United States District Court, D. Colorado
Mark J. Long, Plaintiff,
v.
Nancy A. Berryhill, as Acting Commissioner of the Social Security Administration, Defendant
ORDER
RAYMOND P. MOORE United States District Judge.
Defendant
Berryhill, Acting Commissioner of the Social Security
Administration (SSA), denied Plaintiff Long's application
for social security disability insurance benefits (DIB) under
Title II of the Social Security Act (Act, 42 U.S.C. §
401, et seq.). An administrative law judge (ALJ)
ruled that Long was not disabled within the meaning of the
Act, and this action comes here on Long's request for
judicial review under 42 U.S.C. § 405(g). Before the
Court are the entire administrative record (ECF No. 8 with
exhibits (cited herein as “R. [page number(s)]”))
and the complete briefing of the parties (ECF Nos. 12, 13).
The matter is ripe for determination. For the reasons that
follow, the Court AFFIRMS the denial of
Long's DIB.
I.
BACKGROUND
Long, a
high school graduate born in 1962, worked as a letter carrier
for the U.S. Postal Service for 28 years. (R. 56, 62, 109.)
In April 2012, he received a hip replacement. (R. 340-41.) In
July 2011 and June 2012, he had surgeries to repair both
shoulders. (R. 34, 351-59.) On February 12, 2014, he sought
DIB, reporting shoulder impairments, degenerative disc
disease in his neck and back, multiple joint arthritis, and
severe back pain going back to December 2012. (R. 102, 111,
215.) Before reaching this Court, Long filed a DIB claim and
had a hearing before an ALJ. Ultimately, the SSA determined
he was not disabled and therefore not entitled to DIB. (R.
25-48, 102-11.) In support of his claim, Long provided
documentation from several medical providers and his own
testimony. A vocational expert also testified before the ALJ.
a.
Jean Bouquet, D.O. (Physician)
Dr.
Bouquet has treated Long since July 2009. (R. 432.) On
November 21, 2012, Long reported lower back pain, for which
he received Oxycodone. (R. 406.) On December 27, Dr. Bouquet
diagnosed peripheral neuropathy and left olecranon bursitis,
injected Long's left elbow with Kenalog, and prescribed
Cymbalta, which Long found helpful with the pain. (R. 388-89,
405.) On January 31, 2013, Long reported pain in his
shoulders, hip, and lower back. Dr. Bouquet performed an
exam, which revealed paravertebral spasms in the lumbosacral
area, and diagnosed degenerative disc disease of the lumbar
spine. He prescribed Oxycodone. (R. 404.)
On
March 18, 2013, Long returned for medication refills, at
which time he stated that he was sweating on Cymbalta, but
that it was working well and his pain was well-controlled.
(R. 403.) One month later, the doctor stopped Cymbalta
because Long reported ringing in his ears but re-prescribed
Lunesta for sleeplessness. (R. 402.) On June 11, Long
returned reporting heightened activity and resulting
increased back pain, for which he again received Oxycodone.
(R. 400-01.) Two weeks later, he was back for his shoulder
pain. (R. 399.) On August 12, Dr. Bouquet assessed opioid
dependency, stress, and neck and shoulder pain, for which
Long received additional Oxycodone. (R. 398.) Long returned
on September 9 for lower back, shoulder, and neck pain but
received no additional medication. (R. 397.)
On
November 12, 2013, Long reported morning stiffness
“that disappears after a few.” Dr. Bouquet
assessed lower back pain and osteoarthritis and prescribed
more Oxycodone. (R. 396.) On December 17, Long continued to
recount “generalized joint/back pain not currently
well-controlled” that increased with cold weather. At
this point, the doctor discontinued Oxycodone to see if the
pain and fatigue could be well-controlled with Tramadol. (R.
395.) On January 8, 2014, Long received refills. (R. 394.) On
March 4, Long came back with more reports of pain in the neck
(while driving) and back that prevented him from sitting in
chairs and made getting up in the morning difficult. He also
“couldn't get up at [the] avalanche game.”
Dr. Bouquet noted the same type of pain discussed above,
re-prescribed Oxycodone, and added Oxycontin (R. 393.) The
April 2 assessment was similar. (R. 392.)
On May
8, 2014, Mr. Long stated his pain was “stable”
over the previous month, but he had increased fatigue during
the day and did more sitting and watching television than
usual. Dr. Bouquet prescribed OxyContin, Oxycodone, and
Alprazolam. (R. 418). The next month, Long stated he was in
“a lot of pain.” It was “[n]othing out of
the ordinary [and] getting a little better.” He had
“[s]ome withdrawals” and “not a good
month.” He added that he had applied to be a police
dispatcher. (R. 417). On July 22, Long complained of
left-sided low back pain radiating to the scapula and right
hip pain. Dr. Bouquet assessed straight leg, raising on the
right, and added Prednisone to Long's other medications.
(R. 416.) On September 22, Long relayed more low back pain
radiating up to the neck. His medications were refilled on
November 18, 2014 (“[Patient] states that the
medications are working well”) and January 15, 2015
(“was in a quarry swimming”). (R. 414-15.)
