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Long v. Berryhill

United States District Court, D. Colorado

May 10, 2019

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 ...


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