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Berger v. Astrue

February 8, 2008


Appeal from the United States District Court for the Western District of Wisconsin. No. 06-C-0256-C-Barbara B. Crabb, Chief Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge


Before EASTERBROOK, Chief Judge, and FLAUM and KANNE, Circuit Judges.

Plaintiff-appellant, John Berger, appeals the Commissioner of Social Security's denial of disability benefits for his back impairment. After the Commissioner's denial, Berger sought review in the district court, arguing that the ALJ misread the medical evidence and unjustifiably discounted the credibility of his testimony. The magistrate judge, in a well-reasoned and comprehensive opinion, recommended affirming the Commissioner's denial. The district court then adopted the magistrate's recommendation, and this appeal followed. Finding no error, we affirm.

I. Background

A. Factual History

John Berger, a Wisconsin native, is a carpenter by trade with the equivalent of a high-school education who, in January 1999, began experiencing pain in his left leg, left foot, and back after he took a fall at work. In August 1999, Berger visited a neurologist, Dr. Ahmad Haffar, to have his back examined. After an MRI, Dr. Haffar determined that Berger probably had a herniated disc at the bottom two segments of his lower lumbar (L4-L5) with impingement on the nerve root and narrowed discs at the top four segments of his lower lumbar (L1-L4). In layman's terms, this meant that Berger had suffered some damage to the part of his back that handles flexion, or the movement of the back. The disc between the last two vertebrae in his lower back (L4-L5) had been damaged, causing it to swell and stick out. When the disc moved-whether during lifting, bending over, or twist-ing-it pressed on a nerve in Berger's back, causing significant pain. Four other discs in his lower back (L1-L4) had narrowed, bringing the vertebrae closer together and similarly causing pain during movement. Dr. Haffar gave Berger an epidural steroid injection, but it did little to stop the pain. So Dr. Haffar referred Berger to a neurosurgeon, Dr. K.S. Paul, for further evaluation.

In November 1999, Berger reported to Dr. Paul that he was experiencing continuing and near-constant pain in his lower back and leg, as well as tingling in his left foot and leg. Berger said that he felt pain nearly all the time, but physical activity made it worse. After some tests, Dr. Paul noted that Berger walked with a limp and could only raise his left leg 30 degrees and his right leg 60 degrees, but he otherwise had normal strength and tone. A myelogram (an X-ray of the spine and the spaces between the spinal column after the patient is injected with a special dye) and a CT scan confirmed the herniated discs at L4-L5 and the compressed nerves. Based on these findings, in January 2000, Dr. Paul recommended back surgery. But Berger's worker's compensation carrier denied his request, and he did not have either the money or the insurance coverage to pay for the surgery himself.

Around roughly the same time, Berger suffered a second injury at work while trying to move a wall frame, and he sought treatment from Dr. Christal Sakrison, a general practitioner. To ease his back pain, Dr. Sakrison prescribed Vicodin and a muscle relaxer. Apparently this didn't sufficiently address the pain because after his December 10, 1999 appointment Dr. Sakrison told Berger to stop working pending physical therapy and further evaluation. Over the next two weeks, Berger underwent four sessions of physical therapy and performed home exercises to strengthen his back. Later that month, a functional-capacity evaluation indicated that Berger could perform light work, meaning occasionally climbing stairs, walking, crawling, performing trunk rotations and bending.

In January 2000, Berger saw a third doctor-Dr. Stephen Weiss, an orthopedic surgeon-for an evaluation related to his claim for worker's compensation. Dr. Weiss described Berger as walking with a normal gait with moderate muscle spasms and tenderness in his lower back. He noted that Berger had a restricted range of motion in his lower back and a somewhat limited ability to lift his left leg. Based on all this, Dr. Weiss concluded that Berger should not perform work that required extensive lifting, such as lifting anything from below his mid-thigh, regularly lifting more than 20 pounds, or repetitively lifting more than 10 pounds.

Following these three diagnoses, Berger attempted to return to work, but his employer refused. He could not perform his old job; nor did his employer have light work for him to perform. This was a problem: Berger couldn't pay for the surgery he needed to return to work, but he couldn't get the money he needed for the surgery unless he worked. Over the next few months, Berger was able to perform some light construction work and sought a position as a supervisor that would provide health insurance. But by July 2000, Berger's condition had gotten worse and he could no longer work at all. Berger visited Dr. Sakrison and received a second epidural steroid injection. He also revealed that he had been receiving hydrocodone from another doctor to deal with the pain. Dr. Sakrison soon prescribed Duragesic patches as well, which provided localized pain relief. With this regimen, Berger could work 2 to 2.5 days a week as an independent contractor and perform light labor. The patches soon lost some of their effectiveness, and by November 2000, Berger told Dr. Sakrison that he could barely work, having gone in only two days in the two weeks prior to his appointment.

Eventually, Berger settled his worker's compensation claim, and, in October 2001 he returned to Dr. Paul to inquire into surgery. A second MRI revealed that Berger's original condition had actually improved somewhat; his herniated disc did not stick out as far, and his spinal canal was not as narrow. But all did not come up roses. A CT scan revealed a "pars defect" between Berger's lowest lumbar vertebra (the bottom part of the spine, or L5) and his sacrum (the top part of the pelvis that connects with the spine). A "pars" keeps the vertebra in place, among other things. If it breaks (or has some other "defect"), the vertebra can slip, causing pain. Rather than immediately performing surgery, Dr. Paul recommended that Berger receive epidural steroid injections and, when these eventually proved ineffective, a discogram-an invasive (and painful) procedure in which a doctor injects dye into a vertebral disc to test for pain and then takes an X-ray of the spinal column. The discogram revealed excruciating pain in a different part of Berger's back-L2-L3-but less pain in the part of his back that had originally bothered him-L4-L5.

Although Dr. Paul suggested in March 2002 that Berger undergo surgery to fuse the L4 and L5 vertebrae (and thus keep them from moving and causing pain), another doctor-Dr. Steven Weinshel-gave a second opinion a few months later and disagreed. In the first place, the pain had shifted to a different part of Berger's back. In addition, because of the pars defect, fusing L4 and L5 could cause instability further down his back and eventually require another surgery to fuse more vertebrae, which would further diminish Berger's mobility. Dr. Weinshel also noted that Berger had good strength, normal reflexes, positive leg movement in his left leg, and a normal gait. In light of all this, Dr. Weinshel recommended a conservative treatment to manage the pain, but not surgery.

Given his lack of insurance and hobbled finances, Berger did not undergo any further treatment. He returned to Dr. Paul in April 2003, who also recommended against surgery given possible future complications. Dr. Paul could not give Berger much advice as to what jobs he could or could not perform, stating in his findings that Berger would need a functional-capacity evaluation. But he did indicate ...

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