United States District Court, S.D. Ohio, Eastern Division
MICHAEL H. WATSON, JUDGE
REPORT AND RECOMMENDATION
Terence P. Kemp United States Magistrate Judge
Justin Vaughan, filed this action seeking review of a
decision of the Commissioner of Social Security denying his
application for disability insurance benefits. That
application was filed on January 18, 2013, and alleged that
Plaintiff became disabled on October 26, 2012.
initial administrative denials of his claim, Plaintiff was
given a hearing before an Administrative Law Judge on
December 9, 2014. In a decision dated March 27, 2015, the ALJ
denied benefits. That became the Commissioner's final
decision on April 21, 2016, when the Appeals Council denied
Plaintiff filed this case, the Commissioner filed the
administrative record on August 22, 2016. Plaintiff filed a
statement of specific errors on December 1, 2016. The
Commissioner responded on March 23, 2017. Plaintiff filed a
reply brief on May 9, 2017, and the case is now ready to
Plaintiff's Testimony at the Administrative
who was 38 years old as of the date of the administrative
hearing and who withdrew from high school in the twelfth
grade, testified as follows. His testimony appears at pages
34-59 of the administrative record.
first said that he had not worked since 2013, nor had he
looked for work since then. His past work included being an
assistant manager for an auto parts store, a job which
required constant standing and walking as well as heavy
lifting, and being self-employed framing houses. He then
worked at Fast Lube as an assistant manager and at two
different apartment complexes doing maintenance and office
Plaintiff's back condition was discussed. He had had four
back surgeries between 1999 and 2013. He continued to see a
doctor in Spokane, Washington, because that was where his
workers' compensation claim was pending. He was not
currently taking any pain medication. After sitting on an
airplane for five hours, his left leg was completely numb and
he had pressure and swelling in his back. He was permitted to
stand during the flight.
described his back pain as a searing pain in the left side of
his back which radiated to his foot and occasionally to his
chest and arm. He rated his daily pain level as six or seven
out of ten when he was totally inactive. Walking, standing,
lifting, and weight-bearing all made it worse, as did
physical therapy. He discontinued all medications in 2013
because they were negatively affecting his daily living. He
was able to sit if he kept all of his weight on the right
side of his body, but he could only do that for about thirty
minutes at a time. He could stand for only five to ten
minutes and his leg would lock up after walking any distance.
Ordinarily, he spent six or seven hours per day lying down.
as other physical activities, Plaintiff said he could not
bend down to floor level, could kneel if he had something to
hold on to, could lift up to twenty pounds rarely, and could
carry groceries. He also had pain from a herniated thoracic
disc. He was able to drive his daughter to school and did
some household chores, but for short periods of time. He
could no longer hunt or water-ski. He had started a work
hardening program as well but was unable to complete it due
to pain and spasms.
The Medical Records
pertinent medical records are found beginning at page 244 of
the record. They can be summarized as follows.
January, 2013, Plaintiff underwent back surgery at Providence
Sacred Heart Medical Center. He had a recurrent L5-S1
diskectomy and right L3-L4 diskectomy. Only a few weeks
later, he suffered injuries when a porch roof collapsed on
him. CT scans done at that time were negative for any acute
injuries. He was able to walk upon discharge and was given
head injury instructions. (Tr. 244-59). When he was seen six
weeks post-surgery, he was described as being much improved
and in only moderate pain. He did report, however, residual
low back pain caused by sitting and increased left leg pain
while walking. (Tr. 260-61). Treatment records show that he
was being treated for chronic low back pain before the
surgery and that surgery was recommended due to a new disc
herniation, which may have resulted in his seeking emergency
room treatment on October 29, 2012.
continued to report back and leg pain throughout 2013. X-rays
taken in May, 2013, showed normal alignment of the spine but
disc degeneration at both L4-5 and L5-S1. (Tr. 384). An MRI
taken in July, 2013, showed mild to moderate dessication from
L3 through S1 and mild congenital narrowing of the spinal
canal. Some disc protrusion was noted as well. (Tr. 385-86).
Rose performed a consultative physical examination on July
24, 2013. Plaintiff reported four back surgeries since 1999
and continuing low back and left leg pain. He said he could
walk half a mile, sit for 25 minutes at a time, and stand for
30-45 minutes. Examination did not reveal any specific
tenderness but there were limitations in his range of motion.
His balance was adequate and his gait was normal. Dr. Rose
diagnosed failed back syndrome with multilevel degenerative
disc disease as well as foraminal stenosis. (Tr. 387-89).
also underwent a psychological assessment, which was done by
Dr. Higgins on June 29, 2013. Plaintiff reported depression
which interfered with his working, and also was in the
process of withdrawing from his pain medication (morphine).
He did not report significant difficulty with activities of
daily living but said he could focus for less than five
minutes. Plaintiff's affect was euthymic and his memory
was intact. Dr. Higgins diagnosed a pain disorder and opioid
dependence and rated Plaintiff's GAF at 54. She thought
he could cope with simple job instructions, could interact
appropriately with the public under low-stress conditions,
could interact with supervisors and co-workers who were
tolerant and sympathetic, and could not deal with changes in
a routine work setting. (Tr. 392-94).
Julsen, Plaintiff's treating physician, completed a
lumbar spine residual functional capacity report on March 13,
2014. He noted the following symptoms: limited range of
motion and tenderness in the lumbar spine and sensory loss
and muscle weakness in the left leg. He also stated that
repetitive activity resulted in complete immobility for a
week or more unless narcotic pain medications were used. Dr.
Julsen said that Plaintiff's pain increased with
prolonged standing or sitting and that he could sit only for
an hour and stand for an hour in an eight-hour work day. He
would also need to alternate standing and sitting every ten
minutes. Additionally, Dr. Julsen determined that Plaintiff
could not lift more than ten pounds and that Plaintiff's
pain would continuously interfere with his attention and
concentration. Lastly, he would have to take work breaks
every hour and would miss work three or more times per month.
(Tr. 395-401). Dr. Julsen essentially repeated these findings
in a later report. His attached ...