Kochen v. Nancy Berryhill

Filing 15

ORDER - The Motion for an Order Reversing the Commissioner's Decision, ECF No. 11 , filed by Plaintiff Joshua D. Kochen, is denied; and The Motion and the Motion to Affirm Commissioner's Decision, ECF No. 12 , filed by Defendant Nancy C. Berryhill, is granted; The Commissioners decision is affirmed; The appeal is denied; and A separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JOSHUA D. KOCHEN,
Plaintiff,

8:17CV62

vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security;

MEMORANDUM
AND ORDER

Defendant.

This matter is before the Court on the Motion for an Order Reversing the
Commissioner’s Decision, ECF No. 11, filed by Plaintiff Joshua D. Kochen, and the
Motion to Affirm Commissioner’s Decision, ECF No. 12, filed by Defendant Nancy C.
Berryhill. For the reasons stated below, the Motion for an Order Reversing the Decision
will be denied and the Motion to Affirm the Decision will be granted.
PROCEDURAL HISTORY
Kochen filed for Title II benefits on February 20, 2014. Tr. 19.1 His claim was
denied initially on April 7, 2014, and again on reconsideration on July 16, 2014. He
requested a hearing, which was held on November 2, 2015. The Administrative Law
Judge (ALJ) issued a written opinion denying benefits on December 14, 2015.
An ALJ is required to follow a five-step sequential analysis to determine whether
a claimant is disabled. See 20 C.F.R. § 404.1520(a). The ALJ must continue the
analysis until the claimant is found to be “not disabled” at steps one, two, four or five, or
is found to be “disabled” at step three or step five. See id. Step one requires the ALJ to
1

Pinpoint citations to the transcript of the Administrative Record (“Tr.”) shall be to the
consecutively numbered pages in the record rather than to the Page ID of the docket.

determine whether the claimant is currently engaged in substantial gainful activity. See
20 C.F.R. § 404.1520(a)(4)(i), (b). The ALJ found that Kochen had not engaged in
substantial gainful activity since February 6, 2013. Tr. 21.
Step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. § 404.1520(c). A “severe impairment” is an impairment or
combination of impairments that significantly limits the claimant’s ability to do “basic
work activities,” 20 C.F.R. § 404.1520(a)(4)(ii) & (c), and satisfies the “duration
requirement.” 20 C.F.R. § 404.1509 (“Unless your impairment is expected to result in
death, it must have lasted or must be expected to last for a continuous period of at least
12 months.”).

Basic work activities include “[p]hysical functions such as walking,

standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling”; “[c]apacities
for seeing, hearing, and speaking”; “[u]nderstanding, carrying out, and remembering
simple instructions”; “[u]se of judgment”; “[r]esponding appropriately to supervision, coworkers and usual work situations”; and “[d]ealing with changes in a routine work
setting.” 20 C.F.R. § 404.1521(b). If the claimant cannot prove such an impairment, the
ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(ii), (c).
The ALJ found that Kochen had the following severe impairments: Degenerative disc
disease of the cervical and lumbar spine; small disc bulge; status post lumbar fusion;
status post cervical arthroplasty; and obesity. Tr. 21.
Step three requires the ALJ to compare the claimant’s impairment or impairments
to a list of impairments. See 20 C.F.R. § 404.1520(a)(4)(iii), (d); see also 20 C.F.R. Part
404, Subpart P, App’x 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926).

If the

claimant has an impairment “that meets or equals one of [the] listings,” the analysis

2

ends and the claimant is found to be “disabled.” See 20 C.F.R. § 404.1520(a)(4)(iii),
(d). If a claimant does not suffer from a listed impairment or its equivalent, then the
analysis proceeds to steps four and five. See 20 C.F.R. § 404.1520(a). The ALJ found
that Kochen did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments. Tr. 22.
Step four requires the ALJ to consider the claimant’s residual functional capacity
(RFC2) to determine whether the impairment or impairments prevent the claimant from
engaging in “past relevant work.” See 20 C.F.R. § 404.1520(a)(4)(iv), (e), (f). If the
claimant is able to perform any past relevant work, the ALJ will find that the claimant is
not disabled. See 20 C.F.R. § 404.1520(a)(4)(iv), (f). The ALJ found that Kochen had
the residual functional capacity to perform “sedentary work” as defined by 20 C.F.R.
404.1567(a), “but with additional limitations.” Tr. 22. The ALJ found that Kochen could
only perform work “that does not require foot controls with the right leg/foot; or greater
than frequent crouching, stooping, kneeling, or crawling;” and work “that does not
involve concentrated and/or sustained vibration.” Id. Ultimately, the ALJ concluded that
Kochen was unable to perform any past relevant work. Tr. 32.
At step five, the ALJ must determine whether the claimant is able to do any other
work considering the claimant’s RFC, age, education, and work experience. 20 C.F.R.
§ 404.1520(g). If the claimant is able to do other work, the claimant is not disabled.
The ALJ determined that there are jobs that exist in significant numbers in the national
economy that Kochen could perform, and, therefore, Kochen was not disabled from
February 6, 2013, to the date of the decision, December 14, 2015. Tr. 32–33.
2

“‘Residual functional capacity’ is what the claimant is able to do despite limitations caused by all
of the claimant’s impairments.” Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (citing 20 C.F.R.
§ 404.1545(a)).

