Cole v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATIONS: Recommending Denial of 10 MOTION for Summary Judgment filed by Leslie R. Cole, Denial of 9 First MOTION for Summary Judgment filed by Leslie R. Cole, Denial of 11 MOTION for Summary Judgment filed by Leslie R. Cole, Granting of 13 MOTION for Summary Judgment filed by Commissioner of Social Security, and Denial of 12 MOTION for Summary Judgment 9th set part 1 of 2 add'l ev to Appeals Council filed by Leslie R. Cole. Written objections are due within 10 days(copy to Judge) Signed by Magistrate Judge James E Seibert on 9/11/2009. (soa)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA LESLIE R. COLE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. REPORT AND RECOMMENDATION SOCIAL SECURITY I. Introduction A. Background Plaintiff, Leslie R. Cole (Claimant), filed a Complaint on May 22, 2008 seeking Judicial review pursuant to 42 U.S.C. §§ 405(g) of an adverse decision by Defendant, Commissioner of Social Security, (Commissioner).1 Commissioner filed his Answer on November 6, 2008.2 Claimant filed his Motion for Summary Judgment on December 22, 2008,3 and exhibits labeled as "Plaintiff's Additional Evidence to appeals Council"4 on January 2, 2009. Commissioner Civil Action No. 5:08-CV-101

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Docket No. 1. Claimant's complaint is not barred by the 60-day statute of limitations. On April 10, 2008, Claimant requested an extension of the 60-day period to file a complaint. Tr. 12. Claimant's request was granted on April 29, 2008, giving Claimant an additional 30 days. Tr. 10.
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Docket No. 6. Docket No. 9. Docket Nos. 10-12. 1

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filed his Motion for Summary Judgment on February 2, 2009.5 B. The Pleadings 1. 2. C. Plaintiff's Brief in Support of Motion for Summary Judgment. Defendant's Brief in Support of Motion for Summary Judgment.

Recommendation I recommend that: 1. Claimant's Motion for Summary Judgment be DENIED because the

Appeals Council followed the applicable law in its review of the additional evidence together with the ALJ's decision. 2. Commissioner's Motion for Summary Judgment be GRANTED for the

same reason set forth above. II. Facts A. Procedural History Claimant filed an application for Disability Insurance Benefits (DIB) on June 20, 2005, alleging disability since September 30, 2002. (Tr.54-57). The claim was denied initially on August 24, 2005. (Tr. 25). Thereafter, on September 19, 2005, Claimant filed a Request for Reconsideration. (Tr. 27). The claim was denied upon reconsideration on January 30, 2006. (Tr. 24). Claimant filed a written request for a hearing on March 27, 2006 (Tr. 26). Claimant's request was granted and a hearing was held on March 21, 2007. (Tr. 28, 361). The ALJ issued an unfavorable decision on July 24, 2007. (Tr. 15-23C). The ALJ determined Claimant was not disabled under the Act because he had no impairment or

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Docket No. 13. 2

combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404 Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526), and the Claimant was capable of performing past relevant work as a sales attendant. (Tr. 23-23C). On September 21, 2007, Claimant filed a request for review of that determination. (Tr. 14). The request for review was denied by the Appeals Council on February 14, 2008. (Tr. 5-7). Therefore, on July 24, 2007 the ALJ's decision became the final decision of the Commissioner. Having exhausted his administrative remedies, Claimant filed a Complaint with this Court seeking judicial review of the Commissioner's final decision. B. Personal History Claimant was born on January 21, 1947, and was fifty-five (55) years old as of the onset date of his alleged disability and sixty (60) as of the date of the date of the ALJ's decision. (Tr. 57). Claimant was therefore considered a "person of advanced age," age 55 or older, under the Commissioner's regulations. 20 C.F.R. §§ 404.1563(c), 416.963(c) (2008). Claimant graduated from high school, completed two years of college, completed specialized job training in airplane mechanics, and has past relevant work as a handy man and a ranger. (Tr. 66, 73). C. Medical History The following medical history is relevant to the sole issue of whether substantial evidence supports the ALJ's determination that Claimant's subjective complaints of pain and functional limitation were not entirely credible: Preston Memorial Hospital, 2/13/03 - 3/25/03 (Tr. 107-14) Patient Admission Summary 2/13/03 Complaint: lower back pain; legs aching Treatment: Celebrex, consider MRI Diagnosis: muscular strain/ spasm 3

Radiology Report 2/13/03 Examination demonstrates degenerative disc disease at L4-5. Slight wedge deformity of L1 which may reflect a variant. Impression: degenerative disc disease at L4-5; scattered changes of mild spondylosis; slight wedge deformity at L1 likely reflecting variant Cardiology Imaging Report 3/25/03 Recommendations: EKG stress test; await nuclear scan results Progress Notes, Veterans Administration Medical Center, 5/9/03 - 2/1/05 (Tr. 115-29) 2/1/05 Optometry Consult no current eye or vision complaint 9/21/04 Clinic Note Subjective: past medical history of hyperlipidemia and hypertension; visit for evaluation and management of hypertension. Review of Systems: · general review: negative · cardiac: negative · gastrointestinal: positive for chronic reflux · psychiatric: positive for depression, under control · all other systems: negative Past Medical History: laminectomy done in 1989 due to a chronic back injury; history of hypertension; history of hyperlipidemia; history of coronary artery disease status post stent in 1998; history of osteoarthritis; history of gastroesophageal reflux disease; history of anxiety and depression. Most recent colonoscopy and stress test were negative. Socioeconomically: abuses tobacco; denies any alcohol or drug use Objective: awake, alert, oriented; no acute distress. Chest examination symmetrical and clear; cardiovascular examination showed S1 and S2, regular, no S3, no murmur; abdoment was soft, bowel sounds positive, nontender, no organomegaly. No edema; positive pulses; motor and sensory reflexes intact. Cranial nerves II through XII intact, except slightly decreased hearing. Musculoskeletal examination normal. Assessment and Plan: use aspirin; continue Lipitor 10/6/03 Consultation Assessment: not a hearing aid candidate 9/25/03 Physicians Note Subjective: complains of chronic hearing loss; worked around jet engines, left greater than right. Complains of chronic vision loss; requesting an eye exam. Denies headaches, numbness, tingling, or weakness Past Medical History: laminectomy done in 1989 due to a chronic back injury; history of hypertension; history of hyperlipidemia; history of coronary artery disease status post stent in 1998; history of osteoarthritis; history of gastroesophageal reflux disease; history of anxiety and 4

