Booker v. Commissioner of Social Security et al

Filing 20

AMENDED REPORT AND RECOMMENDATION: 1. Plaintiff's Motion for Summary Judgment Docket No. 8 be DENIED; and 2. Defendant's Motion for Summary Judgment Docket No. 12 be GRANTED. Objections to R&R due by 6/18/2009 Signed by Magistrate Judge Susan R. Nelson on 06/08/2009. (MMP) Modified TEXT on 6/9/2009 (MMP).

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ______________________________________________________________________________ James R. Booker, Plaintiff, v. Michael J. Astrue, Commissioner of Social Security, Defendant. Gerald Weinrich, Esq., Weinrich Law Office, 400 South Broadway, Suite 203, Rochester, Minnesota, 55904, for Plaintiff. Lonnie Bryan, Esq., United States Attorney's Office, 300 South Fourth Street, Suite 600, Minneapolis, Minnesota 55415, for Defendant. SUSAN RICHARD NELSON, United States Magistrate Judge Pursuant to 42 U.S.C. § 405(g), Plaintiff James R. Booker seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), who denied Plaintiff's application for disability insurance benefits. Both parties have filed motions for summary judgment, [Docket Nos. 8 and 12], and the motions have been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and District of Minnesota Local Rule 72.1. For the reasons set forth below, the Court AMENDED REPORT AND RECOMMENDATION Civil No. 08-5346 (PAM/SRN)

recommends that Plaintiff's motion be denied and Defendant's motion be granted.

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I.

BACKGROUND A. PROCEDURAL HISTORY

Plaintiff James Booker applied for disability insurance benefits and supplemental security income (SSI) on August 26, 2003, with a protective filing date of June 19, 2003. (Admin. R. at 81-84, 766-69). He alleged a disability onset date of March 3, 2003, due to chronic disc disease in his spine, chronic low back pain, chronic abdominal pain secondary to scaring from multiple surgeries including gastric by-pass, arthritis in the hands and knees, asthma and/or chronic obstructive lung disease (COPD), fibromyalgia, chronic pain syndrome, coronary artery disease, seizures, severe allergies, and chronic dermatitis. (Id.). The applications were denied initially and upon reconsideration. (Id. at 770-72). Plaintiff requested a hearing before an Administrative Law Judge (ALJ), which was held before ALJ Roger W. Thomas on May 5, 2005. (Id. at 58188). On July 23, 2005, ALJ Thomas issued an unfavorable decision. (Id. at 578-88). The Appeals Council then vacated the decision of the ALJ and remanded the matter for further administrative proceedings on June 14, 2006. (Id. at 594-98). A second hearing was held before ALJ Mary M. Kunz on December 22, 2006 and continued on May 1, 2007. (Id. at 19-33). ALJ Kunz issued an unfavorable decision on June 29, 2007. (Id. at 16-33). The Appeals Council denied a request for further review on August 6, 2008. (Id. at 11-14). The denial of review made ALJ Kunz's decision the final decision of the Commissioner. See 42 U.S.C. § 405(g); Clay v. Barnhart, 417 F.3d 922, 928 (8th Cir. 2005); Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).

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B.

PLAINTIFF'S TESTIMONY

Plaintiff was born in 1956 and completed high school and some college courses during high school. (Id. at 844). Plaintiff has past work experience as a computer technician, security guard, and a casino employee. (Id. at 845). In describing his back and neck pain, Plaintiff reported that his pain was constant and it resulted in sleeping difficulties and corresponding loss of concentration. (Id. at 846). Laying down or shifting positions sometimes helped alleviate Plaintiff's pain. (Id.). Prolonged sitting, standing and walking aggravated his back pain. (Id. at 847). Because of the pain, Plaintiff testified that he could sit for approximately 15 minutes, stand for 15-20 minutes, and walk for 50 feet. (Id. at 847-48). Plaintiff's walking difficulties were further impacted by his plantar fasciitis. (Id. at 860). At the time of the hearing, Plaintiff used a cane to assist him in walking but testified he could walk without the cane. (Id. at 848). Plaintiff also reported difficulties sleeping because of restless leg syndrome. (Id. at 849). These sleeping difficulties caused Plaintiff to sleep three or four hours during an average day. (Id.). Because of his allergies and dermatitis, Plaintiff reported that he always wore cotton gloves. (Id. at 849-50). The use of the gloves prevented Plaintiff from performing computer work because of electro-static discharge to the computer components. (Id. at 850). Plaintiff's allergies would flare-up from breathing fumes in the air and from touching things to which he was allergic. (Id.). As a result, Plaintiff's throat would swell up and he would break out in hives. (Id.). If Plaintiff came into contact with metal, such as coins, his hands would break out in a rash, crack, itch and ooze. (Id. at 868). Because of the allergies, Plaintiff carried and sometimes used an epi-pen (epinephrine). (Id. at 850-51). Occasionally, Plaintiff visited the emergency room for his allergic reactions but often did not because doctors told him not to come to the hospital unless his reaction was severe. (Id. at 851).

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Because of pain and inflammation in his hands, Plaintiff stated he had difficulties opening jars and gripping things such as cans and bottles. (Id. at 852-53). Plaintiff reported that he had difficulties with buttons and zippers a couple of times a week but could grasp plastic silverware and his cane. (Id. at 853-54). Because of pain in his knees, Plaintiff testified that he fell down approximately five times per month. (Id. at 856-57). At the hearing, Plaintiff told the ALJ he experienced severe neck pain which prevented him from turning his head. (Id. at 857). The limited range of motion in Plaintiff's neck also prevented him from driving. (Id.). Plaintiff also explained that he experienced pain and stiffness if he looked down and kept his neck in a fixed position. (Id. at 870). Plaintiff testified that he experienced diarrhea, approximately 20-25 times per day. (Id. at 855). In 2004, Plaintiff was hospitalized for dehydration resulting from the diarrhea, but had not had dehydration problems since that time. (Id. at 856). With respect to mental impairments, Plaintiff stated that he had problems with concentration resulting from depression, "brain atrophy," and age. (Id. at 859). Additionally, Plaintiff reported that he had pain from scars on his abdomen, stating "my stomach is like a war zone and it just kills." (Id. at 862). Regarding his daily activities, Plaintiff testified he was able to go grocery shopping if he used a motorized cart and he could fix simple meals for himself. (Id. at 863). While Plaintiff's wife and step-son did the majority of the cooking, cleaning and laundry, Plaintiff reported he did some house-cleaning, such as vacuuming for short periods of time and cleaning the bathrooms. (Id. at 863-64, 866, 869). Plaintiff also listened to music, watched TV and movies, played on the internet, and visited with friends. (Id. at 802, 867-68).

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C.

MEDICAL EVIDENCE IN THE RECORD1 1. Evidence Predating Disability Onset Date

Dr. John Ouellette at the University of Wisconsin Hospitals and Clinics, performed allergy tests on Plaintiff in February 2003. (Id. at 147-149, 357). At the testing, Plaintiff reported that he experienced hives, itching, redness, blotchiness and skin cracking when coming into contact with certain substances. (Id. at 148, 150). Dr. Ouellete concluded Plaintiff should avoid nickel, chromium, fragrance, parabens, cobalt, paraphenylenediamine, quaternium, black rubber, milk, formaldehyde, and thimerosal. (Id. at 148, 152). In a letter to the physician who referred Plaintiff, Dr. Ouellette opined that Plaintiff was "extremely allergic" and had contact dermatitis.2 (Id. at 152-53). On March 5, 2003, Dr. Ouellette wrote a letter regarding Plaintiff's allergies for worker's compensation purposes stating he believed Plaintiff's allergies to be workplace related and would result in Plaintiff "temporarily" being out of the workplace. (Id. at 151). At that time, Plaintiff worked as a security guard at Ho-Chunk casino and he was required to handle a lot of money and was not allowed to wear gloves. (Id. at 152). 2. Medical Records Between the Onset Date and the ALJ's Decision