3

FACTUAL BACKGROUND3
I. Medical Opinion Evidence
On February 6, 2013, Kochen was seen in an emergency room with increasing
left chest wall and thoracic spine pain after an injury at work while driving a large loader.
Tr. 336. Xrays of his chest and thoracic spine showed no acute issues. See Tr. 346–
48. Kochen was discharged with prescriptions for Anaprox, Flexeril and Percocet, and
instructed to follow up with an occupational health provider, his primary physician, and
“back surgeon.” Tr. 337. On February 11, 2013, Kochen saw Dr. David Hoeft, M.D. Tr.
368. Dr. Hoeft’s note stated that Kochen’s injury resulted from the collapse of the air
bladder in the seat of his front-loader, causing him to land hard on the metal
underneath. Tr. 368. Kochen had not returned to work since his injury and his pain had
not improved. Id.
Kochen had low back pain when he sat or stood, but he felt better when lying
down. Id. An x-ray showed Kochen’s prior lumbar fusion was intact, so Dr. Hoeft
continued the medications from the emergency room and “reassured him that in the
absence of neurological signs or symptoms and a good x-ray, that there was no need to
see orthopedic surgery at this time.” Tr. 369. On February 18, 2013, Kochen returned
to Dr. Hoeft. Tr. 366. He still had low back pain and left-side chest pain, shortness of
breath, and pain around his left side to the middle of his back. Id. Dr. Hoeft thought
Kochen was having “mostly muscle spasms of the chest wall,” which “over time should
3

This Court’s General Order No. 2015-05 instructs that a plaintiff challenging a final decision of
the Commissioner of the Social Security Administration (SSA) shall include in his or her brief supporting a
motion to reverse the decision “a statement of material facts,” which is “supported by page references to
the administrative record.” The Commissioner must then file a motion to affirm its decision and include
with its supporting brief “a non-repetitive counter-statement,” if the Commissioner disagrees with any
portion of the plaintiff’s statement. Here, the parties have substantially complied, and a synthesis of their
competing statements composes this section of the Court’s order.

4

improve,” or that Kochen may have had “a thoracic nerve impingement” that might
improve with an injection from a pain doctor. Tr. 367. Dr. Hoeft referred Kochen to Dr.
James P. Devney for evaluation for thoracic spine injections. Id.
On February 25, 2013, Kochen saw Dr. Devney. Tr. 661. Dr. Devney noted
Kochen’s pain ranged from 7 to 8 out of 10. Id. Dr. Devney noted Kochen’s injury
occurred when his “[a]irbag under seat failed while driving large utility truck over
bum[p]s in road. Slammed hard into seat causing instant pain in back.” Id. Dr. Devney
noted that Dr. Phillips had performed back surgeries in 2008 and 2010, to Kochen’s
lumbar and cervical spine, respectively. Tr. 662. On exam, Kochen was tender over his
lower thoracic spine, his L4 and L5, and over his left costochondral junction from ribs 4
through 8. Id. Lumbar spine extension of two degrees caused pain. Id. The clinical
findings revealed Kochen had no gross deformities of his spine and no muscle spasms;
he could flex forward 50 degrees without pain; he had 5/5 motor function; and he had
normal muscle tone and bulk throughout his lower extremities. Tr. 662–63. He had
normal sensation, “2+ and symmetric” reflexes, negative sitting and cross-legged
straight leg raises, he ambulated independently with a normal gait pattern, and he had
no difficulty tandem walking or heel-and-toe walking.

Tr. 663.

Dr. Devney

recommended two weeks of physical therapy, weaning off Percocet, switching from
Flexeril to Tizanidine, and continuing other medications.

Tr. 664.

Kochen was to

remain off work until further notice. Tr. 667.
On March 8, 2013, Kochen saw Dr. Alicia Feldman. Tr. 657.

His pain was

increasing, with mild low back pain and numbness in his left foot, and physical therapy
was not providing any relief. Id. Naproxen was upsetting his stomach. Id. Percocet,

5

which he was taking up to five times a day, was “just tak[ing] the edge off” his pain. Id.
Kochen moved about the room without hesitation or facial grimace. Tr. 657. He could
forward flex to 70 degrees with pain, had 5/5 motor function, and had normal muscle
tone and bulk throughout his lower extremities.

Tr. 658.

Kochen demonstrated

symmetrical reflexes, negative sitting and cross-legged straight leg raises.

Id.

He

ambulated independently with a normal gait pattern, and he had no difficulty tandem
walking or heel-and-toe walking. Id. Dr. Feldman planned a thoracic MRI to further
evaluate Kochen’s work injury. Tr. 658. She also switched Kochen from Naproxen to
Celebrex, refilled his Lidoderm and Percocet, and kept him off work pending the results
of the planned MRI. Tr. 659–60. The subsequent thoracic spine MRI showed a right
paracentral disc protrusion at T7-T8, which contacted the ventral aspect of the spinal
cord. Tr. 480.
On March 13, 2013, Kochen returned to Dr. Devney. Tr. 652. Dr. Devney
performed a T7-T8 transforaminal epidural injection, and released Kochen “back to
sedentary work.” Tr. 654–56. Dr. Devney “had a lengthy, sit-down conversation” with
Kochen and his significant other and pointed out that “several yellow flags are obvious”
and there certainly “is some element of symptom magnification.” Tr. 654.
On March 21, 2013, Dr. Devney noted Kochen had failed to respond well to the
thoracic spine epidural injection.

Tr. 647.

During the examination, Kochen moved

about the room without hesitation or facial grimace, had no muscle spasm or spinal
deformities, and ambulated independently with a normal gait pattern. Tr. 647–48.
Kochen wanted to see Dr. Eric Phillips, the surgeon that had treated his prior low
back and neck issues. Tr. 648. Dr. Devney’s note stated that “[i]n an effort to satisfy

6

[Kochen’s] desire, referral provided.”

