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Engles v. Commissioner of Social Security

September 13, 2010


The opinion of the court was delivered by: Proud, Magistrate Judge


Pursuant to 42 U.S.C. § 405(g), plaintiff Michael Engles, represented by counsel, is before the Court seeking review of the final decision of the Social Security Administration denying him Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423, or even a Period of Disability (POD) pursuant to 42 U.S.C. § 416(i). (Doc. 2.) In addition to submitting the administrative record (Docs. 11 and 21), plaintiff and defendant have fully briefed their positions. (Docs. 14 and 20.)

Plaintiff Engles' physical ailments are not in dispute, per se. Rather, this appeal centers around the sufficiency of the evidence and legal analysis by Administrative Law Judge ("ALJ") Joseph W. Warzycki. Plaintiff claims ALJ Warzycki's finding that plaintiff is not disabled is not supported by substantial evidence. More specifically, plaintiff argues:

1. The ALJ failed to reasonably evaluate the opinion of plaintiff's treating physician, Dr. Kennedy and evidence from other treating physicians;

2. The ALJ improperly evaluated plaintiff's testimony, concluding plaintiff was not fully credible; and

3. The ALJ improperly found that the Social Security Administration had met its burden of proof regarding plaintiff's ability to perform other work.

(Doc. 14.)

Overview of the Evidence

Plaintiff applied for DIB on November 17, 2006, alleging the onset of disability as of October 17, 2005, after a workplace injury to his neck and left shoulder. (Doc. 11-5, p. 2; Doc. 11-2, p. 28.) At the time of alleged onset, plaintiff was 38 years old; 41 years old at the time of decision. (See Doc. 11-5, p. 2; Doc. 11-2, p. 23.) Plaintiff has a GED and last worked as a heavy equipment operator for the telephone company. (Doc. 11-2, pp. 27-28.) From a vocational perspective, that work is heavy/unskilled and heavy/semi-skilled, as performed. (Doc. 11-2, pp. 41-42.) Plaintiff stopped working on October 17, 2005, and has not worked since then.

Although plaintiff Engles claims that his disability commenced October 17, 2005, plaintiff's medical history leading up to that point will be summarized in order to place plaintiff's ailments in context. In March 2003, plaintiff had a cervical discectomy, anterior fusion and plating at C4-C5. (Doc. 11-7, p. 27.) Two months later, in May 2003, plaintiff was released to return to work on regular duty. (Doc. 11-7, pp. 46-47.) In July 2003, plaintiff, who is right handed, underwent arthroscopic surgery on his left shoulder to repair a subacromial impingement. (Doc. 11-7, p. 2; Doc. 11-2, p. 23.) Within two months, he was again released to return to work, without restriction. (Doc. 11-7, pp. 66-67.) Plaintiff's 2003 anterior fusion turned out to be a non-fusion, and in March 2004, he underwent a posterior fusion at C4-C5. (Doc. 11-8, p. 3.) Approximately four and a half months later, plaintiff returned to work, without restriction. (Doc. 11-14, p. 12.) Three months later, in November 2004, plaintiff aggravated his cervical spine and had to stop working while he underwent triggerpoint injections and other treatment. (Doc. 11-14, pp. 8 and 14-15.) Plaintiff did not return to work again until June 9, 2005-- again, with no restrictions. (Doc. 11-10, p. 33.) At that time, plaintiff was described as experiencing minimal discomfort; his range of motion was "essentially normal; and he could lift 67 pounds repeatedly. (Doc. 11-14, p. 24.) Plaintiff was also discharged from physical therapy in August 2005, at which time he rated his pain as 3 or 4 on a 10-scale with medication, and 7 to 8 without medication. (Doc. 11-10, p. 70.) On September 28, 2005, Dr. David G. Kennedy, plaintiff's treating orthopaedist, opined that plaintiff had 20% permanent partial disability. (Doc. 11-14, p. 27.) Plaintiff has not claimed that he was disabled in relation to the aforementioned surgeries.

Plaintiff was injured at work on October 17, 2005, and was unable to work; he returned to his orthopaedist on October 27, 2005. (Doc. 11-10, p. 32.) In November and December of 2005, Dr. Rachel Feinberg treated plaintiff primarily for purposes of relieving plaintiff's neck pain, which was radiating down into plaintiff's arms and between his shoulder blades. (Doc. 11-10, pp. 66-68.) Dr. Feinberg administered cervical epidural steroid injections. (Doc. 11-10, pp. 68.) Dr. Feinberg noted that plaintiff was "scared out of his mind," thinking that he was going to lose his house and cars because he was not working. (Doc. 11-10, p. 67.) In March 2006, Dr. Feinberg described plaintiff as being "almost borderline suicidal," and becoming progressively more depressed. (Doc. 11-10, p. 65.)

