United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
Michael James Lathrop, seeks judicial review of the
Commissioner's final decision denying his application for
social security disability and supplemental security income
disability benefits under Title II and Title XVI of the
Social Security Act.
Lathrop has filed a complaint and has requested the court to
reverse the Commissioner's final decision denying him
disability benefits and to enter an order awarding benefits.
Alternatively, Mr. Lathrop requests the court remand the
matter to the Social Security Administration for further
appeal of the Commissioner's final decision denying
benefits is properly before the district court pursuant to 42
U.S.C. § 405(g). This matter is before this magistrate
judge pursuant to the consent of the parties. See 28
U.S.C. § 636(c).
Statement of the Case
action arises from plaintiff, Michael James Lathrop's,
("Mr. Lathrop"), application for SSDI filed on
December 8, 2014, and his application for SSI filed on June
20, 2016, alleging disability since August 20, 2014, due to
pain in the upper middle back, headaches, problems breathing,
and back and neck problems. AR67, 185, 189, 218, 222, 269
(citations to the appeal record will be cited by
"AR" followed by the page or pages).
Lathrop's SSDI claim was denied initially and upon
reconsideration, although the initial denial notice does not
appear in the appeal record. AR89.Mr. Lathrop's SSI claim
was not denied at either the initial or reconsideration level
because it was not filed until after requesting a hearing.
AR189. Mr. Lathrop requested an administrative hearing.
Lathrop's administrative law judge hearing was held on
March 27, 2017, by Richard Hlaudy, ("ALJ"). AR32.
Mr. Lathrop was represented by other counsel at the hearing,
and an unfavorable decision was issued on June 26, 2017. AR7,
of the evaluation, the ALJ found that Mr. Lathrop had not
engaged in substantial gainful activity, ("SGA"),
since the date of his alleged onset of disability, August 20,
2014, and that he met the insured status for his SSDI claim
through December 31, 2019. AR12.
Two, the ALJ found that Mr. Lathrop had a severe impairment
of cervical spine degeneration, status post C6-7 anterior
cervical discectomy and fusion. AR12-13.
also found that Mr. Lathrop had a medically determinable
impairment of obesity based on a diagnosis in the record, but
found it nonsevere because the ALJ did not see a
recommendation in the record for weight loss or other
discussion of Mr. Lathrop's obesity as it might relate to
his complaints. AR13.
also found that Mr. Lathrop had a medically determinable
impairment of minimal degenerative lumbar spondylosis as
demonstrated in lumbar spine x-rays, but the ALJ stated it
was clinically mild and found it nonsevere. AR13.
found that Mr. Lathrop had a medically determinable
impairment of femoral acetabular impingement, but found it
nonsevere because the ALJ concluded physical examinations had
not been indicative of hip abnormality. AR13.
found that Mr. Lathrop had a medically determinable
impairment of degenerative thoracic spondylosis and
degenerative changes, but found it nonsevere because the ALJ
concluded physical examinations had not indicated during the
examination abnormalities indicative of significant thoracic
spine dysfunction, multiple physicians had noted the thoracic
findings were not significant and did not support Mr.
Lathrop's complaints of pain, and nerve conduction
studies of the thoracic paraspinal muscles were negative.
also stated Mr. Lathrop complained of difficulty breathing,
but concluded "a review of the record reflects no
respiratory or pulmonary impairments." AR13. The ALJ
then stated he had "considered this complaint as it
relates to his spinal abnormalities, however." AR13.
3, the ALJ found Mr. Lathrop did not have an impairment that
met or medically equaled one of the listed impairments in 20
CFR 404, Subpart P, App 1. (hereinafter referred to as the
evaluating whether Mr. Lathrop met or medically equaled a
Listing the only Listing specifically discussed in the
decision was Listing 1.04, and the ALJ concluded Mr. Lathrop
did not demonstrate such findings as neuro-anatomic
distribution of pain or motor loss as indicated by the
determined Mr. Lathrop had the residual functional capacity,
("RFC"), to perform:
less than the full range of light work as defined in 20 CFR
404.1567(b) and 416.967(b). The claimant is able to lift
and/or carry up to 20 pounds occasionally and 10 pounds
frequently. He is limited to standing and/or walking for 6
hours in an 8-hour workday, and he can sit for 6 hours in an
8-hour workday. The claimant is able to push and pull on a
frequent basis with the bilateral upper extremities. The
claimant is limited to frequently stooping, kneeling,
crouching, crawling, and climbing ramps and stairs. He is
able to occasionally climb ladders, ropes, and scaffolds.
