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Espinoza v. Berryhill

United States District Court, D. Colorado

August 13, 2018

NICHOLAS PAUL ESPINOZA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff, Nicholas Paul Espinoza, appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying his application for disability insurance benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-33, and his application for supplemental security income benefits (“SSI”), filed pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83c. I find that the ALJ properly analyzed the opinion statements of Mr. Espinoza's treating physician. Additionally, the ALJ did not err in formulating Mr. Espinoza's residual functional capacity (“RFC”). Accordingly, I affirm the ALJ's decision that Mr. Espinoza is not disabled.

         BACKGROUND

         I. Mr. Espinoza's Relevant Medical History

         Mr. Espinoza was born on August 3, 1983; he was thirty-one years old when he filed his application for DIB and SSI. [AR 178]. Mr. Espinoza claims he became disabled on October 1, 2014 due to physical impairments. [Id.]

         In February 2012, Mr. Espinoza began seeing Dr. Lisa K. Gieseke at Cornerstone Family Practice for sleep apnea, asthma, tonsillitis, and elevated blood pressure. [AR 557]. Dr. Gieseke listed Mr. Espinoza's allergies as pollens, dust, animal dander, mold, tree spars, and grasses. [Id.] Dr. Gieseke ordered Mr. Espinoza a new mask for his CPAP machine and refilled his asthma medication. [AR 558]. At a follow-up appointment on March 6, 2012, Dr. Gieseke reported that Mr. Espinoza was experiencing wheezing and joint pain. [AR 554-55]. However, the results of his physical exam were normal. [AR 555]. Mr. Espinoza regularly visited Dr. Gieseke at least through the SSA's denial of his application. [AR 536-53].

         In November 2013, Dr. Gieseke referred Mr. Espinoza to Dr. Katherine Tsai for a consultation regarding his allergies and asthma. [AR 436]. Dr. Tsai performed allergy skin testing and a spirometric evaluation, both of which appeared normal. [Id.] Dr. Tsai told Mr. Espinoza to start using Zyrtec to control his allergies. [AR 416]. Shortly thereafter, Dr. Gieseke allowed him to return to work with no restrictions. [AR 437].

         Mr. Espinoza returned to Cornerstone Family Practice with complaints of back pain on February 24, 2014. [AR 412]. Dr. Gieseke noted that Mr. Espinoza had chronic back pain, and she referred him to Rocky Mountain Osteopathic Medicine (“RMOM”) for a consultation and physical therapy. [AR 413].

         Two days later, Mr. Espinoza visited Dr. Mark C. Winslow at RMOM. [AR 351]. Mr. Espinoza informed Dr. Winslow that he fractured his vertebra six or seven years prior. [Id.] He reported his current lower back pain as six out of ten. [Id.] Dr. Winslow ordered an x-ray to confirm a potential stress fracture in Mr. Espinoza's lower back. [AR 355]. Although the x-ray did not reveal a spinal fracture, it showed a “[n]ondisplaced bilateral L5 pars defects.” [AR 465]. Dr. Winslow also informed Mr. Espinoza that his moderate to severe obesity is contributing to his lower back pain, and he has “[v]ery poor use of hips.” [AR 355]. Dr. Winslow recommended osteopathic manipulative treatment and set a follow-up appointment for one week later. [AR 355-56].

         Also on February 26, 2014, Mr. Espinoza visited Candice Brueck for physical therapy. [AR 345-50]. Ms. Brueck's evaluation of Mr. Espinoza revealed “lumbar extension/rotation syndrome.” [AR 350]. She created short-term and long-term goals and recommended physical therapy one to two times per week. [Id.]

         On March 6, 2014, Dr. Winslow performed sixty minutes of therapeutic exercises designed to increase Mr. Espinoza's flexibility, strength, and balance. [AR 343]. Dr. Winslow informed Mr. Espinoza that he may want to participate in a professional weight management program to improve his back pain. [AR 344]. Dr. Winslow recommended that Mr. Espinoza remain off work until the following week due to his back pain. [Id.]

