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Ward v. Colvin

United States District Court, Eighth Circuit

August 20, 2013

Steven D. Ward, Plaintiff,
Carolyn W. Colvin, [1] Acting Commissioner of Social Security, Defendant.

Steven D. Ward, pro se.

Ana H. Voss, Assistant United States Attorney, for Defendant


FRANKLIN L. NOEL, Magistrate Judge.

Plaintiff Steven D. Ward seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), who found Plaintiff was not disabled from his alleged onset date of August 24, 2007 through the date of the decision. The matter was referred to the undersigned United States Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. This Court has jurisdiction over the claims pursuant to 42 U.S.C. § 405(g). Defendant submitted a motion for summary judgment, and Plaintiff filed a pro se motion and memorandum, which the Court construes as a motion for summary judgment. [Doc. Nos. 11, 12, 15.] For the reasons which follow, this Court recommends that Plaintiff's motion for summary judgment be denied and Defendant's motion for summary judgment be granted.


Plaintiff protectively filed an application for disability insurance benefits on April 28, 2010, alleging a disability onset date of August 24, 2007. (Tr. 130-31 [Doc. No. 9].) His application was denied initially and upon reconsideration. (Tr. 63-67, 69-71.) He requested a hearing before an ALJ, and the hearing was held on November 17, 2011. (Tr. 73-74, 25-54.) The ALJ denied Plaintiff's application for benefits on November 25, 2011. (Tr. 9-24.) The Appeals Council then denied Plaintiff's request for review. (Tr. 1-7.) Plaintiff filed a complaint for judicial review in this Court on November 2, 2012. The matter is now before this Court on cross-motions for summary judgment.


A. Employment History

Plaintiff worked as a supervisor at a parking ramp from 1995 through 2000. (Tr. 182.) From September 2000 through September 2008, Plaintiff worked as a production assistant at a printing company. (Tr. 182.) Plaintiff suffered a repetitive stress injury at work on August 24, 2007. (Tr. 233-234, 273.) He returned to work with restrictions but on August 24, 2008, his employer could no longer accommodate his work restrictions. (Tr. 145.) Plaintiff has not worked since then. ( Id. )

B. Medical Records

In May 2006, prior to the alleged onset date, Plaintiff underwent anterior cervical discectomy and fusion ("ACDF") to relieve neck pain. (Tr. 272.) The surgery was successful, and one year later Plaintiff told his surgeon, Dr. Michael Smith, he had only intermittent aches, pains and occasional twinges. ( Id. ) On August 24, 2007, Plaintiff hurt his left arm and groin while working on a sorting machine at work. (Tr. 233.) Five days later, Plaintiff told Dr. Phuc Tran at Hiawatha Fairview Clinic that he was experiencing neck pain with radiation down the arms caused by lifting at work. (Tr. 502.) Plaintiff appeared to be in mild to moderate pain. ( Id. ) Plaintiff's neurological testing was normal, but he was tender over the neck, shoulders and upper back. ( Id. ) Dr. Tran diagnosed cervicalgia[2] with symptoms of cervical brachial neuritis.[3] ( Id. ) He recommended rest and icing, prescribed analgesics and muscle relaxants, and referred Plaintiff to physical therapy. ( Id. ) Dr. Tran imposed work restrictions of no repetitive lifting more than two pounds with his left arm for four weeks. (Tr. 234.)

Plaintiff underwent an initial physical therapy evaluation on September 5, 2007. (Tr. 258-60.) Plaintiff explained that he was repetitively lifting ten pounds when his symptoms began. (Tr. 258.) The goal was for Plaintiff to return to normal work duties after eight physical therapy sessions. (Tr. 260.) After two sessions of physical therapy, Plaintiff told Dr. Tran that his symptoms were unchanged. (Tr. 500-01.) Plaintiff was discharged from physical therapy later that month because he did not return after three sessions. (Tr. 510.) Subjectively, Plaintiff said his symptoms continued to be exacerbated by light duty repetitive work activity. (Tr. 510.) Objectively, Plaintiff was mildly improved. (Tr. 511.)

Plaintiff saw his former surgeon, Dr. Smith, on October 9, 2007, and described in detail the activity he was doing at work when he aggravated his neck, shoulder and arm pain. (Tr. 273.) Plaintiff was neurologically intact, with good strength and sensation, no pathological cord signs, twenty degrees extension, one inch short of chin on chest flexion, lateral bending thirty degrees and lateral rotation sixty degrees. ( Id. )[4] Dr. Smith's diagnosis was possible functional syndrome.[5] ( Id. ) Plaintiff had a cervical MRI on October 26, 2007. (Tr. 275.) The MRI indicated a solid appearing fusion at C5-6, mild annular bulging at C6-7 without neural impingement, subtle annular fissure or tear at C4-5, and slight spurring with mild foraminal narrowing but no neural impingement. ( Id. ) Because there was nothing compressing Plaintiff's spinal cord or the exiting nerve roots of his neck, Dr. Smith recommended nonoperative rehabilitation. (Tr. 274.)

