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Brian K. Debosschere v. Michael J. Astrue

January 3, 2012

BRIAN K. DEBOSSCHERE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Brian K. Debosschere seeks review of the Commissioner of Social Security's decision denying his application for Social Security Disability Insurance benefits. Debosschere has moved for summary judgment, asking the Court to award him benefits or remand the case for further consideration. In response, the Commissioner seeks a judgment upholding the denial of benefits. For the reasons stated below, the Court denies Debosschere's motion, grants the Commissioner's motion, and affirms the denial of benefits.

Facts

Debosschere is a forty-five year old man with fourteen years of education. He has not worked since August 2007. Before his most recent job as a carpenter and repair worker from February to August of 2007, Debosschere worked as a firefighter, building inspector, and carpenter.

Debosschere's injury history dates back to October 2002, when he allegedly first hurt his back and received conservative treatment, including epidural injections, for the next nine months. In September 2003, Dr. Lorenz, an orthopedic surgeon, performed a spinal surgery that included decompressive laminectomy at L5, nerve root decompression at L4-L5, discectomy at L4-L5, and spinal fusion at L3-L5. When Debosschere's back pain did not subside after the surgery, Dr. Lorenz performed a second surgery on February 14, 2005. On this occasion, Dr. Lorenz performed hardware removal, laminectomy revision, and screw fixation, and he extended the spinal fusion to L5-S1.

Debosschere eventually stopped working due to continued back pain. He attempted to return to work in February 2007 but stopped once again in August 2007.

On July 11, 2008, Debosschere applied for disability insurance benefits, claiming that he had become disabled on August 15, 2007. He alleged disability due to a broken back and tail bone, spinal fusion, a slipped disk, nerve damage, and arthritis.

Debosschere's treating physician Dr. John Benages examined him on July 21, 2008. With regard to Debosschere's back, Dr. Benages reported that Debosschere was experiencing pain in his lower back and legs from "lifting a heavy object." AR 281. His symptoms were aggravated by extension, flexion, and lifting. Dr. Benages noted in his report that he advised Debosschere to apply for Social Security disability benefits "because in my opinion he will never be able to perform any heavy lifting as a result of his chronic back conditions and previous surgery." AR 282.

On August 18, 2008, Debosschere's surgeon Dr. Lorenz examined him and also advised him to apply for disability benefits. Dr. Lorenz noted in his report that Debosschere could not walk for three blocks without experiencing severe pain that would, in turn, require him to stop and sit for thirty minutes. Dr. Lorenz also stated that Debosschere could only stand for thirty minutes at a time and needed to take a break twice a day to lie down for ten to fifteen minutes. He further concluded that Debosschere had improved as much as was possible and required no further surgical intervention. In his report, Dr. Lorenz stated that Debosschere was "permanently and totally disabled from any gainful employment." AR 395.

In September and October of 2008, two state agency physicians, Dr. Dow and Dr. Arjmand, reviewed Debosschere's medical records. Dr. Dow concluded that Debosschere could perform a range of light work, and Dr. Arjmand concluded that he could perform a range of sedentary work.

The Social Security Administration (SSA) denied Debosschere's application for benefits, both initially and on reconsideration. After these denials, an Administrative Law Judge (ALJ) conducted an evidentiary hearing.

At the hearing, Debosschere testified that he had stopped working because the pain was too great. He testified that he currently had lower back pain that radiated down his right leg, as well as stiffness and numbness in the lower back and numbness and a tingling sensation in his right calf. He said his pain averaged seven on a scale of one to ten and got as high as ten. He testified that the pain was sometimes so serious that he could not get up out of bed. The last such episode he had experienced was about a month before the hearing and lasted for a week.

Debosschere testified that he was not undergoing treatment other than at-home exercise and that his doctor had told him that was all he could handle. He took prescribed medications (including Vicodin) as well as over-the-counter Aleve to control the pain and that the pain interrupted his sleep nightly every thirty minutes. The medication, he stated, made him drowsy during the day and required him to take hour-long naps.

At the hearing, Debosschere stated that he could walk about two blocks, stand for fifteen minutes, and sit for fifteen minutes but needed to constantly shift his position. He testified that he has trouble stooping, kneeling and twisting his torso, and reaching. He was ...


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