United States District Court, D. Nebraska
JUSTIN L. COOPER, Plaintiff,
ANDREW M. SAUL,  Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND ORDER
M. Gerrard, Chief United States District Judge.
plaintiff, Justin Cooper, filed his Complaint (filing 1)
seeking judicial review of the Commissioner's denial of
his application for disability insurance benefits, and moved
this Court for an order reversing the Commissioner's
final decision. Filing 11. The Commissioner filed his motion
to affirm the agency's final decision denying benefits.
Filing 17. The Court finds that the Commissioner's
decision is supported by substantial evidence on the record,
that the Commissioner's motion to affirm should be
granted, and that the plaintiff's motion for reversal
should be denied.
MEDICAL AND WORK HISTORY
early 2003 (or perhaps 2001),  the plaintiff was an infantryman
in the Army when he suffered a concussion as a result of
being thrown around in the back of a transport truck. Filing
9-3 at 67. He was medically discharged from the Army in May
2003. After his discharge, the plaintiff worked for a short
time as a cable installer, and then as a stocker at a retail
home improvement store. Filing 8-7 at 27. In July 2006,
Pottawattamie County, Iowa hired the plaintiff to work as a
jail detention officer. Filing 8-7 at 27, filing 8-5 at 20.
indicate that in October 2013, the plaintiff sustained a
work-related injury to his low back. See filing 9-2 at 4;
filing 9-7 at 35. The nature and extent of that injury, as
well as its resolution, are not developed in this record. In
2014, the plaintiff appears to have started receiving primary
medical care at Lifecare Family Medicine of Bellevue. Filing
9-1 at 34. An encounter note, dated July 9, indicates that
the plaintiff experienced non-cardiac chest pain symptoms.
Filing 9-1 at 36. Also noted in this report are the
plaintiff's then-existing chronic conditions: ulcerative
colitis and gastroesophageal reflux disease. The encounter
note did not indicate that the plaintiff was experiencing low
back dysfunction or pain symptoms, and neither was there an
indication that the plaintiff reported neck pain or cervical
dysfunction symptoms. In fact, the nurse practitioner who
conducted the examination reported that there were no joint
mobility abnormalities in the cervical spine or neck. Filing
9-1 at 35. The plaintiff returned to Lifecare Family Medicine
several times in 2015, and on each occasion reported a
specific concern, none of which involved any of the
conditions pertinent to his disability claim. Dr. Brian
Finley was the physician of record for each of these 2015
occasions. Filing 9-1 at 27-33.
plaintiff applied for benefits with the Department of
Veterans Affairs regarding his service-related injury. He was
examined on January 19, 2016, by Dr. Judson Jones, who
reported findings regarding the plaintiff's cervical
spine and right shoulder. Filing 9-6 at 19-29. Regarding the
plaintiff's cervical spine, Dr. Jones reported complaints
of pain both midline and to the left, which Dr. Jones rated
as mild. There were also complaints of intermittent left arm
radiculopathy with paresthesia that could radiate into his
hand, and headaches that the plaintiff associated with his
neck pain. There was a decrease in the plaintiff's
cervical range of motion with pain in all directions. But
testing showed that the plaintiff had normal arm, wrist, and
finger strength, normal reflexes, and no muscle atrophy. A
radiology study was deemed unremarkable and indicated normal
cervical spine alignment. Dr. Jones' evaluation of the
plaintiff's right shoulder was similar in that the
plaintiff expressed pain and a decreased range of motion due
to pain, but the plaintiff was able to perform repetitive use
testing, exhibited normal strength, and exhibited no muscle
atrophy. Filing 9-6 at 29-38. A radiology report indicated
that the plaintiff's right shoulder showed no evidence of
fractures or dislocation, and was within normal limits.
Filing 9-6 at 39.
connection with his application for Veterans Affair's
benefits, on May 23, 2016, the plaintiff's mental health
was evaluated by clinical psychologist Dr. John Engler.
Filing 9-6 at 9-18. Dr. Engler diagnosed the plaintiff with
posttraumatic stress disorder (PTSD). Dr. Engler reported
that there were no additional mental disorders present, and
specifically reported that there was no diagnosis of
traumatic brain injury. Filing 9-6 at 9-10. The mental status
section reported that the plaintiff described his mood as
anxious and agitated, he had trouble sleeping, he had no
social interaction except for church on Sunday, and believed
that his PTSD made him withdrawn. Filing 9-6 at 11-13. Dr.