depression. Most recent colonoscopy and stress test were negative. Socioeconomically: abuses tobacco; denies any alcohol or drug use Objective: awake, alert, oriented; no acute distress. Chest examination symmetrical and clear; cardiovascular examination showed S1 and S2, regular, no S3, no murmur; abdoment was soft, bowel sounds positive, nontender, no organomegaly. No edema; positive pulses; motor and sensory reflexes intact. Cranial nerves II through XII intact, except slightly decreased hearing. Musculoskeletal examination normal. Assessment and Plan: use aspirin; prescribed atenolol; continue Lipitor 9/25/03 Nursing Triage Note Pain: 2 back pain Mood/Depression Screen: negative Given prostate cancer screening education Given tobacco counseling No changes in ability to independently perform activities in daily living 5/9/03 Spine Examination Complaints: · previous problems with low back pain since 1981 · portion of disc removed at Pittsburgh VA in either 1989 or 1990; unable to recall details · dull pain to right of the center of low back; occasionally radiates to right hip; pain is 2 out of 10 · flare-ups of back pain approximately once/week · unable to lift more than 50 pounds without difficulty · wears a back brace if knows is going to be lifting Exam: slight limp to the right; no acute distress; mild tenderness to palpation of the paraspinous muscles to the right side of the lumbar spine; no edema or discoloration. Flexion 45 degrees, which is lacking 50 degrees; increased pain with flexion. Extension 30 degrees, which is lacking 5 degrees. Lateral flexion to the right 25 degrees, which is lacking 15 degrees to the left; 30 degrees, which is lacking 10 degrees. Rotation to the right 25 degrees, which is lacking 10 degrees to the left; 30 degrees, which is lacking 5 degrees. Impression: degenerative disc disease of lumbar spine University Health Associates, Progress Notes, 6/7/05 - 4/29/04 (Tr. 130-62) 6/7/05 Chief Complaint: left-sided neck and back pain since 1989, increased over past eight months History of Present Illness: left-sided shoulder pain since 1984. Given cortisone shots. Had surgery at L4-L5 in 1989 Past Medical History: bladder cancer diagnosed nine months ago; had surgery and chemotherapy. Cardiac stents; back surgery at L4-5 in 1989. Has hypertension and hypercholesterolemia edema. Past Surgical History: L4-L5 laminectomy in 1989; lump removed from left breast (benign); stents put in the coronary arteries; and bladder surgery for cancer of bladder in 2004. Physical Examination: low back exam reveals decreased lordosis; flexion and extension leads to 5

left-sided low back pain Impression and Plan: myofascial syndrome; degenerative disc disease worse at C5-C6, not causing any nerve root compression; lumbago; post-laminectomy syndrome; cervicalgia; T3-4 old compression fractures. Patient should use Tiger Balm and should do pushups, shoulder blade squeezes, abdominal crunches, cervical exercises, and Kendall exercises two times daily for three months and then one time daily thereafter. 3/8/05 Postprocedure Diagnosis: no evidence of disease Procedure: surveillance cystourethroscopy Plan: return in 3 months 12/14/05 Postprocedure Diagnosis: TA superficial low-grade bladder cancer; no evidence of disease Procedure: diagnostic flexible cystourethroscopy Plan: return in 3 months for repeat surveillance cystoscopy 8/31/04 Chief Complaint: blood in urine Diagnosis: hematuria; bladder pain Plan: PSA, Cysto 5/28/04 Subjective: presents with left-sided epistaxis. Underwent left internal maxillary artery embolization; had persistent oozing afterwards and had a small pack placed. Had an angiogram which revealed bleeding from posterior ethmoid distribution. Had a slight amount of claudication while in hospital after embolization; has completely resolved. Had some degree of facial dysesthesia of left maxillary area; getting much better. No further bleeding. Objective: nasal examination reveals rightward septal deviation. Oral cavity and oropharynx are clear; neck reveals no masses. Procedure: nasal endoscopy was performed Assessment: complex epistaxis requiring embolization and pack currently doing very well Plan: return on as-needed basis 4/29/04 Subjective: recently underwent left internal maxillary artery embolization by interventional radiologists. Repeat angiogram revealed bleeding coming from posterior ethmoid distribution. No surgical treatment was required. Complaining of left-sided facial and jaw pain consistent with claudication from his embolization. Objective: tympanic membranes are pearlescent bilaterally; nasal mucosa is moist without purulence or polyps. Septum is midline and straight. No evidence of bleeding. Nasal airways are widely patent bilaterally. Oropharynx is dry without erythema, exudate, or blood. Indirect laryngoscopy reveals normal vocal fold movement bilaterally. Post-glottic and false cord edema are present. 6

Assessment: resolved epistaxis Plan: continue Tylenol West Virginia University Hospitals, 7/18/05 - 4/16/04 (Tr. 163-75) Urology Summary 7/18/05 Procedure: Cystoscopy and bladder biopsy Operative Findings: bilateral ureteral orifices noted in normal position with clear efflux. Some mild erythema just proximal to left ureteral orifice. Six mm erythematous lesion with necrotic center on left lateral wall. Urology Summary 9/13/04 Procedure: Transurethral resection of bladder tumor, medium Otolaryngology Discharge Summary 4/23/04 Discharge Diagnosis: epistaxis, status post left internal maxillary artery embolization Discharge Medication: Tylenol No. 3 one to two tablets Reason for Hospitalization: copious bleeding from left side of nose Roger A. Lewis, M.D., Office Notes, 7/25/05 - 3/5/02 (Tr. 176-194) 7/25/05 Chief Complaint: hyperlipidemia Patient Report: no recent history of weakness, fatigue, fever, chills, night sweats, or fainting. Patient complains of skin color changes - hyperpigmented-stable, and moles-hyperpigmented. L upper back-stable; hypertension - improved, and hyperlipidemia - aggravated; muscular pain-(L) lower extremity, (R) lower extremity - stable, joint pains - stable, and back pain - stable. Diagnoses: hyperlipidemia, mixed - status: uncontrolled; coronary atherosclerosis of native coronary artery; unspecified myalgia and myositis - status: persistent; hypertension, essential, benign - status: controlled 6/14/05 Complaint: skin color changes; L upper back Diagnosis: coronary atherosclerosis of native coronary artery; hyperlipidemia, mixed; hypertension, essential, benign, other seborrheic keratosis; unspecified myalgia and myositis; osteoarthrosis, generalized, involving multiple sites (general) Recommendations: Celebrex; Crestor; Zoloft; Lipid Profile; AST ALT; CBS with diff & Platelets; ESR; office visit 3/28/05 Complaint: hyperlipidemia Diagnosis: hyperlipidemia, mixed; hypertension, essential, benign; coronary atherosclerosis of native coronary artery; benign neoplasm of kidney, except pelvis Recommendations: office visit per consulting doctor 2/21/05 7

Complaint: earache R Diagnosis: pain in joint, shoulder region; otitis media, suppurative, acute, without spontaneous rupture of eardrum; disc disorder of cervical region, other and unspecified; spinal stenosis in cervical region Recommendations: bactrim DS; Rhinocort Aqua Nasal Spray 1/3/05 Complaint: hyperlipidemia Diagnosis: hyperlipidemia, mixed; hypertension, essential, benign; coronary atherosclerosis of native coronary artery Recommendations: Lotrel; office visit; flu shot 11/8/04 Complaint: muscular pain - neck Diagnosis: disorder of bone and cartilage, unspecified; closed fracture of dorsal (thoracic) vertebra without mention of spinal cord injury; unspecified musculoskeletal disorders and symptoms referable to neck; hyperlipidemia, mixed; hypertension, essential, benign Recommendations: Crestor; Lipitor; Mobic; AST ALT 10/5/04 Complaint: bloody urine Diagnosis: hematuria; coronary atherosclerosis of native coronary artery; hyperlipidemia, mixed; hypertension, essential, benign Recommendations: MRI Scan; Lipid; Basic Metabolic Panel 7/23/04 Complaint: bloody urine Diagnosis: hematuria; radiological and other examination of genitourinary organs, nonspecific abnormal findings on Recommendations: office visit 7/20/04 Complaint: hypertension Diagnosis: hematuria; special screening for malignant neoplasm of prostate Recommendations: office visit; urinalysis; IVP; PSA 5/21/04 Complaint: hyperlipidemia Diagnosis: hypertension, essential, benign; other malaise and fatigue; coronary atherosclerosis of native coronary artery; hyperlipidemia, mixed; anemia, posthemorrhagic, acute; cough Recommendations: Niferex; Basic Metabolic Panel; office visit 5/3/04 Complaint: joint pains; knees 8

