey
had a discussion with the case manager for the workers'
compensation insurance carrier “to ensure everyone is
on the same wavelength.” Id. Dr. Massey
continued the restrictions set by Dr. Phillips. Id.
9, 2013, Kochen began physical therapy. Tr. 419. He was seen
for physical therapy several times before his discharge from
physical therapy on June 17, 2013. Tr. 424, 427, 434, 438,
441, 444, 450, & 452.
23, 2013, Kochen returned to Dr. Massey. Tr. 557. Kochen
reported improvement with his initial efforts at physical
therapy and Lyrica. Id. His pain was still worse
with activity. Id. Dr. Massey noted Kochen appeared
to reach the maximum level of improvement with conservative
measures. Tr. 559-60. Dr. Massey increased Kochen's
Lyrica, continued his physical therapy, and continued Dr.
Phillips's work restrictions. See Tr. 437 &
6, 2013, Kochen returned to Dr. Phillips. Tr. 446. His pain
had increased over the prior two days-he had been trying to
perform his home exercises “when he stepped [off of]
the stairs ‘wrong' twisting his back.”
Id. Intermittent right leg pain radiated down his
leg to his foot. Id. Dr. Phillips noted Kochen did
not appear uncomfortable, and he had normal posture,
sensation, muscle bulk and muscle tone. Tr. 447-48. Kochen
had symmetrical reflexes, no muscle spasm or atrophy, and no
pain on motion of the thoracic, cervical, and lumbar spines.
Id. He had a normal gait and stance. Id.
Dr. Phillips found that Kochen could not return to work. Tr.
14, 2013, a MRI of Kochen's thoracic spine was performed.
Tr. 484. Like the prior thoracic spine MRIs, this MRI showed
a small right paracentral protrusion of the T7-8 disk that
effaced the thecal sac. Id. On June 24, 2013, Kochen
returned to Dr. Phillips to review the results of the June 14
MRI. Tr. 454. Dr. Phillips noted that Kochen's thoracic
pain continued, kept him up at night, and was aggravated by
quick changes of movement or direction. Id. The pain
would “cause [Kochen's] right leg to go out on
him.” Id. Kochen had been falling as a result.
Id. Dr. Phillips noted the Kochen was “very
discouraged by how much general daily activities and trivial
movement causes onset of his pain, ” id., and
that the disc protrusion had increased “by
approximately ½ millimeter” in the recent MRI.
Tr. 455. Dr. Phillips explained that the classic surgery
repair would involve going through Kochen's chest by
removing a rib, removing the disc herniation, and then