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Cooper v. Saul

United States District Court, D. Nebraska

August 28, 2019

JUSTIN L. COOPER, Plaintiff,
v.
ANDREW M. SAUL, [1] Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard, Chief United States District Judge.

         The 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.

         I. FACTUAL BACKGROUND

         1. MEDICAL AND WORK HISTORY

         In early 2003 (or perhaps 2001), [2] 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.

         Reports 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.

         The 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.[3] 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.

         Also in 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.

         Prior 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.

         On 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 service-connected injury.

         The 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.

         Dr. 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.

         Over 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.

         While 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.

         The 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.

         On 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.

         On 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.

         On 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.

         On 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.[4] 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.

         On 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.

         The 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.

         A 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.

         The 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.

         However, 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.

         On 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.

         On 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.

         Finally, 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 ...


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