Id.

Dr. Devney stopped Kochen’s pain

medication, Percocet, because Dr. Devney believed Kochen’s pain complaints were out
of sync with the objective findings, and released Kochen from his care. Id. Kochen was
to continue with the “same work restrictions” until he saw Dr. Phillips. Tr. 650.
On March 28, 2013, Kochen saw Dr. Phillips. Tr. 399. Kochen was having right
leg weakness with prolonged standing, in addition to his left leg pain. Id. Kochen’s
thoracic and lumbar spine “exhibited tenderness on palpation.” Tr. 401. He had pain
with flexion and extension of his lumbosacral spine. Tr. 402. Waddell’s sign testing
was negative. Id. Kochen did not appear uncomfortable, had a normal posture, and
had no pain on motion of the thoracic, cervical, and lumbar spines. Tr. 401. Kochen’s
motor strength was 5/5, and his muscle bulk was normal. Tr. 402. His reflexes were 2+
throughout, and his gait and stance were normal. Id. Dr. Phillips planned for another
MRI of Kochen’s thoracic spine and an MRI of his lumbar spine. Tr. 403. Dr. Phillips
prescribed Lyrica and continued Celebrex and Lidoderm patches. Tr. 403–04. Dr.
Phillips found Kochen could not return to work. Tr. 406.
On April 8, 2013, Kochen’s thoracic spine MRI showed a small right paracentral
disk protrusion at T7-8 with mild effacement of the thecal sac. Tr. 481. His lumbar
spine MRI showed a small right foraminal disk protrusion at L3-4 with mild right
foraminal stenosis at that level. Tr. 482. On April 11, 2013, Dr. Phillips went over the
MRI results with Kochen. Tr. 409. Lyrica had helped temporarily, but Kochen seemed
to trend back to baseline. Id. Most of his pain was in the thoracic region in the midline
and came from the lumbosacral area of his lower back and radiated into his right leg to
his toes. Id. His pain was aggravated by “standing, twisting, [and] sitting in a chair

7

without a back rest.” Id. On examination, Kochen had 5/5 motor strength throughout,
symmetric reflexes, normal sensation, no spinal tenderness to palpation, and normal
gait and stance. Tr. 410. Dr. Phillips ordered “conservative, non-operative care,” and
noted that Kochen might benefit from further injections and pain management. Tr. 411.
Dr. Phillips referred Kochen to Dr. John Massey to try a right-sided T8-9 thoracic
epidural. Id. Kochen was to remain off work for the next two months. Tr. 413.
On April 11, 2013, Dr. Massey, performed the right T8-9 thoracic transforaminal
epidural steroid injection. Tr. 408. On April 25, 2013, Kochen returned to Dr. Massey
and reported his symptoms had not improved.

Tr. 414.

Dr. Massey noted that

“[Kochen] is describing that the radiating pain into the thoracic distribution intermittently
on the left side and on the right side has been reduced substantially and consistently,
but the axial back pain in the midthoracic region is really unchanged.” Id. This pain was
aggravated with sitting and standing for long periods of time or activity. Id. Lyrica had
been of some benefit “with very little in the way of adverse effects . . . .” Id. Dr. Massey
described the etiology of Kochen’s pain:
First, the disk at the T7-8 level leads to radiating pain in the thoracic
distribution involved and this is what we would expect to improve with the
epidural steroid injection under transforaminal approach. The Lyrica is
also beneficial for this and it is consistent with what we would expect when
he described telescoping of his pain more into the thoracic axial
distribution rather than a radicular pattern. Second, however, we also see
discogenic pain which is also consistent with what we would expect.
Tr. 417. Dr. Massey also noted that Kochen had not been satisfied with Dr. Devney’s
care.

Id.

Dr. Massey had a discussion with the case manager for the workers’

compensation insurance carrier “to ensure everyone is on the same wavelength.” Id.
Dr. Massey continued the restrictions set by Dr. Phillips. Id.

8

On May 9, 2013, Kochen began physical therapy. Tr. 419. He was seen for
physical therapy several times before his discharge from physical therapy on June 17,
2013. Tr. 424, 427, 434, 438, 441, 444, 450, & 452.
On May 23, 2013, Kochen returned to Dr. Massey. Tr. 557. Kochen reported
improvement with his initial efforts at physical therapy and Lyrica. Id. His pain was still
worse with activity. Id. Dr. Massey noted Kochen appeared to reach the maximum
level of improvement with conservative measures. Tr. 559–60. Dr. Massey increased
Kochen’s Lyrica, continued his physical therapy, and continued Dr. Phillips’s work
restrictions. See Tr. 437 & 560.
On June 6, 2013, Kochen returned to Dr. Phillips.

Tr. 446.

