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Fifield v. Berryhill

United States District Court, E.D. Wisconsin

November 15, 2017

MAX FIFIELD Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.

          DECISION AND ORDER

          LYNN ADELMAN District Judge

         Plaintiff Max Fifield applied for social security disability benefits, alleging that he could no longer work due to groin and shoulder impairments, but the Administrative Law Judge (“ALJ”) assigned to the case concluded that these impairments did not prevent plaintiff from performing his past relevant work as an area manager in a store. Plaintiff now seeks judicial review of the ALJ's decision.

         The reviewing court asks whether the ALJ's decision is supported by “substantial evidence, ” meaning such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015). The court's task is, under this standard, extremely limited. Id. The court may not displace the ALJ's judgment by reconsidering facts or evidence, or by making independent credibility determinations. Id. Even if reasonable minds could differ concerning whether the claimant is disabled, the court must nevertheless affirm the ALJ's decision denying the claim if the decision is adequately supported. Id. While the ALJ must consider the entire record, not just the evidence supporting his conclusion, he need only “minimally articulate” his justification for rejecting or accepting specific evidence of disability, a standard the Seventh Circuit has characterized as “lax.” Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008).

         Under these standards, plaintiff's action fails. Plaintiff first argues that the ALJ gave too much weight to a treatment note suggesting that he avoided activity so as not to interfere with his disability claim. While I may not have construed the note the same way, weighing the evidence is a task for the ALJ, not the reviewing court. Second, plaintiff argues that the ALJ used the wrong job description from the Dictionary of Occupational Titles (“DOT”) in determining that he could return to past work. However, the ALJ relied on the testimony of a vocational expert, which plaintiff did not contest at the hearing, in making this finding; plaintiff accordingly forfeited the argument he now raises. Third, plaintiff argues that the ALJ erred in discounting the report of his treating physician, but the ALJ provided valid reasons for this conclusion, supported by the evidence. Finally, plaintiff argues that the ALJ improperly evaluated the credibility of his statements regarding pain and other limitations. On review of the record, however, I cannot conclude that the ALJ's finding was patently wrong. I accordingly affirm the ALJ's decision and dismiss this action.

         I. FACTS AND BACKGROUND

         A. Medical Evidence

         Although plaintiff alleged a disability onset date of June 5, 2012, his pertinent medical history begins in September 2010, when he underwent laser vaporization of the prostate to treat symptoms of BPH with urinary retention.[1] (Tr. at 335.) Thereafter, he developed intestinal and irritable bowel symptoms, which Dr. James Radke, a gastroenterologist, treated with fiber and Bentyl.[2] On January 3, 2011, plaintiff advised Dr. Radke that he had made some improvement but not complete, and he had been taking narcotics for pain. Dr. Radke switched plaintiff from Bentyl to Librax[3] and asked him to stay away from narcotics as much as possible. (Tr. at 401.)

         On January 7, 2011, plaintiff saw Dr. Martin Baur, his primary physician, complaining of chronic abdominal pain. (Tr. at 367.) Dr. Baur assessed irritable bowel syndrome likely complicated by prostatitis and the prostate surgery he had. Plaintiff did seem to be gradually improving with decreased Percocet use; he was to continue using Percocet as needed and follow up with gastroenterology and urology. (Tr. at 368.)

         On February 10, 2011, plaintiff saw Dr. Steven Bernstein, a urologist, reporting fairly constant lower abdominal discomfort. (Tr. at 395.) Dr. Bernstein assessed probable bilateral inguinal hernias, referring him to surgery. (Tr. at 396.) On February 18, 2011, Dr. Lief Erickson performed hernia repair surgery. (Tr. at 388-389.) Plaintiff initially seemed to recover well from the surgery, being released to return to work on March 19 with no restrictions. (Tr. at 388.) Later in March, however, he developed areas of redness and drainage in his hernia surgery incisions, for which he was given antibiotics. (Tr. at 384-87.) By April 6, the incisions were markedly improved, and plaintiff stated that he felt a lot better. (Tr. at 383.)

         Later in April 2011, plaintiff developed appendicitis, for which he underwent an appendectomy. On May 4, he returned for a post-operative check, reporting some mild discomfort, especially with walking or movement. His incisions were healing well. He was provided more Percocet for pain control and given a return to work slip for May 14 with no restrictions. (Tr. at 382.)

