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Powell v. Colvin

United States District Court, W.D. Wisconsin

December 5, 2016

LEWIS POWELL, Plaintiff,
CAROLYN COLVIN, Commissioner of Social Security, Defendant.



         On June 11, 2013, at the age of 55, plaintiff Lewis Powell filed an application for a period of disability and disability insurance benefits under sections 216(I) and 223(d) of the Social Security Act. Powell alleged that he had been disabled since March 8, 2008 because of limitations imposed by a number of impairments and conditions, including gastritis, osteomyelitis, florid cemento-osseous dysplasia and diabetes. After the local disability agency twice denied his claim, Powell had a hearing before an administrative law judge (“ALJ”). On June 15, 2015, the ALJ issued a decision finding that Powell was not disabled at any time between his alleged onset date and December 31, 2013, which is the date on which his eligibility for disability insurance expired. The Appeals Council subsequently denied Powell's application for review, making the ALJ's decision the final decision of the Commissioner.

         Powell's claim is before this court for judicial review pursuant to 42 U.S.C. 405(g). Powell argues that the ALJ failed to properly weigh the medical opinions, and made an erroneous credibility determination. As explained below, I disagree. The ALJ issued a thorough decision that accounted for all the evidence of record and he gave sound reasons for accepting some evidence and rejecting other evidence. Under these circumstances, this court has no choice but to affirm the Commissioner's decision.

         The following facts are drawn from the Administrative Record (“AR”), filed with the Commissioner's answer in this case:


         I. Medical History

         Lewis Powell suffers from a host of medical problems. He has been diagnosed with diabetes, hypertension, hyperlipedemia and asthma, although he appears to concede that these conditions are under control with medication and do not present significant work-related limitations.[1] Powell also has been diagnosed with florid cemento-osseous dysplasia, a disorder that causes decreased blood supply to the jaws which in turn can cause periodic inflammation and infection of the jaw bone and surrounding teeth. During a period of inflammation, Powell may have a difficult time opening his mouth, making it difficult to chew or talk. The condition is treated with antibiotics and debridement of the infected bone, if necessary.

         Powell's primary work-related problem is pain and swelling in his legs. Powell has a history of four fractures of his left tibia, the first in 1979. Powell also has poor circulation in his legs, more so on the left than the right, which routinely causes his legs to swell and discolor. During an extensive review of his medical history with his dentist in March 2013, Powell reported that his legs had been this way since the last leg surgery in 1982. AR 319.

         Despite this list of medical conditions, Powell's medical records are sparse, due mainly to his lack of medical insurance. Most of Powell's medical care during the relevant time period was provided by Dr. James Collins, who saw Powell approximately twice a year from August 2010 to October 2012. AR 299-312. Dr. Collins saw Powell primarily for blood pressure checks and medication refills. At these visits, Powell generally denied having any significant problems apart from chronic left leg pain. At an annual exam with Dr. Collins in March 2012, Powell reported continued chronic pain in his left leg due to his 1979 fracture but otherwise reported feeling well, denying any changes in bowel habits or any myalgias or muscle weakness. On exam, Dr. Collins noted positive edema in both legs with the left greater than the right, with venous stasis changes in the left leg. Powell's peripheral pulses were intact and symmetrical. Dr. Collins noted that Powell's blood pressure was under good control on his present regimen and there was no evidence of asthma. He also noted that Powell was “unable to stand due to progressive venous stasis of the Lt > Rt leg.” AR 302.

         At a follow-up visit with Dr. Collins in October 2012, Powell reported no significant changes in his condition. Dr. Collins refilled Powell's medications and recommended support hose for Powell's venous stasis. He noted that Powell's clinical condition was acceptable given his various medical issues, but “[t]here are areas that need further & ongoing evaluation.” AR 296. Dr. Collins did not specify what those areas were or what evaluation was needed.

         There are no further treatment records from Dr. Collins. However, on May 11, 2015, he wrote a letter stating that Powell had multiple medical conditions, “all of which make it difficult for him to sit or stand for prolonged periods of time and maintain a regular job.” AR 347.

         From March to June 2013, Powell was seen by Dr. Kimberly Pingel, a dentist, for a flare-up of his florid cemento dysplasia. Powell was treated with antibiotics and debridement of the left mandible. On May 15, 2013, Dr. Pingel noted that Powell was progressing well with reduced swelling. On June 19, 2013, however, Dr. Pingel noted that it was possible that another infection was beginning. Dr. Pingel wanted to refer Powell to an oral surgeon for treatment and follow up, but noted that Powell would need assistance from a social worker because he did not have insurance. There are no further medical records documenting that Powell had any further problems or treatment for this condition.

         In connection with his application for disability benefits, Powell was evaluated for left leg pain by Brian Allen, D.O., on December 23, 2013. Powell complained of continuous swelling and erythema in both legs along with small ulcers on his legs. Powell also reported that he had suffered a back injury when he fell off a bike going approximately 20 MPH. In addition, Powell complained of swelling and pain in his left mandible, and sleep apnea. Powell reported being able to sit for two to three hours, stand for 20 minutes and walk for 15 minutes. He said he had difficulty with lifting, walking and climbing stairs and that he used a cane on bad days.

         On physical exam, Powell was 5'10" tall and weighed 261 pounds. His left mandible had a one centimeter nodule with some swelling and Dr. Allen detected some tenderness in his lower spine over the L4-L5 area. Examining Powell's lower extremities, Dr. Allen noted multiple four-to six-millimeter ulcers over the back of Powell's calves, with erythema and non-pitting edema of the skin over both calves extending from the knee down to the ankle. Powell's pulse was good in all four extremities. On neurological testing, Powell limped, favoring his left leg. Powell was unable to do tandem walking, walk on his heels or toes, hop on either leg or complete a squat, and he needed to brace to get up from the chair and off and on the examination table. Powell's sensation and strength were normal.

         Dr. Allen's impression was that Powell had venous insufficiency of the left and right calf secondary to thalasssemia minor disorder, low back pain that was either caused by degeneration of the facet joints or was myofascial in nature, a mandibular abscess secondary to thalassemia and a history of left tibial-fibula fracture x4 with secondary osteomyelitis.

         On January 22, 2014, Dr. Luis Zuniga, a non-examining physician working for the local disability determination service, reviewed Powell's medical records and assessed Powell ability to perform work-related tasks during a normal work day. Zuniga concluded that Powell could lift 20 pounds occasionally and 10 pounds frequently, stand or walk for four hours, sit about six hours, climb ramps, stairs, ladders or scaffolds occasionally, balance, stoop, kneel, crouch or crawl occasionally and should avoid concentrated exposure to extreme temperatures or fumes, odors, dusts or gases. A second state agency physician, George Walcott, M.D., reviewed the record on May 29, 2014 and made findings similar to Dr. Zuniga's, although Walcott thought Powell could stand or walk for up to six hours a day and had fewer postural limitations.

         Powell's eligibility for disability insurance benefits expired on December 31, 2013. There are a number of medical reports in the record generated after this cutoff date, including medical records from Dr. Hillard Salas, a primary physician with whom Powell established care in August 2014. AR 367.

         II. Hearing Testimony

         Powell had a hearing before an ALJ on June 2, 2015. Powell, who was represented ...

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