Engler found that the plaintiff's insight and judgment
were within normal limits, but that he had marked diminished
interest in significant activities, feelings of detachment
from others, irritable behaviors, angry outbursts, and sleep
disturbance. Filing 9-6 at 13, 16. Dr. Engler found the
plaintiff to be pleasant and open. He easily engaged in
responding to Dr. Engler's questions. Dr. Engler found
the plaintiff to be cooperative but brief with his responses,
and appeared to be of above average intellectual ability.
Filing 9-6 at 16-17.
to Dr. Engler's evaluation, on April 18, 2016, the
plaintiff was evaluated by psychiatrist Dr. Eugene Oliveto.
Filing 9-2 at 55. The record is not clear whether this
evaluation was connected to the plaintiff's Veterans
Affairs disability application. Dr. Oliveto's notes are
handwritten and hard to follow, but it appears that he
diagnosed the plaintiff with PTSD resulting from his
service-related injury. Id. It also appears that Dr.
Oliveto diagnosed the plaintiff as suffering from depression
and anxiety, and found that he was preoccupied with his
injuries. Filing 9-2 at 56-57. It appears that Dr. Oliveto
rated the plaintiff's PTSD disability at 60 percent, but
there is no explanation why, or for what purpose, this rating
was included in the evaluation. Filing 9-2 at 57.
August 15, 2016, the plaintiff was seen by Dr. Finley
regarding the transfer of his chronic care. Filing 9-1 at
23-25. On this occasion, the plaintiff reported that his
service-connected injury was a traumatic brain injury
experienced in 2001, in which he also suffered multiple
fractures of his right shoulder and a neck injury. Filing 9-1
at 23. The plaintiff reported that he experienced migraines
since the 2001 accident, and that a migraine could be brought
about by turning his neck a certain way. The plaintiff also
reported that he sustained a left foot injury sometime in
2001. Dr. Finley informed the plaintiff that he did not
believe the plaintiff's headache symptoms were migraine
headaches. Filing 9-1 at 25. Dr. Finley noted that the
plaintiff was trying to get Veterans Affairs to reevaluate
the relationship of his headaches to his 2001
plaintiff reported sustaining an injury to his low back while
at work on September 23, 2016. Filing 9-7 at 37; filing 9-2
at 4. This injury was caused by the plaintiff repeatedly
bending over to pick up a pint container of milk to place on
a tray. The plaintiff reported aggravating his low back
condition while at work on September 28 when he tried to pull
open a door that was jammed. Filing 9-7 at 59. The first
report of any evaluation or treatment for these injuries is
dated October 4, 2016, when the plaintiff returned to see Dr.
Timothy Burd at Nebraska Spine and Pain Center, the
orthopedic surgeon who treated the plaintiff's 2013
work-related low back injury. Filing 9-2 at 39-44. Dr. Burd
reported that the plaintiff complained of low back pain,
bilateral leg pain more right than left, and numbness in the
bottom of his feet, again more right than left. Dr. Burd
believed that the plaintiff's symptoms indicated a
flare-up of his 2013 injury. Dr. Burd noted that the
plaintiff's existing diagnoses included depression,
anxiety, and PTSD, but signs and symptoms of those conditions
were not evident on this occasion.
Burd ordered an MRI of the plaintiff's lumbar spine and
released him to return to work without restrictions. Filing
9-2 at 44-45. The MRI report indicated that the
plaintiff's lumbar spine was essentially normal at all
levels except L5-S1, which showed disc desiccation with mild
loss of disc height, minimal disc bulge, a tiny right
eccentric subarticular disc protrusion not displacing the
adjacent nerve root, and no significant spinal canal
stenosis. Filing 9-2 at 51. Dr. Burd thought the MRI results
showed that the plaintiff's low back condition was
basically unchanged from 2014. Filing 9-2 at 38. Dr. Burd
offered to prescribe a course of physical therapy, but the
plaintiff declined, and instead, elected to restart a home
exercise program, which ostensibly was a program used to
rehabilitate his low back condition in 2014.
the next two weeks, the plaintiff called Dr. Burd's
office reporting that his medications were not giving him
relief from pain or from the spasms he was experiencing.