His pain had

increased over the prior two days—he had been trying to perform his home exercises
“when he stepped [off of] the stairs ‘wrong’ twisting his back.” Id. Intermittent right leg
pain radiated down his leg to his foot. Id. Dr. Phillips noted Kochen did not appear
uncomfortable, and he had normal posture, sensation, muscle bulk and muscle tone.
Tr. 447–48. Kochen had symmetrical reflexes, no muscle spasm or atrophy, and no
pain on motion of the thoracic, cervical, and lumbar spines. Id. He had a normal gait
and stance. Id. Dr. Phillips found that Kochen could not return to work. Tr. 451.
On June 14, 2013, a MRI of Kochen’s thoracic spine was performed. Tr. 484.
Like the prior thoracic spine MRIs, this MRI showed a small right paracentral protrusion
of the T7-8 disk that effaced the thecal sac. Id. On June 24, 2013, Kochen returned to
Dr. Phillips to review the results of the June 14 MRI. Tr. 454. Dr. Phillips noted that
Kochen’s thoracic pain continued, kept him up at night, and was aggravated by quick
changes of movement or direction. Id. The pain would “cause [Kochen’s] right leg to go

9

out on him.” Id. Kochen had been falling as a result. Id. Dr. Phillips noted the Kochen
was “very discouraged by how much general daily activities and trivial movement
causes onset of his pain,” id., and that the disc protrusion had increased “by
approximately ½ millimeter” in the recent MRI. Tr. 455. Dr. Phillips explained that the
classic surgery repair would involve going through Kochen’s chest by removing a rib,
removing the disc herniation, and then performing a fusion. Tr. 456. Kochen wanted to
know if the procedure could be performed with a posterior approach, which Dr. Phillips
considered a reasonable question he would discuss at a case conference. Id. Dr.
Phillips again found that Kochen could not work. Tr. 458.
On July 1, 2013, Dr. Phillips held the conference to discuss Kochen’s potential
back surgery. Tr. 535. Dr. Phillips’s note from the conference stated “[i]t was felt that
[Kochen] undergo his third injection and trial traction” and that “[Kochen] should undergo
a CT scan” to see if the herniated disc at T7-8 was calcified. Id. If the disc was
calcified, further nonoperative care was planned, and if not calcified, a fusion could be
considered. Id.
On July 11, 2013, Dr. Massey performed another thoracic transforaminal epidural
steroid injection on the right at the T8-9 level. Tr. 461. On July 25, 2013, the CT scan
was performed. Tr. 485. On July 29, 2013, Erin Strufing, PA-C, relayed to Kochen that
the CT scan had showed “the disc herniation is not calcified and is in fact a soft disc
herniation.”

Tr. 462. Kochen told Strufing he could not find a provider to perform

traction therapy and that the thoracic epidural injection had not provided relief. Id.
Dr. Gammel completed a RFC evaluation on July 29, 2013. Tr. 628–29. Dr.
Gammel opined Kochen could sit one hour at a time and a total of 8 hours in an 8-hour

10

workday; stand and walk for ½ hour each and a total of 2 hours each in an 8-hour
workday; lift and carry up to 10 pounds frequently, and up to 20 pounds occasionally;
push and pull up to 35 pounds occasionally; and could use both his hands for repetitive
grasping, manipulation, and using arm controls, and his right foot but not left foot for leg
controls. Tr. 628. Dr. Gammel also opined that Kochen could not climb ladders, but
could frequently drive, reach out and above shoulder level, occasionally climb stairs,
and seldom “bend/stoop,” “squat/crouch,” crawl, and kneel. Tr. 629.
Dr. Phillips’s objective medical findings during Kochen’s August 7, 2013
examination demonstrated that Kochen did not appear uncomfortable, had no muscle
atrophy, and had normal muscle bulk and tone, gait and stance, sensation, and
reflexes. Tr. 464. Dr. Phillips told Kochen to perform aerobic conditioning and exercise.
Tr. 465.

Dr. Phillips noted “sedentary duty certainly could be done” but none was

available with his employer. Id.
On October 7, 2013, Kochen returned to Dr. Phillips. Tr. 467. Dr. Phillips noted
Kochen again declined surgery.

Tr. 469.

Dr. Phillips placed Kochen at maximum

medical improvement, and sent him for a functional capacity evaluation (FCE) to
determine his permanent work restrictions. Id. Until the permanent restrictions were
obtained after the FCE, Kochen was not to return to work. Tr. 475.
A physical therapist performed an FCE on November 25, 2013 (November 2013
FCE). Tr. 486. The FCE stated that Kochen “was able to complete the following tasks
at the ‘Occasional’ Level: Sitting, Standing, Walking, Forward Reaching, Bending,
Squatting and Kneeling,” Tr. 488, and that Kochen was able to complete “Stair Climbing
and Crawling” at the “‘Infrequent’ Level.” Id. The FCE concluded that “the results

11

indicate [Kochen] is able to work at the SEDENTARY Physical Demand Level for an 8
hour day according to the Dictionary of Occupational Titles, U.S. Department of Labor,
1991,” Tr. 486 and listed Kochen’s “WORK CLASSIFICATION” as “SEDENTARY.” Tr.
489. The FCE further noted:
[Kochen] exhibited symptom/disability exaggeration behavior by our
criteria . . . . He passed 25/30 validity criteria during the FCE, 83%, which
suggests good effort and valid results which can be used for medical and
vocational planning. Therefore, the symptom/disability exaggeration
classification did not affect the FCE results and may have been due to
normal personality traits, anxiety regarding reinjury, a misunderstanding of
the self report pain scales and other similar factors.
Tr. 488.
When Kochen returned to Dr. Phillips on December 12, 2013, he did not appear
uncomfortable. Tr. 477. There was no muscle spasm or muscle atrophy. Id. Kochen
had some decreased tactile sensation, but his motor strength was 4 to 5 out of 5,
muscle bulk and tone were normal, and reflexes were symmetrical. Tr. 477. Dr. Phillips
opined the that November 2013 FCE “demonstrates [Kochen’s] ability to participate in
sedentary work,” Tr. 478, and he stated Kochen could “return to work with restrictions
[p]er valid FCE results,” Tr. 479.
On February 21, 2014, Kochen applied for disability benefits.

