Vaughan v. Commissioner of Social Security

          MICHAEL H. WATSON, JUDGE

          REPORT AND RECOMMENDATION

          Terence P. Kemp United States Magistrate Judge

         I. Introduction

         Plaintiff, 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.

         After 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 review.

         After 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 decide.

         II. Plaintiff's Testimony at the Administrative Hearing

         Plaintiff, 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.

         Plaintiff 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 work.

         Next, 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.

         Plaintiff 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 far 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.

         III. The Medical Records

         The pertinent medical records are found beginning at page 244 of the record. They can be summarized as follows.

         In 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.

         Plaintiff 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).

         Dr. 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).

         Plaintiff 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).

         Dr. 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 ...