United States District Court, D. Minnesota
Tsige A. Dereje, Plaintiff,
Carolyn W. Colvin,  Acting Commissioner of Social Security Defendant.
Donald C. Erickson, Esq., Fryberger, Buchanan, Smith & Frederick, P.A., 302 W. Superior Street, Suite 700, Duluth, MN 55802, for Plaintiff.
Gregory Brooker and Ann M. Bildtsen, Assistant United States Attorneys, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415, for Defendant.
REPORT AND RECOMMENDATION
TONY N. LEUNG, Magistrate Judge.
Plaintiff Tsige Dereje ("Dereje") disputes the Commissioner's denial of his application for social security income ("SSI"). Judicial review in the United States District Court for the District of Minnesota is proper under 42 U.S.C. §§ 405, 1383(c)(3). This matter is before the Court, United States Magistrate Judge Tony N. Leung, for a report and recommendation to the United States District Court on the parties' cross motions for summary judgment. See 28 U.S.C. § 636(b)(1); D.Minn. LR 72.1-2. Based on the record and proceedings herein, IT IS HEREBY RECOMMENDED that Plaintiff's motion for summary judgment be DENIED, and Defendant's motion for summary judgment be GRANTED.
A. Procedural History
Dereje was 45 years old when he filed his application for SSI on February 25, 2011. (Tr. 150-56.) He alleged disability from back pain, chronic leg pain, asthma, headache, and depression. (Tr. 173, 218.) Dereje's application was denied initially and upon reconsideration. (Tr. 84-90.) He requested a hearing and a hearing was held on March 28, 2012, before Administrative Law Judge ("ALJ") David B. Washington. (Tr. 91-93, 26-47.) On April 6, 2012, the ALJ denied Dereje's claim. (Tr. 5-22.) Dereje requested review of the ALJ's decision by the Appeals Council. (Tr. 23-24.) The Appeals Council denied review on September 26, 2012 (Tr. 1-4), and the ALJ's decision became the final decision of the Commissioner of Social Security. See Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008) (Appeals Council's denial of review made the ALJ's decision the final decision of the Commissioner). Dereje initiated the present action for judicial review on November 30, 2012.
B. Employment and Accident History
Dereje was in an accident in 1997 and suffered a fractured left tibia, repaired by placement of a rod in his left leg. (Tr. 484-85.) He recovered from the injury, and between 2003 and April 2009, he worked in various occupations including assembly, sterilizing surgical equipment, driving a cab, stocking a grocery store, and cooking. (Tr. 182, 238.) His full-time employment as a cook ended after he hurt his low back and fractured his tailbone in two separate accidents in December 2009. (Tr. 182, 252, 480, 333-34.) Dereje also served a prison sentence in 2008-09, and he received mental health treatment in prison. (Tr. 472.)
C. Medical Records
1. Before the SSI Application
Dereje sought mental health treatment at Community University Health Care Center in April 2009, after he ran out of Effexor and Zyprexa, which he said were prescribed to him while he was in prison earlier that year. ( Id. ) Dereje reported that the medications helped with his depression, suicidal ideation, and visual and auditory hallucinations. ( Id. ) While he was in prison, his wife was reported to child protection, their children were placed in foster care, and his wife moved to Denver, Colorado. ( Id. ) After he was released from prison, Dereje's church supported him. ( Id. )
On examination by Nurse Maureen Malloy, Dereje was sad and tearful and reported having poor concentration and auditory and visual hallucinations. ( Id. ) He was diagnosed with depression with psychotic features, and Effexor and Zyprexa were prescribed. ( Id. ) A week later, his medications were increased because he was having trouble sleeping and feeling hopeless. (Tr. 472.)
On May 15, 2009, Dereje had improved but was somewhat depressed about his situation and anxious about finding a job and getting his children back. (Tr. 469.) He denied suicidal ideation and hallucinations. ( Id. ) According to a record from Hennepin County Medical Center, Dereje was diagnosed with severe major depression with psychotic features on June 5, 2009, but the issue resolved as of July 28, 2009, and his diagnosis was major depression, single episode, in remission. (Tr. 521.)
