Keith v. Astrue

Filing 21

OPINION. Signed by Judge James P. Jones on 8/5/2013. (lml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
LOU GARY KEITH,

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Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY, 1
Defendant.

Case No. 1:12CV00062
OPINION
By: James P. Jones
United States District Judge

Stephen W. Mullins, Stephen W. Mullins, P.C., Castlewood, Virginia, for
Plaintiff; Eric P. Kressman, Regional Chief Counsel, Region III, Cathleen
McNulty, Assistant Regional Counsel, and Charles J. Kawas, Special Assistant
United States Attorney, Office of the General Counsel, Social Security
Administration, Philadelphia, Pennsylvania, for Defendant.

In this social security case, I affirm the decision of the Commissioner.

I
Plaintiff Lou Gary Keith filed this action challenging the final decision of
the Commissioner of Social Security (the “Commissioner”) denying his claim for
disability insurance benefits pursuant to Title II of the Social Security Act (the
1

Carolyn W. Colvin became the Acting Commissioner on February 14, 2013, and
is substituted for Michael J. Astrue as the defendant in this suit pursuant to Fed. R. Civil
P. 25(d).

“Act”), 42 U.S.C.A. §§ 401-34 (West 2011 & Supp. 2013). Jurisdiction of this
court exists under 42 U.S.C.A. § 405(g).
Keith applied for benefits on June 25, 2010, alleging disability beginning
October 28, 2003. He met the insured status requirements through December 31,
2008. His claim was denied initially and upon reconsideration. A hearing was
held before an administrative law judge (“ALJ”) on February 22, 2012, at which
Keith, represented by counsel, and a vocational expert (“VE”) testified. On March
13, 2012, the ALJ issued a decision finding that Keith had the residual functional
capacity (“RFC”) to do sedentary work with certain restrictions, was capable of
performing work that existed in significant numbers in the national economy, and
thus was not disabled under the Act. Keith requested review by the Social Security
Administration’s Appeals Council. The Appeals Council denied his request for
review, thereby making the ALJ’s decision the final decision of the Commissioner.
Keith then filed his Complaint in this court seeking judicial review of the
Commissioner’s decision.
The parties have filed cross motions for summary judgment, which have
been briefed, and I have heard oral argument. The case is now ripe for decision.

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II
Keith claims disability based on degenerative disc disease, herniated disc of
the cervical spine with fusion, spinal canal stenosis secondary to disc-osteophytic
bulging and protrusions, foramen stenosis of the cervical spine, disc protrusions of
the lumbar spine resulting in foramen stenosis, and pain in bilateral lower
extremities. 2 He obtained a general equivalency diploma in 2008. Keith formerly
worked as a pipe installer, but he stopped working on October 27, 2003, due to a
work-related injury, for which he later received workers’ compensation benefits.
He was 38 years old on his date last insured, making him a younger individual
under the regulations. See 20 C.F.R. § 404.1563(c) (2013). The record indicates
that Keith has not engaged in substantial gainful activity since the alleged onset
date.
The medical evidence of record reveals that Keith had undergone a
microdiskectomy in 1999, and during the relevant time period, Keith had
degenerative disc disease with disc bulging and underwent a lumbar fusion. In
September and October 2003, Keith saw John B. Mazur, M.D., for treatment of
back pain and pain and numbness in his thighs. He received epidural steroid

2

Keith initially claimed disability on the basis of additional mental and physical
impairments, but he did not address those alleged impairments in his brief in support of
his Motion for Summary Judgment or at oral argument. Therefore, the recitation of the
facts will be limited to the asserted spinal conditions and resulting pain.
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injections from James Wilson, M.D., but reported that the injections were
ineffective.
In November 2003, orthopedic surgeon Mark A. Lorenz, M.D., examined
Keith and noted a mildly positive straight leg raise, difficulty toe walking, and
limited range of motion. Dr. Lorenz prescribed Vicoden and physical therapy.
Later that month, pain management specialist Gary L. Koehn, M.D., performed an
evaluation that revealed disc disruption and discogenic pain. Dr. Koehn prescribed
Toradol and Percocet.
In December 2003, Dr. Lorenz performed a diskectomy and spinal fusion.
One week following the surgery, Keith reported that his back pain was tolerable
with Vicodin. He was healing well and had negative straight leg raise and good
motor skills. Dr. Lorenz recommended that Keith continue wearing a brace and
apply heat to his back, and he prescribed Norco. The following week, Keith called
Dr. Lorenz’s office to complain of continuing pain, though he said the numbness in
his legs was improving. Keith reported that his pain was not so bad as to require
treatment at that time.

