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Kochen v. Berryhill

United States District Court, D. Nebraska

November 22, 2017

JOSHUA D. KOCHEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE

         This 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.

         PROCEDURAL HISTORY

         Kochen filed for Title II benefits on February 20, 2014. Tr. 19.[1] 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.

         An ALJ 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.

         Step 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.

         Step 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.

         Step four requires the ALJ to consider the claimant's residual functional capacity (RFC[2]) 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.

         At step 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.

         FACTUAL BACKGROUND[3]

         I. Medical Opinion Evidence

         On 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.

         Kochen 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.

         On 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.

         On 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. 480.

         On 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.

         On 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.

         Kochen 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.

         On 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. Tr. 406.

         On 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.

         On 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 Kochen's pain:

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.

         On May 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.

         On May 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 & 560.

         On June 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. 451.

         On June 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 ...


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