         In June 2011, plaintiff injured his groin at work pulling a skid containing water bottles. (Tr. at 267.) On June 27, he went to the emergency room, with doctors providing antibiotics and Oxycodone. (Tr. at 351, 355, 440-43.) On June 30, plaintiff followed up with Dr. Baur, reporting pain in the left groin area radiating across to the right side of the groin and the left side of his lower back, for which he took Percocet every four hours. (Tr. at 351.) On exam, he had some mild soreness in getting up out of the chair, but his gait was normal. Dr. Baur assessed left groin pain and left lower quadrant pain, possibly related to epididymitis[4] or irritation of scar tissue from his previous surgeries. (Tr. at 352.) He was to continue with the antibiotics provided in the ER and take Percocet for pain. (Tr. at 353.)

         On July 15, 2011, plaintiff saw Dr. Radke, the gastroenterologist, at the request for Dr. Baur for review of an abnormal ultrasound. (Tr. at 398, 444.) Dr. Rake suspected the abnormality to be non-pathologic, and that the left groin pain was not gastrointestinal but possibly a recurrent hernia. (Tr. at 399.)

         On August 27, 2011, plaintiff again went to the emergency room complaining of scrotal pain. He reported feeling a “tear” the previous day. (Tr. at 450.) A CT scan showed no evidence of recurrent inguinal hernia. (Tr. at 421.) He was discharged home on the same medications. (Tr. at 453.)

         On August 29, 2011, plaintiff returned to Dr. Erickson for recheck, reporting constant groin pain for the past six to eight weeks, similar to the pain he experienced prior to his hernia repair. The pain persisted and had not responded to conservative measures; he had been taking Percocet on a daily basis. On exam, Dr. Erickson found no indication of hernia; plaintiff did have mild left groin tenderness and very minimal tenderness on the right. (Tr. at 378.) Dr. Erickson suspected plaintiff may have strained something in the groin area, either the healing wound or possibly the superior portion of the adductor tendon. Since he had not responded to anti-inflammatories, Dr. Erickson recommended a Medrol Dosepak.[5] (Tr. at 379.)

         On September 8, 2011, plaintiff followed up with Dr. Erickson, reporting no improvement on Medrol Dosepak. He continued to complain of aching pain in the groin, left more than right, increased by activity. Dr. Erickson was not sure what was causing his pain and discomfort. They discussed alternatives, including injections, which plaintiff declined. Dr. Erickson started a therapeutic trial of Neurontin.[6] (Tr. at 377.)

         On September 13, 2011, plaintiff saw Dr. Bernstein, the urologist, at the request of Dr. Erickson for evaluation of incomplete bladder emptying. Plaintiff reported that his groin pain was better but stated his urine stream had been weaker. (Tr. at 393.) Dr. Bernstein ordered various tests to check kidney function. (Tr. at 394.)

         On September 19, 2011, plaintiff followed up with Dr. Erickson, improving slowly. He felt enough better to return to work and arrangements were made for him to do that. (Tr. at 376.) Notes from the fall of 2011 indicate that plaintiff continued to receive Percocet for lower abdominal pain. (Tr. at 339-42, 345-46, 349.)

         On October 31, 2011, plaintiff saw Dr. Frederick Kron for persistent left lower quadrant pain, treated with gabapentin and steroids, which were not entirely effective. He was vague about anything that made his pain better other than Percocet. (Tr. at 335.) Dr. Kron continued Percocet and discontinued Neurontin. Plaintiff was also directed to follow up with urology and surgery. (Tr. at 336.)

         Plaintiff subsequently saw Dr. William Deshur, a general surgeon, for a second opinion. Dr. Deshur did not feel plaintiff was a surgical candidate and referred him to a pain clinic for evaluation. On December 20, 2011, plaintiff saw Dr. John Bruskey at Innovative Pain Care, for evaluation of his ongoing left groin pain. At that time, he continued working full time as a supervisor at Walmart. (Tr. at 416.) On exam, he had tenderness over the left side of the groin without any masses or abnormalities. Dr. Bruskey assessed chronic left groin pain following hernia surgery, which could be related to the sutures, a neuroma, or possibly entrapment of the ilioinguinal nerve. (Tr. at 417.) He did not recommend injections, since plaintiff was afraid of needles, but suggested a trial of Lyrica.[7] They would consider an injection if the Lyrica did not work. (Tr. at 418.)