By January 2004, he complained only of a tingling

sensation in his thighs and tight hamstrings. He was doing well overall, and Dr.
Lorenz advised him to continue to move around and wear a back brace.
Keith returned to Dr. Lorenz for a re-evaluation in February 2004. He
reported that his pain was about the same, he was taking six to seven Vicodin per
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day, and he was experiencing intermittent left leg numbness. Dr. Lorenz noted that
he had a negative straight leg raise and good motor power. Dr. Lorenz assessed
“[l]eft graft site pain with what appears to be some entrapment of the sciatic nerve
possibly and some radiculitis.” (R. at 309.) He recommended physical therapy
and continuing on Norco, and he predicted that Keith would no longer need to
wear a brace following his next appointment.
In early March 2004, Keith again saw Dr. Lorenz, complaining that his leg
had buckled and his pain was worsening. An examination showed good strength,
negative straight leg raising, and ability to toe and heel walk without difficulty.
Dr. Lorenz prescribed Bextra for pain and inflammation and scheduled CT scans to
attempt to determine a reason for Keith’s left leg pain. By the end of March, Keith
had been using a Fentanyl patch along with Norco and reported that his pain was
much better controlled. Keith also indicated that his physical therapy was going
well.
In June 2004, Dr. Koehn observed that Keith was “sitting and standing in
exam room in minimal distress.” (R. at 328) Keith reported that he was making
progress and had been doing quite well on his most recent medication regimen, but
had to stop taking Duragesic because it was too expensive. Dr. Koehn noted some
tenderness, but straight leg, crossed leg, and hip manipulation tests were negative,
and foot, ankle, and knee flexion were good. Dr. Koehn indicated that Keith’s pain
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“continues to improve.” (Id.) Dr. Koehn added Methadone to Keith’s medication
regimen.
Later that month, Keith visited Dr. Lorenz and indicated that the hardware
from his fusion was causing him intolerable pain. Dr. Lorenz administered a local
injection and recommended reevaluating Keith’s pain in several weeks. Keith
returned to Dr. Koehn a few weeks later and stated that he had not taken the
Methadone that Dr. Koehn had previously offered. He continued to complain of
pain. Dr. Koehn noted some tenderness, but straight leg raising was negative. Dr.
Koehn again recommended Methadone, noting that of all the options, it was the
most affordable and had the least potential for dependence, and Keith agreed to try
it.
In early August 2004, Keith told Dr. Lorenzo that his back pain was
tolerable but he had begun to experience thigh pain and numbness. Dr. Lorenz
noted good strength in the lower extremities and negative straight leg raising. He
decided to remove Keith’s lumbar hardware.
In late October 2004, however, Keith told Dr. Koehn that he was no longer
approved for the hardware removal. Keith again complained of pain, but straight
leg raising, crossed leg testing, and hip manipulation were negative; toe and heel
walking were unremarkable; and Dr. Koehn observed that Keith did not appear to
be in distress. Dr. Koehn noted,
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The patient, wife, family are just at complete extremes. I don’t see
any neurologic loss and would not recommend any additional workup
at this point unless there is recurrence of symptoms or progression
. . . . Whether he is a surgical candidate or not, has surgery or not, he
is to move on with his pain functional status/life. . . .
(R. at 376.)
In February 2005, Dr. Lorenz performed a lumbar hardware removal and
fusion inspection, which showed a solid fusion and no movement. Later that
month, Keith told Dr. Lorenz that his back was feeling better and he no longer had
a pinching sensation. In March, Keith told Dr. Lorenz that he was feeling better
overall about his back.
Keith also visited Dr. Koehn again in March 2005. He had tapered his use
of prescription pain medications and reported that he was doing better overall. At
the time of his visit, he was about to begin a six-week course of physical therapy.
Dr. Koehn again noted some tenderness on examination, but once again, straight
leg and crossed leg testing were negative and hip manipulation was unremarkable.
In May 2005, Daniel Curtis, a physical therapist and Key Certified
Functional Assessment Specialist, assessed Keith’s functional capacity.

He

concluded that Keith could perform work at the sedentary to light level and was
capable of occasionally lifting and carrying up to thirteen pounds.

