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Dumont v. Colvin

United States District Court, W.D. Wisconsin

March 7, 2016

EDWARD A. DUMONT, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


WILLIAM M. CONLEY District Judge

Pursuant to 42 U.S.C. § 405(g), plaintiff Edward A. Dumont seeks judicial review of a final decision of defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, which denied his application for Social Security Disability Insurance Benefits and Supplemental Security Income. On September 21, 2015, the court heard oral argument on plaintiff’s contentions that: (1) the administrative law judge (“ALJ”) failed to give proper weight to “treating” physician Dr. Lynn Quenemoen’s opinion; (2) the Appeals Council failed to consider new and substantial evidence in the form of a report by Dr. Joseph Hebl, dated June 6, 2013; and (3) the ALJ failed to consider the negative side effects of Dumont’s prescription medications. For the reasons provided below, the court will remand for further consideration of Dumont’s use of prescription medications and its side effects on his residual functional capacity (“RFC”).


Dumont claims a disability onset date of May 1, 2010, based on degenerative disc disease and low back / hip pain. The medical record reflects that Dumont had lumbar laminectomy, discectomy surgery in 2002. (AR 330.) Dumont has not worked since 2008. Beginning in May 2011, Dumont began seeking treatment for low back pain and management of that pain. Among other things, an MRI taken on May 26, 2011, disclosed the following:

[D]isc space narrowing is apparent from L3-4 level through L5-S1 level. . . . The L3-4 level shows focal disc protrusion posterolaterally on the left. This causes minor narrowing of the lateral recess. No deflection of the nerve roots is apparent. There is minimal narrowing of the nural exit foramen on the left. The L4-5 level shows mild diffuse disc bulging with left-sided predominance. Depth of the protrusion is approximately 7 mm. Nerve roots appear to exit freely. The L5-S1 level shows a small midline disc protrusion. There is superimposed mild diffuse disc bulging. There is minimal contact involving the L4 nerve root on the right without posterior deflection.

(AR 237.)

In response, Mark T. Seidelmann, M.D. administered epidural steroid injections in June 2011 and again in November 2011. (AR 238-41, 247, 401.) During this same period, Dumont sought follow-up treatment from Robert A. Wolfe, M.D. Dr. Wolfe described “diffuse [pain] across upper buttocks, ” and also noted Dumont’s use of epidural shots and hydrocodone, which appeared to provide relief from pain, but also made him feel “numb.” (AR 227, 293, 395, 403.) Also, during this period, Dumont was treated for alcohol withdrawal, including hospitalization, which he attributed to self-medicating for back pain. (AR 260.)

Critical to one of Dumont’s challenges, L.S. Quenemoen, M.D. (“Dr. Q”), completed a questionnaire in early January of 2012, which limited Dumont to lifting and/or carrying occasionally up to 10 pounds, rarely up to 20, and never over 20 pounds. (AR 216.)[1] In particular, Dr. Q’s physical exam notes indicate that: Dumont’s “pain symptoms [were] consistent [with] diskogenic pain”; he was “unable to stand erect or back bend on physical exam due to back pain”; and he was “unable to maintain flexed trunk position or repetitively forward bend on physical exam due to back pain.” (AR 216.) Dr. Q also noted that Dumont could: sit for up to 4 hours in an 8-hour work day, for 30 minutes at a time; stand for up to 2 hours in an 8-hour work day, for 15 minutes at a time; and walk for up to 2 hours in an 8-hour work day, also limited to 15 minutes at a time. (AR 217.) Finally, Dr. Q stated that the limitations found on Dumont would last more than 12 months, and that he would miss two or more days per month because of these impairments. (AR 221.)

In his electronic record notes, dated January 4, 2012, Dr. Q also explains that he was seeing Dumont at the request of Dr. Robert Wolfe for a social security disability evaluation. Dr. Q reviewed Dumont’s treatment history, overall health, and conducted a physical examination. Dr. Q further reviewed a lumbar MRI, dated 5/26/2011, which showed, among other things, “fairly significant degenerative disk changes with desiccation and narrowing at L3-L4, L4-L5 and L5-S1. At the L5-S1 level, he has diffuse disk bulge and osteophyte complex with a small central protrusion.” (AR 225.) Finally, Dr. Q concluded by stating that he: “think[s] it would be very difficult for him to maintain a job in a competitive job market at this time and for the foreseeable future.” Dr. Q did note, however, that “[p]ossibly with further treatment, [Dumont’s] condition could improve in the future.” (AR 226.)

In July 2012, it appears Dumont began treatment for his back pain at the VA hospital. In January 2013, Dumont reported taking prescription pain medications (gabapentin and tramadol) for back pain, but complained that they made him feel sick and did not help with pain. (AR 369.)

The medical record also contains an RFC completed by Pat Chan, M.D., dated July 25, 2011, in which he limits Dumont to: lifting and/or carrying no more than 10 pounds occasionally, and less than 10 pounds frequently; standing and/or walking for a total of 2 hours in an 8-hour workday; and sitting (with normal breaks) for no more than 6 hours in an 8-hour workday. (AR 282.) Dr. Chan also limited Dumont to stooping only occasionally. (AR 283.) Chan further found Dumont’s reports to be “overall consistent with the objective findings and are considered fully credible.” (AR 288.) Based on his review of the medical record, therefore, Chan limited Dumont to sedentary RFC with occasional stooping permitted. (AR 288.)

The ALJ held a hearing on January 22, 2013, and issued a decision on March 22, 2013, finding Dumont not disabled. At the same time, the ALJ found Dumont had degenerative disc disease, status-post hemilaminectomy and decompression. (AR 22.)[2]

Ultimately, the ALJ determined that Dumont had an RFC sufficient to perform “sedentary work . . . except occasional climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; occasional balancing, stooping, kneeling, crouching, and drawling; and avoid all exposure to hazards such as operational control of moving machinery and unprotected heights.” (AR 23.) In doing so, the ALJ expressly discounted Dumont’s statements concerning the intensity and limiting effects of his symptoms because: (1) the notes from his physical exam reflect only “benign results”; (2) his treatment was “limited to pain management through epidural injections and oral medication”; (3) his MRI showed only “minor” or “mild” issues; (4) he failed to engage in other pain management treatment; (5) no physician has recommended a second spinal surgery; (6) daily activities are not as limited as one would expect; and (7) there are no other “pathological clinic signs, significant medical findings, or significant neurological abnormalities.” (AR 24-25.)

In his treatment of medical opinions, the ALJ also placed little weight on the opinion of the State Agency physician, finding Dumont more functionally limited than Dr. Chan did. (AR 26.) The ALJ further gave little weight to Dr. Q, finding his opinion “inconsistent with the totality of the evidence, which showed only mild or minimal spinal impairments on objective imaging, ” ...

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