In May 2006, Dr. Kennedy performed a discectomy and fusion at C6-C7, and consequently had to plate C4-C7, joining the two fusions and the intermediate spinal segment. (Doc. 11-10, pp. 30 and 47-48.) Two weeks later, plaintiff was permitted to drive; his strength was intact, but he was to remain off work. (Doc. 11-10, p. 28.) Plaintiff has never returned to work after the October 17, 2005, injury and May 2006 surgery.

On June 27, 2006, approximately two months after surgery, plaintiff was experiencing only minimal pain at the base of his cervical spine; his mobility was slightly reduced relative to rotation; and his strength and sensation were intact. (Doc. 11-10, p. 27.) Plaintiff was to engage in physical therapy and remain off work. (Doc. 11-10, p. 27.) Plaintiff was taking Percocet. (Doc. 11-10, p. 63.) By mid-September, Dr. Kennedy described plaintiff's range of motion as "fairly good" and motor and sensory exams were normal. (Doc. 11-10, p. 25.) Plaintiff was still in pain, but no longer using pain medication; Dr. Kennedy referred plaintiff to Dr. Rachel Feinberg. (Doc. 11-10, p. 25.)

In late September 2006, Dr. Feinberg administered nerve block and thoracic facet injections to relieve the pain plaintiff was experiencing above and below the fusion site. (Doc. 11-10, p. 62.) Approximately three weeks later, plaintiff was still in pain and was also experiencing headaches. (Doc. 11-10, p. 57.) Dr. Feinberg commenced radio frequency ablation at C1-C7. (Doc. 11-10, p. 57.) Plaintiff's pain persisted, and in late November 2006 he went to the emergency room due to neck pain. (Doc. 11-10, pp. 53-54.) After additional radio frequency treatments, plaintiff's headaches ceased, but as of December 2006 plaintiff remained in pain. (Doc. 11-10, p. 52.) According to Dr. Kennedy's December 21, 2006, notes, plaintiff was "generally better," but still experiencing some pain at C7-T1; plaintiff's strength was intact; motor and sensory tests were normal; and x-rays showed satisfactory progression of the fusion. (Doc. 11-14, p. 47.) Plaintiff was directed to remain off work. (Doc. 11-14, p. 47.)

Plaintiff's wife reported in December 2006 that plaintiff paid the bills and managed the family's checkbook and savings account. (Doc. 11-6, p. 21.) According to Mrs. Engles, plaintiff had no difficulty getting along with her or others, but his social activities were limited by his pain and need to lie down. (Doc. 11-6, p. 22.) Mrs. Engles also reported that plaintiff was able to pay attention for "hours," but he often begins tasks and does not complete them. (Doc. 11-6, p. 22.) She also stated that plaintiff follows instructions "just fine." (Doc. 11-6, p. 22.)

On February 7, 2007, Dr. Kennedy noted that plaintiff was still experiencing "quite a bit of pain," that was relieved by lying down. (Doc. 11-14, p. 48.) Plaintiff was directed to continue treatment with Dr. Feinberg. (Doc. 11-14, p. 48.) A week later, Dr. Raymond Leung, M.D., performed a consultative examination. Plaintiff reported to Dr. Leung that his neck pain was non-radiating, helped by medication. (Doc. 11-14, p. 129.) Plaintiff estimated that he could walk one block and lift no more than 5 pounds. (Doc. 11-14, p. 129.) Dr. Leung found plaintiff's memory and ability to concentrate to be within normal limits, and plaintiff was characterized as being "fairly cooperative." (Doc. 11-14, p. 130.) Plaintiff's gait was within normal limits, and he was walking unassisted. (Doc. 11-14, p. 131.) Plaintiff demonstrated no difficulty getting on and off the examination table, or getting up from a chair. (Doc. 11-14, p. 131.) Plaintiff's left arm strength was 4; the right arm was 5/5. (Doc. 11-14, p. 131.) Plaintiff did have a decreased range of motion in his neck: lateral flexion was limited to 10E to the right and 5E to the left; flexion and extension were limited to 5E; rotation was limited to 20E in each direction. (Doc. 11-14, p. 131.) Also, flexion in the left shoulder was limited to 85E. (Doc. 11-14, p. 131.) Furthermore, at that time, plaintiff's blood pressure was deemed "high" at 137/109. Dr. Leung speculated that plaintiff's pain could cause him difficulty with prolonged walking, climbing, bending, squatting and lifting; and plaintiff may have difficulty reaching overhead with his left arm. (Doc. 11-14, p. 131.)