Diagnosis: Epistaxis; cough; other malaise and fatigue Recommendations: AST ALT; Lipid profile; CBS with Diff and Platelets; Ultracet 1/16/04 Complaint: hyperlipidemia Diagnosis: coronary atherosclerosis of native coronary artery; hypertension, essential, benign; hyperlipidemia, mixed Recommendations: office visit; AST ALT; Lipid profile 10/24/03 Complaint: sinus congestion upper right thigh Diagnosis: Sinusitis, maxillary, acute; hypertension, essential, benign, hyperlipidemia, mixed; unspecified viral warts; coronary atherosclerosis (general) Recommendations: Bactrim; Flonase; continue current meds; informed consent obtained; nitrogen oxide; cholesterol control; increase exercise; trial of bactrim for sinusitis; AST ALT; Lipid profile 8/28/03 Complaint: chest pain right side Diagnosis: unspecified chest pain Recommendations: Celebrex; deep breathing exercises 7/21/03 Complaint: hyperlipidemia Diagnosis: hyperlipidemia, mixed; other specified congenital anomaly of skin; open wound of toes, without mention of complication Recommendations: Lipitor; Lipid profile; AST ALT; office visit 5/30/03 Complaint: hypertension Diagnosis: hyperlipidemia, mixed; hypertension, essential, benign; coronary atherosclerosis (general); antacids and antigastric secretion drugs causing adverse effect in therapeutic use Recommendations: Tricor; Axid; Zoloft; AST ALT; Lipid profile 3/4/03 Complaint: heartburn Diagnosis: other specified sites, osteoarthrosis, localized, primary Recommendations: Prevacid; Celebrex; Lipid profile; AST ALT; office visit 12/10/02 Complaint: hypertension Diagnosis: hyperlipidemia, mixed; unspecified adverse effect of drug medicinal and biological substance, not elsewhere classified; hypertension, essential, benign; coronary atherosclerosis (general) 9

Recommendations: Lexapro; trial Lexapro; office visit 11/5/02 Complaint: hypertension Diagnosis: hyperlipidemia, mixed; anxiety disorder, generalized; hypertension, essential, benign Recommendations: Lipid profile; Basic Metabolic Panel; CBC with Diff & Platelets; office visit 8/6/02 Complaint: hyperlipidemia Diagnosis: hypertension, essential, benign; hyperlipidemia, mixed; anxiety disorder, generalized Recommendations: office visit 6/21/02 Complaint: laceration Diagnosis: hypertension, essential, benign; contusion of unspecified part of lower limb Recommendations: office visit 6/11/02 Complaint: foot pain - right foot Diagnosis: hypertension, essential, benign; anxiety disorder, generalized Recommendation: Lipid profile; SGOT: AST; SGPT: ALT; office visit 5/24/02 Complaint: skinsores R leg Diagnosis: hypertension, essential, benign; contusion of unspecified part of lower limb; Recommendation: Lortab; office visit 5/20/02 Complaint: swollen extremities R lower leg Diagnosis: hypertension, essential, benign; contusion of unspecified part of lower limb Recommendation: Amoxil; office visit 5/14/02 Complaint: skin color changes R foot Diagnosis: hyperlipidemia, mixed; anxiety disorder, generalized; tobacco abuse, nondependent, use disorder; hypertension, essential, benign; contusion of unspecified part of lower limb; cellulitis and abscess of foot, except toes Recommendation: Augmentin; office visit 5/9/02 Complaint: injuries R ankle Diagnosis: anxiety disorder, generalized; tobacco abuse, nondependent, use disorder; hyperlipidemia, mixed; hypertension, essential, benign; contusion of unspecified part of lower limb 10

Recommendation: office visit 4/1/02 Complaint: anxiousness/stress for weeks Diagnosis: other and unspecified lyperlipidemia; anxiety disorder, generalized; hypertension, essential, benign; unspecified heart disease, ischemic, chronic; tobacco abuse, nondependent, use disorder Recommendation: Norvasc, Prevacid, Zoloft, Wellbutrin, office visit 3/18/02 Complaint: hypertension Diagnosis: other and unspecified hyperlipidemia; hypertension, essential, benign; unspecified heart disease, ischemic, chronic; anxiety disorder, generalized; pain in soft tissues of limb Recommendation: office visit; Zoloft 3/5/02 Complaint: hypertension Diagnosis: other and unspecified hyperlipidemia; hypertension, essential, benign; unspecified heart disease, ischemic, chronic Recommendation: CV - stress test; office visit Physical Residual Functional Capacity Assessment, Cynthia Osborne, D.O., 8/18/05 (Tr. 195-202) Conclusion: the available medical for the DLI does not adequately and thoroughly address the Claimant's allegations. Insufficient evidence. Psychiatric Review Technique James Capage, Ph.D., 8/23/05 (Tr. 203-16) Assessment from 9/30/02 to 9/30/02 Medical Disposition: impairment not severe Medical Disposition based on: 12.04 affective disorders and 12.06 anxiety-related disorders 12.04 Affective Disorders: depression 12.06 Anxiety-Related Disorders: anxiety/stress found Claimant's statements to be credible Physical Residual Functional Capacity Assessment, Atiya Lateef, M.D., 1/19/06 (Tr. 21826) Exertional Limitations: · occasional lift: 20 pounds · frequent lift: 10 pounds · stand/walk for a total of: about 6 hours in an 8-hour workday · sit (with normal breaks) for a total of: about 6 hours in an 8-hour workday · push and/or pull: unlimited Postural Limitations: · climbing ramp/stairs: occasionally 11

· climbing ladder/rope/scaffold: never · balancing: occasionally · stooping: occasionally · kneeling: occasionally · crouching: occasionally · crawling: occasionally Manipulative Limitations: none Visual Limitations: none Communicative Limitations: none Environmental Limitations: · extreme cold: avoid concentrated exposure · extreme heat: unlimited · wetness: unlimited · humidity: unlimited · noise: unlimited · vibration: avoid concentrated exposure · fumes, odors, dusts, gases, poor ventilation: unlimited · hazards: avoid concentrated exposure Psychiatric Review Technique, Maurice Prout, Ph.D., 1/25/06 (Tr. 227-40) Assessment from: 9/30/02 - 9/30/02 Medical Disposition: impairment not severe Medical Disposition based on: 12.04 Affective Disorders Notes: no significant impact on ADL's, social functioning, etc. University Health Associates 9/19/06 - 8/2/05 (Tr. 245-57) Procedure Note 9/16/06 Postoperative Diagnosis: bladder cancer Name of Procedure: cystoscopy Impression: negative cystoscopy Procedure Note 6/13/06 Postprocedure Diagnosis: history of bladder cancer Operative Procedure: Surveillance Cystoscopy Impression: negative cystoscopy Procedure Note 3/14/06 Postoperative Diagnosis: history of transitional cell carcinoma of the bladder Procedure: flexible cystourethroscopy Operative Findings: no stones, tumors, or areas of inflammation identified within the bladder; mild lateral lobe BPH; 2.5cm from bladder neck to verumontanum Procedure Note 11/8 /05 Postprocedure Diagnosis: recurrent transitional cell carcinoma of the bladder 12