         On January 17, 2012, plaintiff returned to Dr. Bruskey, reporting no improvement with Lyrica, so Dr. Bruskey doubled the dose. (Tr. at 414-15.) On January 31, Dr. Bruskey administered a trigger point injection. (Tr. at 412-13.) On February 28, plaintiff reported no significant improvement from the injection; he also got no benefit from Lyrica. He did get some temporary pain relief from using Percocet. He was supposed to limit himself to four pills per day but was using six. Dr. Bruskey recommended medication changes, switching him from Percocet to Oxycodone, and from Lyrica to gabapentin. (Tr. at 410.) They would consider a nerve block injection if he did not respond to the medication. (Tr. at 411.)

         Plaintiff returned to Dr. Bruskey on March 27, 2012, reporting no pelvic pain. However, he had developed numbness and pain in the left foot. (Tr. at 408.) On exam, he was able to rise from a seated position without assistance but displayed poor balance and some weakness with toe and heel standing. Dr. Bruskey recommended a lumbar MRI and continued the same medications for improved pelvic pain. (Tr. at 409.) An April 10 MRI showed non-specific straightening of the lumbar lordosis with degenerative disc disease but nothing that would explain the left leg symptoms. (Tr. at 406, 419-20.) When plaintiff returned to Dr. Bruskey on April 17, he did not complain of the left leg symptoms but reported pain in the left side of the groin. (Tr. at 406.) Dr. Bruskey recommended another injection (Tr. at 407), which he administered on April 24 (Tr. at 404-05).

         On April 26, 2012, plaintiff went to the emergency room complaining of groin and abdominal pain. (Tr. at 456.) He was given Zofran[8] and Dilaudid[9] and discharged home to follow up with Dr. Baur. (Tr. at 457-58.)

         On May 1, 2012, plaintiff saw Dr. Baur, indicating that he took two to three Oxycodone tablets in the morning to be able to function at work, which required him to be on his feet 9 hours per day. He reported that it hurt him to walk, so he had to walk slowly. He reported no side effects of the medication, but the pain was impacting his quality of life, both at home and work. (Tr. at 328.) On exam, he moved pretty well overall with no antalgic gait. He had pain on palpation of the inguinal area on the left. Dr. Baur suggested another consult with a general surgeon; he was to follow up with the pain clinic for his medications for now but expressed a desire to transition that to Dr. Baur. (Tr. at 329.)

         On May 15, 2012, plaintiff told Dr. Baur that he had been taking more Oxycodone than prescribed. (Tr. at 324.) Dr. Baur assessed chronic pain, sub-optimal control, in an opioid tolerant patient. He had failed in multiple rounds of injections at the pain clinic and was establishing with Dr. Baur for continued medication management in addition to his primary care to try to keep everything in one place. They discussed using long-acting OxyContin with Oxycodone as needed. (Tr. at 325.) However, plaintiff's insurance did not cover OxyContin, so they tried a higher dose of Oxycodone. He was also continued on gabapentin. (Tr. at 325-26.)

         On June 5, 2012, plaintiff returned to Dr. Baur, noting that the medications reduced the pain, as did decreasing his activity level. (Tr. at 320.) On exam, he showed some antalgic movement getting up out of a chair, but once he was up and ambulating did much better. Dr. Baur recommended taking some time off work to try to reset. Plaintiff was also advised to see Advanced Pain Management for further injections. (Tr. at 321.)

         On June 11, 2012, plaintiff saw Dr. Kostandinos Tsoulfas at Advanced Pain Management. Dr. Tsoulfas diagnosed disorder/male genitalia and neuralgia/neuritis, providing a left-sided pudendal nerve block. (Tr. 426-29.)

         On June 19, 2012, plaintiff returned to Dr. Baur, indicating that he felt better when he was less active. He also admitted that he had taken more medication than prescribed and consequently ran out of pills on June 13, 2012. He reported receiving an injection at the pain clinic, which did not relieve his pain. He further reported that when he took more of the medication he was able to function better and was not a prisoner at home. (Tr. at 316.) He did report a rough couple days, where all he could do was lie in bed. (Tr. at 316-17.) Based on the absence of surgical options, plaintiff had elected to proceed with additional injections and medication management. Pain control had overall been sub-optimal, but he had been self-adjusting his narcotic doses. He was given a one-week supply and instructed to return at that time for possible adjustments. (Tr. at 317.)