Tr. 172.

He

explained in his initial disability report he was disabled due to thoracic herniation, status
post cervical fusion, radicular pain, and status post lumbar disc surgery. Tr. 235.
When Kochen saw Dr. Phillips on May 1, 2014, Dr. Phillips reported Kochen’s
back situation was stable and he could continue to work with the same restrictions. Tr.
497. Dr. Phillips instructed Kochen to try swimming for exercise. Id.

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On March 10, 2014, Kochen returned to Dr. Hoeft. Tr. 500. Dr. Hoeft’s notes
stated that Kochen “sits in a hot bath for a couple hours at night which does help” and
that “[Kochen] would like to see if he could get a hydrotherapy unit to use at home.” Id.
Kochen wanted Dr. Hoeft to provide a note to support Kochen’s request for a handicap
permit for his car, and wanted a letter that would allow his life insurance premiums to be
waived due to disability. Id. Kochen’s medications at the time were Lyrica, Celebrex,
Lidoderm patches, and an occasional Percocet. Id. Dr. Hoeft provided the requested
note and letter. Id.
On April 4, 2014, Jerry Reed, M.D., completed a RFC evaluation, wherein he
opined the evidence in the record demonstrated Kochen could lift up to 10 pounds,
stand and/or walk a total of two hours in an 8-hour workday, and sit for about 6 hours in
an 8-hour workday.

Tr. 83 & 86.

Dr. Reed set forth the evidence supporting his

opinion, including Dr. Phillips’s objective findings and opinion that Kochen could perform
sedentary work with normal breaks. Tr. 81.
On May 1, 2014, Kochen returned to Dr. Phillips. Tr. 495. He had ongoing pain
between his shoulder blades, and in his low back and right leg. Id. Dr. Phillips noted
Kochen’s weight was increasing. Tr. 497. Kochen had “some add on deterioration
above his lumbar fusion,” which was not work-related. Tr. 497. Dr. Phillips maintained
the permanent restrictions. See id.
On May 2, 2014, Kochen was in a car accident where he was “hit by a minivan at
high rate of velocity totaling his car.” Id. Kochen complained of pain at 8 out of 10. Id.
On May 6, 2014, Kochen saw Dr. Jeffrey Rapp, Jr., for a follow-up after a recent

13

hospitalization at UNMC. Tr. 501. He was prescribed Percocet and diagnosed with
chest wall pain and contusion of the left ribs. Tr. 502.
Dr. Steven Higgins completed a RFC evaluation on July 9, 2014, wherein he
stated “the new evidence is consistent with the initial RFC.” Tr. 92. Dr. Higgins noted
the new evidence demonstrated Kochen’s condition was stable and no further
interventions were planned, and the evidence indicated Kochen could perform
sedentary work, but was limited from more strenuous work. Tr. 92–94.
On October 4, 2014, Kochen returned to Dr. Hoeft for medication refills. Tr. 507.
Dr. Hoeft noted that, besides his issues with sitting, standing and walking, “[Kochen’s]
only relief is when he spends several hours in the bathtub.” Id. Kochen felt his pain
was not any better and had perhaps worsened. Id. Dr. Hoeft noted that “[t]his young
gentleman has 2 areas of pain that do not appear to be anatomically connected.” Tr.
508. Dr. Hoeft referred Kochen to Dr. Soares at a pain clinic and continued Kochen’s
medications, including Percocet. Id. On March 23, 2015, Kochen returned to Dr. Hoeft.
Tr. 603. Kochen had gained about 10 pounds since his last appointment with Dr. Hoeft,
and his body mass index was up to 33.72. Id. Dr. Hoeft completed another statement
for Kochen’s life insurance premiums, refilled his Percocet, and started Kochen on a
weight loss drug. Id.
Kochen filed a claim for workers compensation benefits, and on January 7, 2015,
the Workers Compensation Court awarded Kochen ongoing weekly benefits of
$638.83—or $33,219.16 per year—because Kochen could not perform his past medium
exertional work. Tr. 298.

14

On June 1, 2015, Kochen returned to Dr. Phillips. Tr. 510. Dr. Phillips noted
Kochen had decreased sensation in his right leg in various dermatomes. Tr. 512. Dr.
Phillips opined that Kochen had “been rendered totally disabled.” Tr. 513. Dr. Phillips’s
diagnoses were herniated thoracic disc and history of lumbar arthrodesis.

Id.

Dr.

Phillips’s objective findings demonstrated Kochen did not have muscle spasm, spinal
tenderness to palpation, or step deformity. Tr. 512. Kochen had normal lumbar flexion,
extension, and rotation, and his straight leg raises were negative. Id. Kochen had
some decreased tactile sensation, but he had full 5/5 motor strength throughout, normal
muscle bulk and tone, normal heel and toe walking, symmetrical reflexes, no limp when
walking, and no muscle atrophy. Tr. 512–13. Dr. Phillips noted Kochen could return in
one year unless his symptoms worsened. Tr. 513.
Kochen’s earnings records indicate that other than 2012, he earned $17,000 to
$24,000 yearly after 2007. Tr. 185. His monthly family primary insurance amount of
disability insurance benefits is $1,398.50, or $16,782.00 per year. Id.
II. Hearing Evidence
The ALJ held the administrative hearing on November 2, 2015. Tr. 39. At the
hearing, Kochen described the treatment for his work injury. Tr. 52. He had “several
rounds of shots in my back,” which generally caused more pain. Tr. 53. Dr. Phillips
wanted to perform surgery on Kochen’s spine that would require removing a rib,
collapsing a lung, and moving Kochen’s heart.

