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Ragland v. Berryhill

United States District Court, E.D. Wisconsin

April 12, 2018

JAMES S. RAGLAND, JR. Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.

          DECISION AND ORDER

          LYNN ADELMAN, District Judge

         Plaintiff James Ragland seeks judicial review of the denial of his application for social security disability benefits. Plaintiff alleged that he could not work due to a spine impairment, but the Administrative Law Judge (“ALJ”) assigned to the case concluded that, while this impairment prevented plaintiff from performing his past work in construction, he remained able to perform a number of other “medium” level jobs. Plaintiff argues that the ALJ failed to adequately address his objections to the testimony of a vocational expert regarding the jobs he could still perform and improperly rejected the opinion of his treating physician assessing more significant limitations. I reject these arguments and affirm the ALJ's decision.

         I. APPLICABLE LEGAL STANDARDS

         A. Disability Standard

         In order to qualify for social security disability benefits, the claimant must be unable “‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'” Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005) (quoting 42 U.S.C. § 423(d)(1)(A)). Social security regulations prescribe a sequential five-part test for determining whether a claimant is disabled. The ALJ must consider whether: (1) the claimant is presently employed; (2) the claimant has a severe impairment or combination of impairments; (3) the claimant's impairment meets or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) the claimant's residual functional capacity (“RFC”) leaves him unable to perform his past relevant work; and (5) the claimant is unable to perform any other work existing in significant numbers in the national economy. Id. at 351-52 (citing 20 C.F.R. §§ 404.1520, 416.920).

         An affirmative answer at either step three or step five leads to a finding of disability. The claimant bears the burden of proof at steps one through four, but at step five the burden shifts to the Commissioner. Id. at 352. The Commissioner may carry this burden by relying on the Medical-Vocational Guidelines, a chart that classifies a person as disabled or not disabled based on his age, education, work experience and exertional ability, or by summoning a vocational expert (“VE”) to offer an opinion on other jobs the claimant can do despite his limitations. McQuestion v. Astrue, 629 F.Supp.2d 887, 892 (E.D. Wis. 2009). Before relying on VE testimony, the ALJ must determine whether that testimony is consistent with the occupational information in the Dictionary of Occupational Titles (“DOT”), published by the Department of Labor, and obtain a reasonable explanation for any conflicts with that vocational source. See, e.g., Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006) (citing SSR 00-4p).

         B. Judicial Review

         The court reviews an ALJ's decision to determine whether it applies the correct legal standards and is supported by substantial evidence. Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Id. The court will not, under this deferential standard, re-weigh the evidence or substitute its judgment for that of the ALJ. Id. If reasonable minds could differ over whether the claimant is disabled, the court must uphold the decision under review. Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012).

         II. FACTS AND BACKGROUND

         A. Medical Evidence

         On April 26, 2013, plaintiff fell off a ladder while doing roofing work, fracturing three thoracic vertebral bodies and the right first rib. On exam, he displayed T-spine tenderness but was neurologically intact. He was placed in a cervical-thoracic brace and provided medications, which reduced his pain, and admitted for observation and a neuro-surgical consultation, which found no need for acute surgical intervention. (Tr. at 292-300, 306-12, 325, 326-29.) Plaintiff discharged from the hospital on April 28, his pain controlled on Oxycodone (Tr. at 323), and instructed to continue wearing the brace at all times (Tr. at 324).

         Plaintiff returned for follow up on May 10, 2013, complaining of pain in the mid-back and upper chest, which did not radiate down the spine. He reported good results from Oxycodone but had run out. He continued to wear the brace. He denied numbness, tingling, weakness, or shooting pains, and felt like he was making progress. He reported no issues performing activities of daily living. (Tr. at 319.) On exam, he displayed normal sensation and 5/5 strength. He was encouraged to use ibuprofen and Tylenol for pain control but provided more Oxycodone. He was to continue using the brace when above 30 degrees. (Tr. at 320.) At his May 14 follow-up, plaintiff denied radicular pain, weakness, or other neurological symptoms; he reported some lower rib pain but was otherwise doing well. On exam, he displayed 5/5 strength of the upper and lower extremities, with intact sensation to light touch. (Tr. at 318.) X-rays showed stable fractures, with no new abnormality. (Tr. at 332.) It was recommended that he wean off the brace and return for recheck in four weeks with repeat x-rays. (Tr. at 318.) Plaintiff returned on June 11, improved but reporting some rib pain and occasional pain in the spine. He denied neurological symptoms, and x-rays revealed stable alignment. He was again advised to begin weaning from the brace and given a refill of Oxycodone. (Tr. at 315, 332.) He followed up on July 9, weaned from the brace, noting that his back pain was progressively, slowly getting better. He denied radicular pain, weakness, or other neurological symptoms, and had been doing well otherwise. On exam, he displayed 5/5 strength in the upper and lower extremities, and films showed his condition to be stable. He was to follow up as needed if the pain worsened or he developed other symptoms. (Tr. at 314, 331.)

         The record reflects no further treatment until November 21, 2013, when plaintiff saw a physical therapist, learning a home exercise program. On December 3, he reported that he had not been able to focus on much secondary to a busy schedule but was trying to do his home exercises. (Tr. at 343.)

