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Kasarsky v. Barnhart

April 5, 2002

JEFF KASARSKY, PLAINTIFF-APPELLANT,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98-C-1035 -- Patricia J. Gorence, Magistrate Judge.

Before Bauer, Coffey, and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Per Curiam

ARGUED OCTOBER 3, 2001

OPINION PUBLISHED JULY 9, 2003 *fn1

Jeff Kasarsky suffers from lower back pain, chronic depression, and a mild depressive disorder known as dysthymia. He applied for Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 216(I), 223(d), and for Supplemental Security Income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1603, 1614(a)(30). After preliminary agency proceedings, an administrative law judge (ALJ) found that he was not disabled and thus not entitled to benefits under either program. The Appeals Council and the district court both affirmed the ALJ's decision. We respectfully disagree for the reasons explained below, and remand this case to the agency for further proceedings.

I.

Born in 1959, Kasarsky is now a forty-two-year-old man with an eleventh grade education. He has failed in four attempts to earn his GED and has spent most of his life working in various unskilled general labor positions. In the 1980s, he worked as a general laborer at two large factories. He also worked as a guard for a security company. Matters took a turn for the worse for him on May 4, 1992, when he was injured in an automobile accident. About six hours after the accident, he began experiencing severe pain in his lower back. This did not prevent him right away from working; after the accident, he held a series of positions such as commercial driver for an airline, general laborer for a temporary service, and a car porter for a rental car company. His most recent employment was in May 1996, when he performed general assembly work at a packaging company. He quit after only three days at work, claiming that his back pain was too intense. He has not worked since that time.

The relevant medical evidence in the record relates to both Kasarsky's physical pain and his mental condition. On the physical side, Kasarsky began seeing a chiropractor, Dr. Michael Fletcher, in February 1993. Dr. Fletcher found that, although Kasarsky continued to suffer from chronic back pain, he was not going to improve any further. Dr. Fletcher cleared Kasarsky to return to work. A year later, Kasarsky saw Dr. David Coleman, who diagnosed him with "thoracic myofascial pain syndrome" and opined that his condition was "becoming quite chronic." Dr. Coleman referred Kasarsky to physical therapy and also prescribed Nortriptyline, an antidepressant, and Naprosyn, a mild painkiller. When Kasarsky returned to Dr. Coleman's office a week later, he reported that his back had improved significantly. Dr. Coleman recommended that he continue with the same regimen of medications.

In July 1994, a few months after his visits to Dr. Coleman, Kasarsky began seeing Dr. Catherine Dremel, once again for the back. Kasarsky's reports to her were somewhat positive. He told her that his back pain was decreasing and that he was sleeping better at night. Once the pain lessened, he had stopped taking the antidepressant and the painkillers. Dr. Dremel advised him to use the painkillers as necessary. Matters worsened, however, by September 1994; Kasarsky returned to Dr. Dremel then and reported a significant increase in the back pain. She prescribed more painkillers.

In October 1994, Dr. Dremel examined Kasarsky and ordered a bone scan, as he did not seem to be responding to physical therapy. The bone scan showed a "normal uptake of the spine and upper pelvis." Later, she also ordered an MRI and a surgical consultation with neurosurgeon Dr. John Hutchinson. Dr. Hutchinson examined the MRI and advised against surgery. Kasarsky continued to take the pain medication and to visit Dr. Dremel monthly. She ultimately recommended that he consider further vocational training to prepare him for a job that required less bending, lifting, and twisting than his former jobs had required.

On the psychological side, in addition to the antidepressants Dr. Coleman had prescribed, Kasarsky began seeing a psychologist, Dr. Daniel Neunaber, in April 1995, for treatment of depression and anxiety resulting from the chronic back pain. He saw Dr. Neunaber four times, and Dr. Neunaber concluded that he suffered from a major depressive disorder as a result of the back problems. Later, Kasarsky had an operation to remove a herniated disk, which was performed by Dr. Kamljit Paul, another neurosurgeon. Dr. Paul also recommended follow-up treatments in the form of epidural steroid injections to control the pain.

Another psychologist entered the picture in the person of Dr. Steven Kaplan, a rehabilitation psychologist, who met Kasarsky in April 1996. Dr. Kaplan determined that Kasarsky functions at the fourth-grade reading and spelling level and a third-grade level in basic computations. Dr. Kaplan was of the view that Kasarsky probably would be unable to complete a job application or read a newspaper. Even though Kasarsky had completed the 11th grade, Dr. Kaplan noted that most of his time had been spent in special education classes while he was in school. Dr. Kaplan classified Kasarsky as a "slow learner" who would have trouble making change as a cashier or operating simple machinery. He recommended that Kasarsky's mental tasks be limited to a single repetitive action that would not require much instruction.

Kasarsky filed his application for benefits in the middle of this time period, on April 7, 1995. At his hearing before the ALJ in March 1997, he testified that he was still experiencing constant pain; he reported that he took pain medication daily, but that it was only effective about twenty percent of the time. He also testified that he could sit only for approximately thirty minutes at a time and that he could stand only for about twenty minutes. Finally, he ...


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