         Mr. Espinoza continued to regularly see Dr. Winslow for approximately six months. [AR 366]. During many of these visits, he also had a physical therapy session with Ms. Brueck. [AR 339]. Mr. Espinoza was unable to work as a bus driver during this time. [AR 331, 335]. On March 14, 2014, Dr. Winslow noted that Mr. Espinoza tolerated exercise well but had difficulty engaging his hamstrings. [AR 340]. During physical therapy on March 20, 2014, Ms. Brueck stated that Mr. Espinoza was able to exercise well and had better recruitment of abdominals; however, he complained of increased pain. [AR 339]. Approximately two weeks later, Dr. Winslow and Ms. Brueck noted that Mr. Espinoza was involved in a recent car accident that increased his pain and inability to walk. [AR 320, 329].

         On April 11, 2014, Mr. Espinoza underwent an MRI of his lumbar spine. [AR 299-300]. The MRI revealed minor shallow broad based disc protrusion at ¶ 1-2, negligible posterior disc bulge at ¶ 2-3, coincidental nondisplaced bilateral pars interarticularis defects at ¶ 5-S1, but no osseous trauma or spondylolisthesis. [AR 300].

         During an April 18, 2014 visit with Dr. Winslow, Mr. Espinoza reported intermittent pain that increases while standing. [AR 316]. Because of this he stated that he “[d]oes not feel ready to return to work.” [AR 315, 327]. Dr. Winslow reviewed the results of his MRI and performed sixty minutes of osteopathic manipulation. [AR 317-18].

         On May 14, 2018, Dr. Winslow worked on additional therapeutic exercises with Mr. Espinoza. [AR 312]. Dr. Winslow noted that “recent exacerbation seems to have improved, ” and “the patient is safe to return to work activities . . . .” [AR 313]. On June 13, 2014, Mr. Espinoza reported having “good relief” from his back pain after an injection. [AR 306]. However, he noticed increased pain when he began working due to the seat bouncing while driving the bus. [AR 308]. As a result, Dr. Winslow noted, “If patient fails to improve m[a]y need to consider a different line of work due to his underlying back complaints and preexisting medical problems.” [AR 308]. By June 27, 2014, Mr. Espinoza stopped working due to his back pain. [AR 309, 375].

         Mr. Espinoza had another injection on July 25, 2014, which decreased his pain level to three out of ten. [AR 379]. Mr. Espinoza reported to Ms. Brueck that he would try to return to work without restrictions. [Id.] However, on August 22, 2014, Dr. Winslow noted that Mr. Espinoza “tried to return to work and again [was] unsuccessful in spite of modifications in mechanics, back brace, [and] seat cushion.” [AR 369].

         During Mr. Espinoza's September 19, 2014 osteopathic manipulation appointment, Dr. Winslow stated that Mr. Espinoza “has attempted to return to work several times and in my opinion he will not be able to return due to persistent lower back pain.” [AR 366]. On the same day, Mr. Brueck noted that Mr. Espinoza “has not been compliant with his home program, ” and he should “consider weight loss surgery.” [AR 368]. Because Mr. Espinoza had received only limited relief from therapy at RMOM, Dr. Winslow terminated his care. [AR 366].

         On May 19, 2016, Mr. Espinoza visited Dr. Gieseke regarding his ongoing back pain and his pars fracture at ¶ 4-5. [AR 530]. Mr. Espinoza reported to Dr. Gieseke that his injections have failed to eliminate his back pain, and he wants to undergo surgery but cannot proceed due to his weight. [Id.]

         On June 27, 2016, Mr. Espinoza told Dr. Gieseke that he had been out of his new job as a customer service representative for two and one half weeks due to his back pain. [AR 528]. He described his pain as “radiat[ing] everywhere” and “sharp and stabbing.” [Id.] However, Mr. Espinoza reported that medical marijuana has been relieving his pain. [Id.] Dr. Gieseke encouraged Mr. Espinoza to return to work. [AR 529].

         In his July appointment with Dr. Gieseke, Mr. Espinoza stated that his back pain “seems to be improving, ” but he still uses a cane to walk and complete his work duties. [AR 526]. He requested a referral for bariatric surgery, even though he has lost some weight on his own. [Id.] Dr. Gieseke referred him to Dr. Georgescu. [AR 527].

         Mr. Espinoza visited the emergency room at Denver Health Medical Center on October 28, 2016, where he was diagnosed with a lumbar sprain. [AR 449]. Mr. Espinoza was discharged after being provided with information on lambrosacral strains. [Id.]

         On November 1, 2016, Mr. Espinoza returned to see Dr. Gieseke and noted he had lost almost one hundred fifty pounds without seeing any improvement in his back pain. [AR 523]. He told Dr. ...


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