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Bales v. Colvin

United States District Court, D. South Dakota, Southern Division

March 26, 2014

MICHAEL L. BALES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERTO A. LANGE, District Judge.

Plaintiff Michael L. Bales (Bales) seeks reversal of the Commissioner of Social Security's decision denying Bales's application for Social Security Disability Insurance (SSDI) benefits. Alternatively, Bales requests that this Court remand the case for a further hearing on issues he has raised.[1] For the reasons explained below, this Court reverses and remands the Commissioner's decision for further consideration.

I. Procedural Background

On June 5, 2009, Bales filed an application for SSDI benefits under Title II of the Social Security Act alleging disability since January 20, 2008, due to degenerative disc disease, depression, memory and concentration problems, and post-laminectomy syndrome. AR[2]17, 182, 210. Bales later alleged that the side effects of his medications further contributed to his disability. AR 78. The Social Security Administration denied Bales's application initially on November 23, 2009, and again upon reconsideration on April 5, 2010. AR 17, 69, 72, 76. In late April 2010, Bales requested a hearing before an Administrative Law Judge (ALJ). AR 78. The ALJ conducted a hearing, AR 37, and issued a decision in November of 2011 finding that Bales was not disabled and thus was not entitled to benefits. AR 17-30. Bales then requested that the Appeals Council review the ALJ's decision and submitted new evidence. The Appeals Council considered the new evidence but denied Bales's request for review, thus making the ALJ's opinion the final decision of the Commissioner. AR 1-6.

II. Factual Background

Bales was born on October 24, 1961. AR 44, 182. He attended high school through his junior year and later earned a GED. AR 44. Bales managed a television and appliance store from 1987 until approximately 2001 when he began working as a sales representative at a radio station. AR 45-46, 221. The radio station eventually let Bales go, AR 47, whereafter he became general manager at a boat dealership in late 2002. AR 211.

On January 12, 2006, Bales injured his back at work while clearing chunks of ice from a boat cover. AR 51, 292, 418. An MRI taken the next day showed disk herniations, advanced degenerative disc disease, and spondylosis at levels L4-L5 and L5-S1 of Bales's spine. AR 419, 505. At a March 3, 2006 appointment with Dr. Mikel Holland, Bales reported back pain with radiation to the left hip and leg, changes in bowel habits, urination difficulty, and some erectile dysfunction. AR 418. Dr. Holland noted that Bales had undergone a microdiscectomy at L4-L5 eight years ago and remarked that it was unlikely that simple non-operative treatment would resolve Bales's problems. AR 418-19. An April 4, 2006 back surgery performed by Dr. Edward Seljeskog resulted in a complete resolution of Bales's pain. AR 292, 300.[3] By January 2007, however, Bales's pain had returned. AR 292, 300. Dr. Seljeskog diagnosed Bales with a recurrent disc herniation at L4-L5 on February 2, 2007. AR 311. An MRI taken that day showed encasement of the left L5 nerve root, disc herniation at L4-L5, and disc degeneration with severe loss of disc height at L5-SI. AR296.

Bales's workers' compensation case manager referred him to Dr. Rand Schleusener for a second opinion on his back. AR 292. At a March 15, 2007 appointment, Bales reported to Dr. Schleusener that his back pain was making him quite miserable, but denied any pain, numbness, tingling, or weakness in his legs. AR 292. On examination, Bales had full range of motion in his lumbar spine, and his lower extremities showed normal motor strength and a full range of motion without any pain or limitations. AR 292. Dr. Schleusener agreed that Bales had a recurrent disc herniation at L4-L5 and stated that another surgery was a reasonable option. AR 292.

Bales saw Dr. Holland on March 26, 2007, for a renewal of his Effexor[4] prescription. AR 420. Bales reported trouble sleeping and Dr. Holland assessed him as having insomnia. AR 420. Bales saw Dr. Seljeskog for a followup on April 27, 2007, during which he complained of back and radicular leg pain. AR 309. Dr. Seljeskog recommended surgery, stating that "[w]e will plan to be fairly aggressive with our disc removal." AR 309. On May 2, 2007, Dr. Seljeskog performed a bilateral L4-L5 hemilaminectomy and discectomy on Bales. AR 307. At a post-operative follow-up appointment on May 22, 2007, Bales reported that he still had pain in his right leg and Dr. Seljeskog noted that Bales had a foot drop when he walked on his heels. AR 306. Bales saw Dr. Seljeskog again on June 1, 2007. AR 305. Although Bales complained of continued back pain and radicular symptoms on the left, Dr. Seljeskog noted that Bales "move[d] about quite readily" and appeared to be "quite comfortable." AR 305. An MRI from that day showed a centrally protruding disc at L4-L5, which Dr. Seljeskog felt "could be affecting either the right or the left traversing nerve roots." AR 294, 305. Dr. Seljeskog further noted that the MRI showed "a lot of reactive change in the adjacent vertebral body. There is a tiny L5-S1 central disc protrusion." AR 305. Dr. Seljeskog released Bales to light duty work. AR 305.