Dereje went to the emergency room at the University of Minnesota Medical Center Fairview ("UMMC Fairview"), on December 9, 2009, five days after he slipped and fell on a soapy floor at work. (Tr. 419, 421.) His low back pain worsened after his fall, and it took him two hours to get out of bed because his back was stiff. (Tr. 421.) He did not have numbness or tingling in his legs, but his legs felt weak when he tried to stand. ( Id. ) On examination, there was diffuse lumbar tenderness with evident muscle spasm. ( Id. ) The strength, reflexes, and sensation in his lower extremities were normal. ( Id. ) A CT scan of his lumbar spine showed moderate to severe central stenosis at L4-5 as result of a broad-based disc bulge with central disc protrusion. (Tr. 253.) He was treated with Valium and morphine and was able to get up and walk around normally after treatment. (Tr. 421.) He was prescribed anti-inflammatories and an analgesic. ( Id. )
On December 22, 2009, Dereje was in a hit-and-run accident caused by another driver hitting the parked car in which Dereje was seated. (Tr. 246-47.) He was diagnosed with a fractured coccyx and was prescribed Percocet and ibuprofen. (Tr. 245.) On December 29, 2009, Dereje saw Physician Assistant Millicent Marwa at Cedar-Riverside People's Center for continued low back pain without radiation. (Tr. 551.) Marwa provided Dereje with a letter to stay off work. (Tr. 552, 241-42.) She referred Dereje to the Institute for Low Back and Neck Care. (Tr. 601.)
Dereje saw a chiropractor on January 2, 2010. (Tr. 258-72.) He was diagnosed with acute-post traumatic sprain/strain injury to the cervical, thoracic and lumbosacral spine, complicated by postural abnormalities, decreased range of motion, muscle spasm and trigger points. (Tr. 260.) He had radicular symptoms in the lower extremities. ( Id. ) His cervical spine MRI findings were essentially negative. (Tr. 534-35.)
On January 4, 2010, Dereje was evaluated by Dr. David Strothman at the Institute for Low Back and Neck Care. (Tr. 601.) Dereje complained primarily of low back pain radiating to his legs, with numbness in his legs down to his big toes. ( Id. ) He had difficulty controlling his bladder since the pain began. ( Id. ) Ice, medication, and rest improved his pain. ( Id. ) Dereje said he had been working three jobs, suffering from excessive stress. ( Id. ) On examination, his gait was slow; he could not heel or toe walk; he could not bend without severe pain; his muscle strength was difficult to assess; he had a loss of sensation in the L3 nerve roots, but otherwise his sensation; and his reflexes were normal. ( Id. )
Dr. Strothman ordered x-rays of the coccyx and lumbar spine. ( Id. ) The x-rays showed displacement of the coccyx and very mild lumbar levoscoliosis. (Tr. 604.) Dereje also had a lumbar MRI that day, which revealed shallow left disc protrusion at L1-2 and shallow disc protrusions at L4-5 and L5-S1 that did not significantly compromise the central canal; mild narrowing of rececess for the proximal L5 nerve roots bilaterally; the shallow disc protrusion at L5-S1 contacted the dural sac and proximal S1 nerve roots, but the structures were not displaced or compromised; nerve root canals were patent; and a coccygeal fracture was present, with mild posterior displacement of C2 and edema. (Tr. 532-33.)
On February 16, 2010, Dereje asked Physician Assistant Marwa for a letter stating he could return to light-duty work. (Tr. 554.) He had started physical therapy and was doing well. ( Id. ) Marwa then conducted Dereje's annual physical examination on May 3, 2010. (Tr. 557-58.) In a review of systems, he had no pain complaints. ( Id. ) He could walk normally and was neurologically intact. (Tr. 558.)
Dereje underwent an independent medical examination with Dr. Mark Thomas on May 20, 2010, relating to litigation over the hit-and-run accident. (Tr. 277-88.) Dereje told Dr. Thomas that he had returned to full-time work one week after his slip and fall in early December, and then the car accident occurred later that month. (Tr. 278-79.) His neck and upper back pain had improved since the accident, but he suffered low back pain, aggravated by prolonged, sitting, standing or pushing more than 15 to 20 pounds. (Tr. 279.) Prior to both accidents, he had been working 80 hours per week. (Tr. 280.) Dereje was now working less than 20 hours per week. ( Id. ) Dr. Thomas noted there was relatively minor damage to Dereje's vehicle from the accident. ( Id. )
Upon examination, Dereje appeared healthy and in no acute distress. (Tr. 283.) He walked with a slow deliberate gait, rose slowly from sitting, was tender to palpation of the entire spine, and exhibited an exaggerated withdrawal response to light touch. ( Id. ) There was a mild limitation in lumbar range of motion. ( Id. ) His neurologic examination was normal. (Tr. 284.) Dr. Thomas opined that Dereje's minor sprain/strain had resolved, and there were findings of symptom magnification on examination. (Tr. 284-85.) He believed Dereje would not have any work restrictions from the car accident, although he would have some symptoms. (Tr. 285-86.)
