Dale F. Meyer, Plaintiff,
Carolyn W. Colvin,  Acting Commissioner of Social Security, Defendant.
Neut L. Strandemo, Esq., for Plaintiff
Ana H. Voss, Assistant United States Attorney, for Defendant.
REPORT AND RECOMMENDATION
FRANKLIN L. NOEL, Magistrate Judge.
Plaintiff Dale F. Meyer seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), who found Plaintiff was not disabled for the period between August 2007 and January 7, 2009. This Court has jurisdiction over the claims pursuant to 42 U.S.C. § 405(g). The parties submitted cross-motions for summary judgment. [Doc. Nos. 12, 19.] 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. 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 filed applications for supplemental security income and disability insurance benefits on September 7, 2007, alleging a disability onset date of August 27, 2007. (Tr. 110-18.) His applications were denied initially and upon reconsideration. (Tr. 51-55, 66-71.) He requested a hearing before an ALJ, and the hearing was held on December 12, 2008. (Tr. 72-73, 19-45.) The ALJ denied Plaintiff's claim on January 6, 2009. (Tr. 8-18.) The Appeals Council then denied Plaintiff's request for review. (Tr. 1-3.) Plaintiff sought judicial review of the Commissioner's decision and also filed a new application for benefits. (Tr. 432.) Based on Plaintiff's subsequent application, the Commissioner found Plaintiff was disabled as of January 7, 2009. ( Id. ) The Court remanded the initial decision to the Commissioner for further proceedings on February 3, 2011. (Tr. 515-43); Meyer v. Astrue, No. 09-cv-03205 (MJD/LIB), 2011 WL 495637 (D. Minn. Jan. 18, 2011) adopted by Meyer v. Astrue, No. 09-cv-03205 (MJD/LIB), 2011 WL 486261 (D. Minn. Feb. 3, 2011). On remand, the ALJ was required to address deficiencies in the RFC assessment, particularly addressing the credibility factors and the claimant's ability to maintain persistence or pace in full-time competitive employment. ( Id. )
Upon remand, on August 24, 2011, the ALJ conducted another hearing on Plaintiff's initial applications for benefits. (Tr. 454-70.) Then, the ALJ denied Plaintiff's claim for disability for the period of August 27, 2007 through January 6, 2009. (Tr. 429-50.) Plaintiff filed exceptions to the Appeals Council on November 28, 2011. (Tr. 425-28). The Appeals Council denied review based on the tardiness of appeal. (Exhibit to Answer, Doc. No. 7.) The ALJ's September 27, 2011 decision therefore became the final decision of the Commissioner. Plaintiff filed a complaint for judicial review on January 31, 2013. The matter is now before this Court on cross-motions for summary judgment.
II. STATEMENT OF FACTS
A. Employment History
Plaintiff worked as a bellman for eight years, from August 1994 through August 30, 2002. (Tr. 171.) For the next five years, Plaintiff worked as a bus driver. ( Id. ) He was in a car accident and injured his back on August 27, 2007, and never returned to work. (Tr. 164, 196.)
B. Medical Records
Plaintiff was brought to the emergency room at Fairview Red Wing Hospital on August 27, 2007, after being involved in a car accident. (Tr. 233-37.) On examination, Plaintiff exhibited some vertebral point tenderness. (Tr. 236.) His neurological tests were normal. (Tr. 235.) X-rays and CT scans of Plaintiff's chest, pelvis, cervical spine, brain, and lumbar spine were negative. (Tr. 239-42.) Plaintiff was treated with Toradol and discharged with prescriptions for Vicodin and ibuprofen. (Tr. 243.) The clinical impression of his injury was lumbar sprain. (Tr. 236.)
