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Miller v. Commissioner of Social Security

July 16, 2008

FREDERICK W. MILLER, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff filed an application for disability insurance benefits on May 24, 2004, alleging that he became disabled on November 12, 2003. See Administrative Transcript ("Tr.") at 47-49. Plaintiff's application was initially denied. See id. at 26. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on February 18, 2005, before ALJ Elizabeth W. Koennecke. See id. at 181-203. On June 10, 2005, the ALJ issued a decision denying Plaintiff's application for disability benefits. See id. at 10-20. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on September 9, 2005. See id. at 4-6.

On October 31, 2005, Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g) for judicial review of that final decision. In support of his argument that the Court should reverse Defendant's decision and award him benefits, Plaintiff asserts that (1) the Commissioner failed to consider the medical evidence of record properly; (2) the Commissioner failed to assess the severity of Plaintiff's conditions properly; (3) the Commissioner failed to calculate Plaintiff's residual functional capacity ("RFC") properly; (4) there was no substantial evidence to support the Commissioner's conclusion that there was significant work in the national economy that Plaintiff could perform; and (5) the ALJ failed to consider Plaintiff's credibility properly. See Plaintiff's Brief at 3-22.

To the contrary, Defendant contends that there is substantial evidence in the record to support the ALJ's decision and that, therefore, the Court should dismiss Plaintiff's complaint. See generally Defendant's Brief.

II. BACKGROUND

A. Personal History

Plaintiff was fifty-one years old at the time of the administrative hearing. See Tr. at 185. Plaintiff had obtained his high school degree, see id. at 186, and had past relevant work experience as a mechanic's helper and as a heavy equipment operator, see id. at 187. Plaintiff alleged disability due to degenerative disc disease and arthritis. See id. at 53.

B. Medical Evidence in the Record

1. Gary Berk, M.D.

From December 5, 1995, to March 7, 2005, Plaintiff saw Gary Berk, M.D., a family practitioner. See Tr. at 92-109, 148-54, 174-80. Plaintiff initially complained about joint pain in his right elbow, shoulders, and right knee. See id. at 96. Plaintiff received instructions about how to perform shoulder rehabilitation exercises and received prescriptions for various medications. See id. An x-ray of Plaintiff's right knee was unremarkable, but an MRI showed possible subarticular cartilaginous damage and a possible small medial meniscal tear. See id. However, Dr. Berk found that Plaintiff's knee pain was "much better . . . and progressively improving." See id.

Plaintiff subsequently complained about low back pain. See Tr. at 98. An MRI of Plaintiff's lumbosacral spine performed on February 6, 2003, demonstrated multiple degenerative disc disease and facet arthritic changes. See id. at 105. On July 2, 2003, Dr. Berk noted that there "is a definite pattern of the pain being aggravated by his job [as a mechanic's helper]." See id. Dr. Berk also noted that Plaintiff reported that there is a "provision in his job contract that provides for early retirement if there is a disability involved, and he would like to apply for this, though total time to completion may be 6-9 months." See id.

On October 29, 2003, Dr. Berk noted that Plaintiff continued to experience low back pain that radiated down his legs, which "occurs whenever he works at his job. His symptoms improve when he is at home off the concrete floors. He has applied for early retirement because of the disabling nature of this condition." See id. at 106.

On November 10, 2003, Dr. Berk noted that Plaintiff complained about "an intolerable flare of back pain due to work and cold weather." See id. Dr. Berk placed Plaintiff on medical leave through December 7, 2003. See id.

On January 4, 2004, Dr. Berk noted that Plaintiff's "attempt to return to work brings about a severe exacerbation of his back pain, which carries over into his daily activities." See Tr. at 107. Dr. Berk diagnosed Plaintiff as suffering from chronic degenerative disc disease and facet arthritis "with recurrent aggravation from his work, causing chronic back pain." See id. Dr. Berk placed Plaintiff on medical leave through February 15, 2004, "to avoid further exacerbation of his back pain." See id.

On February 4, 2004, Dr. Berk noted that Plaintiff "[c]ontinues to be disabled by his back pain though the symptoms are improved since he has been off work." See id. at 108. Dr. Berk extended Plaintiff's medical leave until March 15, 2004, due to his severe back pain. See id.

On April 29, 2004, Dr. Berk noted that Plaintiff continued to experience low back pain with "discomfort radiating down the side of the right leg." See id. Plaintiff stated that his pain "flare[d] up whenever he start[ed] to do bending and lifting. He has been unable to work because of this." See id. An MRI showed bulging discs and some nerve root impingement on the right side at the L4-5 level. See id. Dr. Berk noted that Plaintiff's application for early retirement based on disability was rejected, which "has caused him a lot of stress." See id. On examination, Plaintiff exhibited tenderness and spasm in his back, limited bending ability, and difficulty performing a heel-and-toe walk. See id. Dr. Berk opined that Plaintiff was unable "to work full time in a strenuous job that involves heavy lifting and bending." See id. Dr. Berk extended Plaintiff's medical leave for two months and encouraged Plaintiff to attend physical therapy "to help improve his functional status while he is off work. If he is unable to reverse the disabilities decision he probably will have to go back to work and hopefully will be in optimal shape when he does so." See id. at 108-09.