According to

Curtis, Keith could sit for forty-five minutes at a time, with breaks, for a total of
four hours; stand for thirty minutes at a time, with breaks, for three to four hours;
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walk occasional moderate distances, with breaks, for three to four hours; and
occasionally bend/stoop, squat, crawl, climb stairs, crouch, kneel, and balance.
Later that month, Dr. Koehn noted that Keith’s back pain and radiculopathy
were improving. Dr. Koehn indicated that Keith had “[l]ittle to no tenderness in
the lumbar paraspinous region.” (R. at 337) He again observed Keith in no
apparent distress and noted negative straight leg raising and toe and heel walking.
The following day, Dr. Lorenz noted a normal neurological exam and
recommended vocational rehabilitation. He indicated that Keith could not return to
his former job but could perform sedentary work.
By July 2005, Keith had been discharged from the care of Dr. Lorenz. He
reported to Dr. Koehn that his back pain was relatively stable. Dr. Koehn again
noted no apparent distress, and while there was some tenderness, straight leg
raising and toe and heel walking were negative. Dr. Koehn noted that lumbar
flexibility was fifty degrees before discomfort. Dr. Koehn stated that Keith’s low
back pain “continues to improve.” (R. at 450.) Dr. Koehn instructed Keith to taper
and eliminate his use of prescription pain medication and to maximize his home
exercise program.
Keith continued to see Dr. Koehn for the next three years. The notes from
these visits generally show improvement in Keith’s pain and symptom control,
though he continued to experience tenderness. Straight leg raising, crossed leg,
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and hip manipulation were repeatedly negative. During this time period, Keith
reported increased physical activity in the form of exercising and doing chores
around the house. He also indicated that he had been job hunting continuously. In
August 2007, Dr. Koehn opined, “Vocational opportunities, rehabilitation should
now be pursued. The patient is at maximum medical improvement. He has
extended himself in the last interval to make his spine fitness better, to his benefit.”
(R. at 488.) In February 2008, Dr. Koehn noted that Keith was taking a computer
training course as well as GED classes, exercised at the YMCA for one hour nearly
every day, and was “happy with the progress that he [had] made at this point and
want[ed] to continue to improve in all aspects.” (R. at 492.)
In November 2008, Keith returned to Dr. Lorenz, complaining of increased
pain. He had been attending vocational rehabilitation for three hours per day and
commuting forty-five minutes by train. He reported that the increased activity had
worsened his pain and decreased his quality of life significantly. Keith told Dr.
Lorenz that he had applied to thousands of jobs and had not been able to secure
employment. On examination, Dr. Lorenz noted that Keith was not in acute
distress and could heel-to-toe walk without difficulty. Dr. Lorenz opined that
Keith was “permanently and totally disabled from any gainful employment” and
“will be permanently off work.” (R. at 292.)

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Later in November 2008, Keith saw Dr. Koehn and again reported an
increase in his pain level due to increased physical activity. Dr. Koehn discussed
other treatment options, including spinal cord stimulation, but did not change his
medications.
At the hearing, Keith testified that he is in constant pain and that his pain
worsens as a result of increased physical activity. He manages his pain with
prescription medications and by resting. Keith described his daily activities, which
include making sure his children are ready for school, doing exercises that he
learned in physical therapy, preparing meals for himself and his family, driving
approximately thirty-five minutes round trip to pick his children up from school,
helping his children with their homework, gardening, and watching television or
reading.
The ALJ described to the VE a hypothetical person of Keith’s age,
education, and work experience who could perform sedentary work with certain
limitations relating to foot control; climbing ladders, ropes, and scaffolds; and
exposure to moving machinery, hazardous machinery, and unprotected heights.
The VE testified that such a person could not perform Keith’s past relevant work
but could perform work as a material handler or general production worker at the
sedentary, unskilled level. The VE further testified that there are 46,000 and
34,000 of these positions, respectively, in the national economy. The ALJ then
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asked the VE whether adding a requirement of up to two unscheduled fifteenminute breaks per day would change his opinion, and the VE testified that such a
requirement would eliminate all competitive employment.
The ALJ determined that Keith met the insured status requirements through
December 31, 2008 and had not engaged in substantial gainful employment after
his alleged onset date of October 28, 2003. The ALJ further found that Keith had
the severe impairments of degenerative disc disease of the lumbar spine with
arthritis and obesity, but that these impairments did not meet or medically equal a
listed impairment.

The ALJ determined that Keith had the RFC to perform

sedentary work with certain restrictions, could perform work that existed in
significant numbers in the national economy, and thus was not disabled.
Keith contends that the ALJ’s decision is not supported by substantial
evidence. Specifically, Keith argues that the ALJ erred by failing to properly
assess whether he was disabled by pain, relying on the opinions of non-examining
state agency physicians, overly emphasizing activities of daily living, and
improperly considering the fact that Keith had received worker’s compensation
benefits. For the reasons set forth below, I disagree and hold that substantial
evidence supports the ALJ’s decision.

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III
The plaintiff bears the burden of proving that he is under a disability.
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). The standard for
disability is strict. The plaintiff must show that his “physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy
. . . .” 42 U.S.C.A. § 423(d)(2)(A).
In assessing disability claims, the Commissioner applies a five-step
sequential evaluation process. The Commissioner considers whether the claimant:
(1) has worked during the alleged period of disability; (2) has a severe impairment;
(3) has a condition that meets or medically equals the severity of a listed
impairment; (4) could return to his past relevant work; and (5) if not, whether he
could perform other work present in the national economy.

See 20 C.F.R.