Plaintiff saw his primary physician, Dr. Mark Bettich at Fairview Red Wing Medical Center ("Fairview Red Wing"), on August 28, 2007, the day after Plaintiff's van was hit from behind. (Tr. 225.) Plaintiff had taken Vicodin but it made him sick, and he continued to have pain across his low back. ( Id. ) On examination, Plaintiff was not tender along the spine and there was no bruising, but he was tender and tight in the lumbar musculature. (Tr. 226.) Dr. Bettich diagnosed lumbar strain and prescribed Percocet,  Soma and ibuprofen. ( Id. ) Dr. Bettich gave Plaintiff an "off work" letter, excusing him for approximately three weeks. ( Id. ) Plaintiff returned to see Dr. Bettich on September 4, 2007, and reported that his back pain was the same if not worse, but the pain did not radiate into his legs. (Tr. 225.) On examination, Plaintiff's spine was straight and without tenderness. ( Id. ) His lumbar musculature was tight, his flexion and extension were limited, and he walked hunched over. ( Id. ) Dr. Bettich referred Plaintiff to physical therapy and orthopedics. ( Id. )
Plaintiff underwent an initial physical therapy evaluation at Fairview Red Wing on September 6, 2007. (Tr. 306-09.) He complained of low back pain with left leg numbness, and pain ranging from 8.5 to 10 on a scale of one to ten. (Tr. 306.) Plaintiff was only sleeping 3-4 hours at a time, and he had difficulty walking, difficulty with transitional movements, and trouble lifting his seven-month-old child. ( Id. ) He was taking his medications as prescribed, but they were only effective for a limited time. ( Id. )
On examination, Plaintiff moved in a guarded manner. (Tr. 307.) His posture was forward flexed, his gait was antalgic, his range of motion was painful, and his lumbar paraspinal muscles were tight. ( Id. ) He exhibited pain behaviors and had difficulty getting out of a chair. ( Id. ) Plaintiff's rehabilitation potential was thought to be good. (Tr. 308.) At his first physical therapy session on September 11, 2007, Plaintiff rated his low back pain as seven out of ten in severity, and he was very tender. (Tr. 305.) He complained of difficulty getting out of bed and getting dressed. ( Id. ) He used a TENS unit, which helped for short periods of time. ( Id. ) His heated recliner also helped his back pain. ( Id. ) Driving over the weekend had increased his symptoms. ( Id. ) He was advised to avoid mowing the lawn, avoid driving, and avoid lifting. ( Id. ) Plaintiff's symptoms decreased after physical therapy. ( Id. ) The next day, Plaintiff saw Dr. Bettich and said he was using the TENS unit and taking ibuprofen and Soma. (Tr. 278.)
In physical therapy on September 13, 2007, Plaintiff reported no change in symptoms. (Tr. 304.) On examination, there was edema over Plaintiff's distal lumbar spine, and he was hypersensitive to touch of the lumbar paraspinals and surrounding tissue. ( Id. ) Plaintiff was overdoing physical activity when he had relief from pain medications, which was only masking his pain and preventing him from resting his back. ( Id. ) Plaintiff reported a slight decrease in symptoms on September 20, 2007, rating his pain five or six out of ten. (Tr. 303.) He had taken a car trip, and his pain was bad after one hour of driving. ( Id. ) Five days later, Plaintiff reported a slight decrease in symptoms, rating his pain four or five out of ten. (Tr. 302.) He still needed thirty minutes to dress himself. ( Id. ) His pain increased the next week because he had been more active after his wife was diagnosed with congestive heart failure. (Tr. 301.) Plaintiff was walking more, caring for his children, and he did two loads of laundry that morning. ( Id. )
Plaintiff's symptoms were unchanged on October 2, 2007. (Tr. 300.) He had applied for disability because his doctor limited him from working at least through mid-October, and he was unable to continue farming on the side. ( Id. ) On objective examination, Plaintiff was able to stand more upright with support. ( Id. ) Three days later, Plaintiff reported he had to help care for his eight-month old daughter, and his pain had not improved. (Tr. 299.) He rated his pain, even on pain medications, at a level of eight out of ten. ( Id. ) Plaintiff had a thoracic MRI on October 8, 2007, indicating benign hemangiomas and small disc protrusions at T4-5, T6-7, and T7-8. (Tr. 284-85.)