Plaintiff returned to the University of Wisconsin Allergy, Asthma, and Immunology department on March 17, 2003 and treated with Dr. Marcus Cohen. (Id. at 351). For his allergies, Plaintiff was taking Prednisone, Zyban, and Benadryl. (Id. at 351-52). Plaintiff's skin dermatitis had flared-up when he returned to work at the casino, but was resolving since he had Plaintiff received treatments for certain temporary conditions unrelated to his allegedly disabling impairments (i.e. prostatitis, pneumonia, dental surgery). Medical treatment for these conditions will not be discussed in this Report and Recommendation, unless those medical records discussed or related to one of Plaintiff's allegedly disabling impairments. Additionally, Plaintiff did not challenge the ALJ's RFC with respect to limitations caused by Plaintiff's chronic diarrhea. Medical records relating to Plaintiff's diarrhea/dumping syndrome will likewise not be summarized in this Report and Recommendation. 2 Contact dermatitis is a hypersensitivity resulting from skin contact with a specific allergen or irritant. Stedman's Medical Dictionary, Dermatitis, Contact Dermatitis (27th Ed. 2000).
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left the work environment. (Id. at 351). The results of Dr. Cohen's physical examination were normal. (Id. at 351). As a result, Dr. Cohen instructed Plaintiff to start tapering off the Prednisone, to use Vanicream as a moisturizer to lubricate his hands, to use an albuterol inhaler if he had difficulties breathing, and to avoid exposure to metal and Plaintiff's other allergens. (Id. at 352). Dr. Wayne Kelly, a physician at the Family Medicine of Winona clinic, treated Plaintiff for a cough and congestion on March 30, 2003. (Id. at 177). At the examination, Dr. Kelly prescribed an increased dose of Plaintiff's Prednisone and told Plaintiff to continue with the Advair Diskus and Doxy. (Id.). Additionally, Dr. Kelly recommended Plaintiff stop smoking. (Id.). Experiencing a cough and congestion, Plaintiff saw Dr. Morales at the Emergency Room of Community Memorial Hospital on April 9, 2003. (Id. at 275-77). Plaintiff's symptoms included a cough, trouble breathing, sore chest and throat, runny nose, sinus pain, an ear ache, and he reported fever and chills. (Id. at 276). An x-ray of Plaintiff's chest did not reveal any abnormalities. (Id. at 296). Dr. Morales diagnosed bronchitis. (Id. at 277). Plaintiff returned to Dr. Kelly on May 19, 2003, complaining of a cough. (Id. at 179). At that time, Plaintiff's recent chest x-ray was normal but his pharynx was red and he was wheezing. (Id.). For treatment Dr. Kelly prescribed an antibiotic, Advair Diskus and again recommended Plaintiff quit smoking. (Id.). Complaining of back and dental pain, Plaintiff went to the Emergency Room at the Community Memorial Hospital on June 12, 2003. (Id. at 272-74). At admission, Plaintiff reported he had twisted his back while walking. (Id. at 273). On physical examination, Plaintiff reported sharp back pain radiating into his legs, frequent urination, fever, chills, headache,

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abdominal pain, nausea, vomiting, diarrhea, and bloody stools. (Id.). Plaintiff demonstrated normal range of motion in his neck, but back tenderness. (Id. 274). Dr. Morales diagnosed acute low back pain and acute toothache and prescribed Toradol (NSAID) and Phenergan (antinauseate). (Id. at 272). Once again Dr. Kelly examined Plaintiff for his back pain on June 13, 2003. (Id. at 176). In describing Plaintiff's pain, Dr. Kelly noted "a little" tenderness over the right flank area over the posterior pelvis. (Id.). The results of Dr. Kelly's examination showed normal forward flexion, straight leg raising was negative, and Plaintiff's reflexes and strength were normal. (Id.). For treatment Dr. Kelly prescribed Darvocet (a narcotic pain medication) and back

stretches. (Id.). On June 24, 2003, Plaintiff visited Dr. Kelly for his dermatitis and back pain. (Id. at 175). At that time Plaintiff was experiencing a flare-up of his dermatitis and Dr. Kelly noted the dermatitis was severe. (Id.). While working at a carnival over the weekend, Plaintiff reported he strained his back while helping some children get onto a carnival ride. (Id.). Dr. Kelly stated Plaintiff "[w]ants something for pain basically" and prescribed Ultracet (opiate-type pain reliever). (Id.). At the next visit, on July 16, 2003, Dr. Kelly treated Plaintiff for his hand dermatitis, chest pain, and foot pain. (Id. at 173-74). Dr. Kelly, in examining Plaintiff's hands, noted Plaintiff did have a scaly dermatitis. (Id. at 173). Consequently Dr. Kelly prescribed a topical cream and suggested Plaintiff "might consider wearing white gloves at nighttime." (Id. at 173). In his treatment notes, Dr. Kelly repeated Plaintiff's report that "the dermatitis is actually disabling and does not allow him to work." (Id.). Besides the dermatitis, Plaintiff reported that he was experiencing occasional sharp chest pains with accompanying nausea. (Id.). The

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physical examination showed Plaintiff's chest sounded clear, his heart was regular, and his abdomen was soft and non-tender. (Id.). Dr. Kelly concluded that the chest pain was not cardiac or anginal in nature. (Id. at 174). With respect to Plaintiff's foot pain, Dr. Kelly noted it was proximal to the heel near the arch of the foot, with no deformity and "a little bit" of tenderness. (Id.). Dr. Kelly concluded it "[s]ounds like plantar fasciitis" and prescribed Vioxx (NSAID). (Id.). Because of his hand rash and tooth pain, Plaintiff went to the Community Memorial Hospital Emergency Room in Winona on July 22, 2003. (Id. at 269-71). The physical

examination revealed a rash on Plaintiff's hands and a cracked molar. (Id. at 271). Dr. Bybee diagnosed contact dermatitis and dental pain and prescribed Percocet (narcotic pain reliever), Predisone (steroid), and a topical cream for Plaintiff's hands. (Id. at 269). Plaintiff, complaining of a back strain, returned to Dr. Kelly on August 26, 2003. (Id. at 172). With respect to Plaintiff's dermatitis, Dr. Kelly noted that Plaintiff's hands were still chapped, cracking and peeling and prescribed a corticosteroid topical cream. (Id.). Dr. Kelly's back examination was "unremarkable," although "forward flexion [was] a little limited." (Id.). At this visit Dr. Kelly prescribed Soma (muscle relaxant). (Id.). On September 10, 2003, Plaintiff presented to Dr. Kelly with complaints of a headache, dizziness, vomiting, back ache and a cough. (Id. at 171). The physical examination revealed that Plaintiff's chest was clear, his heart regular, and his abdomen was non-tender. (Id.). Based on these findings, Dr. Kelly concluded Plaintiff was suffering from a viral illness and prescribed fluids. (Id.). Additionally, Plaintiff requested a refill of pain medications and Dr. Kelly

prescribed Soma and Ultram (a non-narcotic pain medication). (Id.).

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Plaintiff, seeking a statement that he was disabled because of his allergies and hand dermatitis, visited Dr. Kelly on September 12, 2003. (Id. at 170). After examining Plaintiff's hands, Dr. Kelly noted "[h]is hands actually look pretty good today. He does have a little bit of scaling and crusting but overall the fissuring and erythema is [sic] down markedly." (Id.). Nevertheless, Dr. Kelly filled out a statement saying Plaintiff was unable to work at that time because of his skin problems. (Id.). For his plantar fasciitis, on September 18, 2003, Dr. William Hanson treated Plaintiff and prescribed orthotics. (Id. at 206-08). Dr. Dan Larson, a state agency consultant, completed a residual functional capacity assessment on September 23, 2003. (Id. at 157-64). Based on Plaintiff's impairments of dermatitis, back pain, and obesity, Dr. Larson opined that Plaintiff had the residual functional capacity (RFC) to lift 20 pounds occasionally and ten pounds frequently, stand or walk for two hours and sit for six hours in an eight hour day, with no limitations in pushing or pulling. (Id. at 157-59). Dr. Larson concluded Plaintiff did not have any postural, manipulative, visual, or communicative limitations but he approved an environmental limitation of avoiding exposure to solvents or other substances which would aggravate Plaintiff's dermatitis. (Id. at 159-61). Dr. Larson's assessment was confirmed by Dr. Eunice Davis on November 3, 2003. (Id. at 164). For his contact dermatitis, on September 19, 2003, Plaintiff was evaluated at the Mayo Clinic Allergy department. (Id. at 528-29). At that time, Plaintiff was treating the dermatitis with topical steroids, Zyrtec, and wearing white cotton gloves. (Id. at 528). Dr. Joseph

Butterfield, Plaintiff's allergist, planned to send Plaintiff to dermatology for further evaluation and ordered pulmonary function studies for Plaintiff's COPD. (Id. at 529). Pulmonary lung function tests taken a few days later were normal. (Id. at 536).