Procedure: cystoscopy VAMC, Health Summaries, 2/1/05 - 10/26/06 (Tr. 258-72) All Problems 2/1/05: dry eye syndrome 2/1/05: hypermetropia 2/1/05: astigmatism 2/1/05: presbyopia 10/6/03: sensorineural hearing loss 9/25/03: HTN 9/25/03: hyperlipidemia 9/25/03: depression 9/25/03: hearing loss 9/25/03: tobacco use disorder 8/25/01: other unspecified back disorders Outpatient Encounters 10/26/06: diagnosis: 375.15-tear film insufficiency, unspecified 10/13/06: diagnosis: 375.15-tear film insufficiency, unspecified; dry eye syndrome; astigmatism, unspecified; astigmatism, NOS; presbyopia; 2/1/05: diagnosis: 375.15-tear film insufficiency, unspecified; dry eye syndrome; 367.0 hypermetropia; 367.2 astigmatism, unspecified; astigmatism, NOS; 367.4 presbyopia Examinations 5/9/03: Impressions: AP, lateral, and both oblique views show no bone injury to spine. Vertebral bodies are of normal height. Small marginal spurs at L4 and L5 bodies. Disc spaces are narrowed at L4-5 and to a lesser degree at L3-4. Degenerative changes at the lower lumbar aopohyseal joint. Abdominal aorta and common iliac arteries are calcified. Degenerative disc disease of lumbar spine. Cranberry Medical Clinic Medical Progress Notes, Roger Lewis, M.D., 12/8/06 - 3/9/07 (Tr. 273-85) 3/9/07 Subjective: hypertension, hyperlipidemia, hemorrhoids, back pain, arthritis Assessment: mixed hyperlipidemia; upper respiratory infection, benign hypertension 12/8/06 Subjective: hyperlipidemia; sinus congestion Assessment: mixed hyperlipidemia, upper respiratory infection, benign hypertension Plan: continue atenolol tablet, Celebrex, Crestor, Lotrel, Niaspan, Prevacid, Zoloft 13

12/6/06 Subjective: blood draw Assessment: mixed hyperlipidemia Plan: Lipid, AST/ALT 11/17/06 Subjective: flu shot Assessment: vaccin for influenza 9/8/06 Complaint: hyperlipidemia Diagnosis: hyperlipidemia, mixed; hypertension, essential, benign; coronary atherosclerosis of native coronary artery; osteoarthrosis, generalized, involving multiple sites (general) Recommendation: Lipid profile; AST ALT 6/9/06 Complaint: hyperlipidemia Diagnosis: hyperlipidemia, mixed; hypertension, essential, benign; coronary atherosclerosis of native coronary artery; osteoarthrosis, generalized, involving multiple sites (general); encounter for long-term (current) use of other medications Recommendation: Advicor, basic metabolic panel, Lipid profile, AST ALT, CBS with diff & platelets; office visit 4/14/06 Complaint: hyperlipidemia Diagnosis: hyperlipidemia, mixed; coronary atherosclerosis of native coronary artery; osteoarthrosis, generalized, involving multiple sites (general) Recommendation: Niaspan, Lipid profile, AST ALT, office visit Garrett County Memorial Hospital, 10/14/97 - 7/13/99 (Tr. 286-92) Outpatient Medical Record Treatment: use Tylenol for pain Emergency Department Discharge Instructions 7/13/99 Instructions: increase Tylenol; return if pain persists Outpatient Medical Record 9/20/98 Complaint: mid chest burning Instructions to patient: x-ray Medical Record 10/14/97 Chief Complaint: burning pain of left temporal area with some numbness; abdominal cramping; gas pains; intermittent numbness of right and left arms Diagnosis: left facial neuropathy versus neuralgia 14

Treatment: Elavil 10 mg h.s. Emergency Patient Admission Summary 4/16/04 (Tr. 293-95) Complaint: bleeding from both nostrils; no prior bleeding problems Treatment: pressured applied over bridge of nose Diagnosis: Epistaxis Radiology Report, Stanley Lambert, M.D., 9/26/06 (Tr. 296) Impression: a tiny avulsion fracture, posterior aspect of the talus. May be acute. Old avulsion fractures of the medial and lateral malleoli are noted. Radiology Report, Preston Memorial Hospital, Thomas E Kilkenny, M.D., 2/13/03 (Tr. 298) Impression: degenerative disc disease at L4-5; scattered changes of mild spondylosis; slight wedge deformity at L1 likely reflecting variant. Admission Summary Report, Preston Memorial Hospital, 2/13/03 (Tr. 299-300) Chief Complaint: lower back pain Treatment: Celebrex; consider MRI Diagnosis: muscular spasm/strain Letter from Roger Lewis, M.D., 9/11/07 (Tr. 302-03) · has been primary care physician for over 10 years · no appointments primarily concerning his back pain until recently · presented at end of July complaining of chronic pain in lower back bilaterally with radicular pain in the posterior aspects of both legs · pain in neck · presented previously to the emergency room at Preston Memorial Hospital due to a fall on February 13, 2003 and x-rays of LS spine were obtained. X-rays showed degenerative disc disease Wake Medical Center, Medical Record 7/16/97 (Tr. 304-05) Discharge Diagnoses: atherosclerotic heart disease with anterior myocardial infarction, status post tissue plasminogen activator therapy. Status post stenting of the left anterior descending coronary artery; tobacco abuse; status post lumbar diskectomy Discharge Disposition: continue medications; return to normal activities as tolerated; maintain low cholesterol, low sodium diet Wayne Memorial Hospital, Medical Records 7/16/97 (Tr. 306-08) Chief Complaint: chest pain Impression: acute anterior myocardial infarction, artheriosclerotic cardiovascular disease; angina pectoris; tobacco abuse Disposition: admitted to Coronary Care Unit; nitroglycerin drip maintained; Lidocaine drip

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Department of Veterans Affairs, Medical Records 7/7/64 - 7/31/85 (Tr. 309-38) Rating Decision Evaluation of status postoperative herniated disc, 14 and L5 with hemilaminectomy and diskectomy of L4 and L5 with associated lumbosacral strain and arthritis, which is currently 20 percent disabling, is increased to 40 percent effective March 27, 2003. Chronological Record of Medical Care 12/10/71: sprained wrist 2/6/75: back of neck became stiff overnight; modest degree of muscle tightness in right lower cervical muscle 2/20/75: in car accident; problem in neck still exists; now experiencing painful burning sensation in left side of neck. 9/15/76: pain in left shoulder due to prior auto accident 9/23/76: sleeping better; much improvement in shoulder; burning has been completely relieved 8/2/77: intermittent severe low back pain; pain is localized to LS spine. Diagnosed as low back strain. Sleep flat on hard mattress or floor. 10/1/77: low back pain 4/24/78: low back pain recurrent. Pain felt in prolonged sitting and getting up from sitting position. Pain is localized to LS spine. 5/9/78: lower back pain. Diagnosed as low back strain 6/14/79: pain and stiffness on radical aspect of left wrist; slight swelling. Fracture distal aspect of left radius at articular surface. Cast applied. 7/12/79: removed wrist cast 11/6/80: pain in wrist; tenderness in left wrist. Diagnosed as sprain in left wrist. 2/23/81: hurt back again. Diagnosed back sprain. 9/3/81 Admission Record: admitted because of back pain (hurt it originally lifting luggage); diagnosed as severe muscle spasm of lumbosacral area. 1/30/84: doing much better; able to sleep 2/6/84: doing better; no problems sleeping. Still difficulty in moving arms 2/17/84: better; still pain in arms. Continue exercise. 2/23/87: mechanical low back pain Medical Records, Michael Dwyer, M.D., 8/4/07 (Tr. 340) Complaint: back pain; history of bladder cancer Procedure: 3 Plane localizer; T1 FSE sagittal; T2 FRFSE sagittal; T2 FRFSE axial; T1 axial post contrast; T1 sagittal post contrast Findings: cranial cervical junction has a satisfactory appearance; cervical vertebrae maintain normal height and alignment. Diffuse degenerative disc dessication; at C2-C3 and C3-C4 there is a slight disc bulge; varying degrees of disc space narrowing and bulge in certain areas; cervical cord is of normal morphology and signal Impression: diffuse cervical degenerative spondylosis/degenerative disc disease Medical Records, Michael Dwyer, M.D., 8/4/07 (Tr. 341) Complaint: back pain; history of bladder cancer 16