A physical therapy progress report from July 12, 2007, described Bales as generally having five out often pain and being unable to tolerate prolonged standing, but as having made good gains in flexibility and mobility. AR 298. Bales was seen at Dr. Seljeskog's clinic the next day and was noted to have improved from his last appointment. AR 304. Bales had been working one to two hours a day and was told that he could work more if it was tolerable. AR 304. Bales was also allowed to increase the fifteen to twenty pounds he was already lifting if he could tolerate it. AR 304. Bales did report, however, that sitting or standing for any length of time was difficult for him. AR304.

Bales's workers' compensation case manager referred him to another surgeon, Dr. Daniel G. Tynan, on July 24, 2007. AR 300-02. An examination revealed that Bales had "slight difficulty" walking on his right heel because of "mild foot drop[, ]" minimal wealcness in the right foot, and a mildly positive straight leg raise bilaterally, causing both back and leg pain. AR 301. Dr. Tynan remarked that Bales's most recent MRI showed severe degenerative disk disease at levels L4-L5 and L5-S1, but did not find any significant disc herniations. AR 301. Dr. Tynan opined that given these "significant degenerative changes" and Bales's multiple back surgeries "it is not surprising that he has some chronic low back pain." AR 302. Dr. Tynan told Bales his options were to redo conservative treatment, simply live with the pain, or consider lumbar fusion surgery. ar 301-02. dR. tYNAN EXPLAINED THAT THE FUSION SURGERY WOULD BE "AN ATTEMPT TO improve [Bales's] back pain so that he can return to work duty and not to be chronically disabled." AR302.

In an August 9, 2007 letter to Bales's workers' compensation case manager, Dr. Seljeskog opined that Bales had reached maximum medical improvement and stated that he did not anticipate the need for any further surgical intervention. AR 303. At an appointment the next day, Dr. Holland discussed Bales's back treatment options with him and assessed Bales as having, among other things, depression and nicotine dependence. AR 422-23.

On referral from his workers' compensation insurer, Bales then saw Dr. Jerry Blow, a physiatrist, on September 24, 2007. AR 342. Bales reported constant pain in his low back and an intermittent sharp, burning pain in his right leg aggravated by walking, sitting, standing, driving, lifting, bending, twisting, and climbing steps. AR 343. Bales stated that he worked one to two hours two days a week and four to five hours three days a week. AR 344. He described his job as involving lifting, bending, twisting, reaching, driving, writing, typing, filing, walking, sitting, standing, mechanic work, and sweeping. AR 345. Dr. Blow recommended facet block injections, physical therapy, no lifting over fifteen pounds, no bending, twisting, or squatting, avoiding awkward positions, and working no longer than three hours a day, six days a week. AR 346.

Dr. Heloise Westbrook administered a nerve block and steroid injection to Bales's back on October 5, 2007. AR 413-16. Her exam revealed that Bales had no difficulty ambulating and walking on his toes and heels, five out of five strength in his lower extremities, and a positive Waddell sign for rotation. AR 416. Bales did have a positive straight leg raise bilaterally, decreased hip flexion, and tenderness along his lower lumbar region, however. AR 416.

Bales saw Dr. Blow again on October 22, 2007. AR 338. Bales reported that the injections seemed to make his back pain worse and that he had some good days and some bad days at work. AR 338. Dr. Blow started Bales on Cymbalta, [5] recommended that he continue taking Celebrex[6] and Tizanidine, [7] and prescribed physical therapy. AR 339. He also recommended that Bales increase the amount of time he spent at work each day by one hour each week until Bales saw him again. AR 339. Bales had a follow-up appointment with Dr. Blow on November 12, 2007. AR 335. Although Bales reported significant back pain, he had increased his work hours per Dr. Blow's instructions and had even worked three nine-hour days. AR 335. Other than walking in a somewhat guarded manner, Bales's gait was normal, and he could heel-and-toe walk with ease. AR 336. A straight leg raise done that day was negative. AR336. Dr. Blow took Bales off Cymbalta and started him on Lyrica.[8] AR336. He also told Bales to cut his work hours back to five hours a day for one week before going to six hours a day for three weeks. AR 336. Bales had a phone conference with Dr. Blow on November 27, 2007. AR 333. Bales reported that he was no longer having constant leg and back pain and that he was working six hours a day. AR 333. Dr. Blow's impression was that Bales's overall condition had improved with therapy and medications. AR 333.