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For a follow-up consultation, Dr. Butterfield examined Plaintiff on September 25, 2003. (Id. at 527). For the dermatitis, Dr. Butterfield instructed Plaintiff on topical hand care and told him to return to the allergy clinic in one month. (Id. at 527). To treat Plaintiff's itching, Dr. Butterfield prescribed doxepin. (Id.). On a referral from Dr. Kelly, Plaintiff was first treated by Dr. Mark Martin on October 6, 2003 for chronic low back-pain and neck pain with headaches. (Id. at 252-53). Plaintiff, asserting he had back problems for the past two years, reported that sitting and walking were painful but denied any radiation of the pain into his extremities. (Id. at 253). Dr. Martin, discussing Plaintiff's functional limitations, remarked that Plaintiff "remains independent in all of his [activities of daily living]." (Id.). The physical examination showed Plaintiff ambulated without difficulty but he had difficulties heel and toe walking because of plantar fasciitis. (Id. at 252). With respect to Plaintiff's back, he was able to forward bend to 90 degrees and backward bend to 20 degrees. (Id.). Rotation was slightly limited to the right as compared with the left. (Id.). Dr. Martin's neurological examination did not reveal any weaknesses in the extremities and muscle strength was normal. (Id.). Straight leg raising was negative and there were no Hoffman's, Babinski's or Romberg's signs indicating neurological or reflex problems. (Id.). However, Dr. Martin noted Plaintiff had a positive psoas sign on the right (indicating abdominal pain) and muscle tightness in the lumbosacral spine region. (Id.). X-rays were taken of

Plaintiff's spine at that visit and the results were unremarkable. (Id. at 255, 295). Dr. Martin diagnosed: chronic low back pain with elements of somatic dysfunction and pelvic obliquity with hyperlordosis; chronic abdominal pain secondary to scaring from multiple surgeries; and neck pain with headache with muscle tightness and somatic dysfunction. (Id. at 253). Because Plaintiff's neck pain was mostly mechanical in nature, Dr. Martin planned a trial of osteopathic

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treatment. (Id. at 252). For Plaintiff's back pain, Dr. Martin likewise treated Plaintiff with osteopathic manipulative treatment, resulting in fair release in the lumbar spine and fairly good release in the cervical spine. (Id.). For Plaintiff's abdominal scaring, Dr. Martin recommended massaging castor oil or peanut oil on the scars, and he discussed the possibility of scar injections with Plaintiff. (Id.). For medications, Dr. Martin prescribed a Lidoderm patch, refilled

Plaintiff's Soma, and gave him samples of Ultracet. (Id.). Following Dr. Butterfield's referral, Plaintiff visited Dr. Appert in Mayo's Dermatology department on September 24, 2003. (Id. at 531). To avoid allergens, Plaintiff was wearing cotton gloves almost continually throughout the day but sometimes removed the gloves for sleeping. (Id. at 531). Having identified certain allergens with Dr. Ouellette, Plaintiff had taken steps to avoid things he knew he was allergic to. (Id.). Nevertheless, Plaintiff still wore cologne occasionally causing a rash, and worked fixing computers about once per week, causing dermatitis flare-ups. (Id.). After explaining Plaintiff should avoid "all" contact with objects that aggravate the dermatitis, Dr. Appert prescribed betamethasone propionate (a topical corticosteroid). (Id.). After reviewing Plaintiff's medical records from the University of Wisconsin, Dr. Appert noted that Plaintiff's previous allergy test was only read at 48 hours and not 96 hours, therefore, "it is difficult to say with certainty that all of these reactions would have persisted out until 96 hours." (Id.). Therefore, Dr. Appert contacted Plaintiff and planned to schedule him for an evaluation within the next month. (Id.). On October 9, 2003, Plaintiff called Dr. Martin's office reporting that the Ultracet was not helping and his neck pain was worse. (Id. at 251). Dr. Martin put Plaintiff back on the Viocodin he was previously using and increased the dose of Ultracet. (Id.).

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At Plaintiff's next appointment with Dr. Martin, on October 21, 2003, Plaintiff reported that the manipulation treatments he received at the last visit aggravated his neck but temporarily helped his back "a little bit." (Id.). On examination, Dr. Martin stated Plaintiff had a lot of discomfort in moving, he moved very slowly with subjective tenderness to palpitation in the spine and muscle tightness in the cervical spine. (Id.). The physical examination revealed a small traction sign on the left iliac crest, a "hint" of spondylolysis and a pelvic index of .58, which placed Plaintiff "in the low predicted back pain category." (Id.). Because Dr. Martin had not yet received Plaintiff's other medical records, he prescribed a Duragesic (narcotic) patch to give Plaintiff better pain control and planned to later look at what else could be done for Plaintiff's back and neck problems. (Id.). The next day, Plaintiff called Dr. Martin's office stating the Duragesic patch was not helping and Dr. Martin approved Plaintiff to use two patches per day. (Id. at 250). A week later, on October 28, 2003, Plaintiff again called Dr. Martin's office stating the 50 mg Duragesic patches were not helping and Dr. Martin approved increasing the doses to 75 mg. (Id.). Having difficulties with the Duragesic patch, Plaintiff visited Dr. Martin again on October 30, 2003. (Id.). Not only did Plaintiff have problems getting the patches to stick, he also reported the patches did not give him much pain relief. (Id.). In addition to his chronic back and neck pain, Plaintiff stated he was also experiencing left arm and right knee pain. (Id.). Dr. Martin's examination of Plaintiff's knee showed extreme tenderness to palpitation but no laxity of the collateral ligaments. At that visit, Plaintiff's neck revealed right-sided muscle tightness and x-rays showed a pelvic obliquity. (Id.). Based on these findings, Dr. Martin diagnosed: chronic low back pain with elements of pelvic obliquity and ligamentous dysfunction, as well as, degenerative lumbar disc disease by history; neck and left arm pain of unknown etiology; and

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increasing right knee pain. (Id.). Consequently, Dr. Martin increased Plaintiff's Duragesic prescription to 100 mg every three days and prescribed a Tegaderm patch (a mesh dressing to keep the patch in place), and Vicodin for breakthrough pain. (Id.). Additionally, Dr. Martin scheduled an MRI. (Id.). Dr. George Mulopulos completed MRIs of Plaintiff's neck, back, and knee on October 31, 2003. (Id. at 254, 256). The radiology reports showed degenerative disc changes at the C6-7 level and a posterior protruding disc at the C6-7 and C5-6 levels. (Id. at 254). The MRIs of Plaintiff's knee showed normal ligaments, menisci, and muscles and no soft tissue abnormality. (Id. at 256). However, Dr. Mulopulos did find evidence of a small knee joint effusion and a very mild hyaline cartilage degenerative change in the patellofemoral joint. (Id.). Stating that his lower back was "killing him more than anything," Plaintiff visited Dr. Martin on November 6, 2003. (Id. at 249). Having obtained Plaintiff's previous MRI results and medical records, Dr. Martin discussed treatment options with Plaintiff for his back and neck pain and recommended a selective nerve root block for Plaintiff's neck. (Id.). While Dr. Martin discussed with Plaintiff the possibility of physical therapy, Plaintiff believed it would be difficult for him to attend therapy multiple times per week because he lived far away. (Id.). For Plaintiff's knee, Dr. Martin recommended trigger point injections and Plaintiff elected to receive those at the visit. (Id.). Dr. Martin also suggested the possibility of a cortisone injection, although he cautioned Plaintiff the relief from such injections was usually short-lived. (Id.). In terms of medications, Dr. Martin continued the prescriptions for Vicodin, increased the Duragesic patch to 125 mg, and added prescriptions for Celebrex (NSAID) and a trial of castor oil packs for his abdominal scars. (Id.).