Dereje returned to Physician Assistant Marwa on June 11, 2010, complaining of asthma and left leg pain after standing for one hour. (Tr. 560.) Marwa prescribed Advair and prednisone, and she referred Dereje to Minnesota Orthopaedic Specialists for evaluation of his left leg. (Tr. 560-62.) Several days later, Dereje told Physician Assistant Jeffrey Ballard at Minnesota Orthopaedic Specialists that his left leg had improved after his 1998 accident and surgery. (Tr. 484-86.) At present, his new job required standing, and he had significant pain over the upper tibia. (Tr. 484.) He said the severity was moderate, the symptoms started one year ago, and the episodes of pain were increasing. ( Id. ) He did not complain of low back pain. ( Id. )
On examination, Dereje appeared healthy, pleasant, and relaxed; he was oriented with normal mood and affect; his gait was antalgic; he had swelling and tenderness of the left lower leg; and full range of motion and strength in the left leg. (Tr. 485.) Ballard ordered a CT scan of Dereje's left leg and gave Dereje work restrictions of standing for one-hour pending Ballard's review of the CT scan. ( Id. ) The CT scan showed solid bony union of a tibial fracture, with old fracture deformity. (Tr. 309). A few days later, Dereje had swelling and tenderness over the left lower leg, and positive straight leg raise tests. (Tr. 482-83.) Ballard diagnosed lumbosacral neuritis or radiculitis and lumbar spinal stenosis. (Tr. 482.) He opined that Dereje's leg pain and numbness probably related to the spinal stenosis, not his well-healed tibia fracture. (Tr. 483.) He recommended epidural steroid injection and physical therapy. ( Id. ) Dereje did not want an injection. ( Id. )
Dereje was evaluated for physical therapy at Fairview Sports and Orthopedic Care University Village on July 2, 2010. (Tr. 311.) His primary complaint was numbness of the left leg, with aching intermittent pain, gradually worsening since onset. ( Id. ) His treatment would be directed at increasing his range of motion and strength. (Tr. 312.) On July 7, 2010, Dereje's chiropractor, Dr. Brian Sontag, wrote a letter explaining that Dereje was off work from January 2, 2010 through February 16, 2010, and that he was or should have been on light work restrictions thereafter, with a maximum 20 pounds lifting, frequently lifting 10 pounds, and walking or standing to a significant degree may be expected. (Tr. 290.)
Dereje's physical therapy discharge records indicated that he did not show for the last session he had requested. (Tr. 500-01.) Per Dereje's request, they had been focusing on his left leg weakness in physical therapy. (Tr. 500.) On July 30, 2010, Physical Therapist Jen Torma noted that Dereje's left leg was stronger and less swollen. (Tr. 506.) He could walk for an hour before sitting. ( Id. ) He complained that his low back still hurt, but he did not want physical therapy for his back while he was being treated by a chiropractor. ( Id. ) Due to his improvement, Torma recommended advancing his treatment plan to more complex exercises. ( Id. ) At his final visit on August 3, 2010, his leg pain had reduced in severity from six out of ten to four. (Tr. 489.) He had no adverse reaction to treatment or activity. ( Id. ) He met his long-term goals of walking for 30 minutes and bending to reach his ankles. (Tr. 489, 500.) Dereje was instructed in a home-treatment plan and self-management of symptoms. ( Id. )
Dereje asked Physician Assistant Marwa to complete a Medical Opinion form for him on December 3, 2010. (Tr. 563.) Marwa noted that Dereje had been taking pain medication and muscle relaxants without any permanent improvement. ( Id. ) She also noted that Dereje was "distressed about this on and off back pain." ( Id. ) On examination, Dereje denied numbness and tingling in his extremities. ( Id. ) His back examination revealed muscle stiffness and pain with range-of-motion exercises. ( Id. ) Marwa provided a disability opinion based on Dereje's back pain. (Tr. 564.) Later that month, Dereje asked Dr. Kay Maust at Cedar Riverside People's Center for a referral to orthopedics. (Tr. 564-65.) Dr. Maust wrote a letter for Dereje, stating he could not lift since the December 2009 accidents; he could not presently work; and he would be reevaluated on January 17, 2011. (Tr. 240.)
Dereje called paramedics on January 1, 2011, after he bent to tie his shoes and could not stand up straight. (Tr. 522-24.) Dereje was examined by Dr. Eric Ling in the Hennepin County Medical Center emergency room. (Tr. 522.) Dereje said this was his usual back pain. ( Id. ) He denied paresthesia or focal weakness, and he said his pain did not radiate. ( Id. ) On examination, he was cooperative, awake, alert, oriented and appeared mildly uncomfortable. (Tr. 524.) He was tender to palpation of his lumbar paraspinals, his strength testing was limited by pain, and sensation was intact. ( Id. ) Dr. Ling noted that because Dereje had severe pain with moving his toes, his pain might be psychogenic. ( Id. ) Nurse Carol Peterson wrote that Dereje's exam was not consistent with cauda equina syndrome or radiculopathy, and he was able to ambulate without difficulty after treatment. (Tr. 525.)