On July 19, 2004, Dr. Berk noted that Plaintiff complained about continued back pain that limited his activities, particularly standing and sitting which he claimed he could perform "for about 30 minutes at a time." See Tr. at 149. Dr. Berk extended Plaintiff's medical leave for two months. See id.

On September 13, 2004, Dr. Berk noted that Plaintiff stated that he was able to tolerate more standing and sitting, "sometimes up to 2 hours." See Tr. at 150. However, Dr. Berk noted that Plaintiff stated that any activity beyond minimal exertion caused significant aggravation of his back pain, but he was able to "stay comfortable" using medication and a TENS unit. See id. Dr. Berk extended Plaintiff's medical leave until October 25, 2004. See id. at 151.

On October 25, 2004, Dr. Berk noted that Plaintiff stated that his back pain was "still very easily aggravated with minor activity" and that he was also "still limited with the time he [could] stand and sit." See id. at 152. On examination, Plaintiff exhibited mild tenderness over the lumbar vertebrae without paraspinal muscle tenderness or spasm; normal sacroiliac ("SI") joints; full range-of-motion with minimal pain on terminal movements; and a negative straight leg raise test. See id. Dr. Berk extended Plaintiff's medical leave for three months.

On December 6, 2004, Dr. Berk noted that Plaintiff still had back pain and that he "still ha[d] to be careful around the house, though he [was] trying to be as active as possible. He [was] still limited with the time he [could] sit and stand." See id. at 153. On examination, Dr. Berk found mild tenderness over the lumbar vertebrae; mild paraspinal muscle; no spasming; little tenderness over the SI joints; full range-of-motion with minimal pain on terminal movements; and a negative straight leg raise test. See id. He again extended Plaintiff's medical leave for three months. See id. Dr. Beck noted that Plaintiff planned to start a light weight lifting program as a physical therapist had directed. See id.

On March 7, 2005, Dr. Berk noted that Plaintiff complained that his back "extremely limited" him. See Tr. at 180. Plaintiff stated that his chronic low back pain flare[d] up after about 10 minutes of being up on his feet. He ha[d] to sit and rest every 10 minutes when he d[id] household chores and a renovation project that he [was] completing [was] going very slowly . . . . He frequently [had] discomfort in the neck and down both upper arms as well, which he related to his back problem. He [was] currently trying to participate in a fitness program and hope[d] to become more functional in the future.

See id.

An examination of Plaintiff's back showed tenderness from L1 through L4 regions of the spine and in the sciatic notch on the right side; the straight leg raising test was positive bilaterally; and he exhibited "considerable" discomfort when bending forward and "severely limited mobility of the spine in all directions." See id. Dr. Berk diagnosed Plaintiff as suffering from chronic low back pain. See id. He found no functional improvement. See id.

Also on March 7, 2005, Dr. Berk completed a medical Source Statement in which he indicated that Plaintiff's impairments affected his abilities to lift and carry in that he was able to lift and/or carry a maximum of ten pounds occasionally and had no ability to lift and/or carry frequently. See Tr. at 175. Plaintiff's impairments affected his abilities to stand and/or walk as well, in that Plaintiff was able to stand and/or walk a maximum of less than two hours in an eight-hour workday. See id. Dr. Berk added that Plaintiff "need[ed] to rest every 10 minutes while doing light work due to pain." See id. In addition, Plaintiff was able to sit a total of less than about six hours in an eight-hour workday. See id. at 176. Dr. Berk also noted that Plaintiff had limited abilities to push and pull. See id. Dr. Berk stated that he based the foregoing findings on his examination of Plaintiff and Plaintiff's subjective complaints from the March 7, 2005 office visit. See id. Dr. Berk also indicated that Plaintiff should never perform certain postural activities, was limited in certain manipulative activities, and had some environmental limitations. See id. at 176-78.

2. Physical Therapy

On February 17, 2003, Plaintiff started to attend physical therapy due to degenerative disc disease and spinal stenosis. See Tr. at 110-15. Plaintiff's treatment was successful, and he was discharged on March 31, 2003. See id. at 115.

On April 14, 2003, Plaintiff returned to physical therapy due to low back pain that started on April 9, 2003, when he was "squatting and lifting a mounted tire at work." See id. at 119. Plaintiff's treatment was successful, ...


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