Procedure: 3 Plane localizer; T1 sagittal; T2 FRFSE sagittal; T1 axial post contrast; T1 sagittal post contrast Findings: lumbar vertebrae maintain normal height and alignment; T12-L1 disc level is unremarkable. Varying degrees of diffuse lumbar degenerative disc dessication and disc bulging. Impression: varying degrees of diffuse lumbar degenerative spondylosis/degenerative disc disease. Disc bulge in combination with short pedicles and degenerative facet arthropathy results in moderate central spinal canal stenosis and mild bilateral degenerative neural foraminal encroachment at each level. Medical Records, Michael Dwyer, M.D., 8/4/07 (Tr. 342) Complaint: back pain; history of bladder cancer Procedure: 3 Plane localizer; T1 sagittal; T2 FRFSE sagittal; T1 axial post contrast; T1 sagittal post contrast Findings: mild thoracic kyphosis. Compression fracture of T4 vertebral body with anterior wedging and approximately 40% loss of height; appears to be old. Impression: Chronic T4 vertebral body compression fracture. No retropulsion fracture fragments. Mild thoracic kyphosis. Otherwise, essentially unremarkable examination. Bolinger Chiropractic Center 10/11/88 - 8/3/89 (Tr. 343-47) 10/11/88: lying back on exam table causes pain 10:13:88: muscle soreness in neck; low back feeling much better 10/21/88: slight discomfort, burning sensation in left side neck. No finger or arm involvement. 11/14/88: pain in left low back hip and leg 11/15/88: feels better but has soreness in low back 6/28/89: presents pain right PSIS; soreness in left leg 8/3/89: pain in right leg down to toes D. Testimonial Evidence Testimony was taken at the hearing held on March 21, 2007. The following portions of the testimony are relevant to the disposition of the case: BY ADMINISTRATIVE LAW JUDGE: Q A Q A And are you on a disability retirement? Partially, yes. What's the percentage? 40%.

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Q A Q A Q Government? A subtracted. Q

And why is that? Back problems. Okay. And how much do you receive monthly, from the, for retirement? Approximately $1,300.00, Your Honor. I, I don't have the exact figure. That's okay. It doesn't need to be - - and that's the total you receive from the

Yes. That's the disability plus my normal retirement package (INAUDIBLE)

Yeah, but you were, and then you were also covered by the V.A. for hospital,

medical stuff. Correct? A Q maintenance? A Q A Q A No, Your Honor. Okay. When did you retire from the military? 1985. And have you worked anywhere since then? I worked just after I got out of the service. I worked in a convenience store for a Yes, sir. Okay. Did you ever have any other vocational training other than the aircraft

while, mostly as a cashier. Q A Q Um-hum. And - How long, how long did you do that for?

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A

I think possibly a year or two, but my hands, part of the job was to help stock and,

and change prices, and, and lifting of - - they sold beer, so there was lifting of 30-packs of beer, and it got to the point where I couldn't change any prices on things. My arms or my hands would hurt and I just got to the point where if I did any lifting to restock the coolers, that I was in quite a bit of pain, and ended up leaving that job. * Q A Q A Q A Q A Q * *

Okay. Now that was the Lewis Brothers. Is that - Yes. - - in Terra Alta? Yes, Your Honor. And you worked there for - - was that a full-time job? It was, I think I worked approximately three days a week. So it wasn't really full-time. No. Okay. Because it doesn't - - your income for those years doesn't look like it's

like a full-time, but after that you did work for a while for Martina Henry in Terra Alta? A Q A Yes, sir. What did you do for her? Mostly I listed the work as a handyman, because when I did my taxes, she paid

me, but then I had to pay my own taxes out of everything, so when I went through the tax forms looking for a description I could use, that was the closest thing I could come to was handyman. And I, I basically in when I first started with her, I was working taking care of her yard. From

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there, it progressed to, she decided to go into the antique business, and I would help her with that. Q A Q A Q A Q Well yeah. You're listed as actually employed at Hill and Hollow Antiques - Correct. - - for about two to three years - Yes. - - and that's, that's separate from Martina Henry. Well, she was the owner - No, no right, I know, but she was the owner, but, but you actually have some

work for Martina Henry personally, and you also have some work for Hill and Hollow Antiques. So what did you do for the antique store? A Q A Basically I was a cashier. And did you also do handyman work there? Very little. You know, when I say handyman, again, I'm, I'm saying that that

was a, a just closest description I could get to what I was doing, which was just for tax purposes. Q A Q A Q A But you were also a cashier at the store - Yes. - - for about a - - and you were there a couple of years? Yes, I was, yeah. Now how much did you have to lift as a cashier? Well, of course it was an antique shop and there was glassware and that type of

thing. I would you know, help straighten up, restock, that type of thing.

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Q

Um-hum. So what's the most you think you had to lift in the course of doing the

ordinary cashier stocking work? A Q A chairs, wood. Q Now are you mostly, are you mostly like standing during the day, walking, or did, Probably a chair. Um-hum. Was that like about 20 pounds, maybe? I'd say close to that. Well, less than that, really. They were just like dining

was it, did they have like a stool you could sit on behind the register or whichever you wanted, or was it mostly standing or walking? A Q A Q A Q A A bit of each and also had opportunity to lay down if I needed to. Oh, you could? Yes. Really. How often would you lay down during the day? It depended on, well, it depended on two things. One was if we had customers - Sure. - - which with the antique business, it's, it's not something that you have people

in all the time, so I was able to lay down probably four or five times during a day, and - Q A For how long? Well, depended on customers. Normally, if I didn't have a customer, I didn't

have something that had to be done at that time, I would lay down. Otherwise, I was either standing or sitting - Q Um-hum.

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A Q A

- - taking care of customers. And why were you laying down? Pain in my back. * * *

Q

- - for those years. But you're right, but it's not, it's not full-time. And then after

that, in `96, `97, `98, you've got Alpine Lake property Association and then self-employment. Self-employment is reported up through 2005. What's that kind of work? A Q A Q that? A Normally I would get together with her once a week if I was able. Sometimes we That is with Mrs. Henry. Oh, that's the handyman work. Yes. Okay. And how much, how, how many days a week do you do something like

would schedule a day if I wasn't able to schedule another day. They normally, it was for one, one day a week to help her. She is 85 years old. (INAUDIBLE). Q A Um-hum. And she was afraid she had a booth in a mall, and she was afraid to go by herself.

Over the last four or five years that I worked for her, that she, she got to be afraid to be alone in the car in case something were to happen to her. Q A the booth - Um-hum. So I would, I basically didn't do a whole lot, carry in a small box of glassware to

22

Q A Q A Q A Q A Q A

Um-hum. Unpack it. Oh, this like booth, her antique booth. Yes. Okay. Now, do you still work for her? No. Okay. So when did that stop? I quit working with her approximately the first of April of `95. 2005. Or of 2005. * * *

BY ADMINISTRATIVE LAW JUDGE: Q So go ahead. I'm sorry, Mr. Cole. You want to tell me what you, you know,

why, why you haven't been able to work basically at a full-time job around 2002? A Q A Well, I, I had hurt my back several times during, in the service, but in 1981 - Um-hum. - - I lived in Germany. I picked my baggage up incorrectly I guess, but of course

it was heavy. And I hurt my back. Q A Um-hum. I didn't want to stay in Germany so I suffered until I got back to the States and

was on my way home and when I got into D.C., I was able to continue on home here to West Virginia.