found Mr. Lathrop's statements concerning the intensity,
persistence and limiting effects of his symptoms were not
"entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this
considered the opinions of the state agency medical
consultants who limited Mr. Lathrop to a range of light work
with only occasional reaching, pushing, and pulling, and gave
them "only some weight" because the ALJ concluded
"such significant upper extremity restrictions are not
consistent with the objective evidence of the record, which
generally reflects that the claimant's upper extremity
strength is normal." AR18. The ALJ also noted records
that reflected somewhat limited shoulder range of motion, or
painful shoulder range of motion, but concluded that it was
sporadic and not so significant as to limit Mr. Lathrop to
occasional upper extremity use. AR18.
considered the opinions of the functional capacity evaluation
performed by physical therapist, Craig Riley, in July, 2015,
and gave the opinion "little weight" because the
ALJ concluded Mr. Riley was not an acceptable medical source,
multiple medical doctors had "noted that there is a lack
of objective evidence to support such limitations," and
the ALJ found some of the restrictions were extreme and not
consistent with "modest treatment" received by Mr.
considered the independent medical examination performed by
Dr. O'Neil and concluded Dr. O'Neil "did not
provide a clear functional assessment" but did indicate
that use of a cane was unnecessary, and to the extent this
was an opinion it is given some weight AR18-19.
considered the independent medical examination performed by
Dr. Janssen and stated that Dr. Janssen "more or less
endorsed the conclusions of Mr. Riley's functional
capacity evaluation" but gave Dr. Janssen's opinions
"little weight" because the ALJ asserted Dr.
Janssen failed to address the upper extremity limitations,
even though Dr. Janssen's examination noted intact upper
extremity range of motion and strength. AR19.
considered a Physician Statement from Dr. Adams dated
December 23, 2014, and gave it little weight because it was
vague and did not set specific limitations. AR19.
considered an affidavit from Mr. Lathrop's daughter that
explained Mr. Lathrop engaged in limited daily activities and
appeared to be in significant pain. Id., The ALJ stated it
"generally accepted" the observations of Mr.
Lathrop's daughter. AR19.
considered the depositions of Dr. Peterson and Dr. Adams, but
asserted they were "generally cursory, vague, and were
geared more toward causation than cumulative impact on
work" and gave them no weight. AR19.
stated it considered "workers compensation
information" that indicated Mr. Lathrop was unable to
work and gave it no weight. The exhibits cited by the ALJ,
however, are not workers compensation information. Rather,
they are South Dakota Department of Labor determinations that
Mr. Lathrop is not entitled to unemployment compensation
because he had been found unable to work. AR19, 184, 212,
on the RFC determined by the ALJ, the ALJ found Mr. Lathrop
was not capable of performing any past relevant work. AR2O.
5, relying on the testimony of a vocational expert, the ALJ
denied Mr. Lathrop's claim. The ALJ found there was other
work Mr. Lathrop could perform including hand packager, DOT#
559.687.074, labeler, DOT# 920.587-014, and inserter, DOT#
Lathrop timely requested review by the Appeals Council.
AR181. The Appeals Council denied Mr. Lathrop's request
for review making the ALJ's decision the final decision
of the Commissioner. AR1. Thereafter, Mr. Lathrop timely
filed this action.
Plaintiffs Age, Education and Work Experience
Lathrop was born in 1974 and completed high school in 1993,
and a tool and dye training class in 1993. AR185, 219.
did not identify Mr. Lathrop's past relevant work in the
decision, but did note Mr. Lathrop had an
"excellent" work history indicative of a positive
work ethic, supporting the notion that Mr. Lathrop would have
returned to his past work if he were able. AR18, 20. The
vocational expert listed jobs of press-brake operator and
Relevant Medical Evidence
Yankton Medical Clinic:
Lathrop was seen on August 9, 2013, to follow-up from a motor
vehicle accident, which occurred July 3, 2013. AR494, 498.
Mr. Lathrop reported daily moderate symptoms, aggravated by
lifting and relieved by medication and physical therapy.