A few days later, Dereje saw Physician Assistant Jacob Ash at Minnesota Orthopaedic Specialists and reported that his back pain had been exacerbated in the last several months. (Tr. 480-81.) He had lost his job and was having trouble finding work due to his pain. (Tr. 480.) On examination, his spine was rigid and his lumbar flexion was near normal but painful. ( Id. ) His gait was normal, and he had normal range of motion. ( Id. ) Ash opined that epidural steroid injections were the best conservative treatment that Dereje had not yet tried, and he also referred Dereje to the Institute for Athletic Medicine for lumbar stabilization and core strengthening. (Tr. 481, 297.) Dereje had an epidural steroid injection on January 12, 2011. (Tr. 565.)
Dereje saw Dr. Joan Trowbridge at the University of Minnesota Medical Center Riverside Primary Care Clinic ("UMMC Riverside") to establish care on January 24, 2011. (Tr. 348-52.) Dereje asked Dr. Trowbridge to complete a Medical Opinion form for state benefits. (Tr. 348.) He was taking Flexeril for tension headaches and tight upper back muscles. ( Id. ) He had intermittent asthma. ( Id. ) Dr. Trowbridge noted he was dramatic about his pain, and he gave poor effort on his left leg raise test, so the test was questionably negative. (Tr. 349.) Dr. Trowbridge felt Dereje's pain was primarily musculoskeletal. (Tr. 350.) She referred Dereje for nutritional education, physical therapy and pain evaluation. (Tr. 361.) Dr. Trowbridge completed a Medical Opinion form for Dereje, stating he was disabled by chronic low back and left leg pain, and he could lift a maximum of 20 pounds, and 10 pounds frequently, per his chiropractor. (Tr. 323.) He also suffered mild depression. ( Id. )
The same day, Dereje also saw Social Worker Liz Weir for a behavioral health consultation. (Tr. 361-65.) Dereje's score on the PHQ-9 suggested moderate depression, although he verbally denied depression. (Tr. 362.) His score on the GAD-7 suggested mild anxiety, and Dereje said he was anxious about being unable to work. ( Id. ) His sleep was normal, unless he had a pain flare. ( Id. ) He denied a history of psychiatric hospitalization or suicide attempt, except once when he was much younger. ( Id. ) He was separated from wife and children, but he talked to his children on the phone. ( Id. ) He lived alone in an apartment and had a strong network of friends and in his church community. ( Id. )
In his mental status examination, he was oriented, appropriately dressed and groomed, pleasant and cooperative, with good insight and judgment, normal thought content, and coherent thought process. ( Id. ) His speech was frequently difficult to understand, but he had good eye contact and normal motor behavior. ( Id. ) His mildly depressed mood and mental status examination were not consistent with his self-report on the PHQ-9 and GAD-7 questionnaires. ( Id. ) Weir noted that Dereje felt supported by friends and in his faith community. ( Id. )
On February 9, 2011, Dereje told Physical Therapist Leah Cruz at the Institute for Athletic Medicine that his low back pain, which radiated to his legs, was constant and severe. (Tr. 511.) Dereje's gait was antalgic, and his lumbar range of motion was significantly limited due to pain. (Tr. 512.) Dereje was hypersensitive to light touch on his lumbar spine. ( Id. ) He would receive the following treatment for pain and decreased function: hot/cold therapy, electric stimulation, manual therapy, therapeutic exercise, therapeutic activities, neuro re-education and instruction in a home program. (Tr. 513.) His rehabilitation potential to resume normal activities was excellent. ( Id. )
Dereje next followed up with Dr. Trowbridge on February 24, 2011. (Tr. 368-77.) He was only sleeping for ninety minutes at night. (Tr. 368.) On examination, he was healthy, alert, and in no distress; his left leg was weak compared to the right; and his straight leg raise test was slightly positive on the left. (Tr. 369.) He poorly tolerated touch on his back, and his lumbar range of motion was reduced. ( Id. ) Dr. Trowbridge diagnosed chronic back pain, disc disease, spinal stenosis, and muscular and nerve pain. ( Id. ) She increased Dereje's dosage of Elavil, gabapentin and Lidoderm, and she prescribed Lyrica and referred Dereje to ...