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Less than a week later, on November 11, 2003, Plaintiff called Dr. Martin asking for an increased dose for his Duragesic patch. (Id.). Because Plaintiff's medication was increased the week before, Dr. Martin denied the request and told Plaintiff to wait and see how the 125 mg dose was working. (Id.). Plaintiff received the selective nerve root block for his neck from Dr. Paul Olson on November 21, 2003. (Id. at 248 and 290-91). Later that day Plaintiff visited Dr. Martin and stated the nerve block "really did seem to make a difference." (Id. at 248). However, Plaintiff stated that he was still having a lot of low back pain and the 125 mg Duragesic patch did not seem to be enough. (Id.). In response Dr. Martin increased the patch dose to 150 mg, prescribed Vicodin ES, and gave Plaintiff a prescription to obtain a home muscle stimulator unit. (Id.). As of December 3, 2003, Plaintiff had taken all of his Vicodin and called Dr. Martin's office asking for more. (Id.). Because it had not been two weeks since Dr. Martin wrote the last prescription, he authorized a refill but only with a fill date of December 5, 2003. (Id.). Plaintiff did not show up for his December 11, 2003 appointment with Dr. Martin, but called the office the next day. (Id. at 247). In the call, Plaintiff reported that the nerve root block he had received from Dr. Olson for his neck helped for approximately four days. Therefore, Dr. Martin faxed an order to have Dr. Olson repeat the injections. (Id.). Complaining of neck spasms, Plaintiff went to the emergency room on December 14, 2003, and was treated by Dr. Kelly. (Id. at 235). Plaintiff told Dr. Kelly he was taking Lortab (a narcotic and acetaminophen) but reported the medication was "not helping." (Id.). The physical examination revealed muscle spasms and decreased range of motion in the neck. (Id. at 236-37). At the hospital, Dr. Kelly treated Plaintiff with injections of Toradol (NSAID), Vistaril (Id.).

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(antihistamine), Morphine, and Ativan (benzodiazepine). (Id. and 237, 266). At discharge Dr. Kelly prescribed Percocet. (Id.). Once again Plaintiff received neck facet injections and a nerve block from Dr. Olson on December 16, 2003. (Id. at 286-87). After the facet injections, Plaintiff reported that a great percentage of his pain was resolved and his pain was almost completely resolved after the nerve block. (Id.). Plaintiff returned to Dr. Martin's care on December 18, 2003. (Id. at 246). Based on conversations with Dr. Olson, Dr. Martin recommended another set of facet blocks at a different level. (Id.). After discussing Plaintiff's medications, Dr. Martin suggested having Plaintiff evaluated for an intrathecal pump because of his troubles controlling pain with medication. (Id.). Although it caused a burning sensation, Plaintiff stated the 150 mg Duragesic patch seemed to help. (Id.). In terms of prescriptions, Dr. Martin continued the Duragesic patch at 150 mg, and added prescriptions for Baclofen (a muscle relaxant), Vicodin, and Bentyl, (to treat Plaintiff's stomach pain). (Id.). For the Minnesota Department of Human Services (DHS), on December 18, 2003, Dr. Kelly completed a disability examination. (Id. at 169). In the assessment, Dr. Kelly opined that Plaintiff's conditions prevented him from working and would last indefinitely. (Id.). Dr. Kelly performed another disability examination on Plaintiff on December 23, 2003. (Id. at 166-68). Because of Plaintiff's back pain, Dr. Kelly stated Plaintiff was unable to lift, bend, or twist. (Id. at 166). Dr. Kelly reported that Plaintiff had a history of abdominal wound infections after an appendectomy and gastric bypass surgery. (Id.). As a result of these

surgeries, as well as a past gunshot and stab wound, Dr. Kelly reported Plaintiff had chronic pain. (Id.). With respect to Plaintiff's allergies and dermatitis, Dr. Kelly proffered, "[t]his is

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very disabling because any time he comes in contact with any sort of chemicals in an occupational setting he gets a severe outbreak with cracking, fissuring and even bleeding." (Id. at 166-67). Dr. Kelly's physical examination revealed a mild limitation in neck range of motion, mild tenderness in the vertebra, no edema or deformities in the lower extremities, and the back exam revealed Plaintiff was "somewhat" tender over the lumbar spine with forward flexion to about 75 degrees. (Id. at 167). Based on this assessment, Dr. Kelly concluded "[Patient] has multiple medical problems and pain that prohibits [sic] him from being gainfully employed." (Id.). Specifically, Dr. Kelly opined that Plaintiff would only be able to work in an "extremely" sedentary position with no bending, twisting, reaching, climbing, pushing or pulling, no lifting more than ten pounds and no contact with any chemicals that would aggravate Plaintiff's hands. (Id.). Finally Dr. Kelly stated, "[b]ased on this examination it appears that Mr. Booker is completely disabled and this would be for an indefinite period of time." (Id.). Feeling the Baclofen was not helpful, Plaintiff called Dr. Martin's office on December 30, 2003, asking for a different prescription. (Id. at 246). Dr. Martin gave Plaintiff a

prescription of Avinza/Avenzia (generic morphine) and Soma (a muscle relaxant). (Id.). At the next appointment, on January 6, 2004, Plaintiff reported the Avinza helped but did not last a long time. (Id. at 245). While Plaintiff had spoken to Dr. Kelly about a referral for an intrathecal pump, Plaintiff needed to wait because he was changing his insurance. (Id.). At that appointment Dr. Martin continued the Avinza at 30 mg, twice per day. (Id.). On January 14, 2004, Plaintiff called Dr. Martin reporting the Avinza was helping, but Plaintiff was experiencing more pain in the morning. (Id.). In response, Dr. Martin prescribed one 60 mg Avinza in the morning, and one 30 mg Avinza in the evening. (Id.).

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Plaintiff's next follow-up appointment with Dr. Martin was on January 16, 2004. (Id. at 244). At that time, Plaintiff reported problems falling asleep because of his neck problems and stated the Trazadone was not working. (Id.). Dr. Martin observed decreased range of motion about the cervical and lumbar spine and maintained his diagnosis of chronic neck and back pain. (Id.). For medications, Dr. Martin continued Plaintiff on the same doses of Avinza but (Id.). Additionally, Dr. Martin added Zonogram (an anti-

discontinued the Trazadone.

convulsant), and Doxepin (to replace the Trazadone). (Id.). In response to a call from Plaintiff, Dr. Martin increased Plaintiff's Avinza to 60 mg on January 21, 2004. (Id. at 243). Because Doxepin was not covered by Plaintiff's insurance, on January 23, 2004, Dr. Martin changed the prescription to Restoril (a sedative). (Id. at 244). For his back and neck pain, Plaintiff visited Dr. Kelly on February 3, 2004. (Id. at 202). While Plaintiff usually treated with Dr. Martin for his chronic pain, Dr. Kelly assisted Plaintiff that day because Dr. Martin was out on a medical leave. (Id.). Dr. Kelly noted that, although Plaintiff was taking Avinza, Plaintiff "feels that is really not adequately controlling his pain . . . he does not want to increase the dose but he would like to have some sort of back-up medicine that he could take in addition to cover for his breakthrough pain." (Id.). Plaintiff reported that his pain was in his lower back and radiating into his legs and Dr. Kelly's physical examination showed somewhat limited range of motion in Plaintiff's neck but no difficulties with forward flexion. (Id.). To treat the pain, Dr. Kelly prescribed Vicodin. (Id.). Reporting his medications were not alleviating his back pain, Plaintiff consulted Dr. Kelly on February 13, 2004. (Id. at 201). Plaintiff, who later that day was receiving an injection for his neck pain, had been taking Morphine long-acting tablets and Vicodin in-between the Morphine. (Id.). Having aggravated his back moving furniture the previous weekend, Plaintiff