AR498. He reported he was still having quite a bit of pain in
his back and neck, muscle weakness, and days with physical
therapy were worse. AR498-99. His medications included
Flexeril, ibuprofen, and Tylenol-Codeine. AR498. Examination
revealed he was in a level of distress and in pain, with
cervical spine tenderness and moderately reduced range of
motion. AR500. Mr. Lathrop's assessment was cervicalgia
and physical therapy and medications were continued. AR501.
Lathrop was seen on September 5, 2013, and reported ongoing
symptoms including pain in his shoulder blades and mid back
and limited range of motion in shoulders with left worse.
AR494. Mr. Lathrop described the pain as "steady, dull
pain to back and shoulder blades are a dull pain until I move
then its [sic] sharp." AR494. He reported that physical
therapy and medications were helping to relieve his neck
pain, which was described as resolved. AR494. Examination
revealed thoracic spine tenderness, left shoulder tenderness,
and reduced range of motion with positive Apley's test.
AR496. The record indicated Mr. Lathrop had a history of
prior injury to his left shoulder in 2010. AR497. X-rays
obtained revealed mild left AC degenerative joint disease.
Lathrop was seen on September 12, 2013, and reported ongoing
bilateral shoulder pain and reduced range of motion, and mid
back pain following a "pop" during therapy four
weeks earlier. AR49O. An MRI taken following the accident
revealed a C6-7 disc herniation, and a new MRI was ordered
due to suspected C7 radiculopathy to his left upper
Lathrop was seen on September 19, 2013, for a preoperative
exam prior to anterior cervical discectomy and fusion surgery
scheduled with Dr. Adams. AR484. Mr. Lathrop reported weight
gain due to decreased activity secondary to his neck injury.
AR484. He also reported numbness in his extremities, and neck
pain. AR484. Exam revealed the cervical spine tender with
moderate pain with motion. AR486. He was cleared for surgery.
Lathrop had a C6-7 anterior cervical discectomy and fusion
performed by Dr. Adams on September 27, 2013. AR517.
Lathrop saw Dr. Adams for follow up after surgery on October
15, 2013, and reported some pain between his shoulder blades
and was wearing a c-collar. AR478. His exam was normal except
a positive Axial compression test. AR479.
Lathrop was seen again on November 19, 2013, with similar
findings and was released to return to work. AR476-77. He was
seen again on December 31, 2013, and denied neck pain or
tingling in his arms, but reported getting more migraines.
AR474-75. He was back at work and described as doing quite
Lathrop was seen again by Dr. Adams on February 18, 2014, and
reported recurrent pain between his shoulder blades beginning
a month earlier with it getting worse beginning February 12,
2014, up to a 10 and was doing some heavy lifting at work,
which made it worse. AR471-72. Dr. Adams stated Mr. Lathrop
needed to back off the amount of lifting he was doing, and
gave him a slip describing different work limitations. AR472.
Lathrop was seen on March 25, 2014, and was continuing to
have shoulder pain bilaterally, worse with any work or heavy
work. AR468-69. An anti-inflammatory was recommended and
Mobic prescribed. AR469-70.
Lathrop was seen on May 28, 2014, and reported ongoing pain
between his shoulders that "gets so bad it is hard to
breathe." AR465. Mr. Lathrop reported that the Mobic
helped but he still had pain at the end of the day, and the
Mobic dosage was adjusted. AR466. When Mr. Lathrop was seen
on July 1, 2014, he still had some pain between his
shoulders, but was described as doing quite well. AR463.
Lathrop was seen on September 25, 2014, with continued pain
between his shoulder blades. AR46O. His Mobic had
"somehow" been stopped so it was resumed. AR46O.
X-rays obtained revealed that the cranial aspect of his neck
fusion may have a pseudoarthrosis posteriorly, but Dr. Adams
stated, "I don't think he would do very well with a
posterior operation. That is the only way we can solve this
problem for him at this point. He is going through a
disability claim right now and we will continue to work with
him on this." AR46O.
Adams completed a Physician's Statement on December 23,
2014, in which he stated Mr. Lathrop was diagnosed with
cervicalgia with neck pain, and was permanently restricted to
"light duty work." AR52l.
Lathrop was seen by Dr. Judith Peterson on March 24, 2015, by
referral from Dr. Adams for back pain in his upper back,
middle back, and neck. AR53O. He described the pain as an
ache and sharp and it was aggravated by lifting, running,
sitting, standing, and twisting. AR53O. Mr. Lathrop also
reported associated migraines and problems breathing. AR53O.