Dr. Tran referred Plaintiff to Dr. Teresa Gurin at Minnesota Orthopaedic Specialists, where he was evaluated on December 12, 2007. (Tr. 372, 498.) Plaintiff complained of pain in his neck, shoulder blades, arm, and low back. ( Id. ) He was taking ibuprofen, tramadol and cyclobenzaprine for pain relief. ( Id. ) The medications were effective when he was inactive but any activity, including physical therapy, caused him pain. ( Id. ) Plaintiff also reported symptoms of anxiety, shortness of breath, and pain radiating into his left arm if he walked eight blocks or more. (Tr. 373.) The abnormal findings from Plaintiff's examination were muscle and sacroiliac joint tenderness, hip and plantar flexion contracture[6], lumbar hyperlordosis, [7] and poor posture. (Tr. 374-75.) Dr. Gurin recommended restrictions of light duty work, alternate position every thirty minutes for ten to thirty minutes, and restrict lifting to five to ten pounds. (Tr. 375.)

When Plaintiff saw Dr. Gurin on January 23, 2008, he had pain in his lower back with sitting or lying in bed, and pain in his arms, particularly with overhead activity and carrying groceries. (Tr. 367.) He had significant pain exacerbation with his work activities, lifting a big pad of paper checks, taking the pad to another machine to cut it into smaller pieces, and straining forward to inspect the checks. ( Id. ) On examination, Plaintiff had several tender muscle groups. ( Id. ) Dr. Gurin prescribed MS Contin. (Tr. 370.) She limited Plaintiff to lifting five pounds. (Tr. 371.) About two weeks later, Plaintiff said his pain had not improved with MS Contin, and it made him sleepy. (Tr. 362.) Activity, including household chores, aggravated his pain. ( Id. ) Dr. Gurin, however, now felt Plaintiff could lift ten pounds. (Tr. 365.) At the end of January 2008, Plaintiff saw Dr. Tran for hypertension. (Tr. 493-95.) Dr. Tran noted, "He has very active lifestyle, and exercise[] regularly without any problems." (Tr. 494.)

Plaintiff began physical therapy at Reynolds Rehabilitation on February 8, 2008. (Tr. 289-90.) Therapist John Reynolds could not find a specific pathology of Plaintiff's neck, but Plaintiff had some discomfort in the rhomboids and paraspinals. (Tr. 289.) The goal was for Plaintiff to have normal painless function in his back, neck and shoulders in three to four weeks. ( Id. ) On March 3, 2008, Plaintiff demonstrated good progress with shoulder and core strength. (Tr. 283.)

Dr. Gurin noted Plaintiff was getting stronger, but he said his pain had not changed. (Tr. 358.) Plaintiff's shoulder pain was worse after he shoveled snow. ( Id. ) He was no longer taking MS Contin. ( Id. ) On March 5, 2008, Dr. Gurin changed Plaintiff's lifting restriction to fifteen pounds. (Tr. 361.) Reynolds wrote to Dr. Gurin that day, reporting that after six physical therapy visits, Plaintiff had good, pain-free range of motion in the neck, shoulders and lumbar spine, with improved endurance and core stabilization. (Tr. 413.) Reynolds would discharge Plaintiff from physical therapy after one more visit. ( Id. ) Reynolds opined that Plaintiff might benefit from returning to work, part-time initially because he fatigued quickly in the paraspinal muscles. (Tr. 282.) On March 17, 2008, Dr. Gurin amended Plaintiff's work restrictions, indicating Plaintiff was able to push/pull thirty pounds using an air table. (Tr. 357.)

On March 21, 2008, however, Plaintiff told Dr. Gurin he was worse after working four-hour shifts at his regular work station. (Tr. 353.) Dr. Gurin recommended an ergonomic workplace evaluation. ( Id. ) Later that week, Plaintiff told Dr. Tran that physical therapy had not been helpful to him. (Tr. 490.) Plaintiff's examination was normal with the exception of some tenderness. (Tr. 491.) Dr. Tran referred Plaintiff to a neurologist. ( Id. )

Plaintiff returned to Dr. Gurin on April 30, 2008, reporting that he recently had some tingling sensations in his left arm when walking. (Tr. 348.) He was not working and was using Advil to manage his pain. ( Id. ) Dr. Gurin gave Plaintiff work restrictions of working two hours per day, maximum thirty to forty pounds lifting, and alternate activities every thirty to sixty minutes. (Tr. 351.) About a week later, Plaintiff saw a neurologist, Dr. Suraj Ashok Muley at Fairview Maple Grove Clinic. (Tr. 488.) Plaintiff was working part-time again. (Tr. 489.) His examination was normal, with the exception of mildly increased reflexes in the arms. ( Id. ) Dr. Muley opined that Plaintiff had developed a chronic pain syndrome, but the pain might also be mechanical in nature. ( Id. ) Although there was no evidence of a neurological basis for pain, Dr. Muley suggested that Plaintiff could try treatment with Neurontin. ( Id. ) He also recommended participation in a pain management program. ( Id. )