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reported to Dr. Kelly that these medications were "just really . . . not helping." (Id.). Dr. Kelly examined Plaintiff and found that Plaintiff's neck was stiff and he had localized tenderness over the lower cervical spine and lumbar spine. (Id.). Likewise Dr. Kelly stated "forward flexion i[s] very limited to about 110 degrees." (Id.). Dr. Kelly prescribed Percocet and recommended Plaintiff follow-up with Dr. Martin for his pain. (Id.). That afternoon, Dr. Paul Olson gave Plaintiff Lidocaine injections into his neck and Plaintiff reported a complete relief of symptoms. (Id. at 232-33, 284-85). Dr. Martin refilled Plaintiff's Soma prescription on February 17, 2004. (Id. at 243). Two days later on February 19, 2004, Plaintiff called asking for additional pain medications to last him until his next appointment on February 26, 2004. (Id.). Dr. Martin declined to give Plaintiff any additional prescriptions because Plaintiff was given a month's prescription of Avinza on January 29, 2004, and therefore Plaintiff should have had enough medications through February 27th. (Id.). Plaintiff, complaining of depression, visited Dr. Kelly on February 26, 2004 and asked for a sleep aid. (Id. at 200). At the visit Dr. Kelly noted Plaintiff was interested in the La Crosse Gundersen Pain Management clinic. (Id.). Dr. Kelly continued Plaintiff's depression medication and added a sleep medication. (Id.). Later that same day, Plaintiff treated with Dr. Martin for his neck and back pain. (Id. at 242). The physical examination revealed a lot of subjective tenderness to palpation on the cervical spine, especially on the right side. (Id.). Although Plaintiff reported weakness in his right hand, Dr. Martin did not observe any hand weakness. (Id.). Dr. Martin discontinued Plaintiff's Ultram, continued Plaintiff's prescription for Avinza, and gave him a prescription for Percocet. (Id.).

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After slipping on some ice, Plaintiff returned to Dr. Martin on March 19, 2004. (Id.). At the visit Plaintiff reported "hurting all over," problems sleeping, headaches, and an aggravation of his symptoms from the weather. (Id.). Plaintiff had "run out" of his Percocet because he was having so many pain problems and therefore he took some of his wife's Ultracet. (Id.). After admonishing Plaintiff for using his wife's medications, Dr. Martin discussed with the Plaintiff the possibility of Plaintiff attending a pain clinic in LaCrosse, Wisconsin to be evaluated for the interthecal pump. (Id.). Because Dr. Kelly was Plaintiff's primary physician, Dr. Martin told Plaintiff to follow-up with Dr. Kelly for the pain clinic referral. (Id.). For medications, Dr. Martin increased Plaintiff's Avinza to 90 mg, and gave Plaintiff additional prescriptions for Percocet and Ultracet. (Id.). On March 23, 2004, Plaintiff called Dr. Martin's office and reported his insurance would no longer cover the Avinza. (Id. at 241). In response Dr. Martin replaced the Avinza with MS Contin, another narcotic pain-reliever. (Id.). Because he had been doubling up on the MS Contin, Plaintiff ran out of his pain medications on March 30, 2004. (Id.). According to Dr. Martin's notes, Plaintiff was required to try at least two other medications before his insurance would cover the Avinza. (Id.). Instead Dr. Martin prescribed Kadian (another narcotic pain reliever). (Id.). The next day, however, Plaintiff called and reported that his pharmacy was out of Kadian and could not fill the prescription for three or four days. (Id.). Dr. Martin replaced the Kadian prescription with Percocet. The next day, the pharmacy called Dr. Martin's office saying they could not fill the Percocet prescription because Plaintiff had used up his allotment of Percocet at three times per day. (Id.). Verbally, Dr. Martin authorized the pharmacy to prescribe the Percocet for use up to six times per day. (Id.).

19

Reporting continued problems with his medications, Plaintiff called Dr. Martin's office on April 6, 2004. (Id. at 240). Plaintiff stated that the Kadian "is really bad" and caused him tremors, nightmares, and a severely upset stomach. (Id.). Because of these side effects, Plaintiff asked to go back to taking Avinza and also asked for another prescription of Percocet. (Id.). Because Plaintiff was a week early, Dr. Martin denied the Percocet prescription but agreed to prescribe the Avinza, as well as Ultracet. (Id.). Plaintiff also asked for sleep medications and Dr. Martin prescribed Halcion (a sedative) and Trazadone. (Id.). Because he was moving, Plaintiff called Dr. Martin on April 14, 2004, asking for additional medications. (Id.). With respect to the Avinza, Plaintiff stated it took the edge off but did not quite work. (Id.). Instead, Plaintiff asked to increase the doses of his pain medications and wanted another early fill on his Percocet and asked for a higher dose. (Id.). Dr. Martin denied these requests on the 14th, but gave Plaintiff a prescription for the Percocet on April 16, 2004. (Id.). Reporting he was unusually sore from packing to move, Plaintiff returned to Dr. Martin on April 21, 2004. (Id.). At that time, Plaintiff had an appointment at the LaCrosse pain clinic for May 6 to be evaluated for the interthecal pump. (Id.). Once again Plaintiff asked for "a few extra pain medications." (Id.). Dr. Martin refused to give Plaintiff an increase on the Percocet, but agreed to increase the Avinza to 30 mg once per day to take in addition to his 90 mg tablets. (Id.). Because Dr. Martin was gone for the week, Dr. Kelly treated Plaintiff on May 5, 2004. (Id. at 198). Noting Plaintiff was taking Avinza, Percocet, Soma, Ultracet and Lidoderm

patches, Dr. Kelly reported Plaintiff wanted refills of his medications. (Id.). Dr. Kelly gave Plaintiff prescriptions for the Avinza, Percocet, Lidoderm patches, and his Trazadone. (Id.). Dr.

20

Kelly reported that Plaintiff asked for more Ultracet as well, but Dr. Kelly told him "that would be inappropriate . . . in light of the strong narcotics he is already taking." (Id.). After Plaintiff was told he was not a candidate for an interthecal pump, Plaintiff called Dr. Martin's office on May 13, 2004 asking for a referral for a second opinion. (Id. at 239). Once again Plaintiff reported that the Percocet and Avinza were not helping and asked for a different medication. (Id.). In response, Dr. Martin gave Plaintiff a ten-day trial of Methadone. (Id.). Despite his report that the Percocet was not helping, later that day Plaintiff called Dr. Martin again, this time requesting some Percocet. (Id.). Because Plaintiff was starting the trial of Methadone, Dr. Martin denied the Percocet request. (Id.). Four days later, Plaintiff called Dr. Martin stating he wanted a different medication because the Methadone was not working. (Id.). Until Plaintiff finished the ten-day Methadone trial, Dr. Martin declined to change Plaintiff's medications. (Id.). Having injured his knee while carrying boxes, Plaintiff treated with Dr. Roosevelt Smith for knee pain, rash, and chronic back pain on May 28, 2004. (Id. at 196-97). The physical examination of Plaintiff's knee showed no swelling or effusion, normal knee alignment and mobility, and full range of motion, although Plaintiff walked as if in pain. (Id. at 196). After reviewing the X-rays, Dr Smith concluded Plaintiff had only mild degenerative changes and atherosclerosis (narrowing) of the vessels of the lower leg. (Id.). For treatment, Dr. Smith prescribed an ace bandage, ice, and Tylenol or Advil. (Id.). The same day, Plaintiff called Dr. Martin and asked for a refill of Soma. (Id. at 238). Because Plaintiff had told another doctor in the office that the Soma did not help "at all," Dr. Martin declined this request. (Id.). Later Plaintiff called asking why his Methadone prescription was decreased instead of increased and asked for a refill of Ultracet. (Id.). Because Plaintiff had