Examination revealed he was overweight, neck tenderness with
decreased range of motion and pain on movement, decreased
breathing sounds bilaterally, bilateral shoulder pain with
motion, cervical spasm, mild right scap winging and thoracic
tenderness. AR532. Dr. Peterson's assessments were
cervical disc displacement with possible pseudoarthrosis, and
thoracic sprain with significant thoracic complaints. AR533.
Baclofen was prescribed and a thoracic MRI was ordered.
Lathrop was seen on March 26, 2015, after switching to
Baclofen and reported pain in lower back radiating to his
feet. AR526. X-ray of his spine showed minimal arthritis at
multiple levels with minimal multilevel degenerative disc
disease and lower facet hypertrophy, and he was switched back
off Baclofen to meloxicam (Mobic). AR522, 528, 536. X-rays of
his left leg were also obtained and revealed abnormal
convexity lateral femoral head/neck junction suggesting
femoral acetabular impingement. AR535.
Lathrop called the clinic on March 30, 2015, regarding his
thoracic MRI and was told it showed severe narrowing of nerve
spaces. AR525. Thoracic x-rays obtained on March 24, 2015,
were found normal, (AR538), but the MRI revealed upper
degenerative thoracic spondylosis, specifically:
At C7-Tl, disc osteophyte complex causes minimal central
canal stenosis and moderate bilateral neural foraminal
stenosis. At ¶ 1-2, disc osteophyte complex causes no
central canal stenosis, severe right and moderate to severe
left neural foraminal stenosis. At ¶ 2-3, disc
osteophyte complex causes no central canal stenosis, moderate
right and moderate to severe left neural foraminal stenosis.
No neural foraminal stenosis at any other level. At ¶
7-8, there is a disc osteophyte complex which causes mild
central canal stenosis.
Lathrop was seen by Dr. Peterson on April 21, 2015, for
ongoing symptoms and EMG of the thoracic paraspinals was
negative, but he still had severe pain. AR54l. Dr.
Peterson's assessment was thoracic sprain, severe
degenerative disc disease. AR54l.
Lathrop returned to see Dr. Adams on April 22, 2015, about
"arthritis in his back and is here to discuss removal of
the arthritis." AR569. Dr. Adams stated he thought the
thoracic MRI "appears normal to me. The radiologist has
read some foraminal stenosis in his thoracic spine but I
don't think this is the cause of his issues at this time.
The decompression at ¶ 6-7 looks completely appropriate
with good decompression of the anterior thecal sac."
AR571. He stated that he did not think Mr. Lathrop had any
surgical options, and "I am not exactly sure the source
of the pain and I think other treatment options for him would
be to visit a pain management physician. . . ." AR57l.
Lathrop went back to see Dr. Peterson on June 16, 2015, to
follow up on his back pain, which he reported was worsening.
AR566. He described the pain as piercing, sharp and stabbing
and aggravated by bending, lifting, sitting, and standing
with relief from lying down and medications. AR566. He also
reported fatigue, gait disturbance, headaches, and back and
neck pain. AR567. Examination revealed Mr. Lathrop was using
a cane, and motor ability was difficult to assess due to
pain. AR567. Dr. Peterson's assessment was neuralgia/
neuritis with bilateral significant thoracic pain, increased
pain by sitting and standing, and positive pain on internal
rotation of the left hip. AR567. Dr. Peterson recommended a
functional capacity assessment. AR567.
Lathrop was seen on June 23, 2015, requesting a handicap
sticker because he couldn't walk very far due to pain and
was using a cane, and also a note for his lawyer stating he
was unable to work. AR563. Dr. Frank, who was not Mr.
Lathrop's regular doctor, told him he could provide the
handicap sticker because he met the criteria for that but he
would need to see his regular doctors regarding a letter
about his ability to work. AR563.
Peterson provided testimony under oath on March 3, 2017,
regarding her treatment of Mr. Lathrop and her opinions
regarding his condition. AR313-334. Dr. Peterson's
testimony included the following:
a. Dr. Peterson attended college at Harvard, medical school
at Cornell and is board certified in physical medicine
rehabilitation, electrodiagnostic medicine, sports medicine,
and pain management. AR315-16, see AR33O (curriculum
b. Mr. Lathrop's problems breathing and shortness of
breath were likely caused by his thoracic pain. AR32O.
c. She observed Mr. Lathrop using a cane; he didn't need
it for leg weakness, and she suspected it helped him balance
because when people have a lot of spine arthritis, standing
straight upright can be painful, and the cane can really help
with that. AR32O.
d. She read a report from Dr. Janssen from Sanford, and she
had no disagreements with his report. AR320-21.
e. She referred Mr. Lathrop for a functional capacity
evaluation, reviewed the report following the evaluation, and
agreed with the report. AR32l.
f. From what she knew and reviewing the exam record of Dr.