Filing 9-2 at 5. Dr. Burd referred the plaintiff for an
interlaminar epidural steroid injection at ¶ 5-S1, which
was performed on October 25. Filing 9-2 at 36-37. At a
follow-up visit with Dr. Burd on November 8, the plaintiff
reported receiving significant relief from the steroid
injection for a day or two, but after that, his pain returned
worse than before. Filing 9-2 at 31-34. Dr. Burd noted that
the plaintiff exhibited signs of depression but not anxiety.
Because the plaintiff was on narcotics for pain relief, he
was taken off work at the county detention facility until his
next medical visit. The plaintiff was referred for an
electromyography (EMG) evaluation, which was performed on
November 23. Filing 9-2 at 48. The result of the examination
was reported as a normal right lower extremity
electrodiagnostic examination. The plaintiff returned to Dr.
Burd on November 29, reporting constant pain described as
shooting and sharp. Filing 9-2 at 27-29. Dr. Burd referred
the plaintiff for physical therapy, three times a week for
four weeks, and authorized his return to work at light duty
to see if he could tolerate it. Filing 9-2 at 29-30.
receiving care for his low back condition, the plaintiff
continued receiving mental health care and counseling from
Dr. Oliveto. In his note dated November 16, 2016, Dr. Oliveto
reported on the medications that he had prescribed to treat
the plaintiff's mental health conditions. Filing 9-2 at
59. Additionally, Dr. Oliveto reported that the plaintiff was
taking hydrocodone for his low back pain condition, which was
not prescribed by Dr. Oliveto (but likely prescribed by Dr.
Burd). Dr. Oliveto, however, did not note anything about
complaints of pain. Also included in the note was Dr.
Oliveto's comment that a letter he wrote only got the
plaintiff 10 percent-which was likely a reference to his
Veterans Affairs disability application.
plaintiff returned to Dr. Oliveto on December 20 for a
medication check. Dr. Oliveto noted that the Adderall
prescription has worked, and that he completed paperwork for
the plaintiff's disability. Filing 9-2 at 58. The
paperwork Dr. Oliveto referenced was a Veterans Affairs PTSD
disability benefits questionnaire in which he identified that
the plaintiff suffered from PTSD, major depressive disorder,
and pain disorder associated with both psychological factors.
Filing 9-7 at 17. To complete the questionnaire, Dr. Oliveto
identified signs and symptoms that the plaintiff exhibited by
checking boxes on the form. Among the signs and symptoms that
Dr. Oliveto identified were: depressed mood, anxiety, panic
attacks more than once a week, chronic sleep impairment,
memory impairment, flattened affect, impaired judgment,
difficulty adapting to stressful circumstances, and impaired
impulse control. Filing 9-7 at 21.
January 25, 2017, the plaintiff was seen, first by Dr.
Oliveto (filing 9-2 at 58), and then later was re-evaluated
regarding his Veterans Affairs disability claim by Dr. Engler
(filing 9-7 at 24-31). Dr. Oliveto's visit was primarily
a medication check, in which he also noted that the plaintiff
was told to not return to work. Dr. Oliveto advised the
plaintiff to apply for Social Security disability. Dr. Engler
reported reviewing the PTSD disability benefits questionnaire
completed by Dr. Oliveto along with other records. Filing 9-7
at 30. Dr. Engler concluded that the plaintiff met the DSM-V
criteria for a diagnosis of PTSD with depression and anxiety.
Dr. Engler noted that the plaintiff exhibited symptoms of
mild memory loss, disturbance of motivation and mood,
difficulty in establishing effective work and social
relationships, and difficulty adapting to stressful
circumstances. Filing 9-7 at 29-30.
January 26, 2017, Dr. Burd authorized the plaintiff's
return to work, limiting him to light duty with no excessive
or repetitive bending, twisting, or stooping, and with the
ability to change positions as needed for comfort. Filing 9-2
at 26. Dr. Burd also limited the plaintiff to no more than 12
hours and 20 minutes per shift, and ordered that he may only
work Master Control. The plaintiff's next visit with Dr.