Plaintiff saw Dr. Matthew Eich for an orthopedic consultation on October 8, 2007. (Tr. 276-77.) Dr. Eich noted Plaintiff did not have a back condition or limitation before his car accident. (Tr. 276.) Taking ibuprofen and a muscle relaxer helped somewhat, but his pain increased with prolonged standing, sitting and rolling over in bed. ( Id. ) On clinical examination, Plaintiff moved very guardedly with a forward flexed posture and using a wheeled walker. (Tr. 277.) With difficulty, he could stand without the walker. ( Id. ) He could not heel and toe walk due to pain and difficulty with balance. ( Id. ) He complained of severe pain with range of motion exercises. ( Id. ) He did not exhibit neurological deficits. ( Id. ) He was tender in the paralumbar and thoracic areas, but there was no spasm. ( Id. ) His lumbar CT scan showed mild degenerative changes in the facet joints but maintained bone heights and disc spaces. ( Id. ) Dr. Eich recommended that Plaintiff continue his medications and use the wheeled walker. ( Id. ) Plaintiff followed up with Dr. Eich a week later, and he was still in pain. (Tr. 275.) Dr. Eich's impression was "incapacitating thoracic disc syndrome follow[ing] motor vehicle accident." ( Id. ) Dr. Eich recommended a thoracic injection and gave Plaintiff a work slip, indicating he could not return to work as a bus driver. (Tr. 275-76.)
On October 25, 2007, Plaintiff rated his pain four out of ten, with use of pain medications. (Tr. 297.) Plaintiff had ridden a tractor the previous day for 45 minutes, until his pain became intolerable. ( Id. ) A few days later, Plaintiff's mid-back pain was at a level of eight out of ten after taking pain medications. (Tr. 296.) He had helped his father with farming the previous day, driving a tractor hauling corn for eleven hours. ( Id. ) The next week, Plaintiff reported that he had continued to help his father haul corn, but they had finished the job. (Tr. 295.) Plaintiff had fallen off his father's grain truck after he felt a "catch" in his back. ( Id. ) He had some swelling over the mid to lower thoracic and lower lumbar spine. ( Id. ) Plaintiff rested for two days before his next physical therapy session. (Tr. 294.)
Plaintiff was miserable when he saw Dr. Eich again on November 12, 2007. (Tr. 275.) The thoracic injection had not helped. ( Id. ) Plaintiff did not have radicular symptoms, but he had difficulty walking. ( Id. ) Dr. Eich referred Plaintiff to a spine surgeon for evaluation, and also noted Plaintiff would be seeing an independent medical examiner for insurance purposes. ( Id. ) He was discharged from physical therapy on November 15, 2007. (Tr. 293.) He had not met his goals because he could not get his pain under control. ( Id. )
Plaintiff underwent an initial evaluation with Dr. Kevin Mullaney at Twin Cities Spine Center on November 16, 2007. (Tr. 342-44.) On examination, Plaintiff used a walker and had difficulty standing up straight. (Tr. 342.) He had significant paraspinal muscle spasm. ( Id. ) In a seated position, he had full leg strength. ( Id. ) His reflexes were hyporeflexive. ( Id. ) Dr. Mullaney reviewed Plaintiff's thoracic MRI, and x-rays of his lumbar spine. ( Id. ) He stated:
My impression, this patient is extremely straightforward and has zero out of 5 signs of symptom amplification. He appears to be a hard working individual and he is a farmer, and on his clinical exam, he is quite debilitated. He was diaphoretic throughout the exam, during ambulation secondary to the diffuse nature of his pain at the thoracolumbar and lumbar regions.
Plaintiff had a CT scan of his lumbar spine on November 21, 2007. (Tr. 282-83.) The impression from the scan was a small disc protrusion at L5-S1, contacting the right S1 nerve root. (Tr. 283.) There was also multilevel foraminal stenosis on the right at L4-5, with associated spurring. ( Id. ) There were hypertrophic and cystic changes at L2-3 and to a lesser extent at L3-4, which might represent early Baastrup disease. ( Id. ) Plaintiff had a lumbar MRI the same day, showing early disc dehydration and degeneration, greatest at L5-S1; small right disc protrusion contacting but not displacing the right S1 nerve root, and mild foraminal stenosis, greatest on the left at L4-5. (Tr. 281.)