21

only used Ultracet on a couple of occasions, Dr. Martin's office called Plaintiff's pharmacy. (Id.). From the pharmacy, Dr. Martin learned that Plaintiff had filled a prescription that day for 30 Hydrocodone while at the same time requesting a refill of his other medicine. (Id.). Because this was a violation of Plaintiff's narcotic contract, Dr. Martin indicated he would no longer be refilling any medicines for Plaintiff, other than a taper of the Methadone. (Id.). For his knee pain, Plaintiff followed-up with Dr. Kelly on June 2, 2004. (Id. at 197). Dr. Kelly's examination found that Plaintiff was "exquisitely tender"3 over the medial joint space and experienced "exquisite pain" upon stress of the medial cartilage, although there was no edema or effusion. (Id.). The MRI of Plaintiff's knee showed minimal degenerative changes and knee joint effusion, but was otherwise unremarkable. (Id. at 193, 282). Believing Dr. Martin was unavailable, Dr. Kelly gave Plaintiff prescriptions for Soma, Avinza, Percocet, and Triazolam (a sedative) and stated "this should last him at least two months." (Id. at 197). Dr. Martin, having received a letter regarding Plaintiff, called Dr. Kelly's office on June 8, 2004. (Id. at 194). Concerned about Plaintiff's medications, Dr. Martin informed Dr. Kelly Plaintiff's Soma, Percocet, and Avinza had all been discontinued and Plaintiff was "abusing the Percocet." (Id.). At the end of the phone message Dr Martin stated "[i]n other words ­ he has a lot of medication in his possession." (Id.). On June 11, 2004, Dr. Martin sent a discharge letter to Plaintiff, his pharmacy, and Dr. Kelly. (Id.). After receiving the letter, Plaintiff called Dr. Martin's office on June 18, 2004. (Id.). To explain the medication issues, Plaintiff reported that he had received the Hydrocodone prescription for his knee injury. (Id.). Additionally, Plaintiff reported that the last Methadone prescription that was given to him was written wrong and he never filled it and instead he filled As a medical term, exquisite means extremely intense. Exquisite (27th Ed. 2000).
3

Stedman's Medical Dictionary,

22

the Soma, Avinza, and Percocet. (Id.). Even with this additional information, Dr. Martin declined to reinstate Plaintiff as a patient. (Id.). Plaintiff, complaining of fever, weakness, and nausea, visited Dr. Kelly on June 29, 2004. (Id. at 192). Dr. Kelly's examination revealed no abnormalities, other than some nasal

congestion. (Id.). Dr. Kelly, while stating the etiology of Plaintiff's symptoms was unclear, believed Plaintiff might be having narcotic withdrawal. (Id.). Although Dr. Kelly prescribed Plaintiff a two-month supply of pain medication on June 2, (Id. at 197), Plaintiff had run out of his medications at this time. (Id. at 192). Nonetheless, Dr. Kelly renewed Plaintiff's

prescriptions for Avinza, Soma, and Percocet. (Id.). Dr. Kelly stated in his patient notes, however, "I told him I did not feel comfortable prescribing these long term for him [and] that if he wants to continue this sort of thing he needs to be under the care of a pain management physician. He doesn't care to see Dr. Martin again. He is interested [in] getting referred for pain management." (Id.). Having run out of his pain medications again, Plaintiff was admitted to Community Memorial Hospital on July 23, 2004 complaining of back pain, abdominal pain and a fever. (Id. at 218, 219). The hospital notes indicate "[h]e has been doing a lot of heavy lifting recently, which he is not supposed to be doing . . . feels that he might have injured his back doing this. Because of his increased pain he has taken more pain meds than was prescribed and therefore is now out of his pain meds." (Id.). Diagnosed with narcotic withdrawal and dehydration, Plaintiff was admitted to the hospital and treated with fluids and Morphine. (Id. at 219, 261). To rule out COPD, Dr. Kelly ordered chest X-rays and the results were normal. (Id. at 280). At discharge, Plaintiff was prescribed Avinza, Zofran (anti-nauseate), and Levaquin (an antibiotic). (Id. at 221).

23

Reporting his abdominal pain continued, Plaintiff called Dr. Kelly's office on July 29, 2004, asking for more medication. (Id. at 189). Believing Plaintiff might be suffering from diverticulitis,4 Dr. Kelly prescribed an antibiotic and made an appointment for a CT scan. (Id.). With regard to his pain medications, Plaintiff asked for Soma, a sleep aid, and a prescription for Percocet instead of the Avinza and Dr. Kelly complied. (Id.). Once again Dr. Kelly examined Plaintiff on August 5, 2004, because of continued abdominal pain. (Id. at 187). At the visit Dr. Kelly noted that Plaintiff had already taken all of the narcotic pain medication given to Plaintiff when he was discharged from the hospital. (Id.). Additionally, Plaintiff told Dr. Kelly he had already taken all of the Percocet and Soma Dr. Kelly prescribed the week before. (Id.). Although he refilled Plaintiff's prescriptions, Dr. Kelly cautioned that Plaintiff needed to taper off the use of narcotics and see a pain management doctor. (Id.). Dr. Kelly also ordered CT scans of Plaintiff's abdomen, which were normal other than a mild biliary tract dilation. (Id. at 185-86, 187). From August 31 to September 15, 2004, Plaintiff was hospitalized at Saint Mary's Hospital. (Id. at 485-86, 489 -510, 525-26). Plaintiff arrived at the emergency department with altered mental status, diarrhea, shortness of breath, and a severe metabolic acidosis. (Id. at 489). Noting Plaintiff's chronic pain syndrome, Dr. Karen Swanson reported that Plaintiff had run out of his narcotics a week earlier and then developed severe diarrhea. (Id.). Over the course of Plaintiff's hospitalization, he was diagnosed with renal failure, extensive bilateral pulmonary infiltrates, severe metabolic acidosis5 from renal failure and diarrhea, hypokalemia (potassium

An inflammation of the small pockets of the colon causing inflammation and obstruction of the colon. Stedman's Medical Dictionary, Diverticulitis (27th Ed. 2000). 5 Decreased pH and bicarbonate concentration in the body fluids. Stedman's Medical Dictionary, Acidosis (27th Ed. 2000). 24

4

deficiency), and leukocytosis.6 (Id. at 489-510). At the hospital Plaintiff developed hospitalacquired pneumonia caused by staph bacteria, Methicillin-Resistant Staphylococcus Aureus (MRSA). (Id. 489-510, 507). During the hospitalization, Plaintiff developed skin lesions on his face and buttocks. (Id. at 507). The Dermatology department took a skin biopsy from Plaintiff on September 9, 2004 and the results were consistent with chronic dermatitis. (Id. at 568). At discharge Plaintiff was given plans to establish care and treatment for his chronic pain, chronic diarrhea, and a follow-up with urology for prostatitis.7 (Id. at 509-10). Because of his back pain, Plaintiff went to the emergency room again on September 19, 2004. (Id. at 523-24). Plaintiff stated that he was having difficulty taking care of himself because his back pain was not controlled and stated he never received his Oxycontin prescription from the hospital. (Id. at 523). In response, Dr. Daniel Hankins gave Plaintiff a prescription for Oxycontin, enough to "get him through to his clinic appointment later this week." (Id. at 524). After Plaintiff's hospitalization, he had a follow-up visit at the Mayo Clinic on September 22, 2004. (Id. at 481-82). At the examination Plaintiff reported muscle pain, fatigue, night sweats and chills, weakness, and dyspnea (shortness of breath). (Id. at 481). At that time Plaintiff's prescriptions included: Fluconazole, Ciprofloxacin, Amoxicillin, Tylenol,

Oxycodone, Trazadone, and Oxycontin. (Id. at 481-82). Dr. Amina Khan evaluated Plaintiff and noted Plaintiff's heart rate and rhythm were normal, his lungs were clear, his abdomen was soft and non-tender (other than Plaintiff's scars), no edema in the extremities, and normal lymph nodes. (Id. at 482). For Plaintiff's chronic pain, Dr. Kahn refilled Plaintiff's Oxycontin and Oxycodone prescriptions and planned to see Plaintiff in another week. (Id. at 483). An abnormally large number of leukocytes or white blood cells, usually indicating an acute infection. Stedman's Medical Dictionary, Leukocytosis (27th Ed. 2000). 7 Inflammation of the prostate. Stedman's Medical Dictionary, Prostatitis (27th Ed. 2000).
6

