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Lathrop v. Berryhill

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

November 21, 2016

MICHAEL JAMES LATHROP, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff, 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.[1]

         Mr. 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 proceedings.

         This 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).

         FACTS[2]

         A. Statement of the Case

         This 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).

         Mr. Lathrop's SSDI claim was denied initially and upon reconsideration, although the initial denial notice does not appear in the appeal record. AR89.[3]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. AR105.

         Mr. 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, 32.

         At Step One[4] 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.

         At Step 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.

         The ALJ 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.

         The ALJ 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.

         The ALJ 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.

         The ALJ 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. AR13.

         The ALJ 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.

         As Step 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 "Listings"). AR13.

         In 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 Listing. AR13.

         The ALJ 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.

AR14.

         The ALJ 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 decision." AR15.

         The ALJ 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.

         The ALJ 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. Lathrop. AR18.

         The ALJ 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.

         The ALJ 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.

         The ALJ 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.

         The ALJ 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.

         The ALJ 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.

         The ALJ 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, 213.

         Based on the RFC determined by the ALJ, the ALJ found Mr. Lathrop was not capable of performing any past relevant work. AR2O.

         At Step 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# 794.687-058. AR2l.

         Mr. 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.

         B. Plaintiffs Age, Education and Work Experience

         Mr. Lathrop was born in 1974 and completed high school in 1993, and a tool and dye training class in 1993. AR185, 219.

         The ALJ 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 packaging. AR349.

         C. Relevant Medical Evidence

         1. Yankton Medical Clinic:

         Mr. 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.

         Mr. 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. AR516.

         Mr. 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 extremity. AR492.

         Mr. 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. AR488.

         Mr. Lathrop had a C6-7 anterior cervical discectomy and fusion performed by Dr. Adams on September 27, 2013. AR517.

         Mr. 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.

         Mr. 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 well. AR475.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         Dr. 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.

         Mr. 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. AR533.

         Mr. 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.

         Mr. 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.

AR537.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         Dr. 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 vitae).
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.

         2. Avera Sacred Heart Hospital:

         Mr. 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 spondylosis. AR62l.

         Mr. Lathrop was seen on April 4, 2016, and received a cervical epidural steroid injection at ¶ 7-Tl due to cervical radiculopathy. AR622.

         3. CNOS Dunes Clinic:

         Mr. 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 doctor stated:

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.

AR629.

         Mr. 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.

         4. Siouxland Pain Clinic:

         Mr. 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.

         Mr. 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 administered. AR644-45.

         Mr. 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 approval. AR647.

         Mr. 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.

         Ms. 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. AR658.

         5. OrthoWest Clinic:

         Mr. 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.

         Dr. 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.

         Dr. 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 abduction.

AR6O2.

         Dr. 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. AR6O3.

         6. Sanford Spine Center Clinic:

         Mr. 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.

         At the 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.

         Dr. 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.

         Dr. 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.

         Dr. 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.

         Dr. 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.

         Dr. 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 required surgery.

AR589.

         7. Proactive Physical Therapy: July 2015 Functional Capacity Evaluation (FCE)

         Mr. 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." AR6O5.

         The evaluation found that Mr. Lathrop demonstrated a "HIGH" pain profile, but did not demonstrate any symptom or disability exaggeration. AR6O5.

         The 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.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         8. Great Plains Therapy:

         Mr. 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. ...


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