Id.

Kochen said he declined the

procedure, as it was not guaranteed to cause improvement, would cause a long
recovery, and could have made his pain worse. Tr. 53–54. Once Kochen declined the

15

procedure, he was placed at maximum medical improvement and sent for a FCE. See
Tr. 54.
Kochen stated that he previously had issues with his lumbar and cervical spine,
but was able to return to work. Tr. 55. Kochen described pain that came around his
chest and felt “like somebody [was] standing on [his] chest.” Tr. 56. Kochen testified
that he had leg pain in his right leg that radiated from his low back to his toes and made
it painful to walk. Id. His pain medications caused him trouble sleeping, sometimes
affected his ability to concentrate, and sometimes made him drowsy. Tr. 57. The pain
sometimes kept him up at night. Tr. 58.
Kochen described how his pain had required him to use his left foot at times
while driving, and made it difficult to use stairs, bend over, or sit down at times. Id. He
could stand for 20 to 30 minutes before needing to sit or lie down. Tr. 59. He could sit
for up to two hours, if provided the right chair, before needing to stand or lie down. Id.
Kochen later clarified that he could sit for two hours at a time in a recliner, and in a
“business-type chair” he could only sit for 20 to 30 minutes at a time. Tr. 60. To make
his back feel better, he put his hands behind his back and pressed on his thoracic spine.
See Tr. 59. His pain affected his attention and concentration. Tr. 60.
During his workers’ compensation claim process, Kochen received vocational
testing that revealed he needed “remedial training just to get remedial courses.” Tr. 60–
61.
During the hearing, Kochen was unable to continue sitting during his testimony.
See Tr. 62. Kochen explained he needed to “lean on [a] wall for a minute.” Id. Once
he sat back down, Kochen further explained the assistive devices he used in the

16

bathroom. See Tr. 61–62. Kochen’s counsel closed his questioning by asking Kochen
why he thought he could not work eight hours a day. Tr. 63. Kochen replied “I’m in
constant pain. I hurt all the time. I mean it’s never a pain-free day.” Tr. 63.
The ALJ asked Kochen to explain how he spent the day before the hearing. Tr.
63. Kochen stated he spent most of the day in the tub, and on many days sat in a tub
for two to three hours. Tr. 63. When the weather changed, his pain was “10 times
worse than it is on a normal day.” Tr. 63–64. He otherwise spent a lot of the day lying
on the bed or couch. Tr. 64. His wife cooked all their meals. Id. He did not go out
much, but had gone with his wife to buy a pair of shoes for one of his children. Tr. 65.
The ALJ asked Kochen if he could, if dropped off at “the front door of the biggest
Wal-Mart store you’ve ever been in,” walk to the far back corner of the store, pick up
pencils, and then bring them back to the front of the store. Tr. 65. Kochen explained he
could not walk that far, but might walk to the pencils, take a break, and then walk back
to the front, and then sit down again. Tr. 65–66.
The ALJ then asked Kochen to explain why he could not do a job where he took
customer questions over the phone and answered those questions based on
information from a computer, such as the location of the nearest Home Depot based on
a caller’ zip code. Tr. 67. Kochen replied he could not do that due to his sitting and
standing difficulties, and his need to “lay down flat” and use a bathtub. Id. Without
being able to lie down or use a bathtub, Kochen thought he could “get through an hour”
on a good day. Id.
The ALJ’s first hypothetical question to the vocational expert assumed an
individual limited to sedentary work with no crouching or stooping; no more than

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frequent kneeling or crawling; no operating foot controls with the right leg; no work with
concentrated and sustained vibration, such as work with large power tools; and no
exposure to hazards, such as unprotected heights or work near dangerous or
unguarded moving machinery.

Tr. 71.

The vocational expert identified unskilled

sedentary jobs that could be performed by the hypothetical individual as: “Charge
account clerk;” “order clerk, food and beverage;” and “document preparer.” Tr. 72. The
functional limitations in this hypothetical question became the ALJ’s RFC determination.
See Tr. 22.
The ALJ’s second hypothetical included the limitations of the first and added a
limitation that “the worker is not able to complete two hour blocks of time on the job
either by sitting or standing in combination.” Tr. 72. The ALJ stated “[l]et’s [s]ay a
worker can only work one hour without having to take a break to leave the workstation
and lie down for 15 minutes.” Tr. 72. The vocational expert testified there would be no
full time work for the hypothetical individual. Tr. 73.
Kochen’s counsel’s first hypothetical assumed an individual limited to lifting 10
pounds occasionally; occasional bending, squatting, kneeling, sitting, standing, walking,
forward and overhead-reaching; infrequent stair-climbing and crawling; and no ladderclimbing. Tr. 73–74. Counsel referenced that he was basing his limitations on those
described in the November 2013 FCE, which was marked in the record as page 10 of
Exhibit 9-F. Tr. 74. The vocational expert stated that the hypothetical claimant could
not work in the national economy because “[t]he durations of times that he can sit/stand
would prohibit continuity of functioning of a job, any job.” Id.