Burd was January 31, 2017. Filing 9-2 at 21-24. The plaintiff
reported receiving no benefit from the physical therapy that
Dr. Burd had ordered in November. Dr. Burd noted that the
plaintiff was presenting with signs of depression, anxiety,
and sleep disturbances, but no suicidal thoughts. He
characterized the plaintiff's pain symptoms as severely
debilitating, and suggested that the plaintiff undergo an
anterior lumbar fusion at ¶ 5-S1. In a work status
report dated March 2, 2017, Dr. Burd continued the
plaintiff's light duty and other work restrictions.
Filing 9-2 at 20.
February 22, the plaintiff was seen by Dr. Oliveto for his
monthly medication check. Filing 9-2 at 63. Dr. Oliveto noted
that the plaintiff reported that his "disc is out and he
is working 84 hours every two weeks." In a return visit
on March 23, Dr. Oliveto reported that the plaintiff was
still struggling at his jail job because of severe pain, and
that the "VA psychologist denied him 100%
disability," which was upsetting for the plaintiff.
Id. Dr. Oliveto signed a Veterans Affairs PTSD
disability benefits questionnaire form for the plaintiff,
which essentially replicated the same form that he completed
for the plaintiff in December. Filing 9-9 at 49-54;
seefiling 9-7 at 17-22. Once again, Dr. Oliveto
identified PTSD symptoms and signs that the plaintiff
exhibited, and opined that the plaintiff was completely
disabled due to his PTSD symptoms. Filing 9-9 at 49-54.
March 26, 2017, the plaintiff reported another work-related
accident in which a food cart weighing around 250 pounds hit
him in the back as he was standing at his locker. Filing 9-2
at 14; filing 9-7 at 59. The plaintiff reported going to the
emergency room for treatment, and that he believed the
emergency room physician saw something in his
back. Filing 9-2 at 14. The plaintiff did not
return to work at the Pottawattamie County detention facility
after suffering this injury. See filing 9-7 at 61. The
plaintiff represented that although he was released to return
to light duty work, his employer could not accommodate his
work restrictions. Id.
March 29, a Veterans Affairs physical therapist fitted the
plaintiff with a single point cane and a lumbar-sacral back
brace. Filing 9-3 at 42. The plaintiff returned to Dr. Burd
on April 20, reporting constant low back and bilateral leg
pain. Filing 9-2 at 14-19. Dr. Burd noted that the plaintiff
was walking with a cane, and described his pain symptoms as
the same but more intense. Dr. Burd again observed signs of
anxiety, depression, and sleep disturbances. After previously
suggesting a fusion surgery, now Dr. Burd was not
recommending anything surgical, but instead referred the
plaintiff for pain management.
plaintiff began receiving primary care from a Veterans
Affairs physician, Dr. Timothy Longacre, on April 25, 2017.
Filing 9-5 at 67-73. Dr. Longacre reported that the plaintiff
complained of chronic low back pain that increased with any
activity and decreased with rest. The plaintiff reported that
he currently was not working, and that he was involved in a
workers' compensation case. Dr. Longacre's report
also indicated that as of the date of his evaluation, the
plaintiff's Veterans Affairs disability rating for PTSD
was 70 percent. Filing 9-5 at 68. The plaintiff returned to
see Dr. Oliveto, also on April 25, for a medication check.
Filing 9-2 at 62. The plaintiff told Dr. Oliveto that he was
on sick leave for a new injury suffered at work, that his
pain was worse, and that now with the new injury, surgery was
not being recommended. Dr. Oliveto observed that the
plaintiff's mood and attitude were both negative.
letter to the plaintiff from the Department of Veterans
Affairs dated April 27, 2017, reports that the
plaintiff's service-related PTSD disability rating was
now 100 percent. Filing 8-5 at 2. The plaintiff saw Dr.
Oliveto again on May 18, and reported that he was now rated
100 percent for PTSD disability. Filing 9-2 at 61. Dr.
Oliveto noted that the plaintiff was still in pain and needs
to look at an implanted neurostimulator. On June 22, the
plaintiff presented for evaluation and treatment with
physiatrist Dr. Jeremiah Ladd, Dr. Burd's colleague at
Nebraska Spine and Pain Center. Filing 9-2 at 4-12. After
examining the plaintiff and conducting a thorough review of
the plaintiff's worker's compensation medical file,
Dr. Ladd believed the plaintiff would benefit from a course
of physical therapy. Filing 9-2 at 10. In addition, Dr. Ladd
believed that the plaintiff's lumbar pathology did not
warrant perpetuated use of narcotic-level medications.