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Q A

Um-hum. I checked, got a taxi and went to the military hospital there in D.C., at Andrews

Air Force Base, and they admitted me for six weeks. I was flat on my back. After that I was probably six months light duty after that. Q A know - Q A Q A Q A Um-hum. - - other than sitting or standing or laying down. Um-hum. Then in, I believe it was `89, I had back surgery - Um-hum. - - at Veterans' Hospital in Pittsburgh and when I had the back surgery, I was Um-hum. Wear a back brace and still wear braces when I'm doing anything at all that you

unable to basically do anything for myself prior to the surgery. I, I spent about a week or better on the floor, only going to the bathroom, to the potty. I used a jug. I laid on the floor until they were able to get me into Clarksburg or Pittsburgh. Q A Pittsburgh. After the surgery, I was able to get off the floor. I'd been in pain with my back

off and on since then, to the point where I didn't make schedules. Anything I did, I was contingent on whether I could or could not go to work that day. Q A Where were you working at that time? Well, during, from the, the period there, would have been Lewis Brothers

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(INAUDIBLE) my other ranger job and also, I'm trying to think of when the, the dates that I'm not sure, but anything after `89 that I was employed at, which would be Mrs. Henry and - Q Oh, the golf ranger, was that, was Alpine Lake property. It was around `96. And

the Lewis Brothers and there was E.H. Management very briefly. A Q A Q A Okay. So it was mostly Lewis - Yeah. - - after Mrs. Henry. I'm sorry. Those jobs were all contingent on whether I was able to physically you

know, work. They knew that if I called in sick or that I was laid up. Q A So how many days, how often would you end up missing work after the surgery? I would say with Mrs. Henry and working one day a week, in a two-month period,

we would end up changing days at least once if not more, in that period, in a two-month period, because I wasn't, I'd get up in the morning and tell her that you know - - normally what we did was we would call if we had anything scheduled, we'd call each other and decide whether either one of us was able to do it that day and if not, then we'd postpone it to another day. Q A Okay. And then what kind of treatment have you had since the surgery? I was, I've been to the hospital probably three or four times with my back since

then. I remember one in Clarksburg at the V.A. I was at Kingwood Emergency Room and other than that, to the doctor, I doctor with Dr. Lewis (Phonetic), and basically bed rest and, and he has me on, Dr. Lewis put me on Celebrex and - Q And you said you still use a brace?

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A

Yes. I use both - - if I'm doing anything other than sitting, standing , I normally

put a back brace on. * BY ADMINISTRATIVE LAW JUDGE: Q Dr. Lewis notes you were, in early 2002, you're talking about high blood * *

pressure, complaints of fatigue improved slightly. What, I mean, what other, what other kinds of things did you do for your back? A Q A Basically Your Honor, the only thing that I do for my back is try not to hurt it. Okay. I, I'm on Celebrex, which is the only thing that I think is pain-killer-wise. I've

learned after close to 20 years with this, to be very careful of what I do. Q A Um-hum. And I guess that's the biggest thing is, is I've learned the capabilities I have and I,

I try to stick with it. Q And what kind of capabilities have you had say around September of `02, best

you can remember, say in terms of like walking or standing? A In `02, the back problems had, had progressed and again, in, in that time frame I

was flexible - Q A Um-hum. - - with my employers, where you know, if I couldn't make it, I, I didn't have to,

and from, well, in I believe it was `98 when I had the heart attack - Q Um-hum.

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A

- - and I noticed that after that, that I fatigue easily. I don't sleep. It takes me

anywhere from, well I normally go to bed around 10:00 in the evening, between 10:00 and 11:00. The wife comes to bed around 1:00 and I'll still be awake - Q A Um-hum. - - because I haven't found a comfortable position that I'm not in pain. It, and

during the night, I'll, I don't think I get two hours uninterrupted sleep. I wake up in pain. I have pain in my hands that I wear - - if I don't put my braces on at night, I wear wrist braces on both hands that were suggested by Dr. Lewis. Q A Um-hum. And if I don't put those on, I'll wake up with pain in my hands that'll be enough

to wake me up. Q A How long have you worn the wrist braces? It's been probably four or five years now, I've been using the wrist braces at night

especially. And sometimes a few years ago, I would travel down to see my brother-in-law and I'd wear the wrist braces while I was driving. Q A Q Um-hum. It seemed to help. And now normally this is for carpal tunnel syndrome. Do they, but normally

there's a simple surgery they can do for that. Did they, have they done the, have they recommended any surgery for your hands or anything? A Dr. Lewis said that I could have that, well, he had me tested and it was, I forget

what year it is. It should be in the records. For carpal tunnel, they diagnosed it as I believe

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either mild to medium and at that time, it didn't warrant surgery. One thing that, one of the records I'm trying to get from the service is I had broken my right wrist and sprained my left wrist and had them both in a cast for one in a cast and the other wrapped at the same time, and I, but those records I have not been able to get yet, from the military. Q A Okay. Well, are you able to use like a knife and fork? I can use my hands intermittently for - - an example. I wanted to change a mount

in my car. I've been a mechanic all my life and I, I had a transmission mount that was bad. Four bolts - Q A Um-hum. I was unable to take out any one bolt at a time. I had to stop because my hands

hurt and take a brake from it and go back and then finish taking the bolt out. Q A When was this? This has been a month ago. It took me probably five hours to change that mount,

which should have taken ten minutes. Q A Now - I don't want to quit being you know, being physical, but I am to the point where I

know that I have limitations to what I can do. Q Now how far, when we're looking back in 2002, how far could you normally say

walk in a stretch back then, say on a level surface like a grocery store or a mall? A Let's see, approximately in that time period, I witnessed a motor bike accident.

Two kids out riding separate bikes, and one run over the other one. I was less than 100 yards from them and I could not run the distance without stopping and I think I stopped probably three

28

times trying to get those kids and I was unable to continue running and I ended up walking part of the way. Q A Well that's running, but how, I mean, how about just walking? Well, I mean, well, at that period, probably 100 feet and you know, take a short

break and, and go again. Q Okay. How about just standing and when I say stand, I don't mean like stand at

attention, but if, if you're standing at a small area like a sink or stove. How long could you like stand at a stretch? A Q A Q I couldn't stand very long. I'd, I'd have to move around. I, I - But you're able to - - - move my feet, you know? Yeah, if you're able to move a little bit, like as I say, not at attention, but you're

able to move your feet, move a few feet around, move in a small, like a kitchen, move around within a kitchen, how long could you, say stand, doing that? A Q A Without pain? No, with, with pain. How long could you force yourself to stand? I don't, I don't try to stand. I, I set things up in the morning, to where I can do

different things at different times, different positions, so that I'm not in any one position more than 10-15 minutes. Q A Um-hum. Because I'm in, right now, I am in quite a bit of pain, between my neck and my

legs and my back.

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* Q

*

*

How long can you normally sit before you have to get up and move, assuming

you can shift around in the chair a little bit? But when would, how long could you stay there before you'd have to get up and stretch or walk around? A To sit in a chair, less than a half an hour. I mean, if I had to sit in that chair, it

would be less than a half an hour. Q Now back again, looking at 2002, about September roughly, if you can remember,

tell me how much, roughly, what's the most you think you could lift with both hands at that time. And when I say lift, I don't mean bend over to the floor and pick up off the floor, but if you're like sitting or standing at a table, like the one you're at, how much do you think you could say pick up and move to a refrigerator or move to another table or such? A Q A Q A Q A Q I've learned to, I try not to pick up more than 15-20 pounds. Um-hum. The most I would even attempt at one time - Um-hum. - - one day, would be 35-40 pounds - Um-hum. - - because I know what the results would be. It would wind up hurting your back. Well, back in 2002, what kinds of things

made your back pain worse? I mean, you, you mentioned things like prolonged sitting or standing or walking, but anything else cause the back pain to get worse? A Any, anything physical, Your Honor, is - - I don't know how to say it. Right

30

now, I have a burning across the back of my back. Q A Um-hum. I have, it's like I'm sitting on a piece of two by four about that long, running the

length of my leg. My right leg and I didn't know this until I was researching the records. I had broken this right ankle twice. Q A Q A Um-hum. The right leg up to the knee aches. Um-hum. My neck right now, feels like I've got a - - I don't know - - one side or the other

just - - I can't explain the pain. I can't say it's a burning or, or what, but it's, I'm very uncomfortable. Q A Q A Well, have you gotten treatment for your, for the problem around your neck? I, there was an MRI taken at Kingwood Hospital. When was that? That's been approximately a year ago. From that, Dr. Lewis, who's my family

doctor, the results went back to him, showed that I had cracked vertebrae. And he sent me to Morgantown, to University. I can't remember the doctor's name, but they didn't, they - - it was an old fracture and there really wasn't anything I could do about it. Q A Q A So you have pain in the neck area and your low back and legs? Yes, sir, Your Honor. And is this constant or does it come and go? It's constant.

