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Barnes v. Berryhill

United States District Court, D. Nebraska

June 3, 2019

BRENT D. BARNES, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Richard G. Kopf Senior United States District Judge

         Plaintiff Brent Barnes brings this action under Titles II and XVI of the Social Security Act, which provide for judicial review of “final decisions” of the Commissioner of the Social Security Administration. 42 U.S.C. § 405(g) (Westlaw 2019).


         A. Procedural Background

         Barnes filed an application for disability benefits on July 7, 2015, under Titles II and XVI. The claims were denied initially and on reconsideration. On November 17, 2017, following a hearing, an administrative law judge (“ALJ”) found that Barnes was not disabled as defined in the Social Security Act. (Filing No. 1-1 at CM/ECF pp. 1-11.) On July 20, 2018, the Appeals Council of the Social Security Administration denied Barnes's request for review. (Filing No. 1-2 at CM/ECF pp. 1-3.) Thus, the decision of the ALJ stands as the final decision of the Commissioner. Sims v. Apfel, 530 U.S. 103, 107 (2000) (“if . . . the Council denies the request for review, the ALJ's opinion becomes the final decision”).

         B. Medical Factual & Opinion Evidence

          The material medical evidence related to Barnes's physical impairments is undisputed and is described by the ALJ as follows:

[T]he record establishes the claimant injured his back in April 2001. An MRI taken in May 2001 revealed large left L5-S1 disc herniation and disc space degenerative change at ¶ 4 and L5. (Exhibit 2F/52). After cortisone injections failed to provide relief, Dr. Robert A. Vande Guchte, M.D., performed a left L5-S1 laminotomy, partial discectomy, and decompression of the S1 nerve root. (Exhibit 2F). The claimant participated in physical therapy for several weeks. (Exhibit 2F/42).
A second MRI scan performed on the claimant's lumbar spine in Oct 2002 revealed mild residual findings of the laminectomy and partial decompression discectomy. (Exhibit 2F/32). Dr. Guchte opined the claimant's symptoms derived from residual S1 nerve root effect and recommended an epidural corticosteroid injection. (Exhibit 2F/32). Later in February 2003, Dr. Guchte performed a repeat left L5-S1 laminotomy (Exhibit 3F/57; 2F/3). Five months after surgery, the claimant described to Dr. Guchte the same degree of symptoms in his lower extremities. Dr. Guchte diagnosed persistent neurogenic pain syndrome. (Exhibit 2F/1). Following the second surgery the claimant underwent a functional capacity evaluation in 2004 (Exhibit 3F/50-56.). Dr. Guchte reviewed FCE and opined its findings suggested a sedentary work environment to, at most, a light work classification. (Exhibit 2F/1).
In July 2003, claimant was involved in a motor vehicle accident in which his vehicle was struck in the rear end. (Exhibit 3F/48). X-rays of his lumbar spine were negative for acute abnormalities (Exhibit 3F/49). In April 2005, claimant was injured moving boxes inside the back of a pickup truck. (Exhibit 3F/26). A MRI taken in May 2009 revealed post-surgical changes at ¶ 5-S1, including epidural fibrosis on the left, borderline central canal narrowing present at ¶ 3-L4 due to spondylitic changes and disc degeneration, as well as scattered areas of degenerative changes at multiple levels. (Exhibit 10F/1). The most recent MRI performed in October 2014 revealed multilevel disc disease in lumbar spine, greatest at ¶ 5-S1 level, where there is a broad based disc bulge with left paracentral disc protrusion. (Exhibits 3F/2; 11F/1-2).
In September 2015, Dr. Scott A. McPherson conducted a consultative medical examination. (Exhibit 8F). During the interview, the claimant told Dr. McPherson that he could not sit longer than 30 minutes, stand for more than minutes, or walk more than a block. (Exhibit 8F/1). The claimant also reported urinary incontinence and erectile dysfunction as a result of low back pain. On physical examination, Dr. McPherson noted the claimant's left shoulder injury in 2003 with arthritis and reduced range of motion, which limits his ability to work with hands. (Exhibit 8F/2) The range of motion testing revealed the claimant's shoulder had forward elevation to 110 degrees right, 90 degrees left, abduction 100 degrees right and 80 degrees left. Examiner documented crepitus with manual movement of both shoulders. (Exhibit 8F/3). An MRI of his left shoulder revealed tendinosis/tendinitis changes of distal supraspinatus tendon without identification of a discreet tear. Tendinosis changes of the distal subscapular tendon, but otherwise a negative examination. (Exhibit 4F/1).