Todd Johnson of the Siouxland Pain Clinic, she would agree
with his diagnosis of myofascial pain syndrome. AR32l.
g. When treating Mr. Lathrop she was looking at both cervical
and thoracic issues. AR322.
h. The shoulder blades are in the thoracic area and extend
over multiple thoracic vertebrae. AR325.
i. Mr. Lathrop had disc osteophytes in his thoracic area that
showed an objective cause for his mid back pain. AR326.
Avera Sacred Heart Hospital:
Lathrop was seen on September 24, 2015, and received a
cervical epidural steroid injection at ¶ 7-Tl due to
degenerative disk disease, cervical stenosis, and cervical
Lathrop was seen on April 4, 2016, and received a cervical
epidural steroid injection at ¶ 7-Tl due to cervical
Lathrop was seen on June 22, 2016, by orthopedic surgeon
Michael Espiritu, MD, with neck pain, pain between the
shoulder blades, and thoracic pain. AR628. He was seen for a
second opinion regarding whether operative treatment or
non-operative treatment was required. AR63l. Mr. Lathrop was
ambulating with a cane, and examination revealed severely
poor neck range of motion, tenderness in the cervical
paraspinal muscles, with the most tenderness around T6/7. The
gentleman who appears to have pain out of his proportion in
his shoulder girdle muscles, paraspinal muscles, paraspinals
of his thoracic spine. A lot of his symptoms actually seem
like they are pain out of proportion as well as his stiffness
because I have done this surgery before, and usually people
do not have that much loss of motion. Also x-rays do not show
significant arthritic changes at his upper levels of his
cervical spine and sub axial spine for him to lose that much
motion. All in all this may potentially be a myofascial pain
syndrome as opposed to anything that a surgeon could fix.
Still he is here for a 2nd opinion. Therefore I told him the
next step would either be we get new MRIs Of his cervical and
thoracic spine to make sure he does not have intraspinal
pathology or extraspinal pathology which could be treatment
from a surgical standpoint. However, we do not actually have
the MRI from 2015, and he wants me to look at that first
before he does anything or gets a referral.
Lathrop was seen again on July 20, 2016. AR63l. No
examination was performed, but the doctor had obtained and
reviewed his prior MRI from 2015 and found that it revealed
some upper thoracic spondylosis at ¶ 7-Tl, minimal
central stenosis, moderate bilateral neuroforaminal stenosis,
right and left side neuroforaminal stenosis at Tl-2, moderate
right to moderate severe left neuroforaminal stenosis at
¶ 2-3, and a disc osteophyte causing mild central
stenosis at ¶ 7-8. AR626-27. The doctor agreed Mr.
Lathrop was not a surgical candidate and referred him to the
Pain Clinic. AR632.
Siouxland Pain Clinic:
Lathrop was seen by Dr. Johnson on August 15, 2016, at the
pain clinic for posterior neck pain radiating into shoulders
and low back, upper thoracic pain, and mid thoracic pain with
some referred symptoms. AR638. Mr. Lathrop was noted as
having prior neck surgery, physical therapy,
antiinflammatories, and a couple of cervical epidural
injections, which had short-term benefit. AR638. Dr. Johnson
noted Mr. Lathrop's MRI revealed degenerative changes at
¶ 7-Tl, Tl-2, and T2-3 where there is moderate stenosis.
AR638. Mr. Lathrop was most tender in the upper thoracic
paraspinous muscles and lower cervical musculature. AR638.
Mr. Lathrop's pain was worse with standing, sitting,
walking, exercise, coughing, heat, movement, turning and
upright activity. He avoided yard work, shopping, recreation,
exercise, sexual activity, driving and self-care due to pain.
AR638. Mr. Lathrop reported back pain, numbness, and moderate
frequent headaches. AR639. Dr. Johnson diagnosed myofascial
pain syndrome. Dr. Johnson performed trigger point injection
of the thoracic paraspinous muscles. AR640-42.
