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Jacobson v. Colvin

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

March 30, 2015



CHARLES B. KORNMANN, District Judge.

Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of defendant's final decision denying plaintiff's claim for disability insurance benefits. I have conducted a de novo review of the record. I find that the Commissioner's decision is not supported by substantial evidence on the record as a whole.


Plaintiff was operating a motor vehicle at 40 miles per hour when he hit an unmarked standing train car at an intersection in Grant County, South Dakota, on January 6, 2008. He was 36 years old and, prior to the accident, worked in the construction industry as a heavy equipment operator for 18 years.

As a result of the accident, plaintiff sustained lacerations to his hand and forehead and fractured ribs. Plaintiff also complained of pain in his neck, left hip, and ankles. During examinations conducted soon after the accident it was determined that he had a prior fractured hip, bulging discs in his cervical spine, and bone spurs in his left right ankle, none of which were acute or caused by the accident. He did have swelling and spurring at the Achilles tendon in his right ankle. He previously suffered from asthma which, together with the broken ribs, caused difficulty breathing. He was initially seen in the emergency room in Milbank, South Dakota, but was transferred to Sanford USD Medical Center in Sioux Falls the day following the accident.

Plaintiff suffered an extensive area on the back of his left hand where the skin was missing and the muscle and fascia were showing. A plastic surgeon operated on the hand the day after the surgery to remove glass fragments and close the wound. Plaintiff was released from the hospital on January 9, 2008.

On January 11, 2008, plaintiff sought treatment from Dr. Calvin Roseth at the Sanford clinic in Watertown, South Dakota. He complained of left hip pain. Dr. Roseth prescribed Vicodin and Tramadol.

On January 16, 2008, plaintiff was treated by Dr. William F. Bell at Sanford Orthopedics and Sports Medicine in Sioux Falls, South Dakota. He was walking with a cane and complained of pain. He told Dr. Bell he was then being treated with Norco (Hydrocodone) for pain. His request for OxyContin was denied and instead he was referred to physical therapy.

Two days later, on January 18, 2008, plaintiff complained to Dr. Roseth of left hip pain. He was given Vicoden for pain. On January 28, 2008, he again reported to Dr. Roseth complaining of pain. He was again given Vicodin along with Ultram. Dr. Roseth noted that he would not give plaintiff narcotic pain medicine and that all narcotic medicine should be managed by Dr. Bell.

On February 4, 2008, plaintiff complained to Dr. Bell of pain in his left hip, leg, calf, and thigh and requested narcotic pain medication. His request was denied but he was prescribed Tramadol. Dr. Bell ordered more x-rays to determine whether some subtle injury could account for the pain. The next day he called in to complain that his pain medication was not working. He was advised again that no narcotic pain meds would be dispensed. Dr. Bell's office consulted with Dr. Roseth and learned that plaintiff had a prior history of substance abuse.

On February 6, 2008, plaintiff contacted Dr. Roseth again, seeking a refill of Vicodin. Dr. Roseth reminded him that he would not prescribe narcotics and that any further narcotic refills would have to be prescribed by Dr. Bell.

On February 8, 2008, plaintiff again presented to Dr. Roseth complaining that the Tramadol was not controlling his pain. Plaintiff was again instructed that any narcotic pain relief would have to be prescribed by Dr. Bell Dr. Roseth increased plaintiff's Tramadol prescription.

On February 25, 2008, plaintiff complained to Dr. Bell of pain. An MRI of the ankle was scheduled. On March 10, 2008, plaintiff was still complaining of pain rated, by him, at a level seven on a ten point scale. Dr. Bell told plaintiff he was concerned about how quickly plaintiff used the pain medicine. An MRI revealed a fractured right ankle and plaintiff elected to treat the injury surgically. He underwent surgery to his right ankle on March 18, 2008, to remove a bone fragment and was prescribed OxyContin and Lortab for pain. By March 26, 2008, he had little pain but was using a cane. He had taken himself off the OxyContin and was only using Lortab for pain.

On April 7, 2008, Dr. Bell removed the staples in plaintiff's ankle. Plaintiff was still experiencing pain which he rated at 6-7 on a ten point scale but he was walking normally. Physical therapy was ordered and he was released to perform sedentary work.

