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Swarnes v. Astrue

February 23, 2009


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiff, James Swarnes, moves the court for reversal of the Commissioner of Social Security's (Commissioner) decision denying his application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. The Commissioner opposes the motion. The court affirms.


On November 3, 2004, James Swarnes protectively filed applications for Disability Insurance Benefits and Supplemental Security Income payments, alleging disability since January 1, 2003. AR 120. Swarnes's attorney filed a written motion to amend the disability onset date to March 4, 2003, and the motion was granted. AR 229. Swarnes alleged that he became disabled due to herniated discs in his neck, status post cervical fusion surgery, and an alleged inability to use his left arm. AR 168. Both claims were denied initially and on reconsideration. AR 88-90, 78-79. Subsequently, on June 20, 2005, Swarnes filed a request for a hearing, which was held on May 22, 2006, in Rapid City, South Dakota. AR 76, 667A.*fn1 On August 22, 2006, the Administrative Law Judge (ALJ) issued a written decision determining that Swarnes was not under a disability as defined in the Social Security Act and that he was not entitled to Disability Insurance Benefits or eligible for Supplemental Security Income payments. AR 537-547.

Swarnes filed a request for review of the ALJ's decision and on December 22, 2006, the Appeals Council granted Swarnes's request, vacated the hearing decision, and remanded the case to an ALJ for further proceedings. AR 530-533. As a result, on April 18, 2007, the ALJ held a supplemental hearing in Rapid City, South Dakota. AR 696.*fn2 Upon discovering that Swarnes was scheduled for surgery the following week, the ALJ continued the hearing until those records could be obtained. AR 706-708. Accordingly, on June 1, 2007, another hearing was held in Rapid City, South Dakota. AR 710.*fn3 On July 19, 2007, the ALJ issued a decision finding Swarnes had not been under a disability within the meaning of the Social Security Act since March 4, 2003, and consequently was not entitled to Disability Insurance Benefits or Supplemental Security Income payments. AR 20-36. The Appeals Council denied Swarnes's request to review the ALJ's decision on January 23, 2008. AR 11.*fn4 This appeal followed.


Swarnes was born on August 24, 1960, making him 42 years old on the alleged disability onset date and 46 years old at the time of the ALJ's second decision. AR 124. He completed twelfth grade in 1978. AR 174. He is married, and he and his wife have children living with them. AR 124-125.

He worked from 1978 until 2003 as a machine operator at a rock quarry, which required him to unload barges with cranes, load dump trucks with sand or rock, and drive a big dump truck. This job also required him to use machines, tools, and equipment as well as technical knowledge and skills. AR 169. This job ended in September 2003. AR 196.*fn5 Additionally, he has completed special job training; he received a pilot's license for a tug boat in 1982, which has expired. AR 174.

Swarnes's extensive pertinent medical treatment history begins on March 3, 2003, when he went to the Emergency Department of Pike County Memorial Hospital in Louisiana, Missouri. Dr. Robert Glass opined that Swarnes had cervical radiculitis, applied an injection of Toradol, and referred Swarnes to physical therapy. AR 376. A physical therapist examined Swarnes, and Swarnes began a program of cervical traction. AR 360. Approximately three weeks later, on March 24, 2003, Swarnes returned to the emergency room due to increasing pain and an inability to move his left arm because of pain, and he was referred to a neurosurgical clinic. AR 276-277.*fn6

Almost a month later, on April 15, 2003, Swarnes saw Dr. Krettek, who reported that an MRI scan revealed spinal abnormalities at multiple levels in Swarnes's neck. AR 425. On April 21, 2003, a cervical myelogram demonstrated left C5-6 disk herniation, and on April 22, Swarnes underwent an anterior cervical diskectomy interbody fusion surgery. AR 293, 416-418. Swarnes improved after this surgery, and on September 2, 2003, Dr. Krettek released Swarnes to work, with the following restrictions: "limited work above shoulder level," "no machines that jerk his head around," "allowed to run newer cranes that do not have this jerking motion," and no operating "front loaders, payloaders and dump trucks." AR 293, 409, 411, 413. Swarnes returned to work on September 2, 2003, but ten days later, he experienced neck pain, a headache, bilateral shoulder pain, and low back pain. As a result, on September 18, 2003, Dr. Krettek saw Swarnes and placed him on temporary total disability. AR 406.

On October 9, 2003, Dr. Krettek stated that Swarnes continued to have neck pain and limited neck range of motion. Because there was no light duty at work, Swarnes continued on temporary total disability.