At the end of May 2008, Dr. Gurin increased Plaintiff's working hours to four hours per day for two weeks, then increase to six hours per day for two weeks, then seven hours per day for two weeks, and then full-time work. (Tr. 347.) Plaintiff's lifting restriction remained at thirty to forty pounds, and he would need to alternate positions every thirty to sixty minutes. ( Id. ) Dr. Gurin also instructed Plaintiff to refrain from strenuous activity at home, because he reported sharp pain in his right shoulder after lifting a box. (Tr. 344.) On June 3, 2008, Dr. Maya Miley at Fairview Hiawatha Clinic noted that Plaintiff's neck pain was under control and improving, and Plaintiff was returning to part-time work. (Tr. 483-86.) She prescribed Lyrica because Plaintiff could not tolerate Neurontin. (Tr. 486.) At the end of July 2008, Plaintiff was doing a little better after completing physical therapy. (Tr. 340.) On August 20, 2008, Plaintiff had pain between his shoulder blades, mid and low back. (Tr. 335.) Plaintiff was restricted to alternating activities every thirty to sixty minutes, and no highly repetitive activity or far reaching. (Tr. 338.) He did not take pain medication until after getting home from work due to side effects. (Tr. 335.)

Plaintiff was no longer working when he saw Dr. Gurin on October 29, 2008. (Tr. 330.) He complained of chronic neck pain and pain between the shoulders. ( Id. ) If he did housework for any length of time, he had low back pain. ( Id. ) He was neurologically intact but had the same tenderness on examination as Dr. Gurin had noted on previous examinations. ( Id. ) Plaintiff returned to physical therapy a month later, having forgotten how to do his home exercises. (Tr. 308-09.) He complained of upper and lower back pain. ( Id. ) By December, Plaintiff's function had improved considerably since restarting therapy. (Tr. 305.) He had full range of motion in the neck and back. ( Id. )

When Plaintiff saw Dr. Gurin on December 17, 2008, he did not feel he was making progress in physical therapy, but his therapist disagreed. (Tr. 325.) His medications kept his pain tolerable. ( Id. ) A few days later, Plaintiff said he went shopping without any pain, and he no longer had a tingling feeling in his arms when carrying grocery bags. (Tr. 299.) He did not use a cervical collar during his typing class as often; and he was looking for a desk job in the real estate field. ( Id. ) He no longer had back pain from cleaning his bathtub or ironing shirts. ( Id. ) After performing a push/pull activity, Plaintiff said he could do it all day. ( Id. ) Plaintiff felt "pretty good" the next time he shoveled snow. (Tr. 294.)

On January 12, 2009, Plaintiff did not have any symptoms after doing errands and driving to his physical therapy appointment. (Tr. 292.) He said he did not have any symptoms after grocery shopping and shoveling snow over the weekend. ( Id. ) A few days later, Plaintiff did the following physical therapy activities without apparent difficulty: cycling for thirteen minutes, rowing, bicep curls, work hardening circuits with lifting and carrying forty-three pounds, pushing and pulling fifty pounds, carrying twenty pounds in each hand, squatting and stooping to retrieve things off the floor. (Tr. 291.) Nonetheless, a week later Plaintiff told Dr. Gurin he had not noticed much improvement. (Tr. 321.) He said his pain increased with bending over, sitting or carrying light weight items. ( Id. ) If he was not active, Advil, Flexeril and Zanaflex eliminated some of his pain. ( Id. )

Plaintiff had a neurological consultation on January 22, 2009, with Dr. David Ketroser at Physicians Spine Care. (Tr. 438-40.) Plaintiff had normal strength, bulk and tone in all major muscle groups, normal sensory examination, normal coordination, station and gait, and normal reflexes. (Tr. 439.) His neck range of motion was as follows: seventy flexion, forty extension, forty right lateral bending, thirty to thirty-five left lateral bending, seventy right rotation, and eighty left rotation. ( Id. ) There was no evidence of radiculopathy or a facet etiology for Plaintiff's pain. ( Id. ) Dr. Ketroser opined the pain was probably discogenic. ( Id. )

Plaintiff was next evaluated, on March 9, 2009, by Dr. Timothy Garvey at Twin Cities Spine Center. (Tr. 431.) Dr. Garvey recommended that Plaintiff have another MRI done, and in the meantime, continue treatment with light active exercise, aerobic conditioning, and upper and lower extremity strengthening. ( Id. ) About a week later, Dr. Gurin gave Plaintiff work restrictions for fulltime work, lifting up to forty pounds, alternating activity every thirty to sixty minutes, no highly repetitive activity involving neck extension, flexion, rotation, and "no far reaching for now." (Tr. 578.)

Plaintiff had a cervical MRI on March 31, 2009. (Tr. 565-66.) The MRI showed mild degenerative changes at C4-5, and lesser changes at C6-7 above and below the fusion. (Tr. 460.) Given Plaintiff's left-sided symptoms, he could consider a left C7 selective nerve block. ( Id. ) Dr. Garvey recommended Plaintiff have discography for surgical evaluation but advised that surgery should be a last resort. (Tr. 379.) Plaintiff had ...

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