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Q A

Okay. It, it dulls out. One of the things I do, is I try to get my mind off of it. I think

about something else, just to keep moving. It, I would say I'm in pain almost, all my waking hours. Q Um-hum. Well now, how does - - do you take anything other than the Celebrex

or the brace to deal with the pain in your back and, and neck? A No, because the only thing that I've tried Ibuprofen, Tylenol, all the others. They

don't work for me. Q A Q A Q A am. Q A what I'm - Q A Oh. Then all I have to do in the morning is get out of bed, and look in the mirror, and Why do you say that? I don't understand why you say that. The reason I say that sir, Your Honor, is that when I mask the pain, I try to overdo Um-hum. The ones that do work are prescription medications such as Codeine - Hydrocodone or Vicodin or, yeah. That, and I've taken - Well, why don't you take those? They mask the pain and all I end up doing is hurting myself more than I already

my body will be separated this way. It's like you go, if you drew a line, my chest would be here and the rest of my body's over here. And I can't (INAUDIBLE), no matter how hard I try. And

32

I know that just looking in the mirror, that I've hurt my back, even though I've got pain killers and I'm in some amount of pain, but I know that I've really messed up. Q Okay. Now have they, since, have you had any surgery or any kind of medical

treatment since the `89 surgery? A I've been to the emergency room, I think three times with my back and they gave

me pain killers and bed rest. Q A Q A And, that's which emergency room? V.A. Emergency Room in Clarksburg. V.A. Clarksburg, okay. And also Kingwood, Preston (Phonetic) Memorial. * Q A Q A Q A doing. Q A Q A Just every, every so often. Yeah, and I'm on several medications. What medicines are you taking? Let me show you - I've got several. Does the Celebrex help any? It, I've been on it for quite a while, and I, it helps with the joint pain some. Um-hum. Now, you said you had a heart attack in `98? Yes. And have you had any treatment since then, for your heart? I've had, I'm on a schedule basis with Dr. Lewis you know, to monitor how I'm * *

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Q A Q A Q A Q A Q A Q

Well, you're taking Crestor for - Crestor - And - Atenolol - Atenolol is, it's a blood pressure pill. - - and I take cholesterol medication. That's the Crestor. I'm trying to find my listing. And the, actually, those are the only ones you, you have listed Niaspan - Yeah. - - which, that's looks, that sounds like a Niacin supplement. Crestor, which is

for cholesterol, Atenolol, which is blood pressure pill, then you have Lotrel, and Sertaline is an anti-depressant. Prevasid is for your stomach. What, what's the Ltorel for? And you have, you also have listed Nitro. Is that nitroglycerin? A at all times. Q A How often do you have problems with chest pain? I probably - - let's see, I can't, it's been a while since I was at the emergency Lotrel I believe is for the heart, blood pressure, and the Nitro, I keep that with me

room. Chest pain is mostly associated with indigestion now. I only take the Nitro if, you know, as a, to see if I'm having any heart problems. You know, if it doesn't help, then I know it's not the heart. Q Yeah. So you're really not having much heart pain. The, the - -

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A Q A Q A Q

Other than the fatigue effects of it. And how, how often do you have problems with fatigue? Daily. How do you deal with that? Rest. How much, how much do you, how often have you had this fatigue problem?

How long has it been? A Q A Q A Since the heart attack, I've been more fatigued then I was before. Anything make it worse, cause you to have more fatigue? It's pretty much the same everyday, Your Honor. It's - All the time, it's pretty much the same? Yes. It's, if I do anything, for instance, the other day, I noticed it's about 100

yards to, or about 100 feet from my house to the garage, and the kitchen trash bag was full, and I carried it out to the garage, and by the time I got to the garage, I was feeling the effects of, of the walk and the carrying of 10, 15 pounds. Q Okay. Now, back in the - - you, you, you did have bladder cancer, but that looks

like it's been cured, and it's also looked like it arose after 2002. Have you, did you have any other medical conditions other than the heart condition, your spine, and the carpal tunnel in your wrists, as of around the end of 2002? Is there anything else you were being treated for or had going on you know, physically or mentally? A Q Nothing I can think of, Your Honor. You take, you're, you're taking an anti-depressant now, Sertaline. Did you have

35

any depression or anxiety going on in 2002? A Yes. I've been - - part of the, I think part of the, the, some part of my sleep habits

are affected by the depression, I believe, Your Honor. Q Um-hum. What kind of treatment have you had for the depression, over the last

five or six years? A Q A Q that? A No, Your Honor. He and I talk about my condition on a regular basis, and neither Just the medication. And who prescribes that? Dr. Lewis. Has he ever suggested that you see a psychologist or psychiatrist or anything like

one of us felt that that would be helpful. Q Anything make you feel more depressed or more anxious, about back five years

ago? Anything worsen your depression? A If I made a mistake, not, not just a mistake. If I said something that, to someone

that after I'd said it, I regretted saying, I would think about that for days, sometimes. Q A Q feel better? A Q I really don't know. Um-hum. Do you have any side effects from any of the medicines you take? Um-hum. So it was - Now how does the, does the Sertraline help with the depression? Does it help you

36

A Q

None that I know of, Your Honor. How do you spent your time most days, back five years, and again, we're looking

at 2002? How did you used to spend your time back then? A house. Q When you say odd jobs, what kinds of things do you mean? Do you like At, at that time, pretty much was the work and just little odd jobs around the

gardening, lawn work, things like that? A Q I'd kept the lawn, you know, minor things, change light bulb, little, little things. Were you, back then, were you still able to do any mechanic work on your car or

engines or anything? A half a day. Q A Um-hum. Were you, now, did you go out grocery shopping and things like that? The wife does most of the shopping. The only time that I do anything like that is I was limited. Things that I could do years ago in ten minutes, would take me a

if I'm in town for a doctor's appointment or have to have medication, then I might stop and get a loaf of bread or some eggs or something. Q Now do you, back again, we're looking a four and a half years ago or so, were

you able to get out and go to a restaurant or church or movies or anything like that? A positions. Q A Um-hum. Did you spend a lot of time watching TV or reading? Not - - a little TV in the evening. I was able to go about any place I wanted to, as long as I was able to change

37

Q

Um-hum. Okay. Were you, now did you help out around the house with cooking

and cleaning, dishes, laundry, things like that, in 2002? A Yes. The wife and I pretty much try to share, share the things. One thing I hate is

doing dishes, so that's pretty much her job unless she's sick, but other things around the house I was able to do on a limited - - again, I, I try to make things so that I can change positions about every 10-15 minutes. ALJ Okay. I don't have any other questions of Mr. Cole. Mr. Wehner, anything you

want to ask him? REP Yes, Your Honor. Thank you. * Q * *

And concerning the earnings record, could you explain briefly what the

handyman, that you describe as the tax basis for your filing income tax? What actually did you do as part of that job? A I, at, with Mrs. Henry, she was up in age and she got to the point where she didn't

want to drive any distance without having somebody with her. Anything over ten miles, she would have me, for instance, if she had to come to the doctor or whatever, her in Morgantown, and it's little things there with her antique shop. You know, in a, normally work one day a week, four to five hours, and in the four hours, physical labor was probably less than 45 minutes. It was a matter of taking a box from her house, put it in her car, take it to the shop, set it down. She placed it because you know, it was just menial stuff, but the only reason that the handyman phrase was used, was for tax purposes, because when I went through the federal tax forms, I couldn't find anything else that would - -