         On June 25, 2012, plaintiff returned to Dr. Tsoulfas for a caudal epidural steroid injection. (Tr. at 431.) On June 26, he saw Dr. Baur, seen in close follow up as he had been self-adjusting his narcotic dosage despite recommendations not to do so. He reported that the injection done the previous day provided no relief. Oxycodone helped for two to three hours, but overall he was not able to do much of anything because of pain. Gabapentin did ease some of the sharp, jabbing pain. (Tr. at 313.) On exam, he showed discomfort when getting up from a seated position, but when he got moving did not show any antalgic gait. Dr. Baur increased his Oxycodone to see if he could become more active at home and perhaps get enough pain relief to return to work. (Tr. at 314.)

         On July 3, 2012, plaintiff returned to Dr. Baur, stating that his pain medications controlled his pain satisfactorily if he did not do anything; with activity, he had pain. (Tr. at 309.) On exam, gait and tone were normal. He had discomfort when getting up from a seated position but ambulated pretty well. Dr. Baur assessed chronic inguinodynia, with sub-optimal pain control. (Tr. at 310.)

         On July 9, 2012, plaintiff saw Jill Pocius, NP, at Advanced Pain Management, reporting that the pain was unchanged since his last visit. (Tr. at 433.) NP Pocius recommended a spinal cord stimulator, providing information about this option. (Tr. at 434.)

         On July 17, 2012, plaintiff returned to Dr. Baur, reporting that he took pain pills every four hours, with one to two hours of relief before the medication wore off. During this time of pain relief, he could get his activities of daily living done but afterwards he would have a lot more pain. The injections did not help. Dr. Baur concluded that plaintiff had limited options; medication management seemed to be the only viable one. He reported no side effects from the medication. (Tr. at 306.) Dr. Baur increased the frequency of the medication, noting: “He has still been a prisoner to the pain. . . . I am not optimistic he will be able to return to work as I do not see him getting off of the narcotics.” (Tr. at 307.)

         On July 24, 2012, plaintiff returned to Dr. Baur, taking immediate release Oxycodone every three to four hours, which helped considerably. He was able to do more during the day in terms of activities of daily living and routine housework, but he still could not do prolonged activities. (Tr. at 539.) On exam, he had significant pain on palpation of the left groin, exhibited soreness in getting up out of the chair, and limped, although his gait normalized as he walked. Dr. Baur suggested they switch to a longer-acting medication, such as MS-Contin, but plaintiff was reluctant to use morphine products. (Tr. at 540.) Dr. Baur again indicated that he did not think plaintiff would be able to return to work. (Tr. at 541.)

         On July 31, 2012, plaintiff went to the ER with chest pain and shortness of breath. (Tr. at 459.) He indicated that he was out in the heat pushing a lawn mower and then rushed to a doctor's appointment, when he found he was sweating profusely and having left-side chest pain. (Tr. at 470, 501.) His pain spontaneously improved somewhat, improving further with nitroglycerin. (Tr. at 465.) Testing revealed no cardiac abnormalities. (Tr. at 466-72.)

         On August 16, 2012, plaintiff followed up with Dr. Baur regarding his chest pain; he reported no recurrence of chest pain and felt fine. (Tr. at 536.) He continued to experience left groin pain, however, which caused him to spend most of his time in bed. (Tr. at 536.) They again discussed switching from Oxycodone to long acting medications. (Tr. at 537.)

         On August 30, 2012, plaintiff returned to Dr. Baur, who noted the difficulty they had in finding an effective medication regimen. He had “often been a prisoner to his pain.” (Tr. at 533.) He had run out of gabapentin and noticed an increase in sharp stabbing pain. He now wanted to explore use of extended use morphine. (Tr. at 533.) Dr. Baur assessed chronic left inguinodynia, with failed procedural interventions. He had been functionally disabled because of the pain and “not likely to be able to return to work.” (Tr. at 534.) Dr. Baur agreed to switch plaintiff from Oxycodine to MS-Contin and immediate release morphine for breakthrough pain. (Tr. at 534.)

         On September 5, 2012, plaintiff told Dr. Baur that the morphine worked for about two hours, during which time he could do some activities of daily living, but then had to return to bed. (Tr. at 530-31.) On exam, the left groin area was hyper-sensitive to even light touch, but he was able to get up from the chair pretty well and ambulated normally without evidence of significant antalgic gait. Dr. Baur increased the medication dosages. (Tr. at 531.)

         On September 12, 2012, plaintiff reported that he continued to have a lot of pain, which prevented him from performing daily activities. (Tr. at 526.) On exam, Dr. Baur noted that plaintiff had a lesser amount of pain on palpation, stating: “He was not as dramatic today.” (Tr. at 527.) He still had soreness in getting up from the chair but overall seemed a little better clinically than he had previously. He still ambulated well. (Tr. at 527.) Dr. Baur adjusted the MS-Contin dose and immediate release morphine regimen. He advised plaintiff to stick with this regimen and to try to become more active. (Tr. at 528.)

         On September 19, 2012, plaintiff reported some improvement on the new regimen, with more good days than bad the past week. He had been able to get up and do more chores and activities; he was also sleeping better. (Tr. at 523.) On exam, the left groin was still sore on palpation but not as bad as prior visits. Dr. Baur assessed chronic left inguinodynia, with improving pain control. Dr. Baur refilled gabapentin and morphine products. (Tr. at 524.)

         On October 4, 2012, plaintiff reported that “things are going better.” (Tr. at 520.) The current medications helped him “to be able to function better and do activities of daily living. He was actually even able to fix a broken stair at home.” (Tr. at 521.) He felt a pulling sensation the next day, but that had gotten better. “Standing and being active will cause modest pain, but currently he is doing better. Overall, he is satisfied with his pain control.” (Tr. at 521.) On exam, he had some soreness on palpation of the left groin but not as bad as prior office visits. He exhibited some soreness in getting up from the chair, but his ambulation was also getting better and less antalgic. His displayed normal muscular tone. Dr. Baur assessed chronic left inguinodynia, with improving pain control. They continued on the same medication regimen. (Tr. at 521.)

         On October 16, 2012, plaintiff returned to Advanced Pain Management, noting that his pain had not changed since the last visit. (Tr. at 642.) NP Pocius and Dr. Tsoulfas recommended a “neurostimulator.” (Tr. at 643.)

         On October 23, 2012, plaintiff told Dr. Baur he was considering a trial with the spinal cord stimulator. He reported that things were about the same overall. (Tr. at 517.) The medications helped him to be able to do some activities of daily living, although he still had pain with moving the left leg. He had been unable to return to work due to the chronic narcotics and the severity of his pain. (Tr. at 518.) On exam, he still had pain to palpation at the left groin but walked pretty well overall. Dr. Baur assessed chronic left inguinodynia, with satisfactory pain control overall, continuing his current medications. (Tr. at 518.) Given his compliance with medications, which had been an issue in the past, they discussed increasing the interval between office visits. (Tr. at 519.)

         On November 12, 2012, plaintiff reported a little more pain than at his last visit, and that it tended to be worse as he moved around or sat or stood for a long period of time. His daughter helped him with some routine activities of daily living. (Tr. at 514.) Gabapentin had eliminated the sharp shooting pains, and morphine also seemed to help. He was still considering the spinal cord stimulator. On exam, his left groin was still quite tender to palpation. (Tr. at 515.) Dr. Baur assessed chronic left inguinodynia, with recent compliance with medications and satisfactory pain control overall. (Tr. at 515-16.) Dr. Baur continued plaintiff on MS-Contin and morphine. Given his recent compliance, he was given a month's supply. (Tr. at 516.)

         On December 10, 2012, plaintiff indicated that he still felt a chronic pulling sensation and pressure in the left groin, but it had not changed at all. Gabapentin helped eliminate sharp, shooting pains. He reported satisfactory pain control overall, though some days were rougher than others. He stated that a couple times a week he had more pain and backed down his activities. He reported no side effects from the narcotics. (Tr. at 511.) On exam, Dr. Baur noted that plaintiff “moves pretty well today. Less evidence for pain with getting up from a seated position. He ambulates normally.” (Tr. at 512.) Dr. Baur assessed chronic left inguinodynia, with “satisfactory pain control overall.” (Tr. at 512.) Dr. Baur continued current medications, as plaintiff was ...


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