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Kochen’s counsel’s second hypothetical assumed an individual limited to lifting
no more than 10 pounds and who needed to change positions “at least every 30
minutes throughout the day.” Id. The vocational expert testified that such limitations
would preclude all work in the national economy. Tr. 75.
STANDARD OF REVIEW
“When considering whether the ALJ properly denied social security benefits, [the
Court] determine[s] whether the decision is based on legal error, and whether the
findings of fact are supported by substantial evidence in the record as a whole.” Collins
v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (internal quotation marks omitted) (quoting
Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000)). “Substantial evidence is less than a
preponderance but enough that a reasonable mind might accept as adequate to support
the conclusion.” Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013) (internal citations
omitted). A decision supported by substantial evidence may not be reversed, “even if
inconsistent conclusions may be drawn from the evidence, and even if [the court] may
have reached a different outcome.” McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir.
2010). Nevertheless, the Court’s “review extends beyond examining the record to find
substantial evidence in support of the ALJ’s decision.” Moore v. Astrue, 623 F.3d 599,
602 (8th Cir. 2010) (internal quotation marks omitted) (quoting Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007)). The Court must “also consider evidence in the record that
fairly detracts from that decision.” Id. (internal quotation marks omitted) (quoting Cox,
495 F.3d at 617).
The Court also must determine whether the Commissioner’s decision “is based
on legal error.” Collins, 648 F.3d at 871 (quoting Lowe v. Apfel, 226 F.3d 969, 971 (8th

19

Cir. 2000)). “Legal error may be an error of procedure, the use of erroneous legal
standards, or an incorrect application of the law.” Id. (internal citations omitted) (citing
Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir. 2003); Nettles v. Schweiker, 714
F.2d 833, 836 (8th Cir. 1983)). No deference is owed to the Commissioner’s legal
conclusions. Brueggemann, 348 F.3d at 692 (stating that allegations of legal error are
reviewed de novo).
DISCUSSION
Kochen argues that the ALJ decision should be reversed because the ALJ
misread the restrictions contained in the November 2013 FCE. Although the November
2013 FCE contains an inconsistent use of terminology, i.e., suggesting that Kochen
could sit only at the “occasional” level yet was capable of sedentary work, the ALJ’s
decision was based on the entire record and is supported by substantial evidence
therein.
The November 2013 FCE stated that Kochen was able to sit, stand, walk, and
forward-reach at the “‘Occasional’ Level,” and that he could climb stairs and crawl at the
“‘Infrequent’ Level.” Tr. 488.
In discussing the November 2013 FCE in his decision, the ALJ stated:
In consideration of the opinion evidence, the [ALJ] affords great weight to
the FCE from November 2013. . . . The study was found to be statistically
valid; it was conducted as of the time of the claimant’s maximum medical
improvement; no later evidence serves to rebut it; and it is consistent with
the preponderance of the evidence. Additional weight is lent the
sedentary FCE, given the fact that it is further supported by Dr. Phillips
and, to a certain extent, Dr. Devney—both specialists in the areas of
impairment from which the claimant suffers and who each treated the
claimant. Not only did Dr. Phillips agree with the FCE specifically in
December 2013 but even prior . . . he wrote that the claimant would have
“certainly” been capable of sedentary work in August 2013. Dr. Devney
initially limited the claimant to sedentary work in March 2013 and, at the
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time of discharge later that month, stated that he would be able to do light
work. In sum, these opinions are found to be of the greatest probative
value when considering the sources and their relative expertise and
experience treating and/or examining the claimant directly.
Tr. 31 (internal citations omitted).
The ALJ ultimately concluded that Kochen was able to perform sedentary work.
This type of work is defined at 20 C.F.R. § 404.1567(a) as requiring “walking and
standing . . . occasionally.” Social Security Ruling 83-10 states that “‘[o]ccasionally’
means occurring from very little up to one-third of the time” and that “[s]ince being on
one’s feet is required ‘occasionally’ at the sedentary level . . . periods of standing or
walking should generally total no more than about 2 hours of an 8-hour workday, and
sitting should generally total approximately 6 hours of an 8-hour workday. SSR 83-10,
1983 WL 31251 (Jan. 1, 1983).
Kochen notes that, although the November 2013 FCE designated Kochen’s
“Work Classification” as “Sedentary,” Tr. 489, it also concluded that, among other
limitations, Kochen was limited to “occasional” sitting, id. Under SSR 83-10’s definition
of “occasional,” this would mean no more than two hours of sitting per day. According
to Kochen, this created an error in the ALJ’s decision.
Kochen argues that this case is similar to Coleman v. Astrue, 498 F.3d 767 (8th
Cir. 2007), in which an ALJ assigned great weight to a treating physician’s opinion that
adopted “restrictions detailed in the [FCE], which are for sedentary work.” Id. at 770.
The court of appeals held that the particular restrictions, not the designation of
sedentary work, was paramount. See Id. (citing SSR 96–5p (July 2, 1996), 1996 WL
374183, at *5) (“Whether a claimant can work sedentary work is a question for a
vocational expert, not a medical source.”). Because the FCE’s restrictions were not in
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the record, the court held the district court should have directed the SSA to locate the
FCE. Id. at 771.
Kochen notes that the relevant FCE here shows that the precise restrictions
demonstrate Kochen is unable to do sedentary work, regardless of the FCE’s
categorization of Kochen’s work level as sedentary.

Kochen also argues that Dr.