Lathrop was seen by Dr. Johnson again on September 12, 2016,
and reported marked improvement with the prior injection with
his pain at 5/10. AR643. He complained more of mid to lower
thoracic paraspinous muscle pain. AR643. Mr. Lathrop was
ambulating with a cane and was tender to palpation over the
thoracic paraspinous muscles bilaterally. AR643. Bilateral
lower thoracic muscle trigger point injections were
Lathrop was seen on October 17, 2016, for continued thoracic
area pain and reported no relief from the prior injection.
AR646. Examination revealed cervical spine tenderness,
reduced range of motion and pain with motion. AR647. Mr.
Lathrop asked about trying Lyrica, and it was prescribed.
Bilateral C6-7 facet injections were planned pending
Lathrop was seen on October 31, 2016, for continued thoracic
area pain and low back pain and reported that he felt the
Lyrica had been beneficial. AR649. Mr. Lathrop received the
previously planned bilateral C6-7 facet injections. AR652-53.
Lathrop was seen on March 16, 2017, with complaints of neck
pain with headaches and lower back pain radiating down the
leg. AR657. Mr. Lathrop reported significant benefit from his
prior injection and received additional bilateral C6-7 facet
injections. AR655-57. Dr. Johnson stated that the pathology
on Mr. Lathrop's MRI coincides with his pain pattern.
Lathrop was seen on May 5, 2016, for an independent medical
examination by Dr. O'Neil at the request of Merit Medical
related to the car accident injury claim. AR592. Mr. Lathrop
reported that while attempting to work after the car accident
he had work restrictions, and when he requested an extension
of the restrictions he was placed on short-term disability,
and then fired when his FMLA expired and his short-term
disability was denied. AR594.
O'Neil reviewed records and tests from immediately
following Mr. Lathrop's car accident on July 3, 2013,
which included a lumbar spine MRI that showed a small right
foraminal disk herniation at ¶ 4-5 with contact of the
exiting right L4 nerve root, and minimal grade 1
retrolisthesis at ¶ 5-Sl. AR597.
O'Neil reviewed the initial treatment records from the
emergency room after the rear-end automobile accident, and
the records showed that in the emergency room following the
collision Mr. Lathrop reported lower back pain and pain
between his shoulder blades in addition to neck pain. AR597.
Dr. O'Neil stated:
I do not have a plausible explanation for his ongoing
complaints of mid and upper thoracic and periscapular pain
without any objective physical findings. All of his
complaints are subjective. He does not have any palpable
increase in muscle tone in these areas. His x-rays and MRI do
not explain his complaints of pain. I also do not have a
plausible explanation for why he requires the cane in his
right hand for ambulation. He does not appear to be depending
on the cane for any of his movements. Furthermore, I do not
have a plausible explanation for his inability to passively
and actively lift his arms beyond 110 degrees of flexion and
O'Neil reviewed the functional capacity evaluation and
noted that the study met the validity criteria and was deemed
valid, but stated a repeat evaluation would be helpful
because there was no mention of Mr. Lathrop's ability to
actively or passively move his arms in flexion or abduction.
Sanford Spine Center Clinic:
Lathrop was seen on July 1, 2016, for an independent medical
examination by Dr. Janssen. AR572. Mr. Lathrop reported that
he attempted to go back to work in December, 2013, and
January, 2014, after his neck surgery in September, 2013, but
was missing work 1-2 days per week due to pain. AR574. He
said he was kept on restricted duty for six months with a
lifting restriction of 20 pounds. AR574. He reported in the
fall of 2014 he was placed on short-term disability by his
employer for 1 xfa months and fired in
December 2014. AR574.
time of the exam, Mr. Lathrop reported ongoing pain in his
neck and shoulder blades, and ongoing headaches 1-4 times per
week. AR575. Mr. Lathrop reported using a cane when he walks
because without it he leans forward, and the cane helps him
to walk more straight. AR575.
Janssen stated that Mr. Lathrop's March 26, 2015,
thoracic spine MRI revealed degenerative spondylosis at
levels Tl-T2, T2-T3, and T7-T8, and noted that, on March 30,
2015, Dr. Peterson noted that the MRI showed severe narrowing
of the nerve spaces. AR582.