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Q A Q A

Well, as far as yard work, did your handyman job description include yard work? No. Did you mow the grass? Not, not - - when I first started working with Mrs. Henry, which would have been

20 years ago, I started as doing yard work with her. And it - Q A So what yard work did you do, mow grass? I mowed grass, picked up limbs and that type of thing, but that was back 15 years

ago. Since then, I have only done the things I've described as the handyman in the - Q A Which is changing light bulbs? Yeah, possibly if she didn't, you know, if she needed a light bulb changed, I'd

change a light bulb. Q A Q A So you were not cutting trees or painting walls or fixing the roof? I was not doing anything of any real physical work. I want to ask you about your wrists. What trouble do they give you? They go numb at night. If I don't wear the brace, they go numb, they ache, they

will wake me up. * REP -ALJ He said, he said he had a fractured vertebrae they found a year, like a year ago. * *

What was the cause of your, what is the cause of your neck pain? I did not recall

Dr. Lewis sent him and they did an MRI and they found an old fracture. BY REPRESENTATIVE:

39

Q

Okay. Mr. Cole, I want to ask you about your travel limitations. Are you able to

drive distances that would help you get to work and back? A This morning when I left the house, within the first mile, I started feeling the

burning in my back, then the five miles, the pain in my legs. I was wearing a back brace at the time. I drive with it normally. It took me, I timed it. It took me an hour and ten minutes to get here and from less than - - I was in pain to where I, when I got here, I got out of the car and I had to walk around some just to get, to get a little relief. Q Now having for instance, driven today, does that limit the rest of your driving

ability for the week? Do you have to pay and recover from travel? A Q From the time I get home this afternoon, I'm going to be in bed. How long do you estimate it would take you to recover from the driving today?

We're going to talk about 2002 here, (INAUDIBLE). A I'd say I'll lay down and for at least two hours when I get home, and then go back

to bed tonight at my normal time, and I'd be able to make the trip again tomorrow, with probably the same results. Q A Well, in 2002, you had limitations on your getting to work reliably. Yes. I, I had an understanding with my employers that they knew I had the back

problems and they've even sent me home because they knew I was in pain. Q A Q A So would you be able to do an eight-hour a day, five day a week job, reliably? No. What would keep you from attending regular work hours? I wouldn't know what days that I'd be able to work. I base everything on how I

40

get out of bed every morning. Q How often are you not able to get out of bed in the morning, in sufficient

condition to go to your job? How often does that happen? A I would say that if I take a job, I like to do it, so I'm going to go to work in pain if

I am contracted to do that. But they'll probably be one day in every two weeks, that I would break that. Q Does your pain then allow you to complete the other eight hours a day, five days a

week, hours you would work? A Q ALJ REP E. It all depends on how much freedom I have to lay down, (INAUDIBLE). Okay. And as far as doing dishes, do you have any limitations - He said he doesn't do dishes. His wife does it. All right. Then I would have no further questions at this time.

Lifestyle Evidence The following evidence concerning Claimant's lifestyle was obtained at the hearing and

through medical records. The information is included in the report to demonstrate how Claimant's alleged impairments affect his daily life: · · · · · · Walks to straighten back (Tr. 77) Does odd jobs around the house (Tr. 77) Watches tv (Tr. 77) Takes care of a dog and cat (Tr. 78) Can still do everything could do before being injured (Tr. 78) Has difficulty sleeping (Tr. 78)

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· · · · · · · · · · ·

Sometimes has difficulty putting on socks (Tr. 78) Difficulty washing feet (Tr. 78) Prepares meals (Tr. 79) Does household chores (Tr. 79) Spends time outside of the house (Tr. 80) Drives (Tr. 80) Shops for groceries once per week (Tr. 80) Is able to pay bills, count change, handle a savings account, and use a checkbook (Tr. 80) Can no longer play golf regularly (Tr. 81) Spends time with others (Tr. 81) Visits mother weekly (Tr. 81) III. The Motions for Summary Judgment

A.

Contentions of the Parties Claimant contends that the Appeals Council (AC) violated five provisions regarding its

review of the ALJ's July 24, 2007 decision and therefore substantial evidence existed to overturn the ALJ's decision at the Appeals Council level and on appeal. First, Claimant argues that the AC violated 20 C.F.R. 404.1780(a) by failing to grant Claimant permission to file briefs and other written statements. Second, Claimant contends that the AC violated 20 C.F.R. 404.975 by failing to grant Claimant permission to file briefs or other written statements about the facts and law relevant to the case. Third, Claimant contends the AC violated 20 C.F.R. 404.976(b)(1) by failing to grant Claimant permission to file new and material evidence relating to the period on or before the date of the ALJ's decision. Fourth, Claimant argues the AC violated 20 C.F.R.

42

404.970(b) by failing to consider additional evidence. Last, Claimant argues the AC violated 20 C.F.R. 404.1785 by failing to consider material evidence after failing to permit submission of new evidence. Commissioner contends that the relevant time period ends on September 30, 2002, the date of Claimant was last insured. Accordingly, in considering all the evidence in the record, the ALJ correctly concluded that prior to September 30, 2002, Claimant retained the functional capacity to perform the range of light work he previously performed. Additionally, Commissioner maintains that the ALJ correctly assessed Claimant's credibility and rightly concluded that while his impairments could reasonably be expected to produce some pain, his statements were not credible to the extent alleged. B. Discussion I. The Appeals Council Violated 20 C.F.R. 404.1780 by Refusing Plaintiff's Request to Submit Briefs; AND II. The Appeals Council Violated 20 C.F.R. 404.975 by Refusing Plaintiff's Request to Submit Briefs. Claimant argues that the Appeals Council violated the Code of Federal Regulations by failing to grant Claimant permission to file briefs or other written statements about the facts and law relevant to the case. Unfortunately, the Commissioner's argument appears to address Claimant's Residual Functional Capacity and Claimant's credibility, which were not directly raised by Claimant and did not address the specific issues raised by Claimant.6

The Court reminds counsel for the Commissioner that LR Gen P 86.02(d) specifically requires defendant to address all plaintiff's contentions and arguments in the same order in which the plaintiff stated them in plaintiff's brief. 43

6

The only request by Claimant that the Court can find in the record is a letter dated September 21, 2007, written by Claimant's counsel to the Appeals Council.7 The final paragraph requests permission to file briefs on pertinent facts and legal issues. The only indication in the record is that the Appeals Council did grant Claimant's request to submit legal briefs on pertinent facts and legal issues. The record shows that the Appeals Council received additional evidence, which it made part of the record.8 The additional evidence included medical records and a legal brief dated October 26, 2007 from Richard K. Wehner, Esq.9 The Appeals Council permitted Claimant to submit legal briefs. Therefore, the Appeals Council did not violate the Code of Federal Regulations and Claimant's contentions I and II are without merit. III. The Appeals Council Violated 20 C.F.R. 404.976 by Refusing to Consider New Evidence Submitted; AND IV. The Appeals Council Violated 20 C.F.R. 404.970 by Refusing to Consider New Evidence Submitted; AND V. The Appeals Council Violated 20 C.F.R. 404.1785 by Refusing to Consider Plaintiff's Mater