Agency physician Young-Ja Kim, M.D., issued a Residual Functional Capacity ("RFC") Assessment on March 7, 2007, based on a record review. Plaintiff's cervical fusion, depression and hypertension were all recognized. (Doc. 21-1, pp. 2 and 9.) Dr. Kim concluded that plaintiff was capable of lifting 10 pounds frequently and 20 pounds occasionally, standing, sitting or walking for six hours out of an eight hour workday, but his ability to reach overhead was limited, and he was limited to only occasional climbing. (Doc. 21-1, pp. 3-5.) Dr. Charles Kenney, M.D., an Agency consulting physician, reviewed Dr. Kim's assessment and concurred. (Doc. 21-1, pp. 19-20.)

On March 21, 2007, Dr. Kennedy, plaintiff's orthopaedist, offered an assessment. Plaintiff's persistent pain at the base of the cervical spine (with focal tenderness) was noted; and, according to Dr. Kennedy, plaintiff could sit or stand for no more than an hour at a time, and plaintiff would subsequently need to lie down for five to ten minutes; plaintiff could lift no more than 10 pounds; overhead lifting was precluded; and plaintiff was limited to "occasionally" performing activities involving cervical extension. (Doc. 21-1, 16.) Dr. Kennedy characterized plaintiff as having reached a "plateau in terms of improvement," and the doctor further opined that, given the aforementioned restrictions and plaintiff's chronic pain, plaintiff could not return to his former work and was unlikely to be employed in any gainful capacity. (Doc. 21-1, p. 16.)

Relative to plaintiff's psychological state, in February 2007, psychologist Dr. Stephen G. Vincent, Ph.D., performed a consultative evaluation. According to Dr. Vincent, plaintiff described being in constant pain, which he would rate at 7 to 8 on a 10-scale, even with medication. (Doc. 11-14, pp. 125-126.) Plaintiff reported no psychiatric or psychological treatment, but he indicated he had tried antidepressants-- Doxepin and Cymbalta-- but they were ineffective. (Doc. 11-14, p. 126.) Plaintiff reported no present depression, although he was frustrated by his inability to return to work due to chronic pain. (Doc. 11-14, p. 125.) According to plaintiff, he had trouble sleeping; he also had trouble being around others due to irritability and agitation. (Doc. 11-14, p. 126.) Plaintiff denied trouble with concentration or memory, but stated, "[S] sometimes I'm just slow because I'm tired and I'm hurting." (Doc. 11-14, p. 126.)

Testing reflected that plaintiff had a "mildly depressed" mood and affect; his thought processes were slow and deliberate, but logical, coherent and relevant. (Doc. 11-14, p. 126.) Plaintiff had no difficulties relating to Dr. Vincent. (Doc. 11-14, p. 126.) Dr. Vincent observed that plaintiff had difficulty sitting for any length of time, but not to a degree that interfered with plaintiff's ability to focus and persist on task. (Doc. 11-14, p. 126.) Dr. Vincent concluded that plaintiff was cognitively intact, but he had a mood disorder secondary to his general medical condition, with major depressive-like features; and he had a pain disorder with both psychological and general medical aspects. (Doc. 11-14, p. 127.)

Agency psychologist Dr. Tyrone Hollerauer, concluded-- after a record review and based on a diagnosis of depression secondary to his medical conditions, and chronic pain with both physical and psychological aspects-- that plaintiff's activities of daily living would be moderately limited; and he would have mild difficulty maintaining social functioning, moderate difficulty maintaining concentration, persistence and pace. (Doc. 11-14, pp. 137, 140, 144 and 146.) It was also noted that plaintiff had had no episodes of decompensation. (Doc. 11-14, p. 144.) In terms of RFC, Dr. Hollerauer found that plaintiff was not significantly limited in any respect, except for moderate limitations relative to the following: his ability to read, understand and carry out detailed instructions; maintaining concentration for extended periods; performing activities within a schedule; sustained concentration and persistence; and, his ability to travel to unfamiliar places or use public transportation. (Doc. 11-14, p. 148.) Dr. Hollerauer opined that plaintiff would have difficulty with absenteeism secondary to perceived and real pain and depression. (Doc. 11-14, p. 150). Also, Dr. Holllerauer would limit plaintiff to unskilled tasks. (Doc. 11-14, p. 150.) Dr. Charles Kenney, M.D., an Agency consulting physician, reviewed Dr. Hollerauer's Psychiatric Review Technique form and his RFC assessment and concurred. (Doc. 21-1, pp. 19-20.)

An evidentiary hearing was conducted before ALJ Warzicki on July 16, 2008. Plaintiff described his daily activities, which include showering, cooking simplistic breakfasts and lunches for himself, occasional grocery shopping with his wife (but carrying nothing more than 10 pounds), watching talk shows on television and reading. (Doc. 11-2, pp. 30-31.) Plaintiff explained that he cannot perform certain household chores, such as vacuuming or sweeping, due to the vibration and push-pull movement ...

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