The consultative examine[r] also performed range of motion testing on the claimant's lower extremities. Testing revealed hip flexion of 70 degrees right, 30 degrees left, extension of 20 degrees bilaterally, abduction of 20 degrees right, 10 degrees left, adduction, 10 degrees right, 30 degrees left, with internal rotation of 30 degrees right, 20 degrees left, and external rotation, 30 degrees right, 20 degrees left. (Exhibit 8F/6). The claimant's lumbar flexion measured 60 degrees, extension 10 degrees, with 0 degree of lateral flexion bilaterally. (Exhibit 8F/6). The claimant's straight leg raise measured 30 degrees on right, and 10 degrees on left. His lower extremity muscle strength measured 4/5 bilaterally. (Exhibit 8F/6). The examiner also noted the claimant had a normal gait and used no assistive device for ambulation. The examiner diagnosed chronic low back pain, chronic shoulder pain, and history of arthritis of left shoulder. (Exhibit 8F/6).
The record reflects the claimant's most recent physical examination occurred in June 2017. Dr. Guchte documented tenderness to palpation in the lower back, mid back, and upper thoracic region. No. muscle spasm was present. He recorded no evidence of spine instability to palpation or manipulation. The claimant's sitting and lying straight leg raises did not produce pain in back region or lower extremities. The femoral nerve stretch test in prone position was negative bilaterally. A lower lumbar compressional maneuver with bilateral active leg raising was negative for reproducing back pain. (Exhibit 18F/2). Lumbar spine imaging revealed chronic collapse of patient's L5-S1 segment with adjacent endplate changes with mild degenerative at ¶ 3-L4, L4-L5. (Exhibit 18F/3). Dr. Guchte assessed chronic left S1 radiculopathy, L5-S1 chronic degenerative spondylosis, L4-L5 mild degenerative spondylosis, (Exhibit 18F/3).
Medical records also document the claimant has had four separate lumbar epidural injections with no relief from pain. (Exhibit 27F/1). In July 2017, the claimant saw Dr. Hajj and the record indicates the claimant reported he was not exercising . . . .[1] (Exhibit 27F/1, 4). On physical examination, Dr. Hajj, M.D., documented back pain with range of motion all directions; 5/5 strength proximally and distally in all extremities, and pain inhibition. (Exhibit 27F/3). Dr. Hajj refilled oxycodone 5 mg, and hydrocodone-acetaminophen, gabapentin and carisporodol. (Exhibit 27F/4).
The objective medical evidence of record shows the claimant has chronic collapse of his L5-S1 segment, with L5-S1 chronic degenerative spondylosis, chronic left S1 radiculopathy, and milder L4-L5 degenerative spondylosis. (Exhibit 18F/3). Dr. Guchte has recommended disc fusion surgery as a possible option. (Exhibit 18F/4). The claimant also suffers from tendinitis and tendinosis in his left shoulder (Exhibit 4F). He treats his chronic pain caused by these conditions with opiates, muscle relaxants and ibuprofen. At the hearing, the claimant testified his medications help him “get out of bed” and “complete daily functions.”
. . . .
As for the opinion evidence, I have considered and given some weight to the opinions of the State agency medical examiners who opined the claimant is capable of performing less than the full range of light work with additional postural, manipulative, and environmental restrictions and limitations, many of which I have incorporated in the residual functional capacity assessment. (Exhibits 1A, 2A, 5A, 6A). The medical non-examiners are familiar with the disability determination process and the Regulations. They based their opinions on a comprehensive review of the record. They supported their opinions with detailed narratives explaining the evidence they relied on in reaching their conclusions. To the extent the residual functional capacity varies from their opinion, the variance is due to new evidence, including the claimant's and vocational expert's testimonies, which were not available to the non-examiners.
I have also considered two opinions of Dr. Kathryn M. Hajj, M.D., a physiatrist. (Exhibits 14F, 21F). In a letter dated March 2015, Dr. Hajj opined the claimant must refrain from straining his shoulder by pushing, pulling, or lifting anything above 10 pounds and must avoid reaching above his head with any kind of weight. (Exhibit 14F/5). Dr. Hajj has treated the claimant and managed his pain medications since 2008, and she is intimately familiar with his medical history. Her opinion is also consistent with the objective medical evidence (Exhibit 4F). Therefore, I have assigned some weight to her opinions. Dr. Hajj also completed a medical questionnaire in June 2017 (Exhibit 21F). She opined the claimant has exhausted his ability to improve with further physical therapy; he cannot maintain a sitting, standing, bending or leaning position for “any length of time, ” and his variable response to treatment “makes his ability to perform gainfully employed [sic] less likely.” (Exhibit 21F/2, 5). While acknowledging Dr. Hajj is a treating source, I have given considerably less weight to these opinions because they are not supported by functional testing, they are vague, and encroach upon an issue reserved exclusively to the Commissioner.