25

At the Mayo Clinic, Plaintiff had an echocardiogram on September 24, 2004. (Id. at 56869). The test showed: a normal sinus rhythm; aortic valve sclerosis (thickening) without stenosis or regurgitation; normal mitral, pulmonary and tricuspid valves; no vegetations; mild left atrial enlargement; normal left atrial appendage; no intracardiac mass or thrombus; normal left ventricular chamber size with ejection fraction 60%; no shunt at atrial level; mild immobile atherosclerosis of the descending thoracic aorta, no pericardial effusion, and normal pulmonary veins and aortic arch. (Id. at 537, 568-69). Complaining of fever, chills, joint pain, shortness of breath, a non-productive cough, and a sore throat, Plaintiff was hospitalized again from September 26 to October 4, 2004. (Id. at 51316, 521-22). After performing tests to rule out meningitis, Dr. Ann Vincent diagnosed chronic pain syndrome and gave plaintiff a prescription for Fentanyl patches (another narcotic). (Id. at 513, 515). At discharge Plaintiff could move independently and walk 50 feet without difficulty. (Id. at 516). For treatment, Dr. Vincent recommended that Plaintiff do regular exercise and a back exercise program. (Id. at 516). Because of his continuing back and neck pain, Plaintiff treated with Dr. Justin Mott on October 12, 2004, reporting his MS Contin did not control his pain. (Id. at 476-78).

Additionally, Plaintiff reported that he experienced neck pain that Dr. Mott stated "was not well characterized in this interview," diarrhea and "some" abdominal pain. (Id. at 476-77). The physical examination of Plaintiff's back showed that Plaintiff was diffusely tender to light touch with hyperalgesia (increased sensitivity to pain) in his upper back and neck area. (Id. at 477). Nonetheless, Plaintiff's gait was normal and he was able to get on and off the examining table without assistance. (Id.). Dr. Mott, concerned about Plaintiff's medications, stated Plaintiff "exhibited some behaviors of drug-seeking behavior, specifically naming medicines and naming

26

doses which he felt would be appropriate for his care." (Id. at 477-78). After speaking with Dr. Chan, who assisted in Plaintiff's last hospitalization, Dr. Mott determined that the best treatment for Plaintiff would be to taper his narcotic medicine. (Id. at 478). Both Dr. Mott and Dr. Chan agreed that Plaintiff had "pain-focused behaviors," and recommended Plaintiff visit a pain clinic (Id.). For medication Dr. Mott only gave Plaintiff enough MS Contin to last Plaintiff until Plaintiff's next appointment with Dr. Chan on October 28. (Id.). At the end of the appointment, Dr. Mott requested that Plaintiff sign release forms so he could obtain Plaintiff's records from Dr. Kelly and Dr. Martin. (Id.). Although Plaintiff did fill out the forms, he stated that the "physicians who treated him there were liars." (Id.). Because Plaintiff continued to experience progressively worsening fever, chills, abdominal pain, night sweats, scrotal pain, and nausea, Plaintiff went to the Mayo Clinic emergency room on October 21, 2004 and was hospitalized. (Id. at 470, 472). Dr. Surbhi Leekha and Dr. J. T. Mangan, Plaintiff's hospital physicians, diagnosed febrile (fever) illness, chronic pain syndrome, intermittent-chronic diarrhea, and nausea. (Id. at 517-18). Dr. Mangan also noted Plaintiff's narcotic dependence might be Plaintiff's "primary underlying problem" and recommended tapering Plaintiff off narcotics. (Id. at 378). Following-up on Plaintiff's recent hospitalizations, Dr. Chan treated Plaintiff on October 28, 2004. (Id. at 466-68). Because CT scans, a colonoscopy, and other testing did not reveal any abnormalities, Dr. Chan stated Plaintiff's chronic diarrhea was dumping syndrome8 secondary to his previous gastric bypass syndrome and prescribed Lomotil. (Id. at 466, 467). For Plaintiff's

Syndrome, often occurring after gastric-bypass surgery, characterized by flushing, sweating, dizziness, weakness, and vasomotor collapse after eating, resulting from rapid passage of large amounts of food into the small intestine, with an osmotic effect removing fluid from plasma and causing decreased blood volume. Stedman's Medical Dictionary, Syndrome, Dumping Syndrome (27th Ed. 2000). 27

8

chronic pain, Dr. Chan recommended Plaintiff go to the Mayo Pain Clinic and seek physical therapy. (Id. at 467). On October 28, 2004, an electromyography examination and nerve conduction study was done on Plaintiff's right lower leg with normal results and no evidence of lumbosacral radiculopathy. (Id. at 567). After jamming his finger in a fall, Plaintiff went to the Mayo Clinic on November 26, 2004. (Id. at 570). After diagnosing brachyphalangia9 in the left small finger, Dr. J.P. Strickland placed Plaintiff's lower arm and hand in a splint. (Id.). Following the referrals of Dr. Mott and Dr. Chan, Plaintiff visited the Mayo Pain Clinic on November 8, 2004. (Id. at 459-63). Dr. Marc Huntoon and registered nurse Anita Haugland treated Plaintiff for his neck, low back, and bilateral leg pain. (Id.). At that visit Plaintiff rated his pain as eight and a half out of ten and related that his pain was aggravated by moving, bending, lifting, twisting, prolonged sitting, prolonged standing, and temperature or weather changes. (Id. at 461). In terms of daily activities, Plaintiff reported his pain had impacted his abilities in dressing, personal hygiene, physical activities, housework, employment, driving, socializing and relationships, and his hobbies and leisure activities. (Id. at 461). After

considering Plaintiff's medication history, Dr. Huntoon stated "[t]he patient has tried nearly every muscle relaxant, benzodiazepines, anti-epileptic drugs, anti-depressant drugs, nearly every opiate possible, and nearly every NSAID possible without any significant improvement." (Id. at 459). Dr. Huntoon then reviewed Plaintiff's x-rays and MRIs and concluded that Plaintiff had some degenerative changes in his lower back and neck, some mild foraminal encroachment in his neck and some facet hypertrophy (enlargement of the facet joint). (Id. at 459). During his
9

An abnormal shortness of the finger bone. Stedman's Medical Dictionary, Brachyphalangia (27th Ed. 2000). 28

physical examination, Dr. Huntoon noted Plaintiff exhibited positive Waddell's scores for "simulated" tenderness. (Id.). Overall, Dr. Huntoon's impression was: This patient has significant long-term pain. He is already on opiates and is a very poor candidate for [sic] implanted pump. At this juncture, I think it would not be unreasonable to continue him on his current opiate perhaps even one or two immediate release tablets could be prescribed for in-between times. I think it will be difficult to get him completely off his opiates and he probably would not do well in the Pain Rehabilitation Program as I don't think he would ever engage fully in the therapies they would offer. Although, if one could talk him into being evaluated for this, I would appreciate the opinion from [doctors in the Physical Medicine and Rehabilitation Clinic] about his suitability for pain rehabilitation. I certainly have nothing to offer him from the standpoint of an implanted device or any procedural modalities for his current condition. (Id. at 459). Complaining of a reoccurrence of his low back pain because of a fall, on December 26, 2004, Plaintiff returned to the Mayo Clinic emergency room. (Id. at 360-61). The emergency room physician, Dr. Nicola Schiebel, diagnosed musculoskeletal back pain and treated Plaintiff with IV morphine. (Id. at 360). At discharge she gave Plaintiff a prescription for Vicodin. (Id.). After another fall, Plaintiff returned to the Emergency Room for his back pain, this time at Community Memorial Hospital on December 31, 2004. (Id. at 258). In describing his symptoms, Plaintiff reported sharp pain in his back radiating into his legs that was aggravated by movement, as well as, a headache, fever, frequent urination, trouble breathing, chest pain, abdominal pain, nausea, vomiting, and bloody stools. (Id. at 259). On examination Plaintiff' stomach was nontender, plaintiff had painless range of motion in his neck, his heart rate and rhythm were normal and he was not in respiratory distress. (Id. at 260). With regard to Plaintiff's back, it was tender on palpitation but straight leg testing was negative. (Id.). Dr. Morales prescribed Toradol and Phenergan and discharged Plaintiff. (Id. at 258).