On
January 15, 2015, Dr. Bouquet filled out a “Disability
Impairment Questionnaire” provided by Long's
counsel. (See R. 432-36.) In it, the doctor reported
diagnoses of degenerative disc disease of the lower spine,
degenerative joint disease of the right hip, and degenerative
joint disease of both shoulders-all supported by “MRI
findings.” (R. 432.) He described the pain as a
“dull ache” that occurred daily, which was
aggravated by sitting, driving and exertion. Other than the
medications described above, Dr. Bouquet reported Long's
additional treatments of hip replacement, bilateral shoulder
surgeries, and physical therapies. (R. 433.) According to Dr.
Bouquet on this form, Long could not sit or stand for more
than one hour in an 8-hour workday, it was medically
necessary for Long to avoid continuous sitting, he would need
to get up every hour for at least ten minutes, and he could
never lift or carry any weight (even 0-5 pounds). (R. 434.)
The form opines that Long could “never/rarely”
grasp, turn, and twist objects; use hands or fingers for
manipulation; or use arms for reaching. He would need to take
unscheduled breaks every thirty-to-sixty minutes for at least
thirty minutes and would have to be absent from work more
than three times per month. (R. 435-36.)
On
March 10, 2015, Long reported continued low back and neck
pain, and Dr. Bouquet substituted Opana for OxyContin and
Oxycodone. (R. 479.) The doctor refilled the medications on
April 7, 2015. (R. 478.) On April 28, 2015, Long reported new
right knee pain, and a subsequent MRI revealed evidence
consistent with a chronic tear. (R. 469-70, 477.) At a
follow-up on August 4, 2015, Long stated he was having
problems with dropping objects. (R. 474.)[1]
On
November 19, 2015, Dr. Bouquet completed a second
“Disability Impairment Questionnaire, ” which
contained largely the same information as the first except
Long could now “occasionally” lift and carry up
to, but never more than, ten pounds. (R. 503-07.)
b.
Dr. Genuario, M.D. (Orthopedic Surgeon)
On June
7, 2011, Dr. Genuario examined Long and reported tenderness
in the neck, tightness in both trapezii, tenderness over the
greater tuberosity on the left (none on the right), mild
tenderness over the biceps, full motion, impingement signs on
the left, cuff strength limited by pain, but 4 with
supraspinatus testing. (R. 331.) Long had left shoulder
surgery shortly thereafter, right shoulder surgery on June
28, 2012, and initially followed up with Dr. Genuario on July
9, August 6, August 20, September 19, October 10, October 22,
November 12, and December 10. Notes from this period indicate
markedly improved range of motion, good strength, some
stiffness, tiredness and achiness with long walks, aggressive
physical therapy, and-at the end of that time frame-some
limited work of two hours per day that the doctor planned to
continue. (R. 301-10.) By March 15, 2013, Long showed
“excellent range of motion . . . [and] continued
clinical improvement, but still marked limitation with
overhead activities and repetitive duty.” (R. 300.)
On
October 23, 2013, Dr. Genuario saw Long for complaints of
increasing pain and numbness and documented trace tenderness
of the right bicipital groove, forward flexion to 165 degrees
bilaterally, weakness of 4/5 on the right compared to 4 on
the left with empty can test, and discomfort with internal
range of motion to T12 bilaterally. (R. 365.) On November 4,
reviewing a recent MRI, Dr. Genuario noted mild joint
degenerative changes and recommended a home exercise program
because Long stated “overall the pain in his shoulder
is not significant[] enough to look at doing a cortisone
injection at this point.” (R. 298.)
c.
Dr. Stanley, M.D. (Orthopedic Surgeon)
Dr.
Stanley evaluated Mr. Long on January 17, 2013 for symptoms
related to his back and neck pain. As Dr. Stanley reports,
“On examination, [Long] has 5/5 strength throughout his
upper and lower extremities. Muscle tone is normal. Deep
tendon reflexes and sensation are symmetric. He does have
pain on palpation centrally and paraspinally and the base of
his neck as well as the base of his low back.” Dr.
Stanley diagnosed severe degenerative disc disease in the
cervical spine at ¶ 4-5 and C5-6 with foraminal stenosis
and lumbar spine degenerative disc disease at ¶ 1-2 and
L2-3 based on a December 11, 2012 MRI. (R. 388.) Dr.
Stanley's report on March 15, 2013 is nearly identical.
(R. 389.)
d.
Dr. Westerman, D.O. (Physician)
Dr.
Westerman evaluated Mr. Long for joint pain on December 11,
2013. (R. 369.) The physical examination reflects
“painless arc of motion in all planes, no crepitance,
” “no paraspinous muscle tenderness, no tender or
trigger points found, ” and normal degree of lordosis
present” for the cervical spine; “no deformities
present, ” full painless arc of motion and normal chest
expansion, ” and “no vertebral or costo vertebral
angle percussion tenderness” for the thoracic spine;
“no deformities, ” “no percussion
tenderness or tender trigger points, “full range of
motion in all planes [and] no pain on ROM, ” and
“straight leg raise test negative, FABER test negative
bilaterally” for the lumbar spine; “no tenderness
[or] swelling, ” “range of motion: full and
painless in all planes, ” “no joint instability,
” “no evidence of impingement, ” and a 5/5
for strength for his shoulders; “no tenderness [or]
swelling, ” “range of motion: full and painless
in all planes, ” “knee stable, ” and
“McMurray's sign negative [and] patella
apprehension test negative” for his ...