Instead, Dr. Ladd believed a component of cognitive
behavioral therapy and teaching of pain coping skill may be
beneficial given the plaintiff's reported persistent
symptoms in the face of relatively modest lumbar MRI
findings. Filing 9-2 at 11.
plaintiff began a course of physical therapy on June 26,
2017. Filing 9-9 at 34-35. The therapist noted that the
plaintiff was walking with a cane, and that pain limited his
lumbar movements in all directions. The treatment the
plaintiff received on the first visit consisted of joint
stretching, and low back range of motion, and lumbar
stabilization exercises. The plan was for the plaintiff to
receive six physical therapy visits and then transition into
a work conditioning program. In a July 5 letter, the
therapist advised Dr. Ladd that the plaintiff had completed
six physical therapy treatment sessions and was reporting no
change in his symptoms or movement tolerance. Filing 9-9 at
33. The therapist advised that he was discharging the
plaintiff from physical therapy due to a lack of improvement
and that the plaintiff will not be starting a work
conditioning program at this time.
on July 20, the plaintiff was evaluated for entrance into a
work hardening program at the same physical therapy facility
that had discharged him just two weeks earlier. See filing
9-9 at 31-32. The program included gentle stretching, aerobic
conditioning, general strengthening, and activity simulation
with the goal of returning the plaintiff to light duty work.
The plaintiff was to be seen three times per week, with
reevaluation after two weeks. The plaintiff was reported to
demonstrate limited upper extremity range of motion and
strength due to a cervical injury, and significant lumbar
mobility limitations, but with normal lower extremity
strength. After two weeks, the plaintiff reported that he
continued to have significant low back pain. He was deemed to
have made only marginal improvements with low back range of
motion. Filing 9-9 at 14. On Dr. Ladd's instruction, the
work hardening program was continued, but increased to daily
twohour sessions for another two weeks.
August 4, two days after the start of his daily work
hardening program, the plaintiff emailed his Veterans Affairs
primary physician, Dr. Longacre, complaining about the
"rigorous physical therapy program" a physiatrist
had placed him in. Filing 9-5 at 58-59. The plaintiff claimed
that his symptoms worsened after participating in the program
three times a week, but now the physiatrist had increased the
sessions to five times a week. The plaintiff wrote:
"This doctor is going to have me wheelchair bound by the
end of this." Filing 9-5 at 59. On August 8, Dr. Oliveto
noted that the plaintiff reported to be in agonizing pain.
Filing 9-2 at 60. The records indicate that the
plaintiff's last day in the work hardening program was
August 9. Filing 9-9 at 2-4.
October 10, 2017, Dr. Oliveto recorded a telephone interview
in connection with the plaintiff's Social Security
disability application. Filing 9-5 at 92-93. The narrative
report details the occasions that the plaintiff was seen by
Dr. Oliveto, but does not provide a description of the
plaintiff's PTSD symptoms or signs. The report concludes
with Dr. Oliveto opining that the plaintiff was "totally
and permanently disabled and will need treatment at the VA
for most of his life." Filing 9-5 at 93. It is somewhat
ambiguous whether Dr. Oliveto was opining with respect to the
plaintiff's Veterans Affairs disability claim, or his
Social Security disability claim, or perhaps both. The
plaintiff's last visit with Dr. Oliveto (as evidenced by
the record) was on October 31. Filing 9-9 at 44. The
treatment note for this visit primarily reports the fact that
the plaintiff's care will be assumed by Veterans Affairs.
on January 25, 2018, Dr. Oliveto completed a Mental Medical
Source Statement form in connection with the plaintiff's
Social Security Disability application. Filing 9-8 at 48-53.
Dr. Oliveto reported the same diagnoses for the plaintiff
that he reported to Veterans Affairs in December 2016: PTSD,
major depressive disorder, and pain disorder. Dr. Oliveto
opined that the plaintiff was unable to work a full-time job
due to severe and intractable pain. The form required Dr.
Oliveto to rate the plaintiff's capacity to function
independently in a competitive work setting. Generally, Dr.
Oliveto found that the plaintiff's capacity to learn and
remember was mildly affected (performance precluded 5% of an
8-hour work day), his concentration and persistence was mild
to moderately affected (performance preclusion rated 5% with
some at 10%), his ability to ...