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Hess v. Colvin

United States District Court, W.D. Wisconsin

December 21, 2016

TOM HESS Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner Social Security Administration, Defendant.


          WILLIAM M. CONLEY District Judge.

         Pursuant to 42 U.S.C. § 405(g), plaintiff Tom Hess appeals from a Social Security Administration finding of no disability that became final on April 22, 2016. (AR 1-6.) The only issue on appeal is whether the ALJ erred in rejecting the opinion of Hess's treating physician. To the contrary, the ALJ gave good reasons for discounting the treating physician, including that the doctor had not seen Hess in 2 years and had not even treated his supposedly debilitating back pain when he saw Hess last in 2011. Nevertheless, supposedly relying on Hess's self-reports and an old MRI from 2009, which pre-dated his retirement from full-time employment by three years, the doctor filled out an RFC assessment form in December 2013 that purported to opine that plaintiff had been disabled by back pain. For the reasons explained below and discussed during the telephonic hearing held on the afternoon of December 20, 2016, with counsel for both sides, the court will summarily affirm the Commissioner's denial of plaintiff's application.


         A. Background

         Plaintiff Tom Hess was 62 years old when he applied for benefits and 64 at the time of his January 14, 2014 hearing before the ALJ. (AR 38.) At that time, he reported symptoms associated with hypertension and arthritis in his lumbar spine at ¶ 4-5, including a burning sensation and an inability to sit, stand, or walk for any extended period. (AR 23, 41-2.) Hess graduated from college and has past work experience as a chief financial officer and a bank vice president. (AR 37-39.)

         B. Medical Treatment Records

         Hess alleges a disability since Feb. 1, 2012, but there are very few medical records related to his back issues, either before or after that date. On September 23, 2011, Hess reported to his treating physician, Dr. James Dunn, that he had a history of treatment for lower back pain, which included nerve blocks, chiropractic care, massage, Celebrex, and anti-inflammatories. Dr. Dunn did not examine plaintiff's back and instead prescribed Chantix and Celebrex at Hess's request. (AR 261-63.) Less than three weeks later, on October 11, 2011, Dr. Dunn saw Hess for other issues, and Hess again reported having four years of back pain. Hess's prescription for Celebrex was discontinued at this time because of stomach pain. (AR 258-60.)

         Plaintiff saw Dr. David Draeger for chiropractic treatment between January 2011 and September 2013 and his notes state that Hess regularly reported lower back pain, left-sided sciatic pain, and a burning sensation in his back to varying degrees. (AR 264-67, 286, 300-02.) On November 17, 2011, Hess stated that he had done much better after starting Celebrex. (AR 266.) Hess went duck hunting in October and November 2012 but it exacerbated his sciatic pain. (AR 300-02.) Hess had x-rays taken on April 16, 2012, which showed degenerative changes at ¶ 4-5 with normal alignment, well-preserved disk spaces, and no acute injury or fracture. (AR 274.)

         On July 2 and September 10, 2013, Hess saw Dr. James Mullen, a physical rehabilitation physician, for low back pain. Dr. Mullen recommended stretching, ice, and taking ibuprofen for pain, and Hess refused additional medication. (AR 294-97.)

         On December 30, 2013, Dr. Dunn completed a RFC assessment form without first examining Hess. Since he had not physically examined Hess for at least two year, Dunn wrote candidly that he based his newly prescribed limitations on Hess's self-reports and a 2009 MRI showing severe small joint arthritis and focal spinal and forward stenosis: lifting no more than 10 pounds; standing and walking less than two hours a day; sitting less than six hours a day; no pushing or pulling with any extremity; limited reaching; and no climbing, stooping, kneeling, crouching, or crawling. (AR 303-10.)

         C. Consultative Medical Opinions

         On April 14, 2012, Dr. Neil Johnson examined Hess and diagnosed him with degenerative disk disease. Dr. Johnson's examination showed that Hess had a normal range of motion, the ability to walk, full motor strength and sensation, no spasms, and pain and tenderness in back. Hess reported significant burning pain in his back with no radiation and the ability to sit and stand for 30 minutes before experiencing a burning sensation in his back. (AR 268-70.)

         On April 23, 2012, Dr. Pat Chan performed a record review and completed a physical RFC assessment form on Hess. Chan found that Hess was capable of unlimited light work. (AR 275-80.)

         Finally, on December 11, 2012, Dr. Sid Foster performed a record review and RFC assessment on Hess. He also found Hess capable of light work limited by ...

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