§ 404.1520(a)(4) (2013). The fourth and fifth steps of the inquiry require an
assessment of the claimant’s RFC, which is then compared with the physical and
mental demands of the claimant’s past relevant work and of other work present in
the national economy. Id.; Johnson v. Barnhart, 434 F.3d 650, 653-54 (4th Cir.
2005).

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I must review the denial of benefits under the Act to ensure that the ALJ’s
findings of fact “are supported by substantial evidence and [that] the correct law
was applied.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial
evidence is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted).
I must not reweigh the evidence or make credibility determinations because those
functions are left to the ALJ. Johnson, 434 F.3d at 653. “Where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the [ALJ].” Id. (alteration in original)
(internal quotation marks and citation omitted).
Keith first argues that the ALJ failed to properly analyze whether he was
disabled by pain. “[T]he determination of whether a person is disabled by pain or
other symptoms is a two-step process.” Craig v. Chater, 76 F.3d 585, 594 (4th Cir.
1996). The ALJ must first determine whether the claimant suffers from a medical
condition that could reasonably be expected to produce the alleged pain. Id.; 20
C.F.R. § 404.1529 (2013). If the ALJ finds that such a condition does exist, the
ALJ must next assess the intensity and persistence of the claimant’s pain and the
extent to which it affects the claimant’s ability to work. Craig, 76 F.3d at 595; 20
C.F.R. § 404.1529. This second step takes into account all available evidence,
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including medical records, any objective evidence of pain, and evidence of the
claimant’s activities of daily living. Craig, 76 F.3d at 595.
Here, the ALJ determined that Keith did suffer from a medically
determinable impairment that was reasonably likely to cause the alleged pain. At
step two, however, the ALJ found that Keith’s statements concerning the intensity,
persistence, and limiting effects of his pain were not entirely credible. The ALJ
noted that Keith performs a wide range of physical activities in his daily life. The
ALJ further pointed to the fact that Keith applied for thousands of jobs during the
relevant time period, indicating that Keith himself believed he was capable of
working despite his pain. Additionally, the record contains numerous references to
negative straight leg raising and crossed leg tests, negative hip manipulation tests,
good motor strength, and good ability to heel and toe walk, among other factors
that tend to belie Keith’s testimony that his pain was completely disabling. As
noted above, it is the ALJ’s task to make credibility determinations and to weigh
conflicting evidence.

The ALJ correctly applied the two-step analysis and

reasonably concluded that Keith’s pain was not so intense and persistent as to
preclude him from working. This conclusion is supported by substantial evidence
in the record, and it will be upheld.
Keith next argues that the ALJ erred by relying on the opinions of two nonexamining state agency physicians.

“[T]he testimony of a non-examining
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physician can be relied upon when it is consistent with the record.” Smith v.
Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Nevertheless, contrary to Keith’s
contention, the ALJ in this case did not give great weight to the opinions of the two
state agency physicians who assessed his RFC. Indeed, the ALJ found that the
record as a whole indicated that Keith was more impaired than the state agency
physicians opined, and the ALJ found that Keith had a more limited RFC than the
state agency physicians had assessed.

Thus, Keith’s argument regarding the

weight given to the state agency physicians’ opinions is without merit.
Keith also argues that the ALJ placed too much emphasis on his activities of
daily living in determining his RFC. Evidence of a claimant’s activities of daily
living is undoubtedly relevant to an assessment of the intensity and persistence of
pain.

See Craig, 76 F.3d at 595 (expressly stating that the claimant’s daily

activities are “relevant to the severity of the impairment”). In addition to caring for
himself and his family, gardening, and continually job-searching, Keith admitted
that he exercises for a full hour nearly every day. These activities contradict his
testimony that he is constantly in severe, disabling pain. The ALJ did not commit
any error in considering Keith’s daily activities when assessing the intensity and
persistence of his pain.
Finally, during oral argument, Keith’s counsel contended that the ALJ had
improperly considered the fact that Keith had been awarded worker’s
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compensation benefits. While the ALJ mentioned Keith’s worker’s compensation
award in his decision, it was not a primary basis for the ALJ’s findings. After
thoroughly reviewing the record evidence, the ALJ merely indicated that, “while
not fully probative,” Keith’s receipt of worker’s compensation benefits “did not
provide the claimant with a strong incentive to return to work.” (R. at 27.) This
statement does not constitute reversible error, because substantial evidence in the
record supports the ALJ’s finding that Keith was not disabled under the Act.

IV
For the foregoing reasons, I find that the Commissioner’s decision is
supported by substantial evidence. The plaintiff’s Motion for Summary Judgment
will be denied, and the defendant’s Motion for Summary Judgment will be granted.
A final judgment will be entered affirming the Commissioner’s final decision
denying benefits.
DATED: August 5, 2013
/s/ James P. Jones
United States District Judge

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