Dr. Krettek began cervical traction. AR 402. One month later, on November 10, 2003, Dr. Krettek reported that Swarnes continued to have headaches, neck pain, and shoulder pain, but he noted that there was no evidence of additional anatomic lesion that would require surgery. AR 401. Dr. Krettek recommended an evaluation for pain management, and on November 17, 2003, Swarnes saw Dr. Bakul Daye. AR 401, 254. Dr. Daye stated that Swarnes reported that his pain was getting worse since his re- injury in September 2003. Dr. Daye noted that Swarnes was having a hard time lifting his head backward or turning sideways without significant neck pain and recommended that Swarnes get a bone/SPECT scan. AR 254. Over a month later, on December 30, 2003, Dr. Krettek reported that Swarnes had limited neck motion and increased pain on looking up or looking to either side. AR 390.

On January 19, 2004, Dr. Krettek opined that Swarnes had reached maximum medical improvement, had a permanent partial disability of 25 percent directly related to the cervical spine, and was totally disabled for his own occupation. AR 389. On February 9, 2004, in a Disability Report form, Swarnes reported that his ability to work was limited; he had no use of his left arm, neck problems, and a herniated disc fusion. AR 168, 175. He further complained that he could not move his neck, that he got headaches, that his left arm was weaker, and that he could not sit for very long. AR 168-169.

On February 20, 2004, Swarnes's sister, Margaret Blackwell, completed a form about Swarnes's disability claim for him. AR 201. The report indicated that Swarnes did not use a cane, crutches, walker, wheelchair, artificial limb, hearing aid, phone amplifier, or oxygen. He was able to pay bills, use a checkbook, and count change. He did laundry, dishes, banking, and went to the post office. He could not make a bed or change sheets, iron, vacuum or sweep, take out the trash, engage in home repairs, participate in car maintenance, mow the lawn, rake leaves, or work in a garden. He could watch a two-hour movie but had to take a break to get up and stretch. He had a valid driver's license and could drive but had trouble driving because he could not turn his neck. If he drove, he went to the store and back twice a week, which was a total of four miles, and no one had advised him not to drive. He did not have difficulty leaving his home and left his home about twice a week for short periods of time. He was irritable about the fact that he could not do anything without experiencing pain. AR 198-201.

On March 19, 2004, a state agency physician filed out a physical residual functional capacity assessment. He determined that Swarnes could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk with normal breaks for about 6 hours in an 8-hour workday, sit with normal breaks for about 6 hours in an 8-hour day, and push and/or pull with limitations in the upper extremities. Further, Swarnes could frequently climb ramps and stairs, balance, stoop, kneel, and crouch. He could occasionally climb ladders, ropes, and scaffolds. The state agency physician also noted that the physical residual functional capacity assessment was not significantly different from any limitations placed on Swarnes by his treating physicians. AR 243-251.

On June 26, 2004, Dr. Jeffrey Magrowski, a vocational rehabilitation counselor, assessed Swarnes's vocational potential. Dr. Magrowski concluded that Swarnes was unemployable based upon his interview with Swarnes, Swarnes's spouse, and his review of medical records. AR 476. Dr. Magrowski found that there was an indication that Swarnes required low back surgery, that Swarnes needed to lie down for pain relief, and that test scores indicated that Swarnes had an IQ of 77, which is within the borderline mentally handicapped range. AR 476. He indicated that Swarnes had skills that would transfer to light work but that such jobs would require head movement and may expose a worker to vibrations. AR 474-477.

Almost six months later, on December 21, 2004, Swarnes's wife completed a third-party function report. She reported that she sometimes had to put socks and shoes on Swarnes, but that Swarnes's condition had not affected his ability to bathe, shave, feed himself, care for his hair, or use the toilet. She stated that Swarnes folded laundry once or twice a week and that he could go out alone but was scared to drive because he could not turn his neck. She reported he went shopping for milk or bread, and his shopping trips usually lasted 15 to 20 minutes. He was able to count change, but not able to pay bills, handle a savings account, or use a checkbook because he did not understand. She also noted that Swarnes's condition had affected lifting, squatting, bending, standing, walking, sitting, hearing, seeing, stair-climbing, understanding, and getting along with others. AR 202-209. On that same day, Swarnes filled out a function report. He reported he was unable to work, have sex on a regular basis, dance, hunt, fish, or play cards because of his medical condition. He stated that his wife had to put on his pants, socks, and shoes if he was too sore but he did not need assistance to bathe, shave, feed himself, care for his hair, or use the toilet. He tried to dust and fold clothes, and he did drive but his wife did most of the driving because he could not turn around to check for cars. He went shopping for anything his wife forgot or cigarettes, and his shopping excursions lasted for 10 to 15 minutes. He reported that he was unable to pay bills, handle a savings account, or use a checkbook because he is not very smart with these things. He indicated that he could not lift, squat, bend, stand, walk, sit, kneel, hear, climb stairs, see, concentrate, or understand because he needed to get his lower back fixed. AR 210-217.