Phillips released him from his December 2013 appointment to return to work per the
restrictions in the November 2013 FCE, thus adopting those restrictions himself.
Finally, Kochen argues that his counsel’s hypothetical question to the vocational expert
at the hearing reflected the limitations of the November 2013 FCE and the vocational
expert stated that such limitations precluded work in the national economy. ECF No.
11-1, Page ID 747 (citing Tr. 73–74, 615); id., Page ID 757 (citing Tr. 31, 277–78, 488–
89, 615).
Although Kochen essentially argues that the ALJ’s RCF, and resulting
determination of Kochen’s non-disability, were erroneous due to a misreading of the
November 2013 FCE, “[i]t is ‘the ALJ’s responsibility to determine [claimant’s] RFC
based on all the relevant evidence, including medical records, observations of treating
physicians and others, and [claimant’s] own description of [his] limitations.” Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (second and third alterations in original)
(quoting Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.1995)). The ALJ’s RFC was
based on the totality of consistent and substantial evidence throughout the entire
record.
As Kochen correctly notes, the Eighth Circuit has held that whether a claimant
can perform sedentary work “is a question for a vocational expert, not a medical

22

source.” Coleman, 498 F.3d at 770. This holding cites Social Security Ruling 96–5p,
which states “[a]djudicators must not assume that a medical source using terms such as
“sedentary” and “light” is aware of our definitions of these terms” and that “[t]he
judgment regarding the extent to which an individual is able to perform exertional
ranges of work goes beyond medical judgment . . . and is a finding that may be
dispositive of the issue of disability.” 1996 WL 374183, at *5. The Court notes that the
November 2013 FCE, stating that Kochen was capable of sedentary work, cited to the
definition of “sedentary” in the “Dictionary of Occupational Titles, U.S. Department of
Labor, 1991.” Tr. 486. There is no indication that the ALJ blindly accepted the FCE’s
use of the term “sedentary” as dispositive of the overall issue. In discussing Kochen’s
worker’s compensation judgment, which stated that Kochen was “totally disabled,” the
ALJ noted that “terms of art” appearing in the record are not controlling for determining
disability benefits. Tr. 24. Dr. Phillips, although noting several times that Kochen was
capable of sedentary work, also noted at one point that Kochen was “totally disabled,”
Tr. 513. The ALJ did not appear to treat either label as controlling, but rather relied on
objective findings in determining the RFC.
Dr. Phillips found that Kochen could perform sedentary work in August of 2013,
Tr. 26 & 465, November 2013, Tr. 27 & 478, and May 2014, Tr. 497. The notes from
various examinations by Dr. Phillips recorded that Kochen did not appear
uncomfortable, had negative straight leg raising, no spinal tenderness, full muscle
strength, tone and bulk with no evidence of muscle atrophy or muscle spasm, and had
normal gait, stance, balance, and coordination. Tr. 26, 27, 401–02, 410, 432, 447, 455,
464, 468, 477, 512–13.

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The ALJ noted that these objective findings were consistent with those of Dr.
Devney. Tr. 27. In examinations in February and March of 2013, Dr. Devney recorded
that Kochen had normal muscle tone and bulk throughout his lower extremities,
negative sitting and cross-legged straight leg raises, 5/5 motor function, an independent
and normal gait pattern, no gross deformities of his spine, no muscle spasms, no
difficulty tandem walking or heel and toe walking, and that he moved about the room
without hesitation or grimace. Tr. 27, 647–48, 652–53, 657–58, 662–63. On March 21,
2013, Dr. Devney released Kochen from his care with a “light duty” work restriction. Tr.
648.
The ALJ expounded on Dr. Devney’s findings that Kochen “continue[d] to
demonstrate unreasonable pain behaviors in light of no significant objective correlate,”
and that “for certain there is some element of symptom magnification.” Tr. 28 (first
quoting Tr. 654, then Tr. 648).

The ALJ concluded “Dr. Devney’s statements [of

symptom magnification by Kochen] appear to have foreshadowed later repeated
instances of potential malingering . . . and there are independent inconsistencies that
suggest symptom magnification without direct notation.” Tr. 28.
The ALJ noted that the November 2013 FCE said Kochen exhibited “disability
exaggeration behavior,” id. (quoting Tr. 488), and muscle strength that was “inconsistent
anatomically,” id. The ALJ found that “no such signs [of disability exaggeration] were
demonstrated during visits to Dr. Phillips on either October 7 or December 12, 2013,
where [Kochen’s] presentation—including lumbar flexion, gait and balance—was largely
unremarkable. Id.

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These opinions were also consistent with the Disability Determination Services
Doctor Opinions, Tr. 78–98, as noted by the ALJ, Tr. 31. In his opinion, issued on April
4, 2014, Dr. Jerry Reed opined that the evidence, which included Dr. Phillips’s objective
findings, demonstrated Kochen could lift up to ten pounds, stand and/or walk a total of
two hours in an eight-hour workday, and sit for about six hours in an eight-hour
workday. Tr. 78–86. On July 9, 2014, Dr. Steven Higgins, noted that the new evidence
in the record was not significantly different from the evidence available to Dr. Reed, and
that it demonstrated Kochen’s condition was stable and he could perform sedentary
work. Tr. 88–96.
CONCLUSION
For the reasons stated above, the Motion for an Order Reversing the
Commissioner’s Decision, ECF No. 11, will be denied, and the Motion to Affirm
Commissioner’s Decision, ECF No. 12, will be granted. Accordingly,
IT IS ORDERED:
1.

The Motion for an Order Reversing the Commissioner’s Decision, ECF No.
11, filed by Plaintiff Joshua D. Kochen, is denied; and

2.

The Motion and the Motion to Affirm Commissioner’s Decision, ECF No. 12,
filed by Defendant Nancy C. Berryhill, is granted;

3.

The Commissioner’s decision is affirmed;

4.

The appeal is denied; and

5.

A separate judgment will be entered.

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Dated this 22nd day of November, 2017.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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