Janssen reviewed records and tests from immediately following
Mr. Lathrop's car accident on July 3, 2013, which
included a lumbar spine MRI that revealed at ¶ 4-L5 a
small to moderate right foraminal disk herniation, which
contacts the exiting right L4 nerve root and at ¶ 5-S1 a
possible left small foraminal disk herniation. AR579. Dr.
Janssen stated the conclusion was no acute post-traumatic
osseous pathology with no posterior paraspinal muscular edema
or hematoma. AR579.
Janssen reviewed the initial treatment records from the
emergency room after the rear-end automobile accident and
records showed that in the emergency room following the
collision Mr. Lathrop reported lower back pain and pain
between his shoulder blades in addition to neck pain. AR579.
Janssen stated he reviewed the functional capacity evaluation
report prepared by Craig Riley from his assessment performed
on July 21, 2015, and agreed with the findings and
recommendations in the report. AR586.
Janssen also reviewed the examination report from Dr.
O'Neil and specifically disagreed with Dr.
O'Neil's assertion that he was unable to identify
injuries to Mr. Lathrop's thoracic spine area resulting
from the motor vehicle collision and that he had no plausible
explanation for Mr. Lathrop's ongoing pain in the
thoracic area. AR589. Dr. Janssen stated:
It is established in the medical literature that disk
injuries to the lower cervical spine can radiate to both the
cervical and thoracic area. This is also something that I
commonly see in my clinical practice. Mr. Lathrop had a disk
injury to the C6-C7 level, which can commonly radiate to the
neck, bilateral shoulders, as well as the upper back area.
Therefore, to a reasonable degree of medical probability,
there is a plausible explanation for Mr. Lathrop's
ongoing complaints of mid and upper thoracic and parascapular
pain. The explanation is his disk injury at ¶ 6-C7 which
Proactive Physical Therapy: July 2015 Functional Capacity
Lathrop was seen for a functional capacity evaluation by
Craig Riley, a licensed physical therapist, on July 20-21,
2015, utilizing the Blankenship System. AR6O5. Total
examination time was 3.5 hours over a period of two days.
AR6O5. The evaluation was found valid with validity checks
indicating "excellent effort and valid results."
evaluation found that Mr. Lathrop demonstrated a
"HIGH" pain profile, but did not demonstrate any
symptom or disability exaggeration. AR6O5.
evaluation found that Mr. Lathrop could perform less than the
full range of LIGHT category work with specific exceptions to
LIGHT work including: Mr. Lathrop cannot do any frequent
lifting at any weight, and even occasional lifting is
restricted, he does not have the ability to push or pull
objects as a material handling capability, he cannot lift,
carry, push or pull at the frequent or constant material
handling frequency. AR6O5, 607. Mr. Lathrop could not lift
any weight, even occasionally, overhead. AR6O7. He was
restricted to only occasional bending, reaching, squatting,
kneeling, and climbing, and never crawling. AR6O7. Mr.
Lathrop's hand functions were limited to low speed
assembly (non production rate) only, with no pushing or
pulling capability. AR6O7, 613. Mr. Lathrop did not
demonstrate non-material handling reaching ability. AR6O9.
Lathrop demonstrated lumbar spine limitations including 25%
range of motion loss with bending, slow speed of movement,
and abnormal movement pattern that correlated to his pain
rating with overall only occasional non-material handling
bending ability. AR610. Mr. Lathrop was observed to not
overreact to his symptoms of pain. AR610.
Lathrop demonstrated hip and knee limitations including 50%
range of motion loss with squatting, slow speed of movement,
and abnormal movement pattern that correlated to his pain
rating with overall no non- material handling squatting
ability. AR610. Mr. Lathrop was observed to not overreact to
his symptoms of pain. AR610.
Lathrop demonstrated moderate range of motion loss with
cervical side bending, rotation and protrusion, and major
range of motion loss with cervical flexion, retraction, and
extension. AR6O5. Mr. Lathrop was observed to hold his neck
in a very stiff posture, and his movement pattern matched his
pain complaints fairly well. AR6O9.
Great Plains Therapy:
Lathrop received physical therapy treatment in 2013 for his
neck, back, and abnormal posture. AR42O. When treated on
August 1, 2013, Mr. Lathrop was extra sore after starting
back to work even with light duty. AR421. He had severe
decreased ROM of his neck and shoulders due to pain and
muscle guarding. AR42l. By August 21, 2013, the physical
therapy records indicated Mr. Lathrop was no longer working.
AR426. The appeal record documented that Mr. ...