At a December 11, 2007 appointment with Dr. Blow, Bales reported an increase in pain and having trouble sleeping. AR 331. Although Bales's lumbar range of motion was limited, his straight leg raise was negative. AR 331-32. Dr. Blow's impression was that Bales was approaching maximum medical improvement. AR 332. He stated that Bales could work up to seven hours a day and ordered a functional capacity evaluation (FCE). AR 332.

Nano Johnson, a physical therapist (PT), conducted an FCE for Bales on January 2, 2008. AR 519-22. In a letter to Dr. Blow, PT Johnson stated that the FCE indicated that Bales was "able to work at the LIGHT Physical Demand Level for an 8-hour day according to the Dictionary of Occupational Titles, U.S. Department of Labor, 1991." AR 519. PT Johnson reported further that Bales had not shown any symptom or disability exaggeration behavior during the FCE. AR 519. The FCE form listed particular work activities and provided corresponding blanks for the evaluator to identify the weight limit at which the patient could perform the activity and whether the patient could do so infrequently, occasionally, frequently, or constantly. AR 521. PT Johnson found that Bales could not power lift or back lift any weight, even infrequently; could lift twenty pounds occasionally and twenty-five pounds infrequently using a leg lift; could shoulder lift and overhead lift fifteen pounds occasionally; could occasionally two-hand carry fifteen pounds and one-hand carry ten pounds; could walking push/pull twenty-five pounds occasionally and thirty pounds infrequently; and could standing push/pull thirty-five to fifty-five pounds occasionally and forty to sixty pounds infrequently. AR 521. The FCE form as completed by PT Johnson indicated that Bales could not lift, carry, or push or pull any weight frequently. AR 521. In terms of posture, PT Johnson found that Bales could squat and kneel occasionally and bend only infrequently. AR 521. Finally, PT Johnson found that Bales could sit constantly; could stand, walk, and forward reach frequently; and could overhead reach occasionally. AR 521.

When Bales had a phone conference with Dr. Blow on January 15, 2008, he was in "quite a bit of pain" and reported needing to increase his hydrocodone[9] intake to cope with working seven hours a day. AR 328. Bales also stated that his boss at the boat dealership had recently told him that the dealership was no longer able to accommodate his work restrictions. AR 328. Dr. Blow noted that Bales had recently undergone an FCE and that Bales said he was sore for two or three days afterwards. AR 328. According to Dr. Blow, the FCE revealed that Bales could work in a light duty capacity: Bales could bend and crawl infrequently; squat, kneel, and reach overhead occasionally; sit constantly; stand, walk, and forward reach frequently; lift twenty pounds occasionally and twenty-five pounds infrequently using a leg lift; shoulder lift fifteen pounds occasionally to infrequently; one-handed carry ten pounds occasionally; walking push/pull twenty-five pounds occasionally and thirty pounds infrequently; and standing push/pull thirty-five to fifty-five pounds occasionally and forty to sixty pounds infrequently. AR 328-329. Dr. Blow wrote that the FCE revealed that Bales did not demonstrate any symptoms of disability exaggeration. AR 329. Dr. Blow recommended that Bales continue taking Lyrica and Tizanidine, wean off hydrocodone, and released Bales to work under the guidelines of the FCE. AR 330.

On January 31, 2008, Bales saw Dr. Holland to discuss his medications and mood. AR 426. Bales reported feeling depressed, frustrated, and anxious, and discussed committing suicide by crashing his car. AR 426. Dr. Holland referred Bales to the emergency room for a mental health assessment that day. AR 427. The mental health staff arranged for Bales to see Dr. Westbrook for pain management, Dr. Ulises Pesce, a psychiatrist, for adjustments of his medications, and a counselor. AR 427.

Bales saw Dr. Westbrook on February 2, 2008. AR 412. Bales reported pain in his back that occasionally radiated down his leg. AR 412. On examination, Bales had five out of five strength in his lower extremities. AR 412. Dr. Westbrook took Bales off hydrocodone and started him on oxycodone[10] extended release. AR 412.