Plaintiff underwent an independent medical evaluation with Dr. Asa Kim on December 4, 2007, regarding Plaintiff's insurance claim for his car accident. (Tr. 412-23.) Plaintiff described his current symptoms: mid to low back pain that came and went, worse at night when he tried to lie down. (Tr. 413.) Sitting was the best position for him but getting up from sitting was difficult. ( Id. ) Plaintiff reported pain at a level of six to eight out of ten, which was more or less steady, without significant improvement since the accident. ( Id. ) Plaintiff did not know what medications he was taking, but he thought they were muscle relaxants. ( Id. ) Dr. Kim reviewed Plaintiff's medical records. (Tr. 414-18.) He also reviewed photos of damage to Plaintiff's vehicle from the accident. (Tr. 414.) The right side of the rear bumper had been pushed downward. ( Id. ) Dr. Kim also considered Plaintiff's social history. (Tr. 418.) Plaintiff was married and had three children. ( Id. ) He had completed high school and one year of technical college. ( Id. ) Plaintiff smoked cigarettes but had not touched alcohol for thirteen years. ( Id. ) He last worked as a bus driver and farmer. ( Id. )
On examination, Plaintiff was moderately obese, and at times showed acute distress, especially when trying to get up from a seated position. (Tr. 419.) Plaintiff arrived using a walker. ( Id. ) He did not have significant postural difficulty while sitting, but he was hunched over when standing. ( Id. ) Plaintiff became short of breath getting up from sitting to standing. ( Id. ) He did not limp, but his gait was somewhat labored. ( Id. ) His cervical spine examination was normal. ( Id. ) There was no muscle spasm of the thoracic spine, and no focal tenderness, erythema or kyphotic curvature. ( Id. ) There was tenderness on examination from T12 to L1, with 30 degrees flexion at the waist and flexion to 50 degrees with grimacing. ( Id. ) He could not extend beyond 30 degrees while standing, although his back was straight while sitting. (Tr. 420.) There was no palpable or visible muscle spasm. ( Id. ) Slight rotation also resulted in pain. ( Id. ) His straight leg raise test from the sitting position was negative. ( Id. ) His upper and lower extremities were normal. ( Id. ) His neurological tests were negative. ( Id. )
Dr. Kim diagnosed chronic thoracolumbar pain. (Tr. 421.) Based on the mechanism of the injury, Dr. Kim would have expected minimal to mild sprain/strain injuries to the thoracic and lumbar spine, which should resolve uneventfully. ( Id. ) The magnitude and duration of Plaintiff's pain exceeded the anticipated course of progress, in Dr. Kim's opinion. (Tr. 421-22.) Dr. Kim also felt Plaintiff's body movement, such as relying on a walker and having difficulty getting up from a seated position, was more consistent with weakness of the lower extremities than with thoracic pain. (Tr. 422.) Thoracolumbar pain would not be expected to cause pain when getting up from a seated position. ( Id. ) There was no noticeable muscle spasm to explain why Plaintiff stood hunched over. ( Id. ) Dr. Kim found it unusual that Plaintiff could sit up straight but had to maintain a flexed posture standing up. ( Id. ) After reviewing Plaintiff's subsequent CT scan and lumbar MRI findings, Dr. Kim found no evidence of acute trauma caused by the car accident. (Tr. 411.) He opined Plaintiff could resume full activities without limitations. ( Id. )
Plaintiff also underwent another physical therapy evaluation on December 4, 2007. (Tr. 381.) Plaintiff rated his back pain eight or nine out of ten. ( Id. ) On examination, Plaintiff had an antalgic gait, with forward flexion at the trunk, and he used a walker. (Tr. 382.) His active range of motion was restricted in all ranges due to pain, and his passive range of motion was not tested. ( Id. ) His core stability was limited due to pain and weakness. ( Id. ) He exhibited pain behaviors on examination. ( Id. ) His neurological tests were within normal limits. (Tr. 383.) Plaintiff's physical therapist discussed with Plaintiff the role of chronic pain and stress, as Plaintiff reported significant stress because his mother had cancer, his wife ...