(Filing No. 1-1 at CM/ECF pp. 6-9.)

         C. Barnes's Activities

         As to Barnes's level of activity, the ALJ described the evidence as follows:

The claimant and his friend, Barry Beruman, also report the claimant engages in activities that are not limited to the extent one would expect in light of the claimant's allegations of disabling pain and physical limitations. (Exhibits 4E, 5E). For example, he performs his own personal care, and he testified he provides care for a disabled person in return for room and board.[2] He prepares simple meals[3], shops for groceries[4], does light housekeeping, and small loads of laundry. He enjoys watching television and going to movies with friends and family. He also enjoys camping and boating, [5] drives, and takes short walks. (Exhibits 4E, 5E, hearing testimony). While the claimant's abilities to engage in these ordinary daily activities is not conclusive proof the claimant is also able to engage in substantial gainful activity, the claimant's capacity to perform these tasks independently is a strong indication that the claimant retains the capacity to perform the requisite physical and mental tasks that are part of everyday basic work activity.

(Filing No. 1-1 at CM/ECF p. 8.)

         D. The ALJ's Conclusions

         Following the five-step sequential analysis for determining whether an individual is “disabled” under the Social Security Act, 20 C.F.R. § 404.1520, the ALJ concluded in relevant part (Filing No. 1-1 at CM/ECF pp. 4-11):

(1) Barnes has not engaged in substantial gainful activity since November 5, 2010, the amended alleged onset date.
(2) Barnes's severe impairments of degenerative disc disease, radiculopathy of the bilateral lower extremities, epidural fibrosis, and tendinosis/tendinitis of the left shoulder did not meet or equal the severity of one of the listed impairments under the Act because “the record does not contain evidence of nerve root compression, spinal arachnoiditis or lumbar spinal stenosis resulting in pseudoclaudication. . . . [or] an inability to ambulate effectively.” (Filing No. 1-1 at CM/ECF p. 4.)
(3) Barnes has the residual functional capacity (“RFC”) to perform sedentary work[6] with the following restrictions and limitations:
The claimant can never climb ladders, ropes, or scaffolds. He can no more than occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. He can perform no more than occasional overhead reaching with his upper extremity. He can never use foot controls with his bilateral lower extremities. He can have no concentrated exposure to extreme cold temperatures or workplace hazards, defined as unprotected heights and dangerous moving mechanical parts. He can stand for one hour before needing to sit for 10 minutes before standing again, in addition to normal breaks, without leaving the workstation or work area.
(4) Barnes's RFC allows him to perform his past relevant work as a telephone customer service representative, a sedentary position. There are also other jobs existing in the national economy that Barnes can perform, such as a charge-account clerk, food and beverage order clerk, and addresser.
(5) Barnes was not under a disability within the meaning of the Social Security Act from November 5, 2010, through the date of the ALJ's decision.


         Barnes asserts that the ALJ erred in (1) failing to give controlling weight to the opinions of Dr. Kathryn M. Hajj, Barnes's treating physician; (2) substituting the ALJ's own opinion for those of Barnes's physicians; (3) relying on an RFC that did not incorporate Barnes's “relevant complaints of pain and the side effects of [P]laintiff's many medications on his ability to work as required by SSR 16-3p”; (4) not finding Barnes disabled based on the testimony of the vocational expert (“VE”); and (5) failing to obtain an updated opinion from a medical advisor after 400 pages of medical records were “added to the file after the State agency medical consultants reviewed this case, ” especially “given the complicated medical issues involved.” (Filing No. 21 at CM/ECF p. 3.)

         III. ...

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