Almost one year after his last medical visit, on February 14, 2005, Swarnes presented at the Emergency Department in Rapid City Regional Hospital for severe low back pain. The doctor ordered a morphine shot and IV and an MRI of his lumbar spine. AR 457. On February 16, 2005, Swarnes attended a consultative evaluation with Dr. Dave Johnson, which was arranged by the State Disability Determination Services (DDS).

Dr. Johnson determined that Swarnes had experienced chronic neck pain since his cervical fusion in 2003. Swarnes told Dr. Johnson that lifting over 20 pounds, standing more than one and one-half hours, walking more than two blocks, and sitting more than 15 minutes bothered him. Dr. Johnson noted that the neck exam showed Swarnes was hesitant to move his neck in any direction and that there may have been some muscle spasm and tenderness in that area. Dr. Johnson did not make any conclusions regarding permanent physical limitations, but Dr. Johnson did recommend more intensive physical therapy in addition to muscle relaxants, massage, heat, and possible diathermy, prior to a determination of any permanent limitations. AR 479-481. On February 22, 2005, Swarnes presented at Regional Neurosurgery and Spine Clinic. He described low back pain and numbness in his left leg and foot. He also reported several episodes in which his left leg just "gave out," and stated that lying down helped his pain, that walking aggravated the pain, and that when sitting he had to use his arms to support himself. AR 472.

On March 11, 2005, a medical consultant filled out a physical residual functional capacity assessment. Subsequently, on May 10, 2005, this report was reviewed by Dr. Greg Erickson, who supplemented the evidence relied upon by the medical consultant with the updated MRI/CT reports, pain reports, and procedure from April 15, 2005. AR 235-242. It was determined that Swarnes could occasionally lift 20 pounds, frequently lift 10 pounds, stand or walk for about 6 hours in an 8-hour workday, sit with normal breaks for about 6 hours in an 8-hour day, and push or pull without limitations. Additionally, Swarnes could occasionally climb stairs or ladders, balance, stoop, kneel, crouch, and crawl. Finally, he opined that Swarnes had no manipulative, visual, communicative, or environmental limitations. Also, the medical consultant noted no treating or examining physician's statement regarding Swarnes's physical capacities existed in the file. AR 236-242. Also in March 2005, Dr. Krettek stated that Swarnes was 100 percent disabled from his own occupation as of December 30, 2003, but that he could not assess any of his current limitations because he had not seen Swarnes for over one year. AR 478.

On April 15, 2005, Swarnes sought treatment at the Regional Pain Management Center for back pain extending down his left lower extremity. Dr. Frost administered bilateral L4-5 facet injections. AR 440-441. One month later, on May 17, 2005, Swarnes went to the emergency room, complaining of low back pain and was given morphine. AR 433. On May 27, 2005, Swarnes presented at the Rapid City Community Health Clinic for depression. AR 511.

On July 14, 2005, Swarnes received a bilateral L4-5 and L5-S1 facet rhizotomy and median nerve block at the Regional Pain Management Center. AR 488. On July 17, 2005, Swarnes saw Dr. John Lassegard at the Rapid City Community Health Center for depression, breathing problems, anxiety, back pain, and disability issues. AR 510. On July 20, 2005, Dr. Lassegard completed an assessment of Swarnes's functional abilities. Dr. Lassegard opined that Swarnes could not work; needed to lie down frequently throughout the day; could lift up to 10 pounds occasionally; sit 30 minutes to one hour at a time; stand 15 to 20 minutes at a time; occasionally reach and balance; never climb ladders, crouch, kneel, or crawl; understand simple instructions; and needed to avoid exposure to moving mechanical parts, humidity, dust, fumes, and extreme temperatures, but could tolerate exposure to vibrations. AR 506-508.

On September 8, 2005, Swarnes reported that although the July 2005 rhizotomy had helped his back pain for two months, his low back pain was reoccurring. AR 521. On October 6, 2005, Dr. Eichler reported that although he did not perform disability evaluations, Swarnes "appeared significantly disabled . . . because of his back pain and facet disease." AR 502. On December 24 and 30, 2005, Swarnes contacted the Regional Pain Center seeking additional treatment for his pain but was told to contact the billing department to make arrangements for payment of previous care. AR 498-499.

On February 3, 2006, Swarnes presented for an appointment with Dr. Jay Schindler at the Regional Neurosurgery and Spine Clinic. Swarnes waited for one hour but had to leave because he was in pain. AR 520. On February 6, 2006, Swarnes saw Dr. Schindler at the rescheduled appointment, and Dr. Schindler advised Swarnes that he did not have a surgical solution or a neurological rationale for his pain. Dr. Schindler ...

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