29

Because of his finger injury, on January 28, 2005, Plaintiff visited Dr. David Dennison in Mayo's hand clinic. (Id. at 644). In reviewing Plaintiff's medical history, Dr. Dennison noted Plaintiff's chronic back pain and "narcotic dependency." (Id.). Plaintiff's finger was swollen and he was experiencing joint pain and tenderness. (Id.). After viewing x-rays of Plaintiff's hand, Dr. Dennison diagnosed mallet finger10 and prescribed a finger splint. (Id. at 643-45). Reporting a cough and exacerbated back pain, Plaintiff treated with nurse practitioner Susan Buck on February 11, 2005. (Id. at 741). The physical examination showed Plaintiff's back was exquisitely tender and Plaintiff had trouble heel to toe walking. (Id.). Ms. Buck diagnosed bronchitis and back pain and prescribed an antibiotic, Flexeril, and Ultram. (Id.). In order to establish a primary care relationship, Plaintiff visited Dr. Robert Taylor at Mayo's Plainview clinic on February 16, 2005. (Id. at 664). Plaintiff told Dr. Taylor he experienced restless legs syndrome and chronic back and neck pain. (Id.). On examination, Plaintiff's heart and lungs were normal and Plaintiff had normal range of motion in his extremities. (Id.). While Plaintiff had diffuse tenderness, he did not meet the criteria for fibromyalgia. (Id.). In terms of his back range of motion, straight leg testing was negative and Plaintiff was able to bend forward at the waist to 45 degrees. (Id.). After Plaintiff reported to Dr. Taylor that Soma had helped him in the past with his pain, Dr. Taylor prescribed Plaintiff Soma and planned to follow-up with Plaintiff in one month. (Id.). At the next visit on March 17, 2005, Plaintiff's chief complaint was insomnia because of life stressors, including trying to get disability benefits. (Id. at 663). For the insomnia Dr. Taylor prescribed a trial of Sonata. (Id.). For his back pain, Plaintiff asked Dr. Taylor if he could increase his Soma from three to four times per day and Dr. Taylor agreed. (Id.). Finger injury causing damage to the extensor tendon in the finger, usually resulting from a hyperextension or "jamming" of the finger. Stedman's Medical Dictionary, Finger, Mallet Finger (27th Ed. 2000). 30
10

On April 7, 2005, Plaintiff asked Dr. Taylor to complete a disability form for his social security application. (Id. at 662). Dr. Taylor reviewed Plaintiff's medical records, including records from Dr. Martin and Dr. Kelly, and he performed a physical examination. (Id.). With respect to Plaintiff's limitations, Dr. Taylor stated that Plaintiff would be able to eat, bathe and perform personal care functions without difficulty, but he would be unable to walk, stand, or lift for "long periods of time," and that Plaintiff would need to limit contact with the materials that caused his dermatitis. (Id.). For Plaintiff's back pain, Dr. Taylor refilled Plaintiff's Soma and added Ultracet. (Id.). After noting Plaintiff's extensive narcotic use, Dr. Taylor stated Plaintiff should visit a pain clinic and told Plaintiff he would not prescribe any more narcotics. (Id.). The next day Plaintiff returned to Dr. Dennison for new finger pain. (Id. at 643). Plaintiff, reporting pain in his small left finger, stated the pain woke him at night, and he experienced numbness and pain on flexion. (Id. at 643). On physical examination Dr. Dennison found Plaintiff's upper finger joint was quite tender and had crepitus (popping) with motion. (Id.). X-rays of Plaintiff's hand showed a shortening of the fingers and upper joint arthritis of the small finger. (Id.). Because Plaintiff's previous use of a splint was ineffective, Dr. Dennison gave Plaintiff an injection of Kenalog (corticosteroid). (Id.). The next month, on May 4, 2005, Plaintiff again visited Dr. Dennison. (Id. at 642). Plaintiff continued to experience significant pain in his finger with some mild swelling. (Id.). After explaining the risks and benefits of the procedure, Dr. Dennison recommended Plaintiff have a joint fusion in his small finger and Plaintiff agreed. (Id.). For a pre-operative examination, Dr. Taylor examined Plaintiff on May 12, 2005. (Id. at 660-61). After reporting that his neck and back pain were worsening, Plaintiff asked Dr. Taylor to increase his Soma dosage and Dr. Taylor agreed. (Id. at 660). An EKG showed a normal

31

heart rhythm but a chest x-ray showed poor inspiratory (breath intake) effort. (Id.). Dr. Taylor agreed that Plaintiff's cardiovascular risk factors, a history of lung cancer and coronary artery disease, required additional testing before the surgery. (Id.). In anticipation of his surgery, on May 17 and 18, 2005, Plaintiff completed pulmonary and cardiovascular testing by Dr. Matthew Martinez with normal results. (Id. at 637-41, 686). After living in a tent for a number of weeks, Plaintiff reported to Dr. Taylor that he had an increase in his back and neck pain and a productive cough on July 7, 2005. (Id. at 659). For his back and neck pain, Plaintiff requested prescriptions for Soma, Albuterol, Amitriptyline and Tramadol. (Id. at 659). Because of his living conditions and car problems, Plaintiff stated he was unable to have his finger surgery and was unable to follow-up with Dr. Taylor's referrals to allergy, urology and a pain clinic. (Id. at 659). On examination, Dr. Taylor concluded that Plaintiff's back and neck pain remain unchanged. (Id.). Dr. Taylor diagnosed bronchitis and gave Plaintiff prescriptions for Soma, Advair, Tramadol, Amitriptyline, and an antibiotic. (Id.). Complaining of right-hand pain, Plaintiff treated with Dr. Marvin Timm on August 10, 2005. (Id. at 658). A week earlier, Plaintiff became dizzy, passed out, and then fell on his hand. (Id.). Dr. Timm diagnosed a contusion and tendonitis and prescribed Celebrex and Trazadone. (Id.). Later that month, on August 22, 2005, Plaintiff was examined by Dr. Gregory Anghlman for continued hand pain and was prescribed Toradol and Rocephin (antibiotic). (Id. at 657). On September 19, 2005, Plaintiff visited Dr. Jeremy Solberg for evaluation of right hand pain and a follow-up of Plaintiff's other conditions. (Id. at 656). Plaintiff experienced exquisite tenderness to palpitation of his hand and Dr. Solberg noted Plaintiff "is a bit hysterical about his pain in his hand." (Id.). Dr. Solberg diagnosed chronic pain syndrome and right hand pain, potentially related to rheumatoid arthritis. (Id.). For treatment, Dr. Solberg gave Plaintiff a

32

three-week prescription of Percocet, but explained he would not give Plaintiff any additional narcotic pain medication until Plaintiff went to a pain clinic. (Id.). Because his hand pain continued, on September 28, 2005, Plaintiff returned to Dr. Solberg. (Id. at 655). At that visit, Plaintiff reported pain and decreased strength and flexibility in his hand and requested more pain medication. (Id.). The tests to determine if Plaintiff had rheumatoid arthritis were negative and Dr. Solberg continued Plaintiff on Soma and Tramadol. (Id.). Additionally, Dr. Solberg asked Plaintiff to see a pain specialist and referred him to Dr. Jeffrey Brault at the Physical Medicine & Rehabilitation Department. (Id.). Before he would prescribe any more narcotics, muscle relaxants or other pain medications, Dr. Solberg told Plaintiff he would need to sign a narcotic contract. (Id.). Plaintiff returned to Dr. Solberg on October 14, 2005. (Id. at 653-54). In addition to his continued hand pain, Plaintiff reported chest tightness, wheezing and a cough. (Id.