Plaintiff began physical therapy on April 15, 2008. On April 18, 2008, he reported that he intended to report to his work site next week to attempt to work.

On April 16, 2008, plaintiff presented to Dr. Devine in Watertown, complaining of pain. He had just started physical therapy. Plaintiff reported to Dr. Devine that he has been on Vicodin and that Dr. Bell "thought that it would be easier for him to get his pain pills here in Watertown." Dr. Devine wrote a new prescription for Vicodin. On April 28, 2008, plaintiff called Dr. Devine's office inquiring if he could have a higher dose of Vicodin. He reported that he just went back to work as a heavy equipment operator. Plaintiff was prescribed Voltaren and Ultram in additional to the prior dose of Vicodin. On May 1, 2008, he called Dr. Devine's office complaining that the pain medicines were not working. He was advised to make an appointment and he was seen the same day. He complained to Dr. Devine that his hip pain is worse and that he has constant right ankle and left wrist pain. Sitting in the heavy equipment made the pain worse. Dr. Devine prescribed Percocet. On May 5, 2008, he called, reporting that Oxycodone (Percocet) works but makes him sleepy. His Vicodin prescription was increased.

On May 12, 2008, Dr. Bell's notes state that plaintiff was still having a fair amount of pain but had returned to work operating heavy equipment.

On June 2, 2008, Dr. Devine ordered a refill for Vicodin. On June 17, 2008, Dr. Devine prescribed Hydrocodone.

On July 1, 2008, plaintiff called Dr. Devine's office, complaining of hip and ankle pain. He stated that the Hydrocodone was not working and requested different pain medication. He was prescribed OxyContin. On July 7, 2008, he called Dr. Devine's office reporting that he was on Oxycodone but it made him sleepy and dizzy and he was unable to use it while working. On July 25, 2008, he requested a refill of the Hydrocodone which was ordered by Dr. Devine.

In early August 2008, plaintiff was seen at the Human Services Agency in Watertown where he had received mental health treatment prior to the accident. The treating physician noted that he had a history of amphetamine induced mood and cocaine dependence. He was diagnosed with major depressive disorder, generalized anxiety disorder, and polysubstance abuse and dependence. His stressors included declining physical health as a result of the January automobile accident.

On August 7, 2008, plaintiff sought a second opinion from Dr. Steven Feeney at Johnson Memorial Health Services in Dawson, Minnesota. Significant ankle pain occurred when operating the pedals and sitting caused hip pain, resulting in him quitting his job. Dr. Feeney suggested plaintiff stay on his pain medication but noted that he had developed a tolerance to the Norco. Dr. Feeney recommended a hip replacement and noted that plaintiff winces in pain when he walks.

In late August 2008, plaintiff consulted with Dr. Anthony Nwakama at Johnson Memorial Health Services in Dawson, Minnesota, for hip pain. At that time he was using Vicoden for pain and occasionally using a cane to walk. Dr. Nwakama noted plaintiff had an abnormal gait. Plaintiff was diagnosed with severe degenerative arthritis in his left hip which was described as "bone on bone" arthritis. Hip replacement was recommended despite plaintiff's young age.

Plaintiff filed for disability benefits in September 2008, claiming an onset date of January 6, 2008.

On October 7, 2008, Dr. Feeney noted plaintiff has knee pain as well as hip pain. Pain medicine tolerance was discussed as well as the probability that he will need rehab detoxification following his hip surgery because he has been on pain medications so long. Dr. Feeney prescribed Oxycodone and Vicodin. On October 9, 2008, Dr. Feeney ordered x-rays and an MRI of the left knee. The tests were normal. Dr. Feeney reviewed the MRI results with plaintiff on October 15, 2008. He opined that the knee pain is a result of the way plaintiff is walking and suggested strengthening exercises. He prescribed a two week supply of Oxycodone but did not refill the Vicodin because plaintiff had not exhausted his previous supply.

Plaintiff saw Dr. Feeney again on October 31, 2008, and plaintiff's pain was better managed. Dr. Feeney again noted that they would have to watch his pain medication withdrawal symptoms following surgery. Dr. Feeney continued to dispense pain medications at two-week intervals.

On November 18, 2008, plaintiff had a preoperative evaluation with Dr. Feeney. He followed up with Dr. Feeney on December 9 and December 31, 2008.