Bales visited Dr. Pesce on February 6, 2008, for his depression. AR 355. On examination, Bales showed no memory deficits or difficulties with abstract thinking, and his attention, concentration, insight, and judgment were good. AR 356. Dr. Pesce diagnosed Bales with "[m]ajor depressive disorder, single episode, without psychosis, severe." AR 356. Dr. Pesce gave Bales a Global Assessment of Functioning (GAF)[11] score of fifty-five and recommended that he increase his dosage of Lyrica and Effexor. AR 356-57. Bales saw Therapist Jodi Owen on February 12, 2008, to discuss his depression and pain issues. AR 394.

Bales returned to Dr. Westbrook on February 29, 2008, complaining of continuing back pain. AR 411. Dr. Westbrook decreased Bales's Celebrex and Lyrica and replaced his oxycodone with Kadian.[12] AR411.

Dr. Pesce reevaluated Bales on March 12, 2008. AR 388. Bales described not noticing much improvement and experiencing depression and angry outbursts. AR 388. Dr. Pesce wrote that Bales's depression "seems to be quite severe" and that Bales "has a lot of problems with intermittent explosive type of reactions." AR 388. Dr. Pesce started Bales on Trileptal in addition to his Effexor. AR388.

Bales returned to Dr. Westbrook on March 28, 2008. AR 410. He stated that his back pain made it difficult to sleep and that he was only getting fair to poor relief from the morphine and pregabalin. AR 410. Dr. Westbrook recommended that Bales continue taking these two medications and that he repeat the FCE because "the initial evaluation was done over a very brief time and may not necessarily reflect [Bales's] functional capacity." AR 410. Dr. Westbrook proposed a "two-day functional capacity evaluation as this could more accurately assess [Bales's] functional capacity." AR 410.

Bales saw Therapist Owen on May 1, 2008. AR 384. By that point, he had seen her on several occasions to discuss his depression and how to adjust to the limiting effects of his back pain. AR 385, 386, 387, 390-91, 392. Bales reported that he was thinking about applying for disability. AR 384. Bales visited Dr. Pesce for a medication check on May 12, 2008, during which Bales reported being "slightly better" at controlling his explosive reactions. AR 382. After seeing Bales in early June 2008, Dr. Pesce wrote that Bales seemed "to be stable at this point, is not having any new complaints." AR 380.

On June 3, 2008, Bales saw Dr. Westbrook for a reevaluation. AR 349. Dr. Westbrook recommended, among other things, that Bales "exercise for strengthening and conditioning of his lower back daily." AR 349. She remarked that Bales might be a "candidate for spinal cord stimulation therapy as [he] remains with intractable pain and the research has shown spinal cord stimulation therapy can optimize his pain control." AR349.

Bales visited Dr. Blow on June 24, 2008, for an evaluation concerning whether he needed further treatment and a new FCE. AR 322. Bales described significant back pain with activity and said that he had to stop five times on the three-hour drive to see Dr. Blow. AR 322. Nevertheless, Bales stated that his daily activities included showering, dressing, cleaning the house, and preparing meals. AR 326. On examination, Bales's straight leg raise was "excellent, " with Dr. Blow noting that Bales "held his leg extended for a considerable length of time which was surprising for someone with his degree of low back pain." AR 327. Bales's lumbar flexion was thirty-five degrees, his extension was "better, " and his side bending and rotation were good. AR 327. Dr. Blow noted that Bales moved "about the room very easily, "and that Bales did not demonstrate any "pain behavior" while doing his exercises that day. AR 327. Dr. Blow concluded that Bales's FCE from January 2, 2008 was "still valid and can be used for vocational planning." AR 327. He further found that a spinal cord stimulator was unnecessary given Bales's "great mobility and ability to hold a straight leg raise without coaxing today[.]" AR 327.

Bales revisited Dr. Westbrook on July 7, 2008. AR 348. Dr. Westbrook wrote that despite Bales's surgeries, medications, and injection therapy, Bales continued to "experience unrelenting intractable lower back pain." AR348. Dr. Westbrook recommended a trial of spinal cord stimulation for Bales's pain. AR 348. Bales saw Dr. Pesce on July 15, 2008 for a medication check. AR 376. Dr. Pesce noted that Bales "seems to be doing quite well" and scheduled him for a followup in three months. AR 376.

Rick Ostrander, a vocational rehabilitation counselor hired by Bales's attorney, completed a vocational evaluation in early August 2008 in connection with Bales's work injury. AR 523-531. Ostrander reviewed Bales's FCE and noted that although the FCE placed Bales in the light category of physical exertion, the specific results of the FCE "essentially represent[ed] a restricted range of light duty work." AR 528. Ostrander ultimately concluded that Bales was "essentially limited to light duty work." AR 530. A few days later, Ostrander sent Dr. ...

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