         On December 31, 2013, plaintiff saw Dr. Muhammad Ahmad, a primary care physician, for follow up of “chronic pain syndrome.” (Tr. at 344.) He reported using twice as much Oxycodone as prescribed, with a steadily increased requirement the past few months because he had gone back to his construction work. He reported that he was far more functional than before but felt concerned that he was needing more pain medication. The pain was worse at the end of the day. (Tr. at 344.) On exam, he displayed limited range of motion of the back and tenderness to palpation over the lower and mid back area. Neurologically, he displayed intact sensation, normal gait, and motor strength 4/5 in all extremities. Plaintiff was to see Dr. Ofer Zikel, a neurosurgeon; if Dr. Zikel could not help, they would probably refer plaintiff to a pain specialist. Dr. Ahmad also recommended a trial TENS unit and a trial of MSContin (morphine). Dr. Ahmad did not feel plaintiff was abusing his medication, as he was far more functional to the point where he could do daily construction work. The doctor did recommend a different type of work, given the risk of high dose narcotics. (Tr. at 345.)

         Plaintiff saw Dr. Zikel on January 2, 2014, with a chief complaint of interscapular pain. He denied neurological symptoms or changes such as weakness, sensory loss, etc. The pain was not severe enough to interfere with his daily activities significantly. On exam, gait and station were normal, muscle bulk and tone normal, and strength grossly intact. (Tr. at 348.) Cervical x-rays showed mild C3-4 and C5-6 subluxation, and thoracic x-rays mild superior and end plate compression at ¶ 3, T4, T7, and T5. Dr. Zikel assessed mechanical spine pain. Overall, plaintiff's symptoms were improving; he was referred to pain management to discuss treatment options. (Tr. at 349.)

         Plaintiff returned to Dr. Ahmad on January 17, 2014, not a surgical candidate per Dr. Zikel; he was to see Dr. John Bruskey for possible injections. He reported that the MSContin caused severe drowsiness. He stated that his pain was worse at night; moving around on construction sites also made it worse. He denied leg weakness, urinary problems, or bowel problems. (Tr. at 351.) Dr. Ahmad discontinued MSContin due to the side effects and continued Percocet; plaintiff was to follow up with pain management for possible injections. (Tr. at 352.)

         Plaintiff followed up with Dr. Ahmad on February 21, 2014, “doing stable.” (Tr. at 390.) He reported that his pain was worse during the day and worse on moving around. He was engaging in less construction work. He reported that the pain was severe at times, but the medications helped a lot. (Tr. at 390.) On exam, he was alert, cooperative, and in no acute distress; he displayed full range of motion of the neck. Dr. Ahmad assessed chronic pain syndrome, stable, continuing Oxycodone. (Tr. at 392.)

         Plaintiff saw Dr. Bruskey, the pain management specialist, on March 10, 2014, reporting continued pain in the upper thoracic area. He denied weakness in the upper and lower extremities. (Tr. at 393.) On exam, he displayed full range of motion of the head and neck, with no occipital or cervical spine tenderness. There was concordant pain in the upper thoracic spine area corresponding to the T5 vertebral body. Some pain was present with palpation, and more pain was produced with light percussion; however, twisting of the upper torso did not exacerbate any of his pain. He displayed no lumbar spine pain with palpation or percussion, and no pain with straight leg raising bilaterally. Upper extremities and hand grasp strength were normal. Dr. Bruskey assessed chronic upper thoracic spine pain with pain on palpation over the fracture site at ¶ 5. He noted that, theoretically, plaintiff should have healed since the injury 11 months ago, but there were case reports of slow healing fractures. Plaintiff lacked insurance coverage and declined updated MRI or bone scans. He wanted to stay with his use of as-needed Oxycodone prescribed by his primary physician; alternative medications, such as more sustained release OxyContin would make more sense, Dr. Bruskey noted, but would be more expensive. Dr. Bruskey would see him back in two months; if he was still having pain and had qualified for Badger Care insurance, additional imaging or a change to a longer-acting opioid could be considered. (Tr. at 394.)

         Plaintiff returned to Dr. Ahmad on March 27, 2014, requiring more pain medication due to increased activity level as a roofer; he did not use during work and had no side effects. (Tr. at 396.) Dr. Ahmad adjusted Oxycodone and discussed the increased risk of dependency. Plaintiff was trying to acquire new skills so he could get out of this line of work and not require as much physical exertion. (Tr. at 398.)

         On May 8, 2014, plaintiff advised Dr. Ahmad that Oxycodone helped. (Tr. at 400.) Physical exam revealed him to be alert, cooperative, and in no acute distress. Dr. Ahmad assessed chronic pain syndrome, continuing Oxycodone. (Tr. at 402.)

         On June 17, 2014, plaintiff told Dr. Ahmad that his pain “is dependent on what he is doing at this point. It is severe during the day when he is giving care as a patient care worker.” (Tr. at 403.) He reported that Oxycodone helped, with no side effects. He was also in physical therapy, which helped. (Tr. at 403.) On musculoskeletal exam, he displayed full range of motion, tenderness to palpation over the lower T spine and lower lumbar areas, antalgic gait, and 4/5 strength in all extremities. (Tr. at 405.) Dr. Ahmad assessed chronic pain syndrome, stable, continuing Oxycodone. He also filled “out paperwork for him in that he really shouldn't be doing construction anymore.” (Tr. at 406.)

         Plaintiff returned to Dr. Ahmad on July 22, 2014, reporting some worsening of his pain and a steadily increasing need for Oxycodone. It tended to bother him most during the day, especially when being physically active. The Oxycodone did help though. (Tr. at 407.) He was interested in switching to a long-acting medication, but finances were a concern. (Tr. at 408.) On exam, he was alert, cooperative, and in no acute distress. Dr. Ahmad assessed chronic pain syndrome, “overall unstable situation.” (Tr. at 409.) He provided a trial of the Fentanyl patch for two weeks, along with Oxycodone. (Tr. at 410.)

         On August 1, 2014, plaintiff reported that with the Fentanyl he had more pain relief and was more functional; he still required two to three Oxycodone during the day for break-through pain, down from four. He had no side effects from the Fentanyl and worried about his pain less on the patch. (Tr. at 411.) Dr. Ahmad modified the Fentanyl dose and provided a full supply of Oxycodone until a stable, long-acting regimen was determined.[1] (Tr. at 414.)

         On August 29, 2014, plaintiff reported that he felt more functional on Fentanyl but still required three Oxycodone per day, which was less than before but not ideal. He also had a new problem of right shoulder pain, worse when moving it around and lifting things. He reported that the pain medication helped with this as well, but Dr. Ahmad noted that is not what the medication was intended for. (Tr. at 419.) Plaintiff denied weakness in the right hand and reported no neck issues. (Tr. at 419-20.) On exam, he displayed limited range of motion of the right shoulder but 5/5 strength. (Tr. at 421.) Dr. Ahmad assessed chronic pain syndrome, increasing Fentanyl and continuing Oxycodone, and obtained a right shoulder x-ray. (Tr. at 422.)

         On September 26, 2014, plaintiff indicated that the Fentanyl was helping a lot, but he still needed Oxycodone at greater frequencies. Dr. Ahmad noted: “He is more active [and] does construction type of work.” (Tr. at 423.) He assessed chronic pain syndrome, still requiring too much Oxycodone, increasing Fentanyl and continuing Oxycodone for now. (Tr. at 426.)

         On October 24, 2014, plaintiff told Dr. Ahmad that his back pain was severe at times, but that overall Fentanyl was helping a lot. He still had to use three Oxycodone, but his pain burden was improved overall. Dr. Ahmad noted: “He is working.” (Tr. at 427.) On exam, plaintiff was alert, cooperative, and in no acute distress. (Tr. at 429.) Dr. Ahmad assessed chronic pain syndrome, still requiring too much Oxycodone. He again increased Fentanyl and continued Oxycodone. (Tr. at 430.) On November 21, Dr. Ahmad noted: “We have been trying to increase [F]entanyl and wean [O]xycodone but not really succeeding.” (Tr. at 431.) He again increased Fentanyl and continued Oxycodone. (Tr. at 434.)

         On December 19, 2014, plaintiff reported that his thoracic pain was stable on Fentanyl and Oxycodone but reported new pain in the lower back. (Tr. at 435.) On musculoskeletal exam, he displayed full range of motion of the lumbar spine but tenderness to palpation at the L2 level. Straight leg raise was negative. Neurologically, he displayed intact sensation, anatalgic gait, and 4/5 strength in the bilateral lower extremities. For the thoracic spine, Dr. Ahmad continued Fentanyl and Oxycodone. For the low back pain, he ordered an x-ray to rule out fracture and provided a Lidoderm patch. (Tr. at 438.) The x-ray revealed small osteophytes at ¶ 2-L5. (Tr. at 494.)

         On January 16, 2015, plaintiff followed up with Dr. Ahmad, complaining of dyspnea. He also had chronic pain syndrome of the back and was on Fentanyl and Oxycodone, which helped. Dr. Ahmad noted: “He does work and does IADLs improved with his medications.” (Tr. at 442.) Plaintiff declined cardiopulmonary evaluation. (Tr. at 445.) Dr. Ahmad noted stable chronic pain syndrome, thoracic spine injury, continuing Fentanyl and Oxycodone. (Tr. at 446.)

         On March 13, 2015, plaintiff returned to Dr. Ahmad for medication refill. He indicated that the medications helped, his pain was stable, and he reported no side effects. (Tr. at 447.) Dr. Ahmad again assessed chronic pain syndrome, thoracic spine injury, stable, continuing Fentanyl and Oxycodone. (Tr. at 450.)

         On May 15, 2015, plaintiff told Dr. Ahmad that the pain medications helped and he could do his daily activities, but he could not do his occupation of construction work. He was limited in standing and walking long distances. (Tr. at 453.) Dr. Ahmad assessed chronic pain syndome (lumbar ...


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