Plaintiff underwent a left hip replacement in January 2009. Five days later, on January 23, 2009, he saw Dr. Feeney. He was using a walker and was in severe pain. Dr. Feeney put him on Oxycodone and Vicodin and discussed the possibility that plaintiff may need inpatient treatment to wean off the pain medication once his pain subsides. Two weeks later, he had a post-operative follow up with Dr. Nwakama. He reported that he has been on Oxycodone and Vicodin for pain control which was being managed by Dr. Feeney. He was walking with a cane. Although he complained of pain at a level seven on a ten point This makes more sense scale, he was seen to have a normal gait.

On February 2, 2009, Dr. Feeney's notes indicate that plaintiff's hip pain had subsided but he still had knee pain and was walking with a cane. He was given a two week supply of Oxycodone with a plan to start weaning him off those medications. He was continuing physical therapy. On February 13, 2009, Dr. Feeney noted that plaintiff was using fewer pain medications. He was walking with a cane. Dr. Feeney decreased the strength of the pain medications. On February 25, 2009, Dr. Feeney again reduced plaintiff's pain medications but gave him a 30 day supply.

In March 2009, he had a follow up mental health appointment with no change in his diagnosis or his stressors. On March 23, 2009, he saw Dr. Feeney. He had pain in his hip, right knee, and wrist. Dr. Feeney scheduled him for physical therapy.

On April 8, 2009, plaintiff again saw Dr. Nwakama. He complained of hip pain at a level of one. Upon examination, he had normal range of motion without pain, normal gait, and "he moves about the room easily." He was given instruction for range of motion exercises and advised to follow up in one year.

On April 13, 2009, plaintiff told his pharmacist that all his medications were stolen in Sioux Falls. The pharmacy contacted Dr. Devine's office who had not seen plaintiff since May 2008. Dr. Devine's office noted that plaintiff would have to receive his medications from Dr. Feeney. Plaintiff contacted Dr. Feeney's office, requesting refills due to the theft. No refills were prescribed.

Plaintiff saw Dr. Feeney on April 20, 2009, at which time he noted that his hip and knee pain had subsided. He was worried about having to do planting on his father's farm because he was having significant pain in his ankle. Dr. Feeney continued to lower the doses of pain medication. On May 18, 2009, Dr. Feeney noted plaintiff had back pain which he believed was caused by the way plaintiff was walking. He was also having ankle pain. Nonetheless, Dr. Feeney continued to wean plaintiff off the pain medications.

Plaintiff saw Dr. Feeney on June 16, 2009, complaining of left hip and low back pain which increased upon moving around or doing exercises. Sitting on a riding lawn mower exacerbated the pain. Dr. Feeney filled plaintiff's Oxycodone and Hydrocodone prescriptions.

Plaintiff did not show up for a June 29, 2009, appointment with Dr. Devine. He saw Dr. Feeney on July 13, 2009. He was limping and using a cane. He had been doing work blading roads which caused him back spasms and pain. Dr. Feeney refilled his prescriptions for pain medications and referred him to Dr. Nwakama.

On July 20, 2009, plaintiff saw Dr. Devine for chronic pain. He refilled plaintiff's Ocycontin and Oxycodone prescriptions. On July 25, 2009, he called Dr. Devine's office, requesting a refill of his Hydrocodone prescription, which was done.

On August 5, 2009, plaintiff presented to Dr. Nwakama complaining of pain in the right ankle, both knees, and right hip which are worse with sitting and walking. He reported that he had active prescriptions for OxyContin and Oxycodone. His right ankle range of motion was minimal and caused pain. The x-rays revealed mild degenerative joint disease of the right ankle and he was diagnosed with osteoarthritis. Plaintiff planned to consult with Dr. Feeney who had been managing his pain medications.

On August 7, 2009, plaintiff saw Dr. Feeney with complaints of low back, hip, and ankle pain at a level eight. He was walking with a crutch and a noticeable limp. Dr. Feeney refilled his pain medications.

On August 19, 2009, Dr. Feeney, whose medical record showed that he was then affiliated with the Prairie Lakes Healthcare System in Watertown, reviewed MRI and x-rays of plaintiff's lumbar spine. He found a mild disc bulge at L3-L4. Also on that date, Dr. Mark